Finnish Yearbook of International Law - Volume 20, 2009 9781472565716, 9781849460712

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The Case for Comparative International Law Martti Koskenniemi* The very title of a ‘Finnish Yearbook of International law’ might seem to have something oxymoronic about it. What is a law that is in some way both ‘Finnish’ and ‘international’ simultaneously? This is no Finnish speciality. Many yearbooks and journals on international law and human rights profess a national or regional allegiance in the titles: African, American, Asian, Australian, Austrian, Baltic, British, European, French, Israeli, Italian, Nordic, Polish, Spanish…. And so on. It deserves to be noted that this was not always the case. As international lawyers began to organise themselves within the confines of the Instutut de droit international in the 1870s and thereafter, the journal that became the new profession’s flagship was called Revue de droit international et de la législation comparée (RDI, 1869). Its name flagged the alliance its founders sought between international law and liberal domestic reform. But it avoided pointing to any regional or national affiliation. The same was true of the first few journals that followed in Europe: the Revue générale de droit international (Paris, 1894) and the Zeitschrift für Völkerrecht (Kiel, 1906). The pattern (if it was such) was broken with the American Journal of International Law in 1904, no doubt because lawyers on the far side of the Atlantic wished to make a point that the new world, too, had specialists in the field who were interested in participating in its development. It is a familiar dialectic that repeats itself here. When one inhabits the centre, one feels no need to mark out one’s place. One is ‘there’ and everybody knows it. In the periphery, things look different. There it might well seem advisable to highlight one’s exotic location, and to raise a different voice – or if not that different, nevertheless a voice from a different direction, a ‘fresh’ voice. A competitive ambition may be involved: perhaps to show off, perhaps even to challenge the centre and to suggest that, properly understood, ‘here’ is where it now is. Did the establishment of the European Journal of International Law in 1989 enhance the central role that European lawyers have had in the discipline? Or should it be understood as a resigned admission that Europe, too, was finally just a locality among others – like French cuisine being as ‘ethnic’ as all the rest. *

Professor of International Law, University of Helsinki; Director Erik Castrén Institute of International Law and Human Rights

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The title of the ‘Finnish Yearbook’ – now celebrating its 20th anniversary – does not only give cause for reflecting on the sociological distinctions that constitute the field of international law. There is also a substantive angle to the matter. When I went to law school in the 1970s the international law textbook at use was Erik Castrén’s Suomen kansainvälinen oikeus – ‘Finland’s International Law’.1 That book began with two brief chapters on the general notions of international law and its sources, but then moved on to treaties with special importance for Finland, such as the UN Charter and the Treaty on Friendship, Cooperation and Mutual Assistance (FCMA) with the Soviet Union. Also included was a discussion of the ruling dualist view concerning the position of international law in the Finnish constitution. The student was offered separate chapters on Finland’s territory, the international regulation affecting the status and position of individuals in Finland, an overview of governmental institutions with international law tasks, Finland’s status at international organizations, constitutional treatment of treaties and Finland’s international responsibility. Out of seventeen chapters, six were devoted to the rules of warfare – on land, sea and in the air, as well as civil war. Its organization and much of its substance situated it well in the context of the Cold War. Castrén himself had advised the Finnish Ministry for Foreign Affairs during the second world war and remained the leading international law expert for the first two and half decades thereafter. The perspective of the book was indeed distinctly Finnish – reflecting Finland’s (that is to say, Castrén’s) wartime experiences and the policy of neutrality that the country was diligently pursuing. A very different type of a book is available for Finnish law students today. They now read Kari Hakapää’s Uusi kansainvälinen oikeus – ‘New International Law’ - with the ’new’ surely seeking distance to the ‘old’ world before 1989 - offering a contemplation on the constant increase of legal materials so that a big part of professionalism consists in being well informed of ‘latest developments’.2 Although Hakapää himself worked for many years as legal adviser with the Foreign Ministry, his book (the first edition of which came out when he had already moved to the University) partakes of the wide European genre of textbooks that downplay the national perspective. They may, with Hakapää, make reference to domestic laws or emphasise disputes or events of national interest, but carefully present most of the materials from a point of view in the geographical and historical nowhere. This is the perspective of the ‘international community’, of course, that in the Finnish case coalesces with the standpoint of the United Nations and associated organizations. In this respect, it follows most European international law textbooks. This does not mean that we no longer encounter the ‘Castrén approach’ anywhere. For example, ‘Foreign Relations Law’ in the United States and Droit des relations internationales in France cover much of the 1. Erik Castrén, Suomen kansainvälinen oikeus (WSOY: Porvoo, 1959). 2. Kari Hakapää, Uusi kansainvälinen oikeus (3rd edn, Talentum: Helsinki, 2010).



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ground that that work did. International law teaching in the United Kingdom often concentrates on what UK courts have done in foreign affairs related cases and German works foreground a constitutionalist reading of the materials that highlight the position of public and constitutional law in the German legal system. This is not the place to engage in a comparative survey of international law textbooks - a limited study was carried out a few years ago3 - but to make the point that to publish a ‘Finnish Yearbook of International Law’ participates in a field of legal activism that is not at all free from local approaches and, no doubt, biases of various kinds. But there is disappointingly little by way of a comparative study of international law. Some of the professional organizations, such as the International Law Association (ILA) and the Instutut de droit international have occasionally discussed law teaching or national and regional approaches to various problems. A few years ago, the Société française pour le droit international carried out a comparison of the teaching of international law in European countries and Pierre-Michel Eisemann from the University of Paris-I (Sorbonne) chaired an international réseau that produced a still useful comparative assessment in Europe of the position of international and European law in many EU member States.4 Comparative analyses have also been carried out on the national laws and regulations relating to the law of the sea and on the implementation of UN and EU sanctions.5 But generally speaking, existing works are limited to collating national reports without further analysis. An approach that would take seriously the variations of approach, technique and substance of international law is largely absent. The reasons for this may be easy to understand. To emphasize local, regional or national approaches to international law might seem to undermine the internationalist spirit of the profession which, as David Kennedy noted many years ago, is so characteristic to it. International lawyers are committed to international law in a way that cannot be said about the relationship of administrative or tax lawyers to their special fields. Something big seems to depend on international law and the commitment of international lawyers to the way its rules and institutions stand above local rules and institutions. It is only once that commitment is localised at say, Second Avenue, New York, somewhere between 43rd and 49th Streets, or Geneva’s international centre, that the actual locations or localizability 3. Outi Korhonen, ‘Current Trends in European International Law Publications’, 9 European Journal of International Law (1998) 553 – 573. 4. See Société française pour le droit international, Journée d’études. Enseigment du droit international. Recherché et pratique (Pedone 1997), especially 133-230; Pierre Michel Eisemann (ed.), L’intégration du droit international et communautaire dans l’ordre juridiqe international. Étude de la pratique en Europe (Kluwer: The Hague, 1996). 5. Tullio Treves (ed.), The Law of the Sea. The European Union and its Member States (Nijhoff: The Hague, 1997); Vera Gowlland-Debbas (ed.), National Implementation of UN Sanctions. A Comparative Study (Nijhoff: The Hague, 2004).

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of international law begins to seem obvious and, perhaps, significant for analysis. It has become a standard trope in postcolonial studies to localize the most banal forms of ‘internationalism’ and ‘cosmopolitanism’ as outlooks of the middle classes of certain European-origined environments, thereby detaching activists from an unthinking association with certain historical institutions.6 There are many kinds of ‘international’, these studies suggest, each with a particular bias. A serious comparative study of international law would contribute to that same shift – to thinking of the world no longer in terms of what Hegel used to call abstract universals but seeing all players as both universal and particular at the same time, speaking a shared language but doing that from their own, localizable standpoint. It would, to put it somewhat grandly, contribute to the ideology critique of international law, and of the institutions sustained by that professional vocabulary. The view that there is a single, universal international law with a homogeneous history and an institutional-political project emerges from a profoundly Eurocentric view of the world. This is nowhere more evident than in the history of international law where it is simply impossible to operate without reference to Roman law, jus naturae et gentium and Droit public de l’Europe, the struggles between the emperor and the pope, the conflict between Catholicism and Protestantism, the Peace of Westphalia, or the Concert of Europe. The vocabularies of statehood, sovereignty, self-determination and human rights refer back to European thinkers and jurists, and events placed in Europe or dictated by Europeans – which is not to say that they could not resonate elsewhere, too. But to take that for granted is to commit the quintessentially European sin of thinking of that experience and those vocabularies as somehow grander than themselves. It is true that there have been studies on something like international law in the ancient Near East.7 But it is only recently that steps have been taken to examine colonization from the perspective of the colonized. The point of view of the ‘Other’ is being searched in studies on East Asian, Chinese, Japanese, Latin American, Ottoman and Islamic systems of international relations and law.8 But these studies, too, tend to receive their perspective, concepts and 6. See e.g. Pheng Cheah & Brude Robbins, Cosmopolitics. Thinking and Feeling beyond the Nation (University of Minnesota Press, 1998) and my ‘Cosmopolitanism’, in Monica Garcia & Pamela Slotte (eds), Cosmopolitanism. Revisiting the Imaginations of Europe (forthcoming). 7. See e.g. Amnon Altman, ‘Tracing the Earliest Recorded Conceptions of International Law’, 11 Journal of the History of International Law (2009), 125-186 and 333-356. 8. See e.g. Arnulf Becker Lorca, ‘Universal International Law: Nineteenth-Century Histories of Imposition and Appropriation’, 51 Harvard International Law Journal (2010) 475-552; Liliana Obrégon, ‘Completing Civilization: Creole Consciousness and International law in Nineteenth-Century Latin America’, in Anne Orford (ed), International Law and its Others (Cambridge University Press 2006) 247-264; and for a programmatic statement see Onuma Yasuaki, ‘When was the Law of International Society Born? An Inquiry of the History of



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standards from European historiography, not least because of most of the respective scholars have been trained in and usually continue to work with European or (perhaps more often) US academic institutions.9 This may be impossible to avoid, and in any case, the more important problem may be that much of this work is constrained within the conceptual confines of ‘Empire’ and ‘colonization’ – European notions and experiences of European rule. The question remains how to identify and compare autochthonous forms of thinking about inter-community relations that would not necessarily be subsumable under European legal categories but would stand on their own and thus also provide a wider comparative perspective under which European categories could be examined as equally ‘provincial’ as others. There is a further reason for encouraging comparative studies of international law. One of the predominant themes of international law in the past decade or so has been the ‘fragmentation of international law’, the slicing up of the professional field into various special regimes such as human rights law, trade law, intellectual property law, international refugee law, law of the sea, humanitarian law, environmental law, security law, investment law, natural resources law and so on. The great practical concern has been that the ‘unity’ of international law might be eroding and that practices of forum-shopping will be encouraged as many different institutions would claim jurisdiction on a single matter, proposing to treat it in differing ways. It is not at all irrelevant whether a fishery problem, say, is brought before a body of experts in trade, natural resources or environmental law, or whether a question regarding privacy is directed to an institution specialised in security or human rights. The greatest political stakes often lie in the question ‘to which body this matter will be directed?’ Once we know which that body is, we will have pretty good idea of what the outcome will be. By now it is evident that ‘fragmentation’ did not turn out to create the chaos that was feared as the matter was allocated by the UN to the International Law Commission in 2002. Nor did the Commission’s final report of 2006 have much of an immediate consequence in the institutional world. 10 The matter was, after all, not technical but political. The new regimes have grown up precisely to advance new priorities in contrast to those of old law. The regimes have come to stay and no single normative or institutional hierarchy has emerged. No effort at constitutionalization has succeeded in putting public international lawyers back in control. The international legal world had of course always been International law from an Intercivilizational perspective’, 2 Journal of the History of International Law (2000) 1-64. 9. See especially Dipesh Chakrabarty, Provincializing Europe. Postcolonial Thought and Historical Difference (Reissue, with a new preface by the author, Princeton University Press, 2008). 10. International Law Commission, Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law, UN Doc A/CN.4/L.682 (‘ILC Report’) 13 April 2006.

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pluralistic. Fragmentation merely meant that the traditional units – States – were supplemented and sometimes replaced by new units, regimes, representing not only technical specializations and professional cultures but concentrations of knowledge and interest.11 Moreover, as Niklas Luhmann and his epigones have argued, these regimes tend to resemble States also in acting ways that were both solipsistic and imperialistic. They interpret all the world from the perspective of their embedded preferences, seeing in the world what they want to see, and reacting to it according to their stereotypically patterned ways. And they tend to think of their special preference as the general preference and act so as to make their viewpoint representative of the general opinion. 12 As a result, following Gunther Teubner, the ILC report suggested the development of a kind of ‘conflicts of law’ for international regimes following the analogy of regular conflicts of law to deal with fragmentation problems as they emerge.13 Whether or not that proposal was realistic, it highlighted the need of taking regimes seriously – in fact, taking regimes seriously in the way that we have been accustomed to taking seriously those most classical of regimes, States. In this sense, ‘fragmentation’ is really an old and familiar problem. International law has always consisted of a heterogonous aggregate of units that pretended to be ‘sovereign’ in theory and acted often precisely in the solipsistic and imperial ways sketched above. They each had their perspective on the world, and this perspective was quite naturally reflected in their (national) laws and constitutions. It was these laws and constitutions that Erik Castrén had in mind as he composed his above-mentioned textbook. One need not adhere to ‘dualist’ theories of the relations of national and international law or to the venerable German view of international law as ‘external municipal law’ to feel the familiarity of this. Indeed, this wheel was only recently re-invented by Harvard professors trying to find a legal form in which to express the solipsist universe of US legal academia.14 Classical conflicts of laws always worked in close cooperation with comparative law. To understand and to deal with conflicts, it was necessary to know something about the legal systems whose conflict was at issue. For the same reason, it is today necessary for lawyers to learn to know the various regimes. And as lawyers having only recently learned with the European Union, the task is never one of merely memorizing new rules but trying to understand novel cultural and professional orientations and embedded preferences. Domestic legal 11. See now Nico Krisch, Beyond Constitutionalism. The Pluralist Structure of Postnational Law (Oxford University Press 2010). 12. See e.g. my ‘Hegemonic Regimes’, in Margaret Young (ed.), Regime Interaction in International Law. Facing Fragmentation (Cambridge University Press 2011, to be published) and ‘The Fate of International Law. Between Technique and Politics’, 70 The Modern Law Review (2007), 1-32 13. ILC Report, supra note 10, at 250-253. 14. Jack Goldsmith & Daryl Levinson, ‘Law for States: International Law, Constitutional Law, Public Law’, 122 Harvard Law Review (2009) 1792-1868.



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advisors often stress the importance of not being closed within purely domestic perspectives. It is important, they observe, to bring the international perspective to bear on domestic decision-making, to act as a kind of translator between the domestic and the alien legal orders.15 This is an important aspect of their being legal professionals, instead of the propagandists of one or another system of value and preference. The same applies in the novel situation. To carry out a legal assignment – translation, settlement – it is insufficient to be well versed in a single project such as trade or the environment, for example. Instead, one ought to become an expert in trade and environment, human rights and security so as to be able to occupy a perspective that is larger than that offered by those small niches. Without such a larger view, it is hard to see how they could contribute beneficially to the adjustment of conflicts and the search of the just equilibrium that is the mundane everyday of operating in a pluralist world. But in order to move confidently in a world of many regimes, one needs some point of reference from which to examine rival regimes and conflicting preferences. In order to compare, one needs a tertium. It is hard to see what else that could be than the domestic law in which one’s legal training has been attained, in which one has received the basic legal concepts and where a certain idea of law as a profession has been internalised. There is nothing ‘nationalistic’ about this – most domestic laws are mixtures of many legal systems or perhaps have been received in bulk from somewhere, in Finland’s case, from Germany. I was expected to read a Finnish translation of Hans Kelsen’s Reine Rechtslehre during my first student year. Nations are no more closed billiard-balls than are regimes. In Finland, international law was closely related to public law and the chair once held by Erik Castrén had been one of international and constitutional law. By the time I came to occupy it, the reference to ‘constitutional law’ had been eliminated, perhaps for the same reasons for why the basic textbook no longer deals with international law ‘in Finland’. This training equipped me to have an intuitive sense of the German project of the ‘constitutionalization’ of international law and to examining international problems from a public-law angle – while the strong jurisprudence tradition in Finnish law schools at the time tended to spice up those examinations with a dose of theoretical abstraction. I have no doubt that parallel stories could be recounted by colleagues from other countries. I am envious of Italian colleagues, for example, whose association with private international law has given them an ease with conflicts of laws my public law orientation lacks. All of this is profoundly Eurocentric, of course, and I can only admire the ease with which Indian or Chinese jurists operate in a world of plural legal regimes. 15. See e.g. ‘The Role of the Legal Adviser of the Department of State. A Report of the Joint Committee established by the American Society of International Law and the American Branch of the International Law Association’, 85 American Journal of International Law (1991) 358373 at 360.

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For such reasons I have no doubt that a Finnish Yearbook of International Law deserves its place in the increasingly internationalised – that is to say increasingly Anglo-American – publication business. I have no false hopes that it could pose a serious counter-hegemonic challenge to ruling trends in the publishing market. On the contrary, I am grateful for Richard Hart that he has agreed to take the Yearbook under his wings. But perhaps the market is a more heterogeneous place than it might seem and below the euro-polished surfaces of current Finnish (and Nordic, European, American, Asian, Latin-American, African) contributions to international law there will be found all kinds of local idiosyncrasies that, when revealed, might teach us many things about our profession we were always vaguely aware of but did not have the language to address. There is a case for a comparative approach to international law that would not try to discover some Archimedean point between its various localities – the ‘international’ point – but would instead imagine moving between them as its proper contribution to a changing profession.

International Organizations, Constitutionalism and Reform Viljam Engström* Abstract: Constitutionalism has become the forum for debating and rediscovering international organizations. In this debate constitutionalization claims are made for different purposes. Constitutionalization is advocated as a search for hierarchies, as a path to empowerment, and as a means for restraint. In all of these uses constitutionalism is invoked as a remedy for perceived imperfections. Constitutionalization claims hereby become closely intertwined with calls for institutional reform. Keywords: Constitutionalization, reform, United Nations, European Union, World Trade Organization

1. Introduction The founding instrument of any international organization, irrespective of official label (constitution, charter, treaty, agreement, etc.), is at heart an agreement between member states.1 Such instruments are also treaties as defined by the Vienna Convention on the Law of Treaties.2 At least since the establishment of the United Nations (UN), it has also been clear that such treaties display a special character. At the founding conference of the UN, the UN Charter was therefore expressly compared to a constitution that grows and expands as time goes on.3 While the existence of an agreement between states is a crucial prerequisite for an organization to come into existence, this treaty transforms into a constitution for the organization once an autonomous actor emerges. Gradually the constitu*

D.Soc.Sc., LL.M., Researcher at the Centre of Excellence Foundations of European Law and Polity, University of Helsinki and Åbo Akademi University. 1. Shabtai Rosenne, Developments in the Law of Treaties 1945-1986 (Cambridge University Press, 1989) at 190. 2. Article 2, Vienna Convention on the Law of Treaties, 23 May 1969, in force 27 January 1980, 1155 UNTS 331. 3. See Bardo Fassbender, The United Nations Charter as the Constitution of the International Community (Martinus Nijhoff Publishers: Leiden, 2009) at 2.

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tion concept has become a generic notion through which to address all founding instruments of organizations.4 From this constitutional character of constituent instruments certain things follow. A common claim is for example that the constitutional character makes teleological interpretations especially appropriate or even required.5 In this respect the International Court of Justice (ICJ), in the WHO opinion, enumerated ‘the imperatives associated with the effective performance of … functions’ as one of the institutional elements of constituent instruments.6 Against this background it comes as no surprise that also the constitutionalization of organizations is frequently approached as an issue of institutional efficacy (and that the WHO opinion itself has been (re)read as an expression of the constitutionalization of the international legal system).7 But the discussion on the constitutionalization of international law also transcends issues of institutional effectiveness. Any use of the constitution notion gears interest towards issues such as: the organization of communal life through rules, in the form of a convention, possibly containing constitutional rights, the expression of a social contract, a definition of the sources of law, the establishment of a complex of norms, and the creation of a legal order.8 As a result most discussions concerning the international legal system seem phrasable in terms of the constitutionalization of international law. Constitutionalization has come to indicate a search for order and hierarchies, a path to empower international actors, and a means for restraining those same actors. Whether real or illusory, constitutionalism has become the vocabulary through which to search for the 4. See Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, ICJ Reports (1996) 226 para. 19 (hereafter ‘WHO opinion’). The distinction between treaty and constitution was also noted in the making of the 1969 Vienna Convention. See Rosenne, Developments, supra note 1, at 190-191 and 200-211. 5. See e.g. José E. Alvarez, ‘Constitutional Interpretation in International Organizations’, in Jean-Marc Coicaud and Veijo Heiskanen (eds), The Legitimacy of International Organizations (United Nations University Press, 2001) 104-154 at 104-105, Krzysztof Skubiszewski, ‘Implied Powers of International Organizations’, in Yoram Dinstein (ed.), International Law at a Time of Perplexity (Kluwer Academic Publishers: Dordercht, 1989) 855-868 at 855, and Blaine Sloan, ‘The United Nations Charter as a Constitution’, 1 Pace Yearbook of International Law (1989) 61-126 at 113-120. 6. WHO opinion, supra note 4, at para. 19. For an even stronger claim see Tetsuo Sato, ‘The Legitimacy of Security Council activities under Chapter VII of the UN Charter after the end of the Cold War’, in Coicaud and Heiskanen, The Legitimacy, supra note 5, 309-352 at 325. 7. See Thomas M. Franck, ‘Preface: International Institutions: Why Constitutionalize?’, in Jeffrey L. Dunoff and Joel P. Trachtman (eds), Ruling the World? Constitutionalism, International Law, and Global Governance (Cambridge University Press, 2009) xi-xiv at xiv, and Jan Klabbers, ‘Global Governance before the ICJ: Re-reading the WHA Opinion’, 13 Max Planck Yearbook of United Nations Law (2009) 1-28. 8. These are identified by Günter Frankenberg, ‘Toqueville´s Question. The Role of a Constitution in the Process of Integration’, 13 Ratio Juris (2000) 1-30 at 2.



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proper place of law and legal instruments in the international order, and a tool for rediscovering and reforming that order.9 In all of its uses, constitutionalization is invoked as a remedy for perceived imperfections. Whether it is the deconstitutionalization of the national level or the fragmentation of the international legal system that is seen as the main problem, and irrespective of whether it is the strengthening of the rule of law through judicialization (formal constitutionalization) or the democratization of governance (substantive constitutionalization) that is strived for, constitutionalism entails a promise of improvement.10 In international law the constitutionalization discussion takes place both on the global level and at the level of different regimes. While the international human rights system is often approached as an international constitutional law and the UN Charter is identified (by some) as a (potential) world constitution, constitutionalization is also used to refer to the development of the legal orders of the European Union (EU) and the World Trade Organization (WTO).11 As the discussion moves from grandiose theorizing on the possibility of global constitutionalism to the level of international organizations, the more specific the discussion of constitutional features becomes. At the same time the nature of constitutionalization claims also becomes more visible. The more specific the discussion on constitutionalization becomes, the more clearly constitutionalism stands out as a means by which to make particular claims on the present nature or future construction of that regime. Kennedy writes that if we are to embrace constitutionalism we need to explain what it adds to our present knowledge.12 This article will take on the challenge by focusing on the relationship between constitutional claims and institutional reform. The focus of the article is hereby not on global constitutionalism but on ‘sectoral’ constitutionalization, the main focus being on the EU, the UN, and the WTO.13 A first step in exploring this relationship will be to identify ele9. For recent contributions to the literature, see Dunoff and Trachtman, Ruling, supra note 7, and Jan Klabbers, Anne Peters and Geir Ulfstein, The Constitutionalization of International Law (Oxford University Press, 2009). 10. Klabbers talks about constitutionalism as a response to fragmentation, pluralization, and verticalization, see Jan Klabbers, ‘Setting the Scene’, in Klabbers, Peters and Ulfstein, The Constitutionalization, supra note 9, 1-44 at 11-19. On different ways of typologizing constitutional approaches, see chapter 4 below. 11. Constitutionalization is also an issue in the context of other institutional regimes. See e.g. Shirley V. Scott, ‘The LOS Convention as a Constitutional Regime for the Oceans’, in Alex G. Oude Elferink (ed.), Stability and Change in the Law of the Sea: The Role of the LOS Convention (Martinus Nijhoff Publishers: Leiden, 2005) 9-38. 12. David Kennedy, ‘The Mystery of Global Governance’, in Dunoff and Trachtman, Ruling, supra note 7, 37-68 at 52. 13. The notion is used by Anne Peters, ‘Membership in the Global Constitutional Community’, in Klabbers, Peters and Ulfstein, The Constitutionalization, supra note 9, 153-262 at 201.

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ments that are commonly mentioned as evidence of the constitutional character of these organizations. For the UN and the WTO in particular, the absence of many such elements give rise to the question whether the organizations can be considered as ‘truly’ constitutional legal orders. A second task will therefore be to outline the more prospective side of the discussion on the constitutionalization of all three organizations. Eventually two different aspects of the relationship between constitutionalization and institutional reform can be identified. While the idea of contestation and reform of the legal order inheres in the idea of constitutionalism, the plausibility of successful reform also affects the nature of a constitutionalization discussion.

2. Identifying Constitutional Features The possibility of constitutionalism beyond the nation state is increasingly accepted. Apart from a few skeptical voices, the constitutionalization discussion is more concerned with how to best translate constitutionalism into the international level.14 The discussion on the constitutionalization of international law has in fact reached a stage where lists and matrixes of constitutional features are being compiled. This signals that there is not only an agreement on the possibility of international constitutionalism, but that there is also a more or less shared point of departure on a set of building blocks of international constitutionalism, the nature of which are the target of debate. One of the more recent compilations of international constitutional mechanisms in place is presented by Dunoff and Trachtman. In order to assess the degree of constitutionalization of international actors their matrix focuses on: allocation of governance authority both horizontally (separation of powers) and vertically (grants and limits on authority of organizations), supremacy of constitutional norms, stability, the protection of fundamental rights, mechanisms of review for testing the legality of laws and acts of governance, and accountability to constituents/ commitment to democratic governance.15 Other works testify to a similar focus. Hence, Klabbers, Peters and Ulfstein discuss issues of competences of organizations, law-making, the role of the international judiciary, and the possibility of democracy, as elements of a constitutionalization of international law (with human rights issues as a reoccurring theme within these individual discussions).16 14. In general, see Neil Walker, ‘Postnational Constitutionalism and the Problem of Translation’, in J.H.H Weiler and Marlene Wind (eds), European Constitutionalism Beyond the State (Cambridge University Press, 2003) 27-54. 15. See Jeffrey L. Dunoff and Joel P. Trachtman, ‘A Functional Approach to International Constitutionalization’, in Dunoff and Trachtman, Ruling, supra note 7, 3-35 at 18-22 and 27-29. 16. See the general structure of Klabbers, Peters, and Ulfstein, The Constitutionalization, supra note 9.



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International organizations display some variation as to their degree of constitutionalization. A focus on the constitutionalization of international organizations therefore takes hold of different things for different organizations. The meaning of constitutionalism may even change over time, as is demonstrated by the constitutional development of the EU. Early distinctions between what was known as Community law and public international law took hold of the fact that the domestic impact of Community law is determined by Community law itself, that Community law may prevail over conflicting national law, and that national courts may be required to apply Community law directly (the classical source being the van Gend en Loos case).17 Hence, what was new about the legal order was the direct effect of the rights and obligations that Community law imposed upon the member states and their citizens. This direct effect has therefore also been regarded as a first step in a progressive movement towards quasi-federal (constitutional) law.18 The special nature of Community law was further spelled out in the Costa v ENEL case that ‘cemented’ the creation of an autonomous actor with legal powers as well as confirmed the existence of a legal system of unlimited duration in which Community law assumes priority.19 The idea of EU law as the ‘law of laws’ and the creation of a legal hierarchy corresponds nicely with any definition of a constitution. While these early constitutional characterizations were mainly focused on questions of legal status and empowerment, the European Court of Justice (ECJ) further refined the constitutional features of the Community in the 1980s by adding that the Community is based upon the rule of law and subject to the supervision of the court.20 The empowering features of the legal order combined with the role of the ECJ in upholding the rule of law came to be perceived as the body of Community constitutionalism.21 However, along with the ever deepening integration and the constant increase of EU competence, combined with developments such as the increasing use of majority voting, also the focus of EU constitutionalism has shifted. From issues of empowerment and judicial review, constitutionalization discussions are nowadays mainly concerned with problems 17. Case C-26/62, N.V. Algemene Transport – en Expeditie Onderneming van Gend & Loos v Nederlandse administratie der belastingen (Netherlands Inland Revenue Administration), [1963] ECR 1 at 7. 18. Eric Stein, ‘Lawyers, Judges, and the Making of a Transnational Constitution’, 75 American Journal of International Law (1981) 1-27 at 24. 19. Case C-6/64, Costa v ENEL, [1964] ECR 585 at 593-594. 20. Case C-294/83, Partie Ecologiste – ‘Les Verts’ v European Parliament, [1986] ECR 1339 para. 23. Also see Gráinne de Búrca, ‘The Institutional Development of the EU: A Constitutional Analysis’, in Paul Craig and Gráinne de Búrca (eds), The Evolution of EU Law (Oxford University Press, 1999) 55-81 at 57 et seq. 21. Miguel Poiares Maduro, We the Court: The European Court of Justice and the European Economic Constitution. A Critical Reading of Article 30 of the EC Treaty (Hart Publishing: Oxford, 1998) at 8.

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related to self-authorization and social integration.22 The EU is still the prime example of formal constitutionalization beyond the state. However, the EU has also become the foremost field of experimenting in a search for democratic legitimacy. This shift has been necessary in order to sustain the integration project.23 If constitutionalism in the EU has for some time been undergoing a redefinition, other organizations are more at a stage of initial identification of constitutional features. The legal order of the WTO, for example, has only more recently been discussed in terms of its constitutional character. There is of course a logical explanation to this in that the WTO itself has only existed since 1995. Any constitutionalization of the WTO is therefore only nascent. As the WTO lacks enabling constitutional norms, does not create a world trade legislature, does not vest legislative authority on a WTO organ, does not create a normative hierarchy, and does not contain mechanisms of constraint (for example in the form of a social charter), it seems to lack most of the constitutional features which were identified as the body of EU constitutionalism. While some special features can be identified (such as the existence of an institutional structure and constitutional doctrines on proportionality and competence, a constituency, a high level of acceptance of WTO principles, and the existence of a powerful dispute settlement process), most of these merely serve to assert the WTO as an independent actor.24 An emphasis on the dispute settlement process as an engine of constitutionalization is perhaps the most common conception of WTO constitutionalism. The parallel to the role of the ECJ as a primary actor in shaping the body of EU constitutionalism is apparent. However, given that the WTO dispute settlement body has failed to assume such a role in practice, Dunoff concludes that along virtually every constitutional metric the WTO represents, at best, ‘a very weakly constitutionalized order.’25 As to the UN, the UN Charter is first of all identified as the constitutional law of the organization. As stated in the introduction, in this sense a constitutional nature was noted already at the founding conference. Secondly, the UN Charter is identified as a possible global constitution. The two visions of UN constitutionalism are closely connected since any type of constitutionalization 22. These notions derive from Neil Walker, ‘Reframing EU Constitutionalism’, in Dunoff and Trachtman, Ruling, supra note 7, 149-176 at 162. 23. For one account of the shift, see Joseph Weiler, The Constitution of Europe: ‘Do the New Clothes have an Emperor?’ and other Essays on European Integration (Cambridge University Press, 1999) at 226-234. 24. On these elements, see Deborah Z. Cass, The Constitutionalization of the World Trade Organization: Legitimacy, Democracy and Community in the International Trading System (Oxford University Press, 2005) at 52-54. 25. Jeffrey L. Dunoff, ‘The Politics of International Constitutions: The Curious Case of the World Trade Organization’, in Dunoff and Trachtman, Ruling, supra note 7, 178-205 at 184 and 189-192.



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of the UN, due to its universal membership, would render the legal order of the organization in effect also into a global constitutional order.26 It is no surprise therefore that ideas about developing a cosmopolitan model of democracy commonly build on the UN.27 However, such global constitutionalism presupposes a confirmation and strengthening of the constitutional law (of the UN). Only through such a development, the claim goes, can a politically constituted world society emerge (with the UN Charter as its constitution).28 Any enumeration of existing constitutional elements of the UN would include at least: the establishment of a system of governance, the existence of a defined membership (or constituency) and the creation of a hierarchy of norms.29 The last point taps into the emphasis on the impact of decisions of international organizations on their members as an expression of a constitutional character that was found also as part of the body of EU constitutionalism. What characterizes this impact as regards the UN is the special status that the UN Charter gains through Articles 2(6) and 103. The latter of these asserts primacy of the Charter in relation to conflicting international agreements.30 Article 2(6) of the UN Charter can on its part be seen to widen the impact of UN Charter obligations also to non-members.31 The idea of world constitutionalism is even claimed to be the only image in which these articles of the UN Charter make sense.32 26. James Crawford, ‘The Charter of the United Nations as a Constitution’, in Hazel Fox (ed.), The Changing Constitution of the United Nations (British Institute of International and Comparative Law, 1997) 3-16 at 8 and 15. Also see Bardo Fassbender, ‘The Meaning of International Constitutional Law’, in Ronald St. John Macdonald and Douglas M. Johnston (eds), Towards World Constitutionalism: Issues in the Legal Ordering of the World Community (Martinus Nijhoff Publishers: Leiden, 2005) 837-851 at 846-847. 27. As does Held, see David Held, Democracy and the Global Order: From the Modern State to Cosmopolitan Governance (Polity Press: Cambridge, 1995) esp. at 270 et seq. 28. Fassbender, ‘The Meaning’, supra note 26, at 847, and Pierre-Marie Dupuy, ‘The Constitutional Dimension of the Charter of the United Nations Revisited’, 1 Max Planck Yearbook of United Nations Law (1997) 1-34, at 3. Also see Held, Democracy, supra note 27, at 279. 29. For these and other criteria, see Fassbender, The United Nations, supra note 3, at 77-115. 30. Article 103 reads: ‘In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail’, Charter of the United Nations, 26 June 1945, in force 24 October 1945, 1 UNTS xvi. Also see Rudolf Bernhardt, ‘Article 103’, in Bruno Simma (ed.), The Charter of the United Nations, a Commentary (2nd edn, Oxford University Press, 2002) 1292-1302 at 1302. 31. Article 2(6) reads: ‘The Organization shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security’, Charter of the United Nations, supra note 30. Also see Bruno Simma, ‘From Bilateralism to Community Interest in International Law’, in 250 Recueil des Cours (1994) 217-384 e.g. at 261. 32. See Fassbender, The United Nations, supra note 3, e.g. at 147-148. On constitutional features of the UN, see also Michael W. Doyle, ‘The UN Charter – A Global Constitution?’, in Dunoff and Trachtman, Ruling, supra note 7, 113-132 at 114-115.

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Another central constitutional feature of the UN Charter is the binding effect of UN Security Council decisions. This empowerment – combined with Security Council decisions such as the establishment of war crimes tribunals and compensation commissions, imposing disarmament obligations, and the determination of borders – has led to the attachment of the label ‘world legislature’ to the Council.33 Security Council decisions in respect of terrorism (especially Security Council Resolutions 1373 and 1540) have even been seen to resemble directives of EU law.34 It is therefore not surprising that these decisions have also become a strong argument in demonstrating the constitutional nature of the UN Charter.35 Constitutional characterizations of all three organizations seem then to build strongly upon the existence of provisions that establish and define the autonomy of the organization. The very meaning of the ‘constitutional law of the EU’ is that there is an autonomous actor for which the form and extent of jurisdiction, the competence and relations between institutions, the decision-making processes, and the sources of law are defined.36 Peters claims that the more autonomous a legal order is, the more it needs to constitutionalize.37 This means that along with increased autonomy, the need also arises for clear definitions of the source and extent of that autonomy. While the existence of judicial review, a separation of powers, and a system of checks and balances may serve as evidence of the existence of at least traces of constitutional law at the heart of many international organizations, at the same time these elements are rarely all present. Instead, practically all organizations display serious flaws in their constitutional design.38 A constitutionalization discourse therefore becomes a means for pointing out such flaws and a search for improving upon the constitutional character through institutional reform.

3. Reform as Constitutionalization Despite the fact that the possibility of constitutionalism beyond the nation state is increasingly accepted, the actual content of such constitutionalization is a constant subject of debate. The WTO and the UN are not characterized as truly 33. Stefan Talmon, ‘The Security Council as World Legislature’, 99 American Journal of International Law (2005) 175-193 with further examples and references. 34. Ibid. at 177 et seq. 35. Wouter Werner, ‘The Never-ending Closure: Constitutionalism and International Law’, in Nicholas Tsagourias (ed.), Transnational Constitutionalism: International and European Models (Cambridge University Press, 2007) 329-367 at 357. 36. This is the general layout for example of Koen Lenaerts, Piet van Nuffel, and Robert Bray, Constitutional Law of the European Union (Sweet & Maxwell: London, 1999). 37. Peters, ‘Membership’, supra note 13, at 210. 38. See José E. Alvarez, ‘The New Dispute Settlers: (Half ) Truths and Consequences’, 38 Texas International Law Journal (2003) 405-444 at 431-432.



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constitutional legal orders. If anything, they are in the process of becoming constitutional.39 While the EU in one sense is constitutionalized, serious flaws in its constitutional architecture call for constant attention. As a consequence a reform of the legal orders is needed. While reform initiatives for all three organizations have been present ever since their founding, these initiatives now often translate into constitutionalization claims. One of the flaws often mentioned in respect of the UN is the undemocratic nature of the system of governance that the Charter establishes. For this reason, recurring reform calls concern both increasing the representativeness (through engaging with civil society) and enhancing the role of the General Assembly within the UN system, as well as improving the representativeness of the Security Council.40 There is also a concern about the institutional balance between the General Assembly and the Security Council. The original idea may have been for the Security Council to establish international order and the General Assembly to deal with the acceptability of that order, and thus for this to constitute something of a separation of powers arrangement.41 Yet, while such a rudimentary separation of powers can be discerned in the institutional structure of the UN, it is by no means flawless. The more the Security Council engages in legislative activities, the more there will be calls for improved representativeness. However, the unrepresentative character of the Security Council cannot be compensated for by the General Assembly due to its weakness. A political check of decisions is therefore altogether absent. In fact, even if the role of the Assembly in the decision-making process would be strengthened, this is not necessarily a guarantee for democratic legitimacy. Instead proposals for the introduction of a UN Parliamentary Assembly have been made. Such an assembly is envisaged as a path to democratizing (and hence constitutionalizing) the UN.42 Other visions for improving democratic input 39. Even for Fassbender the UN Charter is a ‘starting point for moving towards conditions’ in which the values of the Charter are better realized, Bardo Fassbender, ‘Rediscovering a Forgotten Constitution: Notes on the Place of the UN Charter in the International Legal Order’, in Dunoff and Trachtman, Ruling, supra note 7, 133-147 at 147. 40. Such reform has also been embraced by the UN itself, see Report of the Secretary-General, In Larger Freedom: Towards Development, Security and Human Rights for All, UN Doc. A/59/2005 (21 March 2005), at paras 158-170. 41. For such a characterization of the relationship, see Martti Koskenniemi, ‘The Police in the Temple. Order, Justice and the UN: A Dialectical View’, 6 European Journal of International Law (1995) 325-348 at 337-339. 42. See e.g. Anne Peters, ‘Dual Democracy’, in Klabbers, Peters and Ulfstein, The Constitutionalization, supra note 9, 263-341 at 322-326. On the idea of a Parliamentary Assembly also see e.g. ErnstUlrich Petersmann, ‘Constitutionalism and International Organizations’, 17 Northwestern Journal of International Law and Business (1996-1997) 398-469 at 443, and Ronald St. J. Macdonald, ‘The International Community as a Legal Community’, in Ronald St. John Macdonald and Douglas M. Johnston (eds), Towards World Constitutionalism: Issues in the Legal Ordering of the World Community (Martinus Nijhoff Publishers: Leiden, 2005) 853-909 at 896-901.

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have envisaged for example transnational referendums under UN auspices, as well as direct national elections of General Assembly delegates.43 The combination of the domination of UN Security Council decision-making by a few states, the use of the veto, and the potential absence of a representation of general opinion (including both civil society and the UN membership at large) in the decisions made, results in what has been termed the ‘constitutional crisis’ of the UN and has been regarded as proof of the ‘unconstitutionality’ of the organization.44 Another perceived problem with UN constitutionalism is the absence of judicial protection (mainly against an overactive Security Council) as there is no method for individual members to vindicate their rights against UN organs.45 To this Macdonald adds the lack of capacity to impose decisions on UN members as one of the most pressing problems of a constitutional approach to the UN.46 Claims to necessary reform in order to render the UN into a constitutional legal order do not hereby solely focus on democratic representativeness or judicial supervision of political bodies, but is also an issue of empowerment/effectiveness. Perhaps even more strongly than for the UN, empowerment is raised as a concern for the constitutionalization of the WTO. WTO constitutionalism is claimed to be in need of improved compliance with WTO obligations and direct effect/applicability of WTO rules. However, also the establishment of autonomous organs with legislative capacity and the introduction of a division of powers doctrine are considered necessary elements of such constitutionalization.47 43. Peters, ‘Dual Democracy’, supra note 42, at 319 and 321. Also see Peters, ‘Membership’, supra note 13, at 220, and Derk Bienen, Volker Rittberger, and Wolfgang Wagner, ‘Democracy in the United Nations System: Cosmopolitan and Communitarian Principles’, in Daniele Archibugi, David Held and Martin Köhler (eds), Re-imagining Political Community: Studies in Cosmopolitan Democracy (Polity Press: Cambridge, 1998) 287-308 at 294 et seq. 44. The notion ‘constitutional crisis’ is used by Dupuy, ‘The Constitutional Dimension’, supra note 28, at 25. For general accounts, see also David D. Caron, ‘The Legitimacy of the Collective Authority of the Security Council’, 87 American Journal of International Law (1993) 552-588, and Macdonald, ‘The International Community’, supra note 42. On ‘unconstitutionality’, see Gaetano Arangio-Ruiz, ‘The “Federal Analogy” and UN Charter Interpretation: A Crucial Issue’, 8 European Journal of International Law (1997) 1-28 e.g. at 20. 45. Review of decisions can only arise incidentally in proceedings before the ICJ, see Crawford, The Charter, supra note 26, at 12-13. For an emphasis on the importance of judicial protection as an element of UN constitutionalism, see Ernst-Ulrich Petersmann, ‘Proposals for Strengthening the UN Dispute Settlement System: Lessons from International Economic Law’, 3 Max Planck Yearbook of United Nations Law (1999) 105-156 at 142-153. 46. Ronald St. J. Macdonald, ‘The Charter of the United Nations as a World Constitution’, in Michael N. Schmitt and L. C. Green (eds), International Law Across the Spectrum of Conflict: Essays in Honour of Professor L.C. Green on the Occasion of his Eightieth Birthday (Naval War College Press: Newport, 2000) 263-300 at 292. 47. Dunoff, ‘The Politics’, supra note 25, at 180-181, and Ernst-Ulrich Petersmann, ‘Multilevel Trade Governance in the WTO Requires Multilevel Constitutionalism’, in Christian Joerges and Ernst-Ulrich Petersmann (eds), Constitutionalism, Multilevel Trade Governance and Social Regulation (Hart Publishing: Oxford, 2006) 5-57 at 46.



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Three competing visions of how to best characterize the constitutional nature of the WTO are commonly identified, all of which raise their own reform concerns.48 The first focuses on the institutional architecture of the WTO and emphasizes the use of management techniques (instead of diplomacy and politics) as a means for efficient governance in the WTO.49 The second approach equals constitutionalization with the establishment of a set of normative commitments and a legal hierarchy helping to overcome troublesome political struggles (such as assessing costs and benefits of different ways of balancing trade and environmental concerns). The constitutionalization of the WTO is in this image all about rationalizing such struggles into questions of legal hierarchies (economic rights assuming priority).50 Thirdly there is an understanding of WTO constitutionalization as a process of judicial norm-generation. This builds on the role of the dispute settlement process in creating constitutional structures for international trade.51 All of these models of WTO constitutionalism place the dispute settlement mechanism at the heart of the constitutional development. This is not surprising, given the exceptional character of the WTO Dispute Settlement Body in an international system where diplomatic settlement of disputes still constitutes the rule. Petersmann even considers WTO dispute settlement to be such an advanced mechanism so as to serve as a model for the constitutionalization of the international legal system as a whole (and especially the UN).52 All three approaches also seem to emphasize the dispute settlement mechanism for a particular reason – to avoid cumbersome acts of balancing policies. Constitutionalization hereby becomes a way to escape politics.53 Faith is put in the dispute settlement body to uphold fair procedures, add coherence to decision-making through recourse to established principles of interpretation, be sensitive to other legal regimes, and to clarify the WTO agreements in a discourse between adjudicators and the legal community. Performing this role is also defended on grounds of efficiency, as a further judicialization of international trade law is seen to entail a move towards more exact, principled and authoritative dispute settlement.54 48. Cass, The Constitutionalization, supra note 24, discusses these in chapters 4-6. 49. This approach is commonly ascribed to John H. Jackson. 50. This approach is commonly ascribed to Ernst-Ulrich Petersmann. 51. Cass, The Constitutionalization, supra note 24, at 177-203. 52. Petersmann, ‘Constitutionalism’, supra note 42, at 457. 53. Dunoff calls this ‘constitutionalism as antidote to trade politics’, Jeffrey Dunoff, ‘Constitutional Conceits: The WTO’s “Constitution” and the Discipline of International Law’, 17 European Journal of International Law (2006) 647-675 at 661-664. Also see Robert Howse and Kalypso Nicolaïdis, ‘Legitimacy and Global Governance: Why Constitutionalizing the WTO Is a Step Too Far’, in Roger B. Porter, Pierre Sauve, Arvind Subramanian, Americo Beviglia Zampetti (eds), Equity, Efficiency and Legitimacy: The Multilateral System at the Millennium (Brookings Institution Press: Washington DC, 2001) 227-252. 54. See e.g. John O. McGinnis and Mark L. Movsesian, ‘The World Trade Constitution’, 114

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All authors are not however convinced of whether such a formal approach to WTO constitutionalism is sufficient for the creation of a body of norms that WTO members would perceive as authoritative. Instead such an approach is accused of being one-sided and neglecting legitimacy issues.55 A critical approach to such a (vision of ) judicial constitutionalization instead advocates increased transparency, democratic representativeness, accountability, and deliberation. The claim is that since the WTO has not managed to anchor its authority to act in shared values, constitutionalism should open up spaces for political dialogue and contestation rather than pre-empt such discourse in the name of judicial effectiveness.56 Practical reform suggestions in such a vision of WTO constitutionalism reflect ideas presented in the UN context and focus for example on improved NGO participation, use of referendum, and the creation of a Parliamentary Assembly.57 Against the nascent state of constitutionalization of the UN and the WTO legal orders, EU constitutionalism is fairly well established. By way of only one example, while a lack of a separation of powers has been considered a flaw of both the UN and the WTO legal orders, and something that a constitutionalization of those legal orders should address, such a separation is present in EU law through the principle of institutional balance.58 That the principle is so clearly manifested in EU law is of course no coincidence. As claimed above, the more far-reaching the autonomy of an organization is, the stronger the need for a clear division of powers will presumably be. As the main idea behind that principle is to limit the discretion of governing bodies and to provide a system of checks and balances, from a member perspective this becomes all the more important the more extensive the powers of an organization are.59

55. 56. 57.

58.

59.

Harvard Law Review (2000) 511-605 at 572 et seq, and Petersmann, ‘Constitutionalism’, supra note 42, at 468. This is the main point e.g. of Howse and Nicolaïdis, ‘Legitimacy’, supra note 53. Peter M. Gerhart, ‘The Two Constitutional Visions of the World Trade Organization’, 24 University of Pennsylvania Journal of International Economic Law (2003) 1-75 at 1-2 and 7375, and Dunoff, ‘Constitutional Conceits’, supra note 53, at 673. See Markus Krajewski, ‘Democractic Legitimacy and Constitutional Perspectives of WTO Law’, 35 Journal of World Trade (2001) 167-186 at 180-183, Armin von Bogdandy, ‘Law and Politics in the WTO – Strategies to Cope with a Deficient Relationship’, 5 Max Planck Yearbook of United Nations Law (2001) 609-674, Dunoff, ‘Constitutional Conceits’, supra note 53, at 664, and Robert Howse, The WTO System: Law, Politics and Legitimacy (Cameron May, 2007) e.g. at 71. On the UN, see Nigel D. White, ‘The World Court, the WHO, and the UN System’, in Niels M. Blokker and Henry G. Schermers (eds), Proliferation of International Organizations: Legal Issues (Kluwer Law International: The Hague, 2001) 85-109 at 99, and on the WTO, see Cass, The Constitutionalization, supra note 24, at 109-110. The principle of institutional balance has even been considered one of the most important principles of EU law. See Sacha Prechal, ‘Institutional Balance: A Fragile Principle with Uncertain Contents’, in Ton Heukels, Niels Blokker, and Marcel Brus (eds), The European Union after Amsterdam: A Legal Analysis (Kluwer Law International: The Hague, 1998) 273-



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Although the EU in many respects is a constitutional legal order, there is a prospective aspect to EU constitutionalism as well. As is well-known, the nature of EU constitutionalism is a constant concern despite the many formal constitutional features that the legal order displays. Maduro has famously expressed this as a failure of early constitutionalization of EU law to discuss the soul of the constitutional body created. Early constitutionalism did not purport to reflect a ‘social or political contract’ which organizes and resolves conflicts in the pursuit of the ‘common good’.60 What was earlier the very bedrock of EU constitutionalism has therefore fallen under critique for being inadequate. While for many authors the EU is the only example of an international legal order based on the rule of law, for example the ECJ has been accused of over-engagement in controversial social questions (to the detriment of political organs).61 Eventually this criticism has also taken the form of dissatisfaction with the role of the ECJ as ultimate arbiter of the limits of EU law.62 In more general terms; the adjudicator is regarded as a poor substitute for popular participation. In addition, if the adjudicator engages in judicial activism, then it runs the risk of eroding its own authority. This echoes the critique that has been directed towards the WTO dispute settlement body (discussed above), and is a risk that has been noted also in respect of ICJ review of UN Security Council decisions.63 Whereas at heart EU constitutionalism still departs from the exercise of independent powers, the establishment of a normative hierarchy, and supervision and enforcement, these are not the most pressing concerns in the present debate on further constitutionalization. Instead, focus has turned to the value-basis of EU law. It should also be noted that although an emphasis on questions of democratic legitimacy is now taken for granted, as a matter of concrete institutional reform this development is fairly recent. Above all, the legitimacy-issue is still unresolved.64

60. 61. 62.

63. 64.

295 at 280-281, and Henry G. Schermers and Niels M. Blokker, International Institutional Law: Unity within Diversity (4th edn, Martinus Nijhoff Publishers: Leiden, 2003) at 165. Miguel Poiares Maduro, ‘The Importance of Being Called a Constitution: Constitutional Authority and the Authority of Constitutionalism’, 3 International Journal of Constitutional Law (2005) 332-356 at 341. Jean Allain, A Century of International Adjudication: The Rule of Law and its Limits (T.M.C. Asser Press: The Hague, 2000) at 177-179, even advocating supranationalism as the model for all organizations. See John Ferejohn and Pasquale Pasquino, ‘Rule of Democracy and Rule of Law’, in José Maria Maravall and Adam Przeworski (eds), Democracy and the Rule of Law (Cambridge University Press, 2003) 242-260 at 249, and Trevor Hartley, The Foundations of European Community Law (6th edn, Oxford University Press, 2007) at 77-78. On the ICJ, see José E. Alvarez, ‘Judging the Security Council’, 90 American Journal of International Law (1996) 1-39 at 37. Lenaerts and Cambien claim that this is the case even after the Treaty of Lisbon of 2009. Koen Lenaerts and Nathan Cambien, ‘The Democratic Legitimacy of the EU after the Treaty of Lisbon’, in Jan Wouters, Luc Verhey, and Philipp Kiiver (eds), European Constitutionalism beyond Lisbon (Intersentia: Antwerp, 2009) 185-207 at 207.

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In this search for means of enhancing the constitutional authority of the EU, a strengthening of the role of the EU Parliament has been, and still is, central. Yet a further empowerment of the EU Parliament in the legislative process is by far the only vision for further constitutionalization.65 In fact, those most critical of European integration view democratic legitimacy through the European Parliament as an impossibility, due to the absence of a common identity. This means that even if it could be argued that democratic processes are in place, it is uncertain whether this suffices for rendering EU decision-making legitimate.66 As a result, although the last reform of EU law took place as recently as 2009, discussions on the merits and demerits of this reform and on the future direction of EU constitutionalism are already underway. Although the Treaty of Lisbon developed the constitutional nature of the EU in several ways (for example through enhancing the role of the European Parliament, making decision-making more transparent, establishing links to national parliaments, introducing a citizens’ initiative, and institutionalizing fundamental rights), avenues for further reform have also been identified. Under the heading of constitutionalization, issues relating to uncertainties of implementation, the impact of future enlargements, and the evergreen legitimacy question have been (re)raised.67 The relationship between the main organs of the EU is predicted to become a reform issue, and the autonomy of the EU is seen to require a constant search for new and more direct democratic grants of authority (practical suggestions focus, for example, on the possibility of referendum, and turning the European Commission into a government).68 A first (and not so revolutionary) note to be made out of the overview above is that in the constitutionalization discussion concerning the EU, the UN, and the WTO, similar claims are made. This is of course to be expected and is just an indication of the elements that the idea of constitutionalism brings with it when translated onto the international level. At the same time there are differences in emphasis between the organizations. As the EU displays a high degree of judicial/ formal constitutionalization, focus is increasingly on developing political constitu65. See e.g. the Laeken Declaration on the Future of the European Union (15 December 2001), Annex I to Presidency Conclusions of the Laeken European Council (14-15 December 2001), SN 300/1/01 REV 1. Also see Walter van Gerven, ‘Wanted: More Democratic Legitimacy for the European Union – Some Suppositions, Propositions, Tests and Observations in Light of the Fate of the European Convention’, in Wouters, Verhey, and Kiiver, European Constitutionalism, supra note 64, 147-183 at 181-183. 66. Dieter Grimm, ‘Does Europe Need a Constitution?’, 1 European Law Journal (1995) 282-302 at 297-299, and Weiler, The Constitution, supra note 23, at 81-86. 67. See e.g. Thomas Christiansen and Christine Reh, Constitutionalizing the European Union (Palgrave: Basingstoke, 2009) at 268-273. 68. See e.g. Joakim Nergelius, The Constitutional Dilemma of the European Union (Europa Law Publishing: Groningen, 2009) at 102-103 and 106-107, Walker, ‘Reframing’, supra note 22, at 171, and van Gerven, ‘Wanted’, supra note 65, at 182-183.



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tionalism. As the UN and the WTO only display traces of formal constitutionalism (and next to no traces of political constitutionalism), the constitutionalization discussion for these organizations is mainly about introducing constitutional elements in the first place. A second note to be made is that irrespective of degree of prior constitutionalization, the nature of the constitutionalization debate is always prospective, geared towards a change of the legal order. It is this prospective nature that links constitutionalization and institutional reform. Even more exactly, reform seems to inhere in the very idea of constitutionalism.

4. Constitutionalism as Constant Reform Distinctions between juridical and political constitutionalism,69 formal and substantive conceptions of constitutionalism (and the rule of law),70 thick and thin versions of the rule of law,71 and between liberal and republican democracy,72 are all examples of conceptual pairs through which constitutional claims can be made. As to its formal/judicial side, constitutionalism is in essence about placing legal limits. At the international level this takes the form of structuring the international legal system and organizations through legal standards. The driving force is the maintenance of the cohesion and effectiveness of the legal system, while trying to avoid entanglement in political debates. Apart from creating a body of legal rules, one of the main tools for achieving this structuring is reliance on judicial review: judges are the guardians of the constitutional legal order. Defined in this way, formal/judicial constitutionalism corresponds closely with the rule of law idea.73 Notably, the rule of law demands that all legal actors obey a body of rules.74 This means that many forms of judicial input can be advocated as formal/judicial constitutionalization, such as review of the political organs of the organization (lack of which has been considered a flaw with constitutional69. Richard Bellamy, ‘Constitutive Citizenship versus Constitutional Rights: Republican Reflections on the EU Charter and the Human Rights Act’, in Tom Campbell, Keith Ewing, and Adam Tomkins (eds), Sceptical Essays on Human Rights (Oxford University Press, 2001) 15-39 at 22. 70. Paul Craig, ‘Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework’, Public Law (1997) 467-487, and Antje Wiener, ‘Editorial: Evolving Norms of Constitutionalism’, 9 European Law Journal (2003) 1-13 e.g. table 1 at 5. 71. Allan C. Hutchinson, ‘The Rule of Law Revisited: Democracy and Courts’, in David Dyzenhaus (ed.), Recrafting the Rule of Law: The Limits of Legal Order (Hart Publishing: Oxford, 1999) 196-224 at 198. 72. Richard Bellamy and Dario Castiglione, ‘Democracy, Sovereignty and the Constitution of the European Union: The Republican Alternative to Liberalism’, in Zenon Bankowski and Andrew Scott (eds), The European Union and its Order: The Legal Theory of European Integration (Blackwell Publishing: London, 1999) 169-190. 73. See e.g. Craig, ‘Formal’, supra note 70, at 468 et seq. 74. Or differently, that law (and not the arbitrary will of persons) should govern society at large, Hutchinson, The Rule, supra note 71, at 196.

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ism in the UN), binding dispute settlement between members (WTO), and the presence of an ultimate arbiter and supervisor of the conduct of both political organs and member states (EU). Substantive/political constitutionalism also embraces the rule of law, but transcends formal/judicial constitutionalism through a closer focus on the creation and maintenance of a working political system. Instead of emphasizing the existence and establishment of legal procedures, hierarchies, and mechanisms for judicial supervision, interest is geared towards the nature of the polity itself and especially the establishment of a link between organizations and societies. The idea of ‘constituent power’ is typically expressed through an emphasis on democratic governance.75 Although judicial and political constitutionalism can be distinguished from one another, it should be borne in mind that judicialization and democratization are different aspects of constitutionalism. The occasional clash between the two is an expression of the constant search for balance that constitutionalism facilitates.76 Judicial review is needed for the protection of rights and the rule of law against ‘bad’ majority decisions. As Franck puts it, if the political majority is wise and fair, no problem necessarily needs to arise. This, however, cannot always be relied upon to be the case.77 Instead, a majority may violate rights. In such a case protection by the judiciary becomes desirable. The definition of those rights must on its part derive from the political process. In fact, a working adjudicatory system will also require a political culture where the decisions of the judiciary are accepted as legitimate. A functioning political process is crucial for establishing and upholding such a culture.78 Exactly how to balance the judicial and political aspects of constitutionalism is part of the debate over governance in organizations. As Croley argues, no matter how the particular balance is struck between the judicial and political side, as long as neither is obliterated ‘one can always argue that that balance is just right.’79 This means that the question of balancing the different aspects of 75. Neil Walker, ‘Taking Constitutionalism Beyond the State’, 56 Political Studies (2008) 519-543 at 530-531. 76. For an overview of this balancing in US constitutional debate, see e.g. Christopher F. Zurn, Deliberative Democracy and the Institutions of Judicial Review (Cambridge University Press, 2007). 77. Thomas M. Franck, ‘The Political and the Judicial Empires: Must there be Conflict over Conflict-resolution?’, in Najeeb Al-Nauimi and Richard Meese (eds), International Legal Issues Arising Under the United Nations Decade of International Law (Martinus Nijhoff Publishers: Leiden, 1995) 621-632 at 625. 78. See e.g. Dieter Grimm, ‘Constitutional Adjudication and Democracy’, in Mads Andenas and Duncan Fairgrieve (eds), Judicial Review in International Perspective, Liber Amicorum in Honour of Lord Slynn of Hadley (Kluwer Law International: The Hague, 2000) 103-120 at 109, and Bellamy, ‘Constitutive’, supra note 69, at 22. 79. Steven P. Croley, ‘The Majoritarian Difficulty: Elective Judiciaries and the Rule of Law’, 62 University of Chicago Law Review (1995) 689-794 at 781.



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constitutionalism cannot be settled in the abstract – whatever the balance, it will constitute a particular form of constitutionalism. There is, as Maduro has pointed out, a constant search for ‘who decides’ inherent in constitutionalism. As both political cooperation and judicial integrity can be claimed to be necessary for institutional legitimacy, a constitutionalization of organizations cannot allocate final authority to either a judicial or a political organ. This is the very guarantee of limited power.80 As the balancing act at the heart of constitutionalism also needs to be constantly reassessed, constitutionalism is always an ongoing project. It is only natural against this background that calls for constitutionalization come to express different expectations on how to develop an organization. Constitutionalization represents a hope of limiting the political power of organizations and subjecting them to the rule of law, and of revitalizing organizations through the exercise of a stronger regulative role in respect of members (through the establishment of legal hierarchies and integration). Further, constitutionalism is also concerned with the creation of legal and political unity, and with it, gears interest towards issues of democratic legitimacy. As it lies at the very heart of constitutionalism to debate how to best govern an organization, none of these aspects can be omitted without impoverishing the constitutional debate. It is somewhat deplorable therefore to find that a truly nuanced constitutional debate is only present in the EU. In organizations at large, although reform proposals of a wide array are presented, a balancing of constitutional visions is rare. Instead a rather common phenomenon is that once constitutionalization claims are made, these are geared towards a judicialization of the organization.81 Such an emphasis on the judicialization of international organizations fits nicely with a more general trend towards a judicialization of international law that many authors identify.82 Teubner even claims that it is the phenomenon of global judicialization that implies the possibility that constitutionalization processes may be usable outside the state context in the first place.83 Stein noted some years ago in a comparative study between the EU, the North American Free Trade Agreement, the WTO, and the World Health Organization that there is a correlation between the level of legal integration and the intensity of the discourse on the 80. Miguel Poiares Maduro, ‘Europe and the Constitution: What If This Is As Good As It Gets?’, in J.H.H Weiler and Marlene Wind (eds), European Constitutionalism Beyond the State (Cambridge University Press, 2003) 74-102 at 96-101. 81. So also Peters, ‘Dual Democracy’, supra note 42, at 341. 82. Several references could be provided. See e.g. Cesare P.R. Romano, ‘The Proliferation of International Judicial Bodies: The Pieces of the Puzzle’, 31 International Law and Politics (1999) 709-751, José E. Alvarez, International Organizations as Law-makers (Oxford University Press, 2005) at 646-647, and Judith L. Goldstein, Miles Kahler, Robert O. Keohane and Anne-Marie Slaughter (eds), Legalization and World Politics (MIT Press: Cambridge, 2001). 83. Günther Teubner, ‘Societal Constitutionalism: Alternatives to State-centred Constitutional Theory?’, in Christian Joerges, Inger-Johanne Sand and Günther Teubner (eds), Transnational Governance and Constitutionalism (Hart Publishing: Oxford, 2004) 3-28 at 15-17.

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democratic legitimacy deficit.84 A low level of legal integration may hereby help explain why the constitutionalization discussion at large has been geared towards judicialization. In this logic legal integration is first required before the question of democratic legitimacy enters. This is surely an accurate empirical observation of how the constitutionalization debate concerning organizations has emerged and evolved. The dominance of judicialization claims for example in the WTO context becomes understandable, given that the dispute settlement mechanism is practically the only constitutional feature to build upon. To gear reform discussions towards improved (judicial) effectiveness does not however exhaust the constitutionalization debate. If anything, such one-sidedness has given rise to a counter reaction, emphasizing the importance of democratic input.85 The discussion on UN reform also falls short of a constitutional debate. While UN reform discussions have mostly been focused on the representativeness of the UN Security Council, attempts at tying the question of Security Council reform to the role of the General Assembly or the role of the ICJ have been largely unsuccessful.86 Also the approach to General Assembly reform seems to have been more concerned with issues of amount and quality of resolutions than with assessing the input of the Assembly in UN decision-making.87 Further, when the question of the relationship between the ICJ and the UN Security Council has been raised, the discussion has mostly focused on whether there is a legal entitlement to review Security Council decisions (that is, whether international law or the UN Charter could allow for such review) and what jurisdictional hurdles the ICJ Statute poses for performing such a task.88 Judicial review is either seen as an inevitable requirement for the legitimate operation of the collective security mechanism, or then review of collective security matters is discarded as a venture into political issues (allegedly not suitable for adjudication).89 Any comprehensive 84. Eric Stein, ‘International Integration and Democracy: No Love at First Sight’, 95 American Journal of International Law (2001) 489-534 at 530. 85. See e.g. Cass who ends her book with a call for a more nuanced focus on legitimacy, democracy, and community in the debate on WTO constitutionalism, Cass, The Constitutionalization, supra note 24, at 246. Also see Gráinne de Búrca, ‘Developing Democracy Beyond the State’, 46 Columbia Journal of Transnational Law (2008) 101-158 at 103-104, von Bogdandy, ‘Law’, supra note 57, at 625, and Howse and Nicolaïdis, ‘Legitimacy’, supra note 53, at 228. 86. Bardo Fassbender, ‘All Illusions Shattered? Looking Back on a Decade of Failed Attempts to Reform the UN Security Council’, 7 Max Planck Yearbook of United Nations Law (2003) 183-218. 87. See e.g. Edward C. Luck, ‘Principal Organs’, in Thomas G. Weiss and Sam Daws (eds), The Oxford Handbook on the United Nations (Oxford University Press, 2007) 653-674. On ways of involving the General Assembly, see Alan Boyle and Christine Chinkin, The Making of International Law (Oxford University Press, 2007) at 102, and Caron, ‘The Legitimacy’, supra note 44, at 575-576. Also see infra notes 103 and 104 with corresponding text. 88. See e.g. Jeremy Matam Farrall, United Nations Sanctions and the Rule of Law (Cambridge University Press, 2007) at 73-75. 89. Cf. Alexander Orakhelasvili, ‘The Acts of the Security Council: Meaning and Standards of



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discussion aimed at mediating these competing claims has not however attracted much attention. If any comments for example on counter-majoritarian concerns have been made, they have only been made in passing as calls for further debate.90 In fact, even the more nuanced constitutional debate that can be found in the EU has only emerged over time. For long the activities of the ECJ did not give rise to counter-majoritarian concerns as the court was rather seen as a protector of democratic principles through limiting the powers of the Council and the European Commission.91 An alternative image of EU constitutionalism emerged only along with an increased attention to the non-accountability of the Council of the European Union to the European Parliament.92 Hence Mattli and Slaughter could as late as 1998 still prophesize that the role of the court in a democratic order would increasingly become a major issue in EU legal debates.93 The same is also true for the Commission, the role of which for long seemed to be beyond discussion. Weiler noted in 1999 that the (formal) conception of community constitutionalism is facing ‘reformation’. At the heart of this ‘reformation’ was a reevaluation of the ability of non-elected institutions to serve the values of democratic process.94 The risk with treating single reform proposals as constitutionalization is that it may serve as a way of ‘closing down debate in favor of a particular institutional balance and value cluster’, with the effect for example of excluding issues from the ambit of organizations on the premise of being overly political or beyond the scope of the organization.95 Constitutionalization would hereby turn into a means of ‘hegemonic preservation’, a byproduct in a political struggle over enhanced influence.96 Constitutionalization would lose its role as a platform for contestation and politicization of the structural biases of organizations, but would Review’, 11 Max Planck Yearbook of United Nations Law (2007) 143-195 at 194 with Alvarez, ‘Judging’, supra note 63, at 37. 90. See e.g. Alvarez, ‘Judging’, supra note 63, and more recently Geir Ulfstein, ‘Institutions and Competences’, in Klabbers, Peters, and Ulfstein, The Constitutionalization, supra note 9, 45-80 at 65-66. 91. Weiler, The Constitution, supra note 23, at 203-206. 92. Although individual ECJ judges had made public pronouncements problematizing the role of the court. Sionaidh Douglas-Scott, Constitutional Law of the European Union (Pearson, 2002) at 215. Also see above, supra note 61 and corresponding text. 93. Walter Mattli and Anne-Marie Slaughter, ‘Revisiting the European Court of Justice’, 52 International Organization (1998) 177-209 at 205. 94. Weiler, The Constitution, supra note 23, at 195 et seq. and on the Commission e.g. at 222 and 230-234. 95. The quote is from Neil Walker, ‘The EU and the WTO: Constitutionalism in a New Key’, in Gráinne de Búrca and Joanne Scott (eds), The EU and the WTO: Legal and Constitutional Issues (Hart Publishing: Oxford, 2001) 31-57 at 54. Also see James Thuo Gathii, ‘Re-characterizing the Social in the Constitutionalization of the WTO: A Preliminary Analysis’, 7 Widener Law Symposium Journal (2001) 137-173. 96. The term is used by Ran Hirschl, ‘Hegemonic Preservation in Action? Assessing the Political Origins of the EU Constitution’, in Joseph Weiler and Christopher L. Eisgruber (eds),

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instead reinforce a particular bias (to use the terminology of Koskenniemi).97 The persuasiveness of the ‘constitutionalist reconstruction of international law’ could also be undermined more generally.98 In order to avoid these risks, constitutionalization must be ongoing, inclusive and open to contestation. Only in this way can a constitutionalization discussion also distinguish itself from and reach beyond single reform proposals. The merit of dealing with institutional reform as an issue of constitutionalization would hereby derive from the capacity to politicize that reform.99 On the positive side it should be noted that the conception of (international) constitutionalism is not static. The legitimacy issues arising from judicial constitutionalization of the WTO are no longer discussed only by those critical of such judicialization. Instead, the importance of democratic legitimacy is also increasingly recognized as a crucial element of that judicialization. Although there have been some calls to develop political participation in the WTO ever since its inception, this may indicate that the relationship between judicial and political elements in WTO governance is attracting more attention.100 In the EU, the Constitutional Treaty project and the adoption of the Treaty of Lisbon also indicate something of a new tack. While the Treaty of Lisbon brought with it several improvements in EU governance, it also brought with it a new opening in addressing legitimacy issues. In addition to focusing on the European Parliament, also national parliaments are turned to in an effort to meet the challenges of European integration.101 Although this turn is not intended as a Altneuland: The EU Constitution on a Contextual Perspective, Jean Monnet Working Paper 5/2004 at 9. 97. Martti Koskenniemi, ‘Constitutionalism as Mindset: Reflections on Kantian Themes About International Law and Globalization’, 8 Theoretical Inquiries in Law (2007) 9-36 at 34. 98. For a reminder of this in the UN context, see Thomas Giegerich, ‘The Is and the Ought of International Constitutionalism: How Far have we Come on Habermas’s Road to a “Wellconsidered Constitutionalization of International Law”’, 10 German Law Journal (2009) 31-62. For the latter warning see Peters, ‘Dual Democracy’, supra note 42, at 341. 99. In this sense constitutionalism has been characterized as a ‘programme of moral and political regeneration’, Koskenniemi, ‘Constitutionalism’, supra note 97, at 18. Also see Dunoff, ‘Constitutional Conceits’, supra note 53, at 669 and 673 claiming that constitutionalism provides a way towards a new ontology and opens up spaces for political dialogue and contestation. 100. E.g. Petersmann seems to have widened his perception of WTO constitutionalism, see Petersmann, ‘Multilevel’, supra note 47. The gradual move of Petersmann is also noted by Rainer Nickel, ‘Participatory Transnational Governance’, in Joerges and Petersmann, Constitutionalism, supra note 47, 157-195 at 166. For an early note on the need to develop political participation in the WTO, see G.R. Shell, ‘Trade Legalism and International Relations Theory: An Analysis of the World Trade Organization’, in Robert Howse (ed.), The World Trading System: Critical Perspectives on the World Economy (Routledge: London, 1998) 333-416 at 378. 101. See e.g. Lenaerts and Cambien, ‘The Democratic’, supra note 64, and Philipp Kiiver, ‘European Treaty Reform and the National Parliaments: Towards a New Assessment of ParliamentaryFriendly Treaty Provisions’, in Wouters, Verhey, and Kiiver, European Constitutionalism, supra note 64, 131-146 at 131-132.



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substitute to the European Parliament, it does nevertheless indicate a readiness to institutionalize novel political mechanisms in the search for democratic legitimacy. Also in discussions on UN reform a search for more direct links to the national citizenry of member states seems to be en vogue. Hence, along with an increasingly critical assessment of NGOs, new life has been brought into proposals for the creation of a Parliamentary Assembly.102 Work on the revitalization of the UN General Assembly has also begun.103 As part of this work, a strengthening of the Assembly as well as a reassessment of its relationship to other UN organs is on the agenda.104 All these developments indicate that avenues for developing political/substantive constitutionalism are attracting constant attention. Yet, this (possibly) growing interest in political constitutionalism does not in itself give reason to breathe a sigh of relief. After all, claims to democratization can be just as hegemonic as a judicialization of an organization. As Hurd has demonstrated in respect of the UN Security Council reform discussion, different visions of reform build on different conceptions of legitimacy (invoking for example the dichotomy between representativeness and effectiveness), all of which may even be linked to interests of individual member states.105 ‘False legitimacy’ can therefore not only follow from an overemphasis of judicialization, but can also result from a process of developing political/substantive constitutionalism.106

5. Reform as a Condition for Constitutionalization The link between the autonomy of an organization and constitutionalism displays many features. Along with an increasing autonomy constitutional features will emerge. This will eventually make it possible to identify a constitutional law at the heart of the organization. In addition, a link seems to exist between increased 102. For one account, see Richard Falk and Andrew Strauss, ‘On the Creation of a Global Peoples Assembly: Legitimacy and the Power of Popular Sovereignty’, 36 Stanford Journal of International Law (2000) 191-219, targeting NGOs especially at 214. Also see the ‘Appeal for the Establishment of a Parliamentary Assembly at the United Nations’ launched by the Campaign for the Establishment of a United Nations Parliamentary Assembly (UNPA 2007) at http://en.unpacampaign.org/appeal/index.php (last visited 29 August 2010). For one recent critique of NGOs see Peters, ‘Membership’, supra note 13, at 219 et seq. 103. See Revitalizing the Role and Authority of the General Assembly and Strengthening its Performance, UN doc. A/RES/61/292 (14 August 2007), and Revitalization of the Work of the General Assembly, UN doc. A/RES/62/276 (26 September 2008). 104. Lydia Swart, ‘Revitalization of the Work of the General Assembly’, in Managing Change at the United Nations (Center for UN Reform Education, 2008) 21-35. 105. Ian Hurd, ‘Myths of Membership: The Politics of Legitimation in UN Security Council Reform’, 14 Global Governance (2008) 199-217. 106. The expression derives from Anne Peters, ‘Conclusions’, in Klabbers, Peters, and Ulfstein, The Constitutionalization, supra note 9, 342-352 at 351.

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autonomy and a shift of interest within a constitutional discourse (towards political/substantive constitutionalism).107 The prime example of this is of course EU law, where the ever deepening integration has necessitated a strengthening of the democratic legitimacy of EU decision-making. Bodansky testifies that the same relationship is present also in organizations within the environmental field.108 In a converse way Howse concludes that with respect to the WTO, the absence of regulatory or executive functions and due to the strong consensual basis of the WTO agreement, the necessity to even ask the legitimacy question seems obviated. However, when interest is turned to the dispute settlement mechanism, things change dramatically.109 Such examples make the role of constitutionalism as a process of change particularly visible; always critical and prospective, retesting the fundamental structures of governance. But although constitutionalism is essentially prospective, a link to reality is also needed. Walker has called this the dual focus of constitutionalism: on what is already in place and on what is a matter of projection. In a most basic sense this means that there is an assumption inherent in constitutionalism of an entity that already exists in some form: to constitute presupposes an entity to be constituted.110 Further, in the sense that ‘what is always in some sense conditions what ought to be’, this means that the less constitutional features a legal order displays, the more abstract any constitutionalization discussion will become.111 This is of particular concern in the context of the UN and the WTO. In these organizations constitutionalization is not so much about balancing between different aspects of governance but is instead a matter of introducing some constitutional elements to begin with. A focus on ‘what is in place’ hereby forces a constitutionalization discussion to the level of visions.112 On the other hand, the fairly high degree of formal/judicial constitutionalism of and the history of constitutional debate in relation to the EU enable a credible debate on further constitutionalization. This relationship can also be approached as a matter of institutional reform. 107. For an illustration, see Joel P. Trachtman, ‘The Constitutions of the WTO’, 17 European Journal of International Law (2006) 623-646 at 632. 108. Daniel Bodansky, ‘The Legitimacy of International Governance: A Coming Challenge for International Environmental Law?’, 93 American Journal of International Law (1999) 596-624, at large and especially at 597. 109. Robert Howse, ‘The Legitimacy of the World Trade Organization’, in Coicaud and Heiskanen, The Legitimacy, supra note 5, 355-407 at 358-359. 110. Walker, ‘Reframing’, supra note 22, at 152. Also see Hans Lindahl, ‘Sovereignty and Representation in the European Union’, in Neil Walker (ed.), Sovereignty in Transition (Hart Publishing: Oxford, 2003) 87-114 at 87. 111. Walker, ‘Reframing’, supra note 22, at 153 (emphasis in original). 112. Even the accuracy of the three different paths of WTO constitutionalization identified above can be questioned, rendering them more into ‘metaphors’ for development. See Dunoff, ‘The Politics’, supra note 2 5, at 193.



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The EU legal order has a history of development and reform which makes further amendments to its founding treaties look far more likely than in the case of the UN Charter or the WTO Agreement. In other words, further constitutionalization seems realizable in the EU. Whether it is appropriate to even begin to discuss the UN and the WTO in terms of constitutionalism depends then on the likelihood of reform of their legal orders. This taps into the circularity at the heart of the constitutionalization discourse (as noted by Klabbers): in order to deserve the label ‘constitutional’, a legal order will need to display certain characteristics.113 If a reform of the legal order is nowhere in sight, constitutionalism’s advocates may be forced (as Dunoff puts it) to place their faith in a hope that their constitutional claims can spark a tradition that itself can help transform the organization into a constitutional entity.114 The idea of constitutionalism is hereby transformed into an ideal end-goal, with the aim of this way revitalizing reform discussions in the organization. From this perspective, it is therefore unfortunate that prospects for reforming the UN and the WTO do not look too bright. For example the revitalization of the UN General Assembly has been on the body’s agenda since 1991. Yet, engaging the General Assembly in the legislative process seems as remote a possibility as ever.115 And although the evergreen Security Council reform discussion is all the time ongoing, any concrete results seem far away.116 The 2004 report on the future development of the WTO (the so-called Sutherland report) did not contain any far-reaching constitutional visions.117 In fact, any more far-reaching reform proposals (such as adding to the WTO’s legislative powers) are subject to such severe controversy so as to make any swift success look unlikely.118 With few constitutional features in place and any tangible reform remaining unlikely, the entire constitutionalization discussion stands out as illusionary.119 A substitution of institutional reform discussions by a constitutionalization discourse hereby comes to pose a dual challenge for the idea of constitutionalizing 113. Klabbers, ‘Setting the Scene’, supra note 10, at 43. 114. Dunoff, ‘Constitutional Conceits’, supra note 53, at 668. 115. The claim is made by Matthew Happold, ‘Security Council Resolution 1373 and the Constitution of the United Nations’, 16 Leiden Journal of International Law (2003) 593-610 at 608-609. Also see Peters, ‘Dual Democracy’, supra note 42, at 322. 116. For an overview, see e.g. Jonas von Freiesleben, ‘Reform of the Security Council’, in Managing Change, supra note 104, 1-20. 117. The Future of the WTO. Addressing Institutional Challenges in the New Millenium, report by the Consultative Board to the Director-General (World Trade Organization, 2004). 118. So e.g. Richard H. Steinberg, ‘Judicial Lawmaking at the WTO: Discursive, Constitutional, and Political Constraints’, 98 American Journal of International Law (2004) 247-275 at 274. Also see Nickel, ‘Participatory’, supra note 100, at 191-192, and Petersmann, ‘Multilevel’, supra note 47, at 46. 119. This is not to deny that both the UN and the WTO are successfully undergoing minor reform. On the UN, see e.g. Peter G. Danchin and Horst Fischer (eds), United Nations Reform and the New Collective Security (Cambridge University Press, 2010).

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international organizations. On the one hand, if constitutionalism becomes an expression of single reform proposals, constitutionalism risks becoming just another word for example for judicialization. In such a case constitutionalization claims lose their distinctive characteristics. On the other hand, as a horizon towards which to develop an organization, but with poor prospects of success, constitutionalism risks becoming a utopia. As Besson puts it, constitutionalism is hereby forced to wait until the international community is ready to constitute itself.120 What constitutionalism waits for is a reform (or at least a possibility of reform) of the legal order of the organization. The idea of constitutionalizing the organization must be upheld in order to become reality. Yet, in the meantime, if this focus postpones debate on the concrete problems of organizations, then upholding a vision of constitutionalization becomes counterproductive to ever achieving such constitutionalization.121 As to EU constitutionalism, as features of both judicial and political constitutionalism are present, the projective side of EU constitutionalism appears less radical and more convincingly within the realm of possible reform. Yet, this is not to say that all constitutional ideas would be realizable. No fully satisfactory remedies have for example as of yet been found to the problems of democratic legitimacy. In this sense also EU constitutionalism still remains a horizon, awaiting further reform. Some authors even deem political constitutionalism in the EU unattainable.122 If this is true, then it would indeed be improper to call the EU a constitutional legal order (in the full sense of the notion). In other words, the very possibility of European constitutionalism becomes dependent on the possibility of reform of the EU legal order so as to improve its democratic legitimacy. In the end, then, it seems that it is only by maintaining faith in the possibility that democratic legitimacy will one day be achieved that constitutionalism becomes a proper attribute of the EU.

6. Concluding Remarks The constitutionalization of international organizations is in essence about reform.123 The difference between institutional reform debates and constitutionalism is a matter of frameworks within which to deal with governance in organizations. 120. Samantha Besson, ‘Whose Constitution(s)? International Law, Constitutionalism, and Democracy’, in Dunoff and Trachtman, Ruling, supra note 7, 381-407 at 407. 121. Peters, ‘Conclusions’, supra note 106, at 343 and 345. 122. See e.g. Grimm, ‘Does Europe’, supra note 66, esp. at 298-299 and in a more general manner e.g. Will Kymlicka, ‘Citizenship In an Era of Globalization: Commentary on Held’, in Ian Shapiro and Casiano Hacker-Cordon (eds), Democracy´s Edges (Cambridge University Press, 1999) 112-126 at 123-125. 123. Kennedy even claims that the remaking of the management of regimes may be the most useful contribution of constitutionalism, Kennedy, ‘The Mystery’, supra note 12, at 66.



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Reform discussions concerning organizations range from judicial supervision of the organization to judicial enforcement of obligations of members, and from improving representation of state governments to enabling input by civil society and individuals. All of these claims are also present in a constitutionalization discussion. While every reform of an organization need not be addressed as constitutionalization, such a shift of focus can nevertheless have some merit as this puts the reform proposals in broader perspective. A discussion on the constitutionalization of organizations can hereby reach beyond single reform claims. There is however also another side to the relationship between constitutionalism and reform. The less likely the reform of an organization is, the more constitutionalism will stand out as a mere vision. There is nothing wrong with constitutional visions as such. To the contrary – a prospective orientation is the very essence of constitutionalism and must remain so. The fact that a failure to reform may lead to disillusionment as regards those visions is part of the debate on the nature of the legal order of international organizations.

A Day in the Life of Responsibility to Protect Pekka Niemelä* Abstract: The concept of Responsibility to Protect (RtoP) has quickly become a popular rallying cry and a loose policy slogan within the UN and among political and academic circles sympathetic to the world body. Behind RtoP’s success lies, undoubtedly, its central idea: the call for ensuring that ‘never again’ is a political community turned into a human abattoir with the outside world standing idly by. The article highlights the profound ambivalence and confusion that relates to the predominant public and political approach to RtoP by dissecting the events of a high-profile seminar on the topic held in Helsinki in 2009. Keywords: Responsibility to protect, conflict prevention, military intervention, interstate diplomacy, sovereignty, human rights

In August 2009 I attended a seminar on the Responsibility to Protect (RtoP).1 The concept was first introduced in 2001 in the final report of the International Commission on Intervention and State Sovereignty (ICISS).2 Despite its short lifespan, RtoP has quickly evolved into a regular rallying cry of many prominent humanitarians and engendered various high-profile institutional projects. Within the UN, a position of ‘Special Advisor on RtoP’ has been created and some UN bodies (for example the Peace-building Commission) now conduct and finance projects described in the language of RtoP. Behind RtoP’s success lies, undoubtedly, its central idea: the call for ensuring that ‘never again’ is a political community turned into a human abattoir with the outside world standing idly by. The flaccid reactions to the many catastrophic civil conflicts of the 1990s had enabled cold-hearted politics to rage in places like Dili and Kigali. For many, *

LL.M., Assistant Professor of International Law & Research Fellow, The Erik Castrén Institute of International Law and Human Rights, University of Helsinki, Finland. 1. The seminar, ‘Promoting the Principles of Responsibility to Protect’, was held on August 28th 2009 in Finland at Hanasaari Swedish-Finnish Cultural Centre. Most of the material presented at the seminar is available online, . References to online sources are accurate as of 24 March 2011. 2. The Responsibility to Protect, Report of the International Commission on Intervention and State Sovereignty (International Research Development Center: Ottawa, 2001).

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the passivity of the ‘international community’ in the face of such atrocities was a disgraceful betrayal of the promise of a new and more just world order, the coming of which was frequently prophesied in the wake of the Cold War. While the prophecy never came to pass, RtoP was advocated as at least paving the way towards thwarting the worst excesses of what appeared to remain an egotistical, interest-driven international politics.3 Among the speakers and panelists were the President and Minister for Foreign Affairs of Finland; a former UN Under-Secretary-General for Legal Affairs and the Legal Counsel of United Nations; a former UN Under-Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator; and Roméo Dallaire, the tragic hero of and witness to the 1994 Rwandan genocide. In particular it was the general-cum-senator’s name that had drawn my attention to the event. Dallaire’s futile pleas for intervention during the genocide and the personal predicament that followed made me envision, perhaps naively, a man steeped in honesty and humble wisdom, a man who would not capitulate to the lackluster style of speaking usually associated with mainstream conferences such as this one.4 Having arrived at the venue, I found out, much to my disappointment, that Dallaire would deliver his speech via satellite from Quebec. Perhaps the organizers had concealed this piece of information to ensure that the seats of the large auditorium would not remain embarrassingly vacant. Chair of the Finnish UN Association, who also heads the troubled main Finnish opposition party, gave the opening remarks. Pathos was the marked feature of her style as she articulated a stream of maudlin lines about how ‘[t] he international community will… stand up for the victims of genocide, ethnic cleansing, war crimes and crimes against humanity’, how ‘[e]very victim is one victim too many’, and how we ‘must not let this happen again’ (referring to Rwanda). As she went along I wondered whether she really believed in what she was saying or whether the speech was simply a welcome opportunity to escape the string of personal adversities she had experienced in Finnish politics; a kind of ritual of personal vindication – the form and substance of which varies according to person and context – that we all need to perform from time to time. Her denomination was the ‘international community’, whose credo comprises of dogmatic mantras such as the sentences above, and whose reality and function were undoubtedly self-evident and integral to the (public) self-understanding of most of the colloquium’s attendants.5 3. As the co-chairs of the commission, Gareth Evans and Mohamed Sahnoun, put it in the foreword of the report: ‘We want no more Rwandas, and we believe that the adoption of the proposals in our report is the best way of ensuring that’, Ibid., at ix. 4. It is much easier to exemplify what I mean by ‘mainstream’ than it is to define. In the 1960s, Justice Potter Stewart of the US Supreme Court noted that while he was unable to define pornography, he knew it when he saw it. The same holds for ‘mainstream’. 5. Some 270 people attended the seminar (a list of participants was handed out to the entrants



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The first speaker to take the floor was the Finnish president, a pragmatic leftist politician who wears the UN close to her heart and effortlessly promotes politically correct leftist objectives – gender equality, aid increase, fairer globalization – in public speeches and interviews. Her speech related more directly to RtoP as it, for example, reiterated the content of paragraphs 138 and 139 of the 2005 World Summit Outcome Document in which the heads of state and government had pledged to promote the doctrine and prevent future atrocity crimes. Although her comments were more down-to-earth and less sentimental, the speech sounded like the usual diplomatic rhetoric we hear on the daily news and simultaneously both reject and buy into with an ambivalent ease. Despite her matter-of-factness, the address resembled the opening act as it was undergirded by a similarly abstract humanitarianism that presupposes the existence of a benign ‘international community’ which is detached from the political and economic interests of our globalizing world, and which desires only to cater for the needs of the world’s less-well-offs.6 She both represented and talked to this abstract political society whose imaginative presence creates an ethical backdrop for innumerable state, social, private and public causes across the global societal spectrum. If national politics constitutes a no-holds-barred combat sport where lofty rhetoric is quickly downed and ridiculed, the international public space still provides a soulful refuge for politicians grown wary of myopic elbowing and constant trading of invective on the home front. However disaggregated in reality, the lure of ‘the international’ holds sway. Before Dallaire’s webcast, the Finnish foreign minister, known for his uncanny poise and dental smile, addressed the audience and explained how Finland approaches RtoP. His style was both flirtatious and businesslike as he commenced with a joke about how he had already met the President two times on the day of the seminar and how people might start talking if she does not watch out – ‘if [the audience]…would only know about the night cap we’re gonna have this evening’ finished off the one-liner. Funny perhaps, but somehow his suave opening seemed to ridicule the gravity and concerns underlying the RtoP debate – as well as the previous orations – and made me speculate as to why he thought that such dalliance would win over the audience (bulk of which was laughing approvingly). The minister acknowledged that RtoP is a delicate subject because it pertains directly to the core of state sovereignty, understood in terms of political independence and non-intervention, but that he nonetheless views sovereignty through the spectacles of RtoP as nation-states’ primary duty today is to provide protection for their citizens. For him, the battle between sovereignty and human rights was finished, along with other material). Diplomats, civil servants and NGO representatives formed the three biggest ‘groups’ among the audience. 6. See David Kennedy, Dark Sides of Virtue. Reassessing International Humanitarianism (Princeton University Press, 2004) at 22-23.

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over and done. In such a view, the presumed victory of human rights is understood as holistically humanizing particular exercises of power employed in relation to a body politic. Shades of grey become invisible as the dichotomy (sovereignty/human rights) is perceived as providing an empirically valid prism through which politics can be assessed: you are either for sovereignty (negative) or for human rights (positive). The world is thus divided – in a paternalistic spirit – into ‘pariah’ or ‘rogue’ states that hang on to Westphalian rhetoric, ‘modern’ or ‘liberal’ states that are all for human rights, and states that lay somewhere in between. The minister then reiterated Ban Ki-moon’s 2009 report on RtoP when defining the concept’s programmatic aspects. According to the report, each state has the primary responsibility to protect its people from the four atrocity crimes; secondly, the international community has committed to help states in exercising that responsibility; and thirdly, when a given state is ‘manifestly failing’ to protect its population, the international community is prepared to take collective action in a ‘timely and decisive manner’ and in accordance with the UN Charter.7 This last point, the so-called ‘third pillar’, remains the most contentious aspect of RtoP as it contains the use of coercive measures – including use of force – against states perceived as falling short of their protective responsibilities. I will return to this topic later on. The minister had three more specific points, which were all quite equivocal and in disregard of the confusion that characterizes on-going state-level discussions on RtoP. The first point had to do with the parameters of RtoP and with what the concept is really about once it has been denuded of political ‘sugar-coating’. Unlike the Secretary-General’s report, which explicitly edits (for example) natural disasters out of RtoP’s material scope,8 the Finnish stand is much broader and incorporates not only massive human rights violations of all sorts but also responses to natural catastrophes. For the foreign minister, the essence of RtoP boils down to the question of ‘what can we actually do when we are in a crisis situation?’, which he then attempted to answer by discussing international reactions in the aftermath of the cyclone that ravaged Burma in 2008. The Burmese junta had initially refused to allow foreign aid to flow in. This engendered bellicose debates among diplomats, humanitarian NGOs and human rights activists, and the media quickly followed suit. Bernard Kouchner, the n 7. Implementing the responsibility to protect (hereinafter Implementing RtoP), Report of the Secretary-General, UN Doc. A/63/677 (12 January 2009) at 1. 8. According to the Secretary-General’s report ‘[t]o try to extend it [i.e. RtoP] to cover other calamities, such as HIV/AIDS, climate change or the response to natural disasters, would undermine the 2005 consensus and stretch the concept beyond recognition or operational utility’, ibid., at 8. Later on in the address, the Minister noted that Finland supports what was agreed in 2005 and that it should not be watered down. This demonstrates how there is no common understanding about the concept’s core meaning even among its most unquestioning supporters.



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French foreign minister, seized the moral high ground and couched the issue as an RtoP situation. He demanded that the Security Council invokes RtoP and issues a resolution authorizing aid delivery in order to prize open Burma’s borders. No such resolution was passed and few weeks later the junta assented, partly, to international demands. Later on Kouchner retracted from his statement, because French foreign policy in relation to RtoP was based on the 2005 World Summit agreement, which clearly marked off non-conflict situations, including natural disasters, from the concept’s range. While Kouchner’s pleas ‘were met with a deafening silence’ at the time,9 his Finnish colleague nonetheless commended the move and viewed it as having contributed to the junta’s change of heart. In other words, RtoP equaled Kouchner’s rhetoric, because the minister perceived it as effective and functional in terms of concrete results (and this was the real meaning of RtoP). Associated to this was the idea that responses to past crises provide valuable learning material for finding the right instruments to be applied in future crisis situations. With instruments the minister was referring to the vast institutional network that acts on behalf of the ‘international community’ and reacts to natural and man-made disasters as well as puts into practice more long-term development projects in the decolonized world that has yet to reach the gates of western commercial modernity. Implicitly he claimed that that network will ever better discover and grasp what results flow from what causes, and thus is able to control the outcome of its interventions in a way that better ensures desired end states. This notion has much intuitive appeal as it mirrors the route by which humans learn things in general. Idioms like ‘trial and error’ or ‘practice makes perfect’ echo the idea that all well-motivated human activity is on a steady upward curve qualitatively. The audience seemed to share the belief that, ultimately, we will get it right and reach the implied humanitarian goals that inspires the international community and its individual representatives. The general mood was that RtoP too is slowly gaining traction. The second point related to the first as the minister underscored the importance of creating institutional partnerships between UN and other actors operating in conflict-prone areas. In particular he accentuated the role of NGOs and media in taking action that remain outside the purview of interstate diplomacy. NGOs were pictured as neutral operatives that may lack in democratic legitimacy, but yet perform an invaluable function and can thus ‘push RtoP forward’. The role of the media is to ‘pinpoint’ where RtoP is needed and in that way raise public awareness and outrage which in turn may compel relevant policymakers to react appropriately. Here, RtoP equaled the activities of nameless NGOs dispersed 9. Ivo Daalder and Paul Stares, ‘Saving Burma’s People. The UN’s Responsibility to Protect’, The New York Times, 13 May 2008, (visited 24.3.2011).

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across the planet as well as the media reports of global news agencies as both group of actors labor in their distinct ways for the benefit of those caught in the midst of violence and chronic deprivation. The minister then joined those who have characterized the successful containment of Kenya’s 2008 post-election violence as an epitome of RtoP in action. A panel of eminent Africans, mandated by the African Union and led by Kofi Annan, mediated a power settlement between the two main presidential candidates that attenuated the hostilities which had erupted after claims of a fixed vote, and which killed more than 1 000 people. That many RtoP ‘enthusiasts’ argue that the concept’s core is captured in what happened in Kenya is not surprising. The unfeasibility of finding any common ground on rules regulating (humanitarian) use of force has led the UN to focus on conflict prevention – understood broadly – as the quintessence of RtoP. The relevant ‘advocacy’ literature repeats time and again that ‘[p]revention is the single most important dimension of the responsibility to protect’ and ‘a key ingredient for a successful strategy’ for furthering the execution of the concept.10 These PR-texts catalogue and promote countless policy alternatives that are considered to fall under the prevention banner, ranging everywhere from promotion of economic growth, increments in levels of development aid, rule of law assistance, public service training-programs and minority protection initiatives, to fact-finding missions, development of early warning mechanisms, stand-off reconnaissance and application of international legal sanctions through the International Criminal Court. Similarly, minister Stubb chanted that non-consensual military intervention has at best a marginal role in the RtoP tool kit. The second point was concluded with an outlandish observation that RtoP had functioned well in Kenya, but not in Zimbabwe, Darfur or Somalia. Apparently the idea here was that the relevant institutional affiliations had failed to mount adequate pressure on the ‘international community’ to respond efficiently in the latter three cases – lack of political will thus being the single causal factor behind RtoP’s failure in each case. The implicit claim was that if the broader society of states had found agreement on measures to be taken, there would have existed policies whose implementation would have led to effective and foreseeable social consequences in the three conflict-torn states. In line with the minister’s own style and character, the inherent messiness, chaos and uncertainty of human life remained non-existent in his narration of RtoP. Lastly, minister Stubb returned to the Finnish position and reiterated (e.g.) that ‘we support the concept of RtoP’, ‘we support what was agreed in 2005 [in the final document of the UN Summit] and…don’t want any watering down of it’, and as a final point he observed with confidence that both the Secretary10. See The Responsibility to Protect, supra note 2, at xi and Implementing RtoP, supra note 5, at 9.



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General’s RtoP report and ‘the upcoming assembly week will push the concept forward’. Last of these excerpts referred to a General Assembly resolution adopted on 14 September 2009 in which UN member states took note of the SecretaryGeneral’s RtoP report and decided to continue consideration of the issue.11 The resolution also referred to a three-day plenary debate on RtoP carried out in July 2009, which was characterized as ‘timely and productive’. Altogether ninetyfour statements were presented during that General Assembly debate, the bulk of which were impregnated with bandwagon phrases such as ‘security sector reform’, ‘capacity-building’, ‘rule of law’, ‘good governance’, ‘early warning’, and ‘state-to-state learning processes’ – referring to specific institutional capabilities, policies and policy objectives regarded as essential for the prevention of future atrocity crimes. Taken as a whole, the statements reflect a vague consensus over the language in which RtoP related issues are discussed within the UN but also manifest how that rhetorical consensus tells nothing about the dynamics of conflict in states struggling to break free from social turmoil. The Secretary-General’s three-pillar strategy – individual state responsibility, international assistance and capacity-building, timely and decisive response – formed the basis for the General Assembly debate, with most UN delegates simply duplicating the strategy’s basic ideas approvingly. Pillar three, action against ‘failing’ and recalcitrant states, generated the biggest controversy. States that face frequent western criticism viewed RtoP as providing yet another argument for intervention in their internal affairs – whether such intervention takes place unilaterally or through the UN Charter framework is irrelevant to the concern. For example, the UN representative of Egypt, who spoke on behalf of the NonAligned Movement, reminded ‘about the possible abuse of R2P’, in particular about its misuse to ‘legitimize unilateral coercive measures’.12 The champions of RtoP – whether UN officials, diplomats, scholars or activists – counter this enduring anxiety indirectly: they emphasize the absolute primacy of ‘soft’ conflict prevention techniques, which are represented as disinterested solutions evincing liberal values and other nonfigurative humanitarian ideals. This rendering helps explain why none of the UN ambassadors addressed the jurisdictional basis of action under pillar two – international assistance and capacity-building – or discussed the reach of this authority or questioned the ramifications thereof.13 In a way, these kinds of depictions appear to be inbuilt elements of the UN lingo. The highly normative and cosmopolitan language of the documents that 11. The responsibility to protect, GA Res. A/RES/63/308, 14 September 2009. 12. Statement by Mr. Abdelaziz in the 97th plenary meeting of the General Assembly, 23 July 2009, UN Doc. A/63/PV.97, at 5. 13. This point is derived from Anne Orford, ‘Jurisdiction without Territory: From the Holy Roman Empire to the Responsibility to Protect’, 30 Michigan Journal of International Law (2009) 981-1015, at 1003-1013.

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lay out the mandate and purposes of the UN – and of the affiliated institutional network– has permeated the consciousness of people and institutions closely affiliated with the world body, and the conflation of the apolitical universalism of these founding documents with whatever the various UN bodies and agencies are engaged in has become a dominant way of thinking and writing, at least among political and academic circles sympathetic to the UN.14 In this mindset, the dynamics of conflict and social development is reduced to a clear-cut normative distinction in which international institutions bring about ethical progress, whereas local circumstances and forces are left to bear the blame for the social disequilibrium from which the latter continue to suffer. Such a mindset carries with it ambiguous consequences. As the basic presumption is that international involvement will equal positive societal evolution in the target states, the fortification of that involvement becomes the principal policy prescription of the aforesaid circles; in fact, it is their only prescription. Entrenching the myriad institutional efforts that fall under the ‘international assistance and capacity-building’ banner is perceived as a cure-all for any political, social and economic problem faced by these so called weak or fragile states, and as a guarantee against future atrocities. Now everybody knows that in reality the picture is much more complex and blurred. Various international institutions design, implement and influence policies that are deeply invasive and political to their very core. These policies produce all sorts of consequences and labeling them as ‘soft’ or ‘preventive’ beclouds the difficulty of understanding their role in the production of social (in)stability and situates them outside the realm of the political. Although it is extremely difficult to draw plausible general conclusions about the imprint the UN and its institutional partners are leaving in the socio-economic architecture of (for a lack of a better word) the developing world, some drawbacks of the kind of abstract RtoP and UN support that permeated the seminar can be outlined. The first is the very idea that conflict prevention or ‘international assistance and capacity-building’ would be a neutral, ‘technical means-to-an-end set’15 of activity carried out on the basis of incontestable knowledge about how to direct social development. Empirical social scientists may be performing increasingly sophisticated field studies, but as one commentator observed when discussing what their discipline can tell us about conflict resolution: ‘[l]ittle is known with certainty; some evident results have limited applicability; and often there is simply no compelling evidence as to what works and what does not.’16 To simply call out 14. With founding documents I refer not only to the UN Charter but also to the Universal Declaration of Human Rights and to other seminal international human rights treaties. 15. The quote is from Bill Cooke, ‘A New Continuity with Colonial Administration: Participation in Development Management’, 24 Third World Quarterly (2003) 47-61, at 48. 16. Samuel H. Barnes, ‘The Contribution of Democracy to Rebuilding Postconflict Societies’, 95 American Journal of International Law (2001) 86-101, at 86.



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for more conflict prevention or ‘international assistance and capacity-building’ is to further cement the misrepresentation according to which the existing diagnostic tools are apolitical and scientific and the ensuing prescriptions benign. The counter-argument to this is that the language in which conflict prevention mechanisms are described is not important and that the existing preventive capabilities within the UN are weak and inadequately funded which dictates the image that is projected of those capabilities to potential donors. Be that as it may, this counter-argument is not convincing for three reasons. First, if it is unclear what consequences flow from ongoing prevention mechanisms or if their overall role is poorly understood, it is nonsensical to cleave to ‘the more the better’-principle. It is much more important to start bridging the gap between RtoP reasoning and social fact than it is to continue strengthening the fallacy that RtoP equals beneficial altruism. Second, when the idea of RtoP-as-conflictprevention becomes the mantra of UN ambassadors and foreign ministries of particular states, it creates a dynamic and progressive image of the role of those states as regards particular global problems without committing them to zilch – it is hardly a news flash that the (mostly western) states supportive of RtoP are struggling with a protracted budgetary crisis and that even when national economies boom, only exiguous new resources are (potentially) allocated to policy sectors associated with RtoP. In this sense, RtoP talk constitutes a misleading public relations stunt free of charge. Third, and this is the most worrying complication, is the way in which RtoP-as-conflict-prevention comes to naturalize and legitimize broader patterns of economic and political influence in the world. While the UN Secretariat is mostly concerned with strengthening more immediate preventive tools that are loosely managed by various UN organs and their partner institutions, the Secretary-General’s RtoP report contains frequent references to more long-term projects that are, in the vein of the Finnish foreign minister, perceived as essential elements in the construction of social peace. These projects include various constitutional and legal, economic and social as well as political and diplomatic policies all described with the generic term ‘preventive’.17 An example of these projects will highlight why this kind of advocacy is problematic. Above, I already referred to how bulk of the RtoP literature18 stresses 17. See the GA debate excerpts for examples of these. 18. This is not to say that there would exist a consensus as to what role economic development and other forms of broad-based capacity-building should play in the RtoP framework. Some have voiced the opinion that such approaches should be excluded from the RtoP agenda. Their argument is premised on the idea that if the scope of the concept is stretched too far, it will lose its capacity to act as a catalyst when atrocities loom in sight. However, this argument does not impugn the importance of more long-term and broad-based policies, but simply views them as belonging to a different conceptual and institutional scheme. For such arguments see Alex J. Bellamy, Global Politics and the Responsibility to Protect (Routledge: New York, 2011) 93-95.

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the importance of economic development in eradicating conditions that fuel and protract conflict. This literature encourages and lends support for diverse economic activities that are regarded as contributing to that end – opening external markets for developing economies, encouraging regional economic integration, promotion of foreign direct investment are just few among a myriad of economy-based recommendations. This kind of high-level advocacy offers influential support for prevailing modes of economic reform and policy, often overseen by international financial institutions and carried out by local governments in collaboration with private economic actors. In this indirect way, RtoP becomes yet another vocabulary that facilitates mundane political and economic life within national jurisdictions, and it becomes increasingly difficult to distinguish between the ‘international community’ that represents the solution and the one that creates the problem as regards ‘RtoP situations’. It is a well documented fact that economic policy regularly contributes to socio-economic inequity and at worst wreaks all sorts of havoc and exacerbates disparities in the living conditions of rival social groups, which in turn may raise the probability of violent conflict.19 Those advocating RtoP-as-conflict-prevention may very well recognize the need to balance between various economic, political, ecological and social interests when variegated preventive policies are put into practice, but it is difficult to accept the idea that raising such concerns could have a direct or foreseeable bearing on the relevant practice. This is the undergirding ambivalence of RtoP. By foregrounding formal channels of interstate diplomacy, RtoP assumes that these produce the solution, all the while that diplomacy sanctions and oversees myriad public and private functions, the social impact of which are anything but clear. The opacity of those functions refers not only to the oft-heard argument about structural violence but also to the fact that the intensification of international involvement (public and/or private) may equally well be conducive to various heart-rending social ills. The use of coercive measures against refractory states is usually approached in a similar spirit by those who advocate a stronger role for the UN in questions regarding use of force. The inescapable real-political factors of forcible enforcement action are submerged in the normative force of the UN Charter that outlines the (legal) process to be followed in situations where use of force and other non-consensual means become a policy option. There is little point in analyzing what motivations went into past (or may go into future) interventions, because atrocity crimes are still a part of political reality. Ensuring that something is done 19. For this argument see e.g., Michel Chossudovsky, ‘Dismantling Former Yugoslavia: Recolonizing Bosnia’, 21 Economic and Political Weekly (1996), 521-525 (arguing that economic and strategic restructuring – carried out by international financial institutions – had a major role in deepening the existing social and ethnic divisions in Yugoslavia which in turn contributed to the outbreak of the ‘Yugoslav Wars’ in the 1990s).



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the next time scores of innocent people start dying is far more important than rehashing the usual concerns associated with Security Council politics. Thus the high premium on scholarship that reproaches the Security Council, or makes suggestions to reform its composition and procedure, or coins criteria by which to tie the hands of the Permanent Five in situations where large-scale political violence threatens. These ideas were reiterated assiduously both during the General Assembly debate as well as at the RtoP seminar: ‘reform of the Security Council to make it more representative and democratic…should be accelerated’,20 ‘we should all support the…call for restraint in exercising or threatening the veto’,21 , ‘key to solving all this [i.e. inaction at the Council]…is to take away the right of veto.’22 These appeals for improving the Council’s performance contain both a faith in realizing this objective as well as an acknowledgment of its unfeasibility. This ambiguity is present, for instance, in the final report of the ICISS which, as noted, coined the RtoP idiom and set up future discussions on the topic. The commission had ‘absolutely no doubt’ that the Security Council is the appropriate body ‘to deal with military intervention issues’ and that ‘the task is not to find alternatives to the Security Council…but to make…[it] work much better than it has.’23 However, the past teaches that it is precarious to rely solely on the Council, and this is why the commission suggests that the General Assembly and regional organizations could play a role when the Council fails to address ‘a conscience-shocking situation crying out for action.’24 Yet these alternative modes of action are characterized as undesirable for two reasons. Firstly, accepting exceptions (in particular) to use of force that are not based on a literal reading of the Charter gives too much leeway for states able to pursue an active and aggressive role in foreign and military policy, thereby reinforcing fears over unilateral use of force. Secondly, the espousal of such exceptions threatens the UN Charter system as a whole; a system that is understood to function as the only guarantee against anarchical let-loose politics. There is a constant pull between the desire to maintain rule-oriented order and the partial recognition that social reality will not conform to such desire. Thus the oscillation between the Security Council and its usual alternatives. At the General Assembly debate, this ambivalence was reflected in proposals that sketched one or another role for the Assembly in situations where the Permanent Five fail to reach consensus. The Finnish foreign minister shared these broad assumptions and ideas about the role of international institutions and the UN Charter. Abiding by the Charter rules promises certainty and restraint in what is an unpredictable world, whereas 20. Statement by Mr. Tommo Monthe (Cameroon) UN Doc. A/63/PV.101, 16. 21. Statement by Mr. McLay (New Zealand) UN Doc. A/63/PV.97, 25. 22. Suggestion by Mr. Lars Backström, Finnish Ambassador to China, during a Q & A session at the RtoP seminar. 23. The Responsibility to Protect, supra note 2, at 49. 24. Ibid., at 54.

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international institutions, in collaboration with local governments, further social goals that are beneficial at least to most people most of the time. After a short Q & A session, the minister yielded the stage to Dallaire who soon appeared on a large video screen. His tone and message were loud and clear. In Dallaire’s view, RtoP is premised upon the idea that all humans are equally important and thus entitled to enjoy same kind of protection. The 2005 agreement on the concept pledged to enthrone human rights as the leading paradigm of international politics at the expense of absolutist notions of state sovereignty, but, as Dallaire repeatedly pointed out, RtoP has not lived up to its promise and lies ‘immobilized between noble sentiments and unmet promises of timely and decisive action.’ Conflict prevention was almost completely absent in Dallaire’s remarks, and muscular intervention, or lack thereof, took centre stage with Rwanda and Darfur acting as epitomes of the failings of the international community and as proof of a ‘pecking order in humanity’ in which black Africans are located at the very bottom. He slammed the media for misguided priorities and upbraided each and every sovereign state for not providing the UN with required assets in Rwanda-like situations. Gradually, Dallaire’s angry diatribe became enervating. His repeated rhetorical questions – ‘are not the Rwandans just as human as you and me?’ or ‘what does the audience not understand about universal human rights?’ – and his references to the obstacles standing in the way of effective enforcement action were clichéd and obvious but presented as shocking and original instead of business-as-usual. As is the case with, say, the rhetoric of Amnesty International and Human Rights Watch, Dallaire’s indignation was underlain by an idealistic position which presumes that politics can ultimately be tamed within the UN. His remarks were written to elicit a sense of despair and collective guilt among the audience – a sense that while we are enjoying our comfortable and secure lives, our fellow humans continue to die in horrible and unwarranted ways and we do nothing about it. Dallaire strove to arouse our sense of moral agency and responsibility within the depersonalized and institutionalized contexts of our professional everyday lives – that however complex the causalities of our globalizing world, we all are directly and personally responsible for the plight and rescue of people caught amid conflict and violence. In this way, his oration resembled a church service where the priest first chastises the congregants and then gives them absolution. The penitential acts imposed on the audience were not concretized but the impression was that these should be both rhetorical (further seminars, declarations and other public statements supporting RtoP) and material in nature (investing political capital as well as additional economic and military resources in ongoing crises). At one level, it was easy to sympathize with Dallaire and understand how irreversibly scarring the events in Rwanda must have been, and how those events had come to define the man, personally and professionally. Yet at another level,



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it felt that our sympathy was incompatible with the responsibility Dallaire was attempting to make us experience – as Susan Sontag once put it: ‘[s]o far as we feel sympathy, we feel we are not accomplices to what caused the suffering. Our sympathy proclaims our innocence as well as our impotence.’25 Identifying with Dallaire’s pain is deeply human, but simultaneously a distraction from the way in which we all play a role (however indirectly) in producing the bad consequences of global policy-making. Toward the end, Dallaire moderated his tone and pledged his faith to prosperous middle powers (Canada, Japan, and Germany) and progressive developed nations (in particular Nordic countries) to operationalize RtoP. He made a throwaway remark about conflict prevention by noting that it ‘is better value for money than responding to a full-blown crisis’ and invited civil society actors to pressure political leaders to ‘change aid, development and foreign policies in a way that will address problems in countries were populations tend to be most at risk.’ These simple prescriptions felt somewhat surprising given his preceding pessimism, and as a whole Dallaire’s address created a peculiar image of RtoP and of the efforts of the institutional actors that promote the concept. On the one hand, he painted a terribly bleak picture of the prospects of RtoP having any positive impact and becoming an effective policy tool. The complications that the concept faces are countless and go deep into the fabric of the global political and economic order as the senator reminded. On the other hand, Dallaire gave the impression that RtoP stands a chance of achieving something significant if states that have ‘well-established internal political institutions, no expansionist ambitions on the world stage, and a strong civil society’ join hands and place RtoP high on the institutional agenda of intergovernmental organizations. It felt expedient that Dallaire ended the speech in such an upbeat mood. It would have made little sense to focus solely on the problems that RtoP runs into given the composition and purpose of the seminar which was ‘[t]o advance the discussion and to strengthen the understanding and the political will regarding the principles of R2P in Finland and Sweden.’26 Like the speakers before him, Dallaire gave the impression that states such as Finland and Sweden can play a neutral and progressive role in relation to prevention of atrocity crimes. The seminar strengthened this image as the topic was approached in a way that conflated the participants’ humanitarianism with their professional work and RtoP. Dallaire was followed by two more speakers after which there was a panel discussion with questions from the audience. The last two speakers had both held a high-ranking office within the UN secretariat. Jan Egeland, former UN UnderSecretary-General for Humanitarian Affairs and Emergency Relief Coordinator, defined RtoP as ‘effective action at the earliest possible time for the most vulnerable 25. Susan Sontag, Regarding the Pain of Others (Farrar, Straus and Giroux: New York, 2003) at 102. 26. The sentence is taken from the synopsis of the seminar.

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people that are threatened by the four atrocity crimes’ and distinguished the concept from broad legal entitlements – such as right to development and the right of democracy – because RtoP is ‘about action [and] not about words.’ Strengthening the UN, ensuring predictable action and establishing early warning-mechanisms to provide timely and objective information were among the other points that Egeland presented. He also scolded the Nordic countries for being too inactive as regards RtoP and for reducing their contributions to UN peacekeeping missions. In its entirety, the short address felt bureaucratic and somewhat redundant, particularly after Dallaire’s blood-and-thunder speech. Egeland sounded like a career diplomat who has lost faith in the only available language yet continues to adhere to it for lack of alternatives. He received modest applauds. The final speaker had a solid background in law and legal practice. Hans Corell had headed the UN Office of Legal Affairs and in that capacity acted as the organization’s chief legal counsel from 1994 to 2004. He raised expectations to a certain extent by saying that he would be speaking in personal capacity because of his retirement. Corell’s address was remarkably equivocal and wonderfully abstract at the same time. He began by pointing out that the root causes of all conflicts are the same: ‘no democracy and no rule of law.’ Rather than dealing with symptoms, these underlying legal vacuums should be dealt with leading to a more sustainable peace. This suggestion was attendant to the Secretary-General’s RtoP report as Corell saw that international assistance and capacity-building (pillar two of the report’s action plan) should focus on ‘establishing a…rule of law-based society with institutions educating police and judges…before it’s too late.’ Corell did not elaborate on the meaning and execution of these concepts or on the role they play in the societal development of particular states and in that way ignored both the well documented excesses of policing in states where security (or lack thereof ) is the predominant concern of public policy as well as the role of the judiciary – and the legal system as a whole – in enabling private actors to pursue interests that only benefit a small minority. To promote and enforce rule of law is to allocate stakes between public and private actors and to entrench a particular socio-economic order with its winners and losers – at best resulting in a hard-bargained peace, at worst in oppression and a culture of fear and terror. It is precisely because the ‘pathways from large ideas to concrete institutional practices are often complex and hard to follow’27 that the distinguished UN servant should have been more cautious in his advocacy of the rule of law. Corell was against broadening the composition of the Security Council as this would in effect make the executive body of the UN even more inoperative and disunited, which in turn would further impede timely and effective collective 27. Martti Koskenniemi, ‘International Law in the World of Ideas’, in James Crawford and Martti Koskenniemi (eds.), Cambridge Companion to International Law (Cambridge University Press, 2011 forthcoming).



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action under pillar three. For Corell, it ‘is very dangerous to suggest that any other entity than the Security Council should be allowed to decide on whether to use force or not.’ He did not enlarge upon the dangers involved if the Council is bypassed but purportedly such procedural misbehavior would (again) convulse the entire international order, which the UN Charter simultaneously constitutes and regulates. That use of force has never remained within the strict limits of the Charter or the fact that the entire Charter regime is just one global institutional arrangement among many appeared not to undermine Corell’s visualization of the UN and its constitutive document as controlling and directing state behavior. There is something seductive in such approach. Interpreting the Charter in Corell’s way promises a ‘concentrated point of deliberation condensing contestability and choice’28 and provides a professionally acceptable escape-route from the labyrinthine reality within which myriad regulatory arrangements, economic and political interest groups, religious denominations, cultural mores, and all sorts of expert coteries clash and affect the incidence of conflict and violence long before and after the Security Council becomes involved. To look at the world from an office at 760 United Nations Plaza is to miss an awfully lot. To avoid deadlock at the Security Council and to provide legitimacy for the Council’s reasoning in situations where use of force is contemplated, Corell called for adopting the criteria for ‘humanitarian’ use of force which the ICISS had coined in its final report. While no such criteria were included in the two paragraphs of the World Summit Outcome Document, Corell reasoned that the Council is sovereign and could use the ICISS criteria in an open manner when acting under Article 39 of the Charter, thereby enabling the world community to understand ‘why the Council decides to intervene in a given situation and why not in another.’ The criterions proposed by the ICISS were firmly based in the ancient just war tradition. Once a situation reaches the threshold of large scale loss of life/large scale ethnic cleansing, the four ‘precautionary principles’ – right intention, last resort, proportional means and reasonable prospects – come into play and help determine whether to intervene militarily or not. Corell’s argument for the criteria combined naturalist and positivist elements as he first relied on a universal ethics and then on the text of the Outcome Document: he spoke of the expectations that the world has in relation to the Council’s performance and then of the fact that the Council ‘should act under the two RtoP paragraphs [of the Outcome Document]’ when necessary. Such argumentative pattern simultaneously upholds and rejects state sovereignty, capturing nicely the ambiguous dualism that lies at the heart of much international legal argument.29 28. David Kennedy, ‘Speech: Assessing the Proposal for a Global Parliament: A Skeptics View’, 13 Widener Law Review (2006-2007) 395-399, at 396. 29. As famously and convincingly argued in Martti Koskenniemi, From Apology to Utopia: The

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In many ways, Corell’s oration on the Security Council was a show-piece of a kind of ‘high-level activism’ that is thoroughly conservative due to its impracticable approach and agenda. Bulk of the existing literature on RtoP echo the idea that the Security Council is in need of reform which entrenches the pipe dream that a self-sacrificing ‘international community’ exists and that the Council’s activity is (or ought to be) its condensed real-life manifestation, particularly when it comes to humanitarian use of force. While the Council has never subscribed to such a vision, its adherents remain unwavering and resources continue to be dissipated – inside and outside academia – to an effete cause upheld by tradition and faith alone.30 My stance is not an argument against reforming the Security Council, however unrealistic this may be, but an argument about the impossibility of knowing what consequences would flow from a particular type of reform. As a final note, Corell highlighted how critical he had been of the arrogance of some western states (the United States in particular) when the Berlin Wall came down. The occasion (i.e. the end of the Cold War) marked a ‘missed opportunity’ to take into account ‘the lessons of the two world wars’ as powerful western states should have sat down with the Russians to discuss their ‘potential common interests’, in particular the common interest of not getting into an armed conflict with each other, ‘and then see where to take it from there.’ In Corell’s mind, such a high-level meeting could have foiled the grotesque political violence of the 1990s and 2000s because the participating states would have understood that intervening and thwarting mass-murder in places like Rwanda and Kosovo is not a threat to their state sovereignty. Such a naïve portrayal of the dynamics of international politics felt satirical. As if a meeting between Bush Sr and Gorbachev/Jeltsin sometime in the early 1990s would have resulted in a less biased and ambiguous politics at the UN. But nobody seemed amused and apparently Corell’s submissions were considered serious and viable. After a Q & A session with Dallaire, Egeland and Corell, the seminar came to an end. A cheerful feel filled the auditorium with people greeting colleagues and acquaintances and engaging in cordial small talk. Some of the buoyancy was explained, surely, by the fact that it was Friday afternoon and people had all sorts of non-occupational plans for the weekend, but there was also a sense that the seminar had served its purpose and contributed to ‘Promoting the Principles of Responsibility to Protect’ as the seminar headline had promised. Walking away from Structure of International Legal Argument (Reissue with New Epilogue, Cambridge University Press, 2006). 30. For a refreshing critique of the idea that expanding the membership of the Security Council would increase the body’s perceived legitimacy deficit see Ian Hurd, ‘Myths of Membership: The Politics of Legitimation in UN Security Council Reform’, 14 Global Governance (2008) 199-217.



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the venue – to start my own carefree weekend – I was puzzled about the experience and had feelings that were neither new nor easily definable. The seminar felt like an institutionalized vigil with RtoP acting as a shared article of faith. Duncan Kennedy has described how losing faith in legal reasoning, to come to experience it ‘as “mere rhetoric” (but neither “wrong” nor “meaningless”)’,31 may affect the strategy by which one navigates in the legal world. The sense that RtoP is ‘mere rhetoric’, but not inconsequential, was pervasive. If one has lost faith in RtoP talk and sees no clear connections between the talk and the unfolding of social life, then such talk can only signify an unfounded appropriation of moral virtue. The moral impulse that fuels RtoP advocates feels disingenuous for at least three reasons (I already touched upon some of these above). First, once political elites embrace RtoP, the concept becomes yet another loose vocabulary that is used to justify the overall policy orientation of particular governments and institutions. However unintentional, such official approbation acts as an apology to opaque forms of international governance carried out under the auspices of the UN and other major international institutions, by allowing those forms to escape meaningful political contestation. And if whatever Bernard Kouchner decides embodies RtoP (as the Finnish foreign minister suggested), then emancipation and progress are not among the first associations one makes with RtoP. Secondly, the provision of protection (RtoP’s quintessential objective) takes many shapes and forms, some of which have nothing moral about them. Thirdly, the oft-repeated rhetorical support for RtoP creates a de-centralized and loosely organized pledging conference that results, at best, in modest ad hoc budgetary transfers to organs of particular international institutions. There is no evidence to suggest otherwise. The institutionalization of RtoP is not based on any understanding over the ways in which this connects with other sectors of foreign policy or with more subtle forms of external influence (economic/ political/ cultural/ military) or with the pragmatic endeavors of the UN and its organizational partners in particular countries. The chains of causation between the support given to RtoP and the socio-economic development of developing and ‘fragile’ states remain thoroughly opaque. The revolutionary idea that RtoP conditions or topples forms of anachronistic sovereignty ends up serving a thoroughly conservative end. To espouse RtoP is to allow for no politics outside or against the existing political and institutional framework. International assistance and capacity-building (pillar two in the UN’s RtoP agenda) help entrench the global status quo by accommodating opposition into tamed procedure. Revolt against a repressive state is allowed

31. Duncan Kennedy, ‘The Critique of Rights in Critical Legal Studies’, in Wendy Brown and Janet Halley (eds.), Left Legalism/Left Critique (Duke University Press: Durham/London, 2002) 178-227 at 191.

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only if sanctioned by the international community.32 Absent such patronage, the state is left free to pulverize dissent no matter how oppressive the peace. In this sense, RtoP is totalitarian. Certainly, the violence and injustice that define our collective existence inflict emotional distress upon us all. Becoming a champion of RtoP may give one a sense of decency in an indecent world, but it is also to become involved in the production of hypocrisy and illusion about the economy of human life. As valuable as the language of RtoP is for many institutional purposes, at least in its predominant form it is “entirely useless when we come to study, describe, predict and criticize”33 the attendant social phenomena.

32. My argument here is derived (with some modifications) from Anne Orford, ‘Book Review Article: International Territorial Administration and the Management of Decolonization’, 59 International and Comparative Law Quarterly (2010) 227-249, 249. 33. This is taken from Felix S. Cohen’s famous article, ‘Transcendental Nonsense and the Functional Approach’, 35 Columbia Law Review (1935) 809-849 at 812. Cohen was criticizing the way in which accepted forms of legal reasoning of American courts obscured the role legal rules play in producing penetrating social and economic consequences.

Limits of Sovereignty? - Rethinking the Conflict between Human Rights and Immigration in the European Union Magdalena Kmak* Abstract: The article addresses the growing gap between human rights and immigration policies of European Union and Member States, having as its methodological point of departure Foucauldian analysis of governmental power. Through categorisation of various groups of immigrants present in the EU it focuses on the legal measures on immigration adopted on the basis of Title IV of the Treaty of Amsterdam and approaches the conflict between obligations and interests of States as constituting part of a European art of governing migration. In conclusion it spells out the need to rethink the role of human rights and to find new forms of rights that would be able to transgress the logic of a governmental mode of power. Keywords: European Union, Migration, Asylum, Human Rights, Foucault, Governmentality

1. Introduction A number of studies analysing provisions of the European Union’s (EU) legal instruments on immigration and their implementation by Member States reveal a continuous conflict between States’ practices and their human rights obligations in relation to immigrants.1 According to Bigo, Carrera and Guild: *

Postdoctoral Research Fellow at the Erik Castrén Institute of International Law and Human Rights, University of Helsinki. I would like to thank Gregor Noll and Cathryn Costello for comments on the earlier draft of this article as well as Antti Sadinmaa and the anonymous Reviewers for comments and suggestions. 1. See for example, European Council on Refugees and Exiles, ‘The Impact of the EC Qualification Directive on International Protection’, , UNHCR, ‘Asylum in the European Union, A Study of the Implementation of the Qualification Directive’, , UNHCR, ‘Improving Asylum Procedures, Comparative Analysis and Recommendations for Law and Practice, A UNHCR Research Project on the Application

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Finnish Yearbook of International Law (Vol. 20, 2009) A serious deficit is currently apparent in the delivery of fundamental rights in the EU particularly to third-country nationals. Turning around this deficit so that third-country nationals are welcomed into the EU and enjoy fundamental rights in a framework of equality will take concerted efforts by the EU institutions over the next 20 years.2

Recent developments in the field of immigration, in particular the adoption of the Stockholm Programme,3 do not indicate however that measures have been taken with the aim to reverse the ongoing processes and to diminish the human rights deficit. The Programme calls for creation of the Common European Asylum System and further development and consolidation of EU migration policies based on principles of solidarity and responsibility. However, its strong focus on the development of internal and external security policies raises doubts as to the willingness of the EU and Member States to bridge the human rights gap in the field of immigration, in particular regarding those seeking protection in Europe. Foundations for the existing conflict between preferences and obligations of States have been embedded in many factors, in particular in the construction of the human rights system itself. By introducing limits on States’ immigration policies and endowing them at the same time with the primary responsibility for implementation of those rights, this system influences States’ perception of human rights as some kind of mandatory inconvenience that interferes with their aims to achieve other goals such as economic growth or security. The consequences of this limited capacity of human rights are visible in particular in case of immigrants, who cannot receive protection from their own countries. As Arendt claims, the Rights of Men ‘[...] had been defined as “inalienable”, because they were supposed to be independent of all governments; but it turned out that the moment human beings lacked their own government and had to fall back upon their minimum rights, no authority was left to protect them and no institution was willing to guarantee them’.4 This conflict is also embedded in the process of European harmonization, in particular in the creation of the common market combined with different legal traditions and historical relation to immigration in various Member States. Analysis of the development of the immigration policy of Key Provisions of the Asylum Procedures Directive in Selected Member States’, , Magdalena Kmak, ‘Międzynarodowe Standardy Dotyczące Wydalania Cudzoziemców i ich Stosowanie w Wybranych Krajach’, PhD thesis, Polish Academy of Sciences (2009), unpublished. References to online sources are accurate as of 5 December 2010. 2. Didier Bigo, Sergio Carrera and Elspeth Guild, ‘What Future for the Area of Freedom Security and Justice? Recommendations on EU Migration and Border Policies in a Globalising World’, CEPS Policy Brief No. 156, at 3 . 3. The Stockholm Programme – An open and secure Europe serving and protecting the citizens, OJ 2010 No. C115/1. 4. Hannah Arendt, The Origins of Totalitarianism (Harvest Book: San Diego, 1973) at 292.



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since early 1980s shows that its gradual tightening has been paralleled with greater economic integration of the EU. Various legal measures adopted in order to ensure the freedom of movement of the EU citizens and to effectively manage the influx of immigrants from third countries show a growing gap between rights granted to both groups. Content of legal instruments, processes of their adoption and their implementation on national levels allow claiming that human rights are considered by States as a serious limitation of their right to manage immigration policies in accordance with their other interests. On the other hand, this human rights deficit in EU protection policies is paralleled with a growing importance of human rights instruments. In particular, after adoption of the Lisbon Treaty, the Charter of Fundamental Rights has achieved the status of primary law of the EU.5 The Treaty also formalized prospects of accession of the EU to the European Convention on Human Rights (ECHR).6 Official talks on the accession between the EU and the Council of Europe have started on 5 July 2010.7 Therefore, by reference to the conflict between obligations and preferences of States this article aims: 1) to examine, through categorisation of various groups of immigrants present in the EU, the nature of the relationship between European immigration policy and human rights, 2) to show the limits of the traditional human rights-based approach to immigration, and 3) by using as its methodological point of departure the Foucauldian analysis of governmental power, to call for alternative approaches to traditionally understood relations between obligations and preferences of States.

2. Rationalities of EU Migration Policy The existing conflict between obligations and preferences of States is grounded in the processes of harmonisation of the European immigration policy connected to the project of European economic integration. In its early days migration was considered as a temporary phenomenon and Member States were either actively looking for a foreign workforce or simply treating foreign workers as guests, residing in their territories for the period of their work contracts.8 The situation changed in the course of the 1970s in connection to the oil crisis when States no 5. Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 13 December 2007, OJ 2007 No. C306/01. 6. Article 6, Consolidated Version of the Treaty on European Union, OJ 2010 No. C83/13, Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, in force 3 September 1953, 213 UNTS 222. 7. Council of Europe Press Release 545(2010) 5 July 2010. 8. Ryszard Cholewinski, ‘Family Reunification as a Constitutional Right?’ in Joanna Apap (ed.), Justice and Home Affairs in the EU, Liberty and Security Issues after Enlargement (Edward Elgar: Cheltenham, UK, Northampton, MA USA, 2004) 259-274 at 261.

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longer perceived immigrants as ‘”long-term tourists” beneficial to their economy’ 9 but rather as an uncontrolled force constituting a potential threat to labour markets, internal security and the cohesion of their societies.10 The emergence of more systematic policies of management of immigration in the course of the 1980s has been connected to the economic integration11 as well as to significant increase in the number of foreigners seeking asylum in Europe.12 Those processes have inspired attempts by the EU and Member States to introduce increasingly restrictive measures in order to limit the influx of immigrants13 and to create a common immigration policy towards third-country nationals and refugees.14 Those measures included signing in 1985 the Schengen Agreement15 and the creation of the Working Group on Migration and Asylum Matters, an informal cooperation platform for Member States aiming to limit the flow of immigrants and refugees into their own territories16 and continued in 1990s by adoption of the Schengen Convention17 as well as the Dublin Convention18 setting the rules concerning responsibility of Member States for investigating refugee applications. In 1992, by adoption of the Maastricht Treaty,19 Member States agreed to treat the management of immigration, asylum and border crossing as a common policy situated within the Third Pillar (Justice and Home Affairs) of the EU20 placing formerly informal cooperation on a formal and intergovernmental 9. Didier Bigo, ‘Criminalisation of “Migrants”: The Side Effect of the Will to Control the Frontiers and the Sovereign Illusion’, in Barbara Bogusz, Ryszard Cholewinski, Adam Cygan and Erika Syszczak (eds.), Irregular Migration and Human Rights: Theoretical, European and International Perspectives (Martinus Nijhoff Publishers: Leiden/Boston, 2004) 61-91 at 70. 10. Didier Bigo, ‘Security and Immigration: Toward a Critique of the Gonvernmentality of the Unease’, 27 Alternatives (2002) 63-92 at 65. 11. Gregor Noll, Jens Vedsted-Hansen, ‘Non-Communitarians: Refugee and Asylum Policies’, in Philip Alston (ed.), The EU and Human Rights (Oxford University Press, 1999) 359-410 at 359. 12. Anita Böcker, Tetty Havinga, ‘Asylum Applications in the European Union: Patterns and Trends and the Effects of Policy Measures’, 11 Journal of Refugee Studies (1998) 245-266 at 245. 13. Ibid. 14. Noll and Vedsted-Hansen, ‘Non-Communitarians’, supra note 11. 15. Agreement between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders, OJ 2000 L239 13-18. 16. Ibid. 17. Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders, OJ 2000 No. L239 19-62. 18. Convention determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities - Dublin Convention, OJ 1997 No. C254. 19. Treaty on European Union, OJ 1992 No. C191/01. 20. Peter J. Van Krieken, The Consolidated Asylum and Migration Acquis, The EU Directives in an Expanded Europe, (TMC Asser Press, The Hague, 2004) at 4, Noll and Vedsted-Hansen, ‘Non-Communitarians’, supra note 11, at 366.



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level. Four years later, the Treaty of Amsterdam21 moved migration matters into the Community (First) Pillar setting the maintenance and development of an Area of Freedom, Security and Justice as the objective of the EU.22 It established a 5-year-long period for adoption of necessary legal instruments regulating the freedom of movement for EU citizens, common migration and asylum policies for third-country nationals, as well as the fight against crime.23 The next step in the harmonisation of immigration policies has been made by adoption of the Lisbon Treaty which introduced common policies on border controls, asylum and immigration,24 leaving Member States only limited competences in this area.25 The outcome of this over twenty-year-long process of gradual harmonisation of immigration policies has been criticised.26 It has been claimed that the abolishment of national borders and the creation of the common Area of Freedom Security and Justice have increased fears and security concerns among Member States which has influenced the development of a common policy towards third-country nationals. In particular, it called for ‘compensatory powers of control at the external borders’27 that would allow States and citizens to enjoy the free European market.28 In consequence the threat of immigrants has been often equalled with other threats such as drug smuggling or organised crime.29 According to Kostakopoulou, tendencies to criminalize immigration, present already before the adoption of the Treaty of Maastricht, have also been reflected in the construction of the Third Pillar and, 21. Treaty of Amsterdam amending the Treaty on European Union, The Treaties Establishing European Communities and Related Acts, OJ 1997 C340/01. 22. Article 2 of the Treaty of Amsterdam, Consolidated Version of the Treaty on European Union, OJ 2002 C325/5. 23. Chapter IV of the Treaty of Amsterdam, supra note 21. 24. New Title V of the Consolidated version of the Treaty on the Functioning of the European Union, OJ 2010 No. C83/47. 25. Articles 77, 78 and 79 of the Treaty on the Functioning of the European Union, supra note 24. 26. See ex. Elspeth Guild, ‘The Europeanisation of Europe’s Asylum Policy’, 18 International Journal of Refugee Law (2006) 630-651. 27. Ibid. 28. ‘Freedom loses much of its meaning if it cannot be enjoyed in a secure environment and with the full backing of a system of justice in which all Union citizens and residents can have confidence. These three inseparable concepts have one common denominator - people - and one cannot be achieved in full without the other two. Maintaining the right balance between them must be the guiding thread for Union action. It should be noted in this context that the treaty instituting the European Communities (article 61 ex article 73I a) makes a direct link between measures establishing freedom of movement of persons and the specific measures seeking to combat and prevent crime (article 31 e TEU), thus creating a conditional link between the two areas’, European Council, Strategy Plan on Immigration and Asylum Policy, 9809/98, Brussels 1 July 1998, after Theodora Kostakopoulou, ‘The ‘Protective Union’: Change and Continuity in Migration Law and Polity in Post-Amsterdam Europe’, 38 Journal of Common Market Studies (2000) 497-518 at 507. 29. Kostakopoulou, ‘The ‘Protective Union’’, supra note 28, at 505-506. See also Didier Bigo, ‘Security and Immigration’, supra note 10, at 65.

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after the adoption of the Treaty of Amsterdam, they have been incorporated into the measures of the First Pillar.30 This policy has been enshrined in the creation of the Area of Freedom, Security and Justice, encompassing the issues of border controls and immigration, judicial cooperation in criminal matters, and police cooperation.31 Such rationalities underlying the creation of the Area of Freedom Security and Justice have been reflected in the text of the recently adopted Stockholm Programme. Even though it calls for fair immigration policy, its main focus lies in the development of measures aiming to ‘protect the lives and safety of European citizens’.32 It enhances, in particular, the development of various technologies with the aim to achieve availability and interoperability of existing migration databases such as the Schengen Information System (SIS),33 the Visa Information System (VIS)34 or EURODAC,35 serving to protect external border, manage migration flows and maintain internal and external securities.36 In relation to immigration it spells the need to guarantee more effective and efficient access to Europe for those ‘having a legitimate interest to access the EU’ emphasizing at the same time the need of the Union and Member States to ‘guarantee security for their citizens’ by developing integrated border management and visa policies.37 By emphasising the need to protect EU citizens from risks and anxieties coming from third countries,38 these policies have increased tensions between the EU and its outside. According to Kostakopoulou: [t]he EU is caught among contradictory currents which move it toward norms of cosmopolitan justice in the treatment of those who are within its boundaries, while leading it to act in accordance with outmoded Westphalian conceptions of unbridled sovereignty toward those who are on the outside. The negotiation between insider and outsider status has become tense and almost warlike.39

30. 31. 32. 33. 34. 35. 36. 37. 38. 39.

Ibid. Title V of the Treaty on the Functioning of the European Union, supra note 24. The Stockholm Programme, supra note 3, at 3. Title IV of the Schengen Convention, supra note 17. Regulation 767/2008/EC of the European Parliament and of the Council of 9 July 2008 concerning the Visa Information System (VIS) and the exchange of data between Member States on short-stay visas (VIS Regulation) OJ 2008 No. L218/60. Council Regulation 2000/2725/EC of 11 December 2000 concerning the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of the Dublin Convention, OJ 2000 No. L316/1. The Stockholm Programme, supra note 3, See also Didier Bigo and Julien Jeandesboz, ‘Border Security, Technology and the Stockholm Programme’, CEPS Policy Brief, No. 3, . The Stockholm Programme, supra note 3, at 4. Kostakopoulou, ‘The ‘Protective Union’’, supra note 28, at 507. Seyla Benhabib, ‘Borders, Boundaries and Citizenship’, 38 Political Science & Politics (2005) 673-677 at 675.



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This short analysis reveals the visible presence of the fear and security discourses in relation to immigration both in Europe and Member States. This fear is connected to economic integration and is used to justify the need to protect EU citizens. According to Foucault, concerns for security, based on calculation of fear, constitute an element in a broader mechanism of technology of security which forms a crucial part of the art of governance typical to (neo)liberalism. This reference to security and fear justifies the aim of this article to approach the nature of the relationship of EU immigration policy and human rights as a European art of governing migration which in itself is an aspect of (neo)liberal governmentality. Those methodological features and their relevance for analysing the phenomenon of immigration will be addressed in the section below.

3. Foucault and the European Art of Government According to Michel Foucault, the traditional way of thinking about human rights is embedded in the concept of the juridico-political sovereign theory of power, which presupposes the externality of rights in relation to power and sees their role as tools to limit this power or to reinforce it.40 The concept of sovereignty has been derived from the monarchical rule,41 where the prince has not formed a part of his principality but rather remained external to it.42 Sovereignty has later become democraticised through liberal and democratic States43 having as its aim the exercise of authority over the subjects of the state within a defined territory.44 For this purpose, States have been using, as their own mechanisms, constitutions, laws and parliaments.45 On the other hand, unlike sovereignty, the concept of governmentality ‘is not of imposing law on men but of disposing things’.46 The notion of government has been characterized by Foucault as conduct of conduct, an activity aiming to influence human conduct which is perceived as something that can be regulated, controlled and directed towards specific ends.47 Governmentality presupposes that those who are governed are to some extent free and it attempts to shape and produce this freedom deploying 40. Michel Foucault, ‘Two Lectures’, in Power/Knowledge, Selected Interviews and Other Writings 1972-1977, Colin Gordon (ed.) (The Harvester Press, 1980) 78-108 at 103. 41. Mitchell Dean, Governmentality, Power and Rule in Modern Society (SAGE Publications, 2008) at 19. 42. Michel Foucault, Governmentality, in Graham Burchell, Colin Gordon and Peter Miller (eds.), The Foucault Effect: Studies in Governmentality (The University of Chicago Press, 1991) 87-104 at 90. 43. Dean, Governmentality, supra note 41, at 19. 44. Ibid., at 20. 45. Ibid. 46. Foucault, ‘Governmentality’, supra note 42, at 95. 47. Dean, Governmentality, supra note 41, at 11.

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for this purpose certain forms of knowledge and expertise.48 Therefore, governmentality can be understood as a regime taking as its object a certain population and calculating necessary actions in order to guarantee its freedom. In order to achieve this end it seeks to enframe the population within certain apparatuses of security aiming to defend, maintain and secure it.49 In the words of Foucault, the concept of governmentality is an ‘ensemble formed by institutions, procedures, analyses and reflections, calculations and tactics that allow the exercise of […] power that has the population as its target, political economy as its major form of knowledge and apparatuses of security as its essential technical instrument’.50 This concept is particularly useful because it shows the liberal art of government as being by itself a way of economic management. In order to guarantee freedom to its subjects, liberalism creates the conditions under which individuals are able to exercise this freedom.51 Because the mechanism of security is based on the triangle of freedom, security and fear,52 security can be seen within the economic rationality of liberalism as a principle of calculation of fear for the costs of manufacturing freedom53 for the population at stake. What this methodology reveals, however, is that fear, as a necessary element of the security mechanism, also has to be produced54. In addition, this production of freedom is not only based on the direct interventions of the state apparatus but also, characteristically, on the development of ‘indirect techniques for leading and controlling individuals without at the same time being responsible for them’.55 Therefore, it does not only allow to understand the mechanisms of production of freedom but also to uncover the conditions behind the creation of fear. I believe that Foucault’s analysis of governmental power can provide fruitful methodological tools for reassessing the approach to the nature of the relationship between immigration law and human rights. It allows abandoning the traditional perception of the role of rights as imposing limits on state actions and approaches them as well as the immigration policies as having a strategic role in governmentality. By using the Foucauldian analysis of governmental power this article aims to show how the rationalities of EU economic integration and tendencies, 48. Ibid., at 13-14. 49. Ibid., at 20. 50. Michel Foucault, ‘Security, Territory, Population’, Lectures at the College de France (Palgrave Macmillan, 2009) at 108. 51. Thomas Lemke, ‘Risk of Security: Liberalism, Biopolitics and Fear’, Presentation at the Conference The Politics of Life: Michel Foucault and the Biopolitics of Modernity, 3-5.9.09 Stockholm. Unpublished. 52. Lemke, ‘Risk of Security’, supra note 51. 53. Michel Foucault, The Birth of Biopolitics, Lectures at the College de France’ (Palgrave Macmillan, 2008) at 65. 54. Lemke, ‘Risk of Security’, supra note 51. 55. Thomas Lemke, ‘The Birth of Bio-Politics’: Michel Foucault’s Lecture at the College de France on neo-liberal governmentality’, 2 Economy and Society (2001) 190-207 at 201.



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guiding the development of the European immigration policies described above, have influenced the legal regulations adopted under the Title IV of the Treaty of Amsterdam, laying fundaments for the creation of the Common European Asylum System. These instruments have been widely criticised for not being in accordance with human rights standards, in particular in the field of granting protection to and expulsion of immigrants. The purpose of the next section is therefore to show, by the use of categorisation of immigrants based on their legal status in the EU how the existing conflict between preferences and obligations of States is reflected in those legal regulations and therefore constitutes the element of government of immigration in Europe.

4. ‘The Good’, ‘the Bad’ and ‘the Ugly’ of EU Migration Policy It has been recognised in international law that States have rights to decide who can enter and reside on their territories and, as a result, they have the right to refuse entry and to expel irregular third-country nationals unless they are in need of protection according to international treaties.56 On the other hand, as a result of the adoption of the common market regulations, special status has been granted to EU citizens and certain limited groups of third-country nationals considered as beneficial to the European economy. This approach allows for a categorisation of immigrants present in the EU into three groups, which, by reference to the famous film of Sergio Leone could be called: ‘the Good’, ‘the Bad’ and ‘the Ugly’. In this division ‘the Good’ comprise EU citizens and their family members, students, academics, long-term residents and highly skilled third-country nationals aiming to work in one of the EU countries. ‘The Bad’ on the other hand contain immigrants who are perceived as infringing and abusing the EU’s and national legislations regarding border crossing and residence, constituting a security threat to EU citizens and negatively affecting the economy.57 Finally, ‘the Ugly’ refers to those foreigners towards whom the EU and Member States have international obligations - to admit them into their territories and to provide them with protection or the right to reside for at least a certain period of time. It can be seen that regulations focusing on this third group of foreigners reflect in particular the existing conflict between human rights obligations and States’ preferences regarding the shape of their immigration policies. It can be observed 56. See ex. ECt.H.R., Soering v. United Kingdom, 7 July 1989, No. 14038/88. 57. It has to be noted however that the perception of irregular immigrants as being harmful for the national economy is a simplistic one and does not take into consideration the complexities of national economic policies. See inter alia Chris Idisor, Illegal workers: good for U.S. economy, CNNMoney.com, .

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in various discourses that migrants belonging to this group are often pushed towards the group of irregular immigrants, offenders, terrorists, and others who should not be allowed to enter the common territory. At the same time, many activities aim at keeping third-country nationals outside external borders not allowing them to enter or even appear at them. It has to be taken into consideration, however, that the division presented above constitutes only a methodological approach aiming to illustrate existing conflicts within the field of immigration. In reality, the identified categories are fluid and the change of legal and factual circumstances, such as long residence, marriage, joining the EU by the state of origin of the immigrant or refusal to grant or extend his/her residence permit allow immigrants to move from one group to another. One has to also remember that immigrants and advocacy groups have not been left without legal tools to challenge the national regulations adopted by Member States as well as decisions in individual cases. This right has been in particular strengthened by the Lisbon Treaty repealing previous limits imposed on the right of national courts to refer preliminary questions to the European Court of Justice (ECJ).58 Notwithstanding those possibilities, the analysis conducted below shows the existence in the EU of widespread mechanisms of retaining people in an irregular state.59 In consequence, it is much more probable that those arriving at the EU territory with the need of protection will find themselves on the path of exclusion created by the immigration regulations. Therefore, the aim of this part of the article is to track, by the use of the categories of ‘the Good’, ‘the Bad’ and ‘the Ugly’, this mechanisms of exclusion and to show in consequence how existing conflict between preferences and obligations of States is reflected in legal regulations adopted on the basis of the Treaty of Amsterdam.

4.1 ‘The Good’ As a result of the adoption of common market regulations, special status has been granted to EU citizens and their third-country national family members. In the approach to rights of immigrants the emphasis has moved from execution of the sovereign right of the state to decide about the foreigner’s right to enter and reside towards the presumption of the right to stay subjected only to particular exemptions. Those exceptions to the freedom of movement of EU citizens established by Article 39 of the Treaty of Amsterdam60 encompasses a limited number of 58. See for example Migration Watch UK, ‘The Lisbon European Reform Treaty Impact on Asylum and Immigration Policy’, Briefing Paper 4.10, . 59. Elspeth Guild, ‘Who is an irregular migrant’, in Bogusz, Cholewinski, Cygan and Szyszczak, Irregular Migration, supra note 9, 3-17 at 16. 60. Article 39, Treaty of Amsterdam, Consolidated Version of the Treaty Establishing the European Community, OJ 2002 No. C 325/33.



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grounds, namely public policy, public security, or public health. The importance of these regulations has been confirmed by the European Court of Justice, which emphasised that freedom of movement of workers guaranteed in Article 39 constitutes one of the foundations of the Community.61 The rights of EU citizens and their family members have been further developed by various legal instruments and ECJ judgments encompassed later by the detailed regulations of the Directive 2004/38/EC.62 It provides EU citizens and their family members with a set of rights and guarantees allowing them to exercise their freedom of movement, right to family life in accordance with article 8 of the European Convention on Human Rights and a number of procedural guarantees concerning the right to entry and expulsion. The right of EU citizens to lead a normal family life in host Member States and to exercise their freedoms guaranteed in the Treaties has been confirmed in a recent preliminary ruling of the ECJ in the Metock case.63 In its decision the Court found that the requirement of Irish law of a priori lawful residence of the third-country national in another EU Member State, before applying for residence in Ireland on the basis of family life with an EU citizen, is not in accordance with the Directive 2005/38/EC. The ECJ confirmed that the Irish requirement constitutes a limitation of the freedom of movement of EU citizens: ‘If Union citizens were not allowed to lead a normal family life in the host Member State, the exercise of the freedoms they are guaranteed by the Treaty would be seriously obstructed’.64 The special position of ‘the Good’ has also been granted to other groups of immigrants, such as students, researchers, or highly skilled professionals. Regulations aimed at those groups reveal in particular profitability as the guiding force for the EU immigration policy. According to Bigo, the problem with the freedom of movement, unlike in the cases of free movement of capital, goods and services, is that freedom of movement is not profitable as such. Therefore there is a need to separate those who are profitable from those who are not.65 Both the Directive 2005/71/EC on specific procedure for admitting third-country nationals for the purposes of scientific research66 and the recently adopted Directive 2009/50/ 61. See ex. ECJ Calfa v. Arios Pagos of 19 January 1999, No. C-348/96, in Martina Doppelhammer, ‘Expulsion: a Test Case for European Union citizenship?’, European Law Review, Human Rights Survey (1999) Notes and Shorter Articles, 621-626 at 622. 62. Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, amending Regulation (EEC) No. 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, OJ 2004 No. L 229/35. 63. ECJ, Metock et all v. Minister of Justice, Equality and Law Reform of 25 July 2008, No. C-127/08. 64. Ibid., at para. 62. 65. Bigo, ‘Criminalisation’, supra note 9, at 91. 66. Council Directive 2005/71/EC of 12 October 2005 on a specific procedure for admitting

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EC on the conditions of entry and residence of third-country nationals for the purpose of highly qualified employment67 serve this aim. They have been adopted as part of the implementation of the Lisbon Strategy68 aiming to make the EU the most competitive and dynamic knowledge-based economy in the world. As a result the Directives create regimes of simplified procedures for granting visas and rights of residence in the EU territory for researchers and highly-skilled immigrants and their family members, and guarantees the respect of procedural rights in the case of expulsion. Analysis of those two regimes shows that the EU law has created the privileged group of third-country nationals with the aim to enhance the economic growth of the Union. The role of the provisions directed towards EU citizens and their family members is to allow them to exercise the freedom of movement, to undertake employment or to provide or use services and therefore contribute to the development of the single market. Similarly the aim of two other Directives is to provide incentives for highly skilled workers and academics from third countries to contribute to knowledge and economy of the Union. ‘The Good’ comprise therefore of economically beneficial third-country nationals with defined legal status, often acquired in simplified procedure.

4.2. ‘The Bad’ In case of unwanted immigrants the emphasis is put on the need for their effective and efficient expulsion from the EU territory and on guaranteeing that they will not be able to re-enter this territory in the future. Such direction has been identified already in non-binding documents adopted before the Treaty of Amsterdam. They focused on measures assuring a quick and efficient expulsion of foreigners who irregularly entered or resided in a Member State, constituted a threat to the security of the state, or had received a final negative decision in the refugee determination procedure and did not have any other basis for stay.69 The documents referred only generally to humanitarian reasons that could justify a person’s stay in the EU territory,70 but their non-binding nature did

third-country nationals for the purpose of scientific research, OJ 2005 No. L289/15. 67. Council Directive 2009/50/EC of 25 May 2009 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment OJ 2009 No. L155/17. 68. Lisbon European Council 23 and 24 March 2000, ‘Presidency Conclusions’, . 69. Noll and Vedsted-Hansen, ‘Non-Communitarians’, supra note 11, at 403. 70. Recommendation of 30 November 1992 regarding practices followed by Member States on expulsion, No. WGI 1266; Recommendation of 1 June 1993 concerning checks on and expulsion of third-country nationals residing or working without authorization, No. WGI 1516; Noll and Vedsted-Hansen, ‘Non-Communitarians’, supra note 11, at 403.



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not lay any safeguards for individuals affected by practices of forced removals. 71 This strategy towards irregular immigrants has been further developed by the Schengen regime as well as expulsion Directives adopted on the basis of the Treaty of Amsterdam. The abolition of internal borders, apart from ensuring freedom of movement to EU citizens, also caused the necessity of closer regulation of the rules of entrance into the common territory and the rules of conduct towards irregular immigrants. This aim has been recently repeated in the Stockholm Programme, according to which ‘[t]he Union must continue to facilitate legal access to the territory of the Member States while in parallel taking measures to counteract illegal immigration and cross-border crime and maintaining a high level of security’.72 To achieve this aim Member States established the regime of the Schengen Convention,73 replaced in 2006 by the Schengen Borders Code74 and supported by SIS.75 The Schengen Borders Code has modified the rules of the Schengen acquis in relation to the provisions regarding crossing and controlling external borders. It has introduced separate regimes for EU citizens and their family members and for other third-country nationals who are subjected to detailed border control while entering and leaving the EU territory.76 The purpose of SIS on the other hand is to maintain public policy and public security, including national security and to apply provisions of the Schengen Convention relating to the movement of persons in territories of Member States.77 Its aim in relation to immigrants is to gather data of those whose presence is considered undesirable by national authorities due to reasons of public policy or public or national security.78 This includes immigrants with criminal convictions, cases where serious grounds exist to believe that they have committed or intend to commit a crime or, in case when immigrants have been subjected to measures involving deportation, refusal of entry or removal. Currently, work is under development to replace SIS with the second generation system (SIS II) with enhanced functionality and with the possibility of the use of biometric data.79

71. 72. 73. 74. 75. 76. 77. 78. 79.

Ibid., at 405. Stockholm Programme, supra note 3, para 5.1. Schengen Convention, supra note 17. Regulation 562/2006/EC of 15 March 2006 of the European Parliament and of the Council establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code), OJ 2006 No. L105/1. Title IV of the Schengen Convention, supra note 17. Article 2(5) and Article 5 of the Schengen Borders Code, supra note 74. Article 93 of the Schengen Convention, supra note 17. Article 96 of the Schengen Convention, supra note 17. Regulation 2006/1987/EC of the European Parliament and of the Council of 20 December 2006 on the establishment, operation and use of the second generation Schengen Information System (SIS II), OJ 2006 No. L381/4.

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The role of SIS and other databases and instruments of management of external borders will be addressed in the next section. In addition to measures of border control, the Treaty of Amsterdam obliged EU institutions to implement measures allowing to combat irregular migration and irregular stay, including voluntary and forced repatriation of irregular residents.80 As a result, the European Commission included a number of measures into the Proposal for a Return Action Programme of 28 November 2002,81 which called Member States to undertake mutual cooperation with third countries and to introduce common standards of expulsion policy. This strategy also constituted a part of the Hague82 and the Stockholm83 Programmes. On the basis of the Treaty of Amsterdam three Directives on expulsion have been adopted - Directive 2001/40/EC on the Mutual Recognition of Expulsion Decisions,84 Directive 2003/110/EC on Transit for the Purpose of Expulsion85 and Directive 2008/115/EC on Returning Illegally Staying Third-Country Nationals (Returns Directive)86 with the aim to enable effective removal of foreigners from the EU territory. Even though all of those directives refer to human rights, they fail to guarantee effective protection to immigrants. Directive 2001/40/EC which allows States to mutually recognise decision on expulsion does not oblige them to appraise measures undertaken by other countries while 80. Article 63(3)(b), Treaty of Amsterdam, Consolidated Version of the Treaty Establishing the European Community supra note 60. It refers not only to irregular residents but all irregular immigrants. States can use measures only if they are in accordance with the Treaty and international obligations. Kay Hailbronner, Immigration and Asylum Law and Policy of the European Union, (Kluwer Law International, 2000) at 479. 81. Council of the European Union, Proposal for a Return Action Programme, Council of the European Union, 14673/02, Brussels 25 November 2002, . 82. Communication from the Commission to the Council and the European Parliament COM/2005/0184 final of 10 May 2005 - The Hague Programme: Ten priorities for the next five years The Partnership for European renewal in the field of Freedom, Security and Justice, OJ 2005 No. C236. 83. The Stockholm Programme, supra note 3. 84. Council Directive 2001/40/EC of 28 May 2001 on the mutual recognition of decisions on the expulsion of third-country nationals, OJ 2001 No. L149/34. 85. Council Directive 2003/110/EC of 25 November 2003 on assistance in cases of transit for the purposes of removal by air, OJ 2003 No. L321/26. 86. Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, OJ 2008 No. L348/98. For a detailed analysis of the Directive see for example Anneliese Baldaccini, ‘The Return and Removal of Irregular Migrants under EU Law: An Analysis of the Returns Directive’, 11 European Journal of Migration and Law (2009) 1-17. ECRE, Information Note on the Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, .



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taking the expulsion decision, nor does it allow foreigners to challenge the execution of this decision.87 This Directive is based on the mutual trust among Member States regarding their legal systems, but does not take into account, as can be seen for instance in case of Greece, that some of the States do not in fact fulfil their human rights obligations. The Directive 2003/110/EC, despite the requirement of all actions to be consistent with human rights, especially right to asylum and other rights guaranteed by the ECHR,88 does not mention the risk of human rights violations as a reason to refuse the right to transit89. It also does not grant the transit country any tools to assure that the expulsion is in reality in accordance with international human rights standards.90 However, the conflict between obligations and preferences of States is even more visible in the recently adopted Returns Directive which aims to create efficient expulsion and repatriation policy based on common standards that would guarantee the execution of expulsions with respect to fundamental rights of foreigners.91 At first sight, the Directive introduces both substantive and procedural guarantees reflecting international human rights standards, emphasising the priority of voluntary return,92 the necessity to respect the principle of non-refoulement, the best interest of the child and protecting foreigner’s rights to family life and health.93 It also contains procedural guarantees including the right to appeal, to judicial control of an expulsion decision and the possibility to postpone the return for the time the expulsion decision is reviewed.94 Those guarantees are, however, superfluous, as the Directive has introduced many exceptions that may limit the rights of a vast group of foreigners. First of all, it allows States to exclude certain groups of foreigners from the above-mentioned rights, in particular those who have been subject to a refusal of entry in accordance with the Schengen Borders Code or who have been captured while crossing the EU border in an irregular manner and have not obtained a right to stay in the EU.95 This clause is problematic since the visa obligation imposed on citizens of war-torn and refugee producing countries96 significantly limits their ability to apply for protection in Europe and 87. Guild, ‘The Europeanisation’, supra note 26, at 643. 88. Article 8, Council Directive 2003/110/EC, supra note 85. 89. Ibid., Article 3(3). 90. Statewatch, Implementing the Amsterdam Treaty: Cementing Fortress Europe, . 91. Article 1, Directive 2008/115/EC, supra note 86. 92. Ibid., recital 10 of the Preamble. 93. Ibid., Article 5. 94. Ibid., Article 13. 95. Ibid., Article 2(2)(a). In such situation, according to article 4(4) certain basic rights such as non-refoulement should be however respected. 96. See Council Regulation 539/2001/EC of 15 March 2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement, OJ 2001 No. L81/1.

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most likely forces them to choose alternative roots of entry into the EU territory. The Returns Directive also de facto limits the priority of voluntary repatriation due to a very short period of time for departure,97 and introduces the possibility of further limitations.98 It also allows for the wide use of detention that in certain circumstances can be prolonged for a period of 18 months,99 which goes against the recognised standard of detention as a measure of last resort.100 Even though the deadline for transposition of this Directive expired at the end of 2010, recent research conducted by the EU Fundamental Rights Agency confirms that all four countries which have so far changed their domestic legislation regarding length of detention raised it to the upper limits introduced by the Directive.101 Additionally, the Directive introduces the return ban for a period of up to five years for those who received a decision on expulsion, which can be prolonged in case of a serious threat to national security.102 Information about this ban is recorded in SIS which can effectively limit the possibility of applying for protection against persecution experienced by a foreigner after returning to the country of origin.103 It also counters the principle of promoting voluntary return.104 This short analysis shows that in case of irregular immigrants, general referral to human rights standards is not transposed into practical solutions. In consequence, the Directives discussed above do not provide effective safeguards to protect immigrants from human rights violations and the analysis shows that EU measures increasingly focus on both preventing the entry of irregular immigrants and their effective removal.

4.3. ‘The Ugly’ International human rights treaties oblige the EU Member States to admit into their territories those who need protection. They also oblige to provide protection from expulsion in case their human rights are threatened. These obligations are, however, often considered as a limitation of the possibility to fight irregular 97. From 7 to 30 days. Ibid., Article 7(1). 98. Ibid., Article 7(4). 99. Normally the detention period should not exceed 6 months but in situations when expulsion procedure is prolonged due to a lack of cooperation of the third-country national or due to delays in obtaining the necessary documentation from third Countries it can last up to 18 months. Ibid., Article 15. 100. In accordance with Article 5 of the ECHR, 86 supra note 6. 101. European Union Agency for Fundamental Rights, Detention of third-country nationals in return procedures, Thematic Report, . 102. Article 11(3), The Directive 2008/115/EC, supra note 86. The Directive only states that the Member States may refrain from imposing re-entry bans due to humanitarian reasons. 103. ECRE, Information Note, supra note 1, at 16. 104. Baldaccini, ‘The Return’, supra note 86, at 10.



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migration. As a result, third-country nationals applying for protection are often treated as bogus asylum seekers or economic migrants, and the borderline between those in need of protection and irregular or economic immigrants is often blurred in European and national discourses. In general, adopted legal measures do not provide effective safeguards to protect immigrants and raise concerns as to their consistency with international standards. On the basis of Title IV of the Treaty of Amsterdam, a number of legal instruments have been adopted during the years of 1999-2005 aiming to establish minimum substantial and procedural standards regarding those seeking protection in the EU territory. As a result of States’ pressure during negotiations, the minimum standards adopted in various legal acts have often been lower than obligations deriving from international instruments. There has been some criticism in this respect in relation to so called Reception105 and Qualification106 Directives but this tendency is particularly visible in the case of the Dublin Regulation establishing State responsible for processing asylum claims107 and the Directive 2005/85/EC,108 setting minimum standards on procedures in Member States for granting and withdrawing refugee status (Asylum Procedures Directive).109 The Dublin Regulation has been often criticised for the creation of an asylum lottery, due to different legal standards in asylum policies among Member States and for imposing particularly heavy burdens on States with external EU borders.110 For example the situation in Greece, currently the main entry gate to the EU, faces complex human rights challenges regarding people in need of international protection. This refers in particular to the difficulties in accessing an asylum 105. Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers, OJ 2003 No. L31/18. 106. Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third- country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, OJ 2004 No. L304/12. 107. Council Regulation 343/2003/EC of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national, OJ 2003 No. L50/1. 108. Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status, OJ No. L326/13 of 13 December 2005. 109. Article 1 of the Directive 2005/85/EC, See for example UNHCR, Summary observations on the Commission proposal for a Council Directive on minimum standards on procedures for granting and withdrawing refugee status (COM(2000) 578 final, 20 September 2000, para. 6, , ECRE, Information note on the Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status, October 2006, . 110. ECRE, Sharing Responsibility for Refugee Protection in Europe: Dublin Reconsidered, .

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procedure, lack of the proper assessment of asylum claims or non-respecting the principle of non-refoulement.111 The situation in Greece has caused many, but by no means all, national courts to suspend Dublin transfers to this country.112 The 2008 proposal of the Commission to amend the Dublin Regulation introduced a possibility to suspend transfers of asylum seekers to countries which are overburdened or do not comply with the EU standards regarding reception conditions and asylum procedures, however this proposition was recently rejected by the Council of Ministers.113 The Asylum Procedures Directive has been also widely criticised by scholars and practitioners for ‘betrayal of the EU’s promise to guarantee fundamental rights’.114 The biggest controversies are caused by the limitation of procedural rights of asylum seekers by granting the right to residence in the country of asylum only until the first instance decision is issued115 and by the lack of guarantees of suspensive effect of the appeal from the first instance decision,116 particularly in cases of accelerated procedure117 or manifestly unfounded claims.118 Another concern is the possibility to grant States the right to examine asylum applications in transit zones or at the borders with the obligation to allow the foreigner to enter the territory only if the procedure lasts more than four weeks.119 Regulations constituting the rules of the use of ‘safe third country’120 and ‘safe country of origin’ are also criticised as being against the obligation to provide protection.121 A recent study of the UN Refugee Agency (UNHCR) on the implementation of this Directive in 12 Member States122 confirms concerns expressed earlier that the Asylum Procedures Directive will negatively affect rights of immigrants. The research found that in certain cases its implementation creates ‘protection gaps’ 111. Submission by the United Nations High Commissioner for Refugees for the Office of the High Commissioner for Human Rights’ Compilation Report - Universal Periodic Review: Greece, November 2010. 112. Belgium, Iceland, Norway, Sweden, UK, see ECRE Weekly Bulletin, . 113. ECRE Weekly Bulletin, , See also . 114. Cathrynn Costello, ‘The Asylum Procedures Directive and the Proliferation of Safe Country Practices: Deterrence, Deflection and the Dismantling of International Protection?’, 7 European Journal of Migration and Law (2005) 35-69 at 69. 115. Article 7, Directive 2005/85/EC, supra note 108. 116. It only requires States to provide for rules, in respect of their international obligations, dealing with inter alia the right to remain during the appeal procedure. Article 39(3), Directive 2005/85/EC, supra note 108. 117. Article 23(4), Directive 2005/85/EC, supra note 108. 118. Ibid., Article 28(2). 119. Ibid., Article 35(1). 120. Ibid., Article 27. 121. Ibid., Annex No. II. 122. Belgium, Bulgaria, Czech Republic, Finland, France, Germany, Greece, Italy, the Netherlands, Slovenia, Spain and the United Kingdom, UNHCR, Improving Asylum, supra note 1.



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resulting in risk of breaches of international and European law: ‘There are many areas in which individual’s rights are not respected, not only because of nonobservance of the APD [Asylum Procedures Directive],123 but also in the context of the application of its provisions, in line with the low minimum standards it sets.’124 For instance, according to the report, ‘in some Member States, in certain circumstances, the examination of applications is accelerated to such an extent that it renders excessively difficult the exercise of rights conferred by the APD’.125 In combination with the possible lack of suspensive effect of the appeal from negative decision such procedure does not allow the case to be properly determined. Even though Commission proposals for amending the Dublin Regulation and other Directives published in the course of 2009 aim to improve certain flaws in legislation currently in force, they however fail to address the most controversial measures.126 In addition, it is not clear what the final outcome of the legislative process will be. It is also meaningful that, in a recent statement, the UK Home Office announced its aim to opt out from the amended Asylum Procedures Directive, due to the fact that it would stop the UK from operating the highly criticised fast-track asylum system and not allow to expel unfounded applicants before lodging and appeal.127 The EU policy on access to external borders also causes many critical reactions regarding the lack of access of asylum seekers to the EU territory. The adopted measures include in particular stricter visa policies and sanctions to carriers, but particularly establishment and developments of the FRONTEX agency,128 Rapid 123. Asylum Procedures Directive. 124. UNHCR, ‘Improving Asylum’, supra note 1, at 91. 125. Ibid., at 54. 126. See ex. Commission of the European Communities, Proposal for a Regulation of the European Parliament and of the Council establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (Recast), No. COM(2008)820 final, , Commission of the European Communities, Proposal for a Directive of the European Parliament and of the Council on minimum standards for the qualification and status of third-country nationals or stateless persons as beneficiaries of international protection and the content of the protection granted (Recast), No. COM(2009)551 final, , Commission of the European Communities, Proposal for a Directive of the European Parliament and of the Council on minimum standards on procedures in Member States for granting and withdrawing international protection (Recast) No. COM (2009) at 554 final, 21 October 2009, . 127. Alan Travis, Home Office to opt out of asylum claims EU directive, Guardian, 24 February 2010, . 128. Council Regulation 2007/2004/EC of 26 October 2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, OJ 2004 No. L349/1.

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Border Intervention Teams129 and Liaison Officers130. Those institutions have been established in order to improve management of external borders, cooperation in case of mass influx of immigrant at those borders and to prevent irregular migration. Concerns over activities of those institutions have been spelled out by many organisations and scholars, most strongly regarding the operational activities of FRONTEX which raise questions as to being in accordance with international law and human rights standards.131 This refers inter alia to the legality of its operations conducted on the high seas aiming for interception and return of immigrants to third countries. Statistical information provided in FRONTEX annual reports does not provide any information about where those immigrants are returned and how many of them are in need of international protection.132 This raises serious concerns as to the respect of the principle of non-refoulement. Despite those concerns, the aim to enhance the capacities of FRONTEX has been included in Council conclusions on 29 measures for reinforcing the protection of the external borders and combating illegal immigration.133 Strengthening the role of FRONTEX in the development of the Schengen Area is also the goal mentioned in the Stockholm Programme.134 In addition to the activities of FRONTEX, the European Borders Surveillance System (EUROSUR) is now under development on Eastern and Southern borders with the aim to prevent unauthorised border crossings, to counter cross-border criminality and to support measures against persons who have crossed borders in an irregular manner.135 This reflects another scope of EU activities already mentioned above that raises doubts as to their accordance with human rights standards, which is the establishment of numerous databases which aim to collect data of persons applying for visas (VIS) or refused the right to enter the common territory (SIS and SIS II), and 129. Regulation 863/2007/EC of the European Parliament and of the Council of 11 July 2007 establishing a mechanism for the creation of Rapid Border Intervention Teams and amending Council Regulation (EC) No 2007/2004 as regards that mechanism and regulating the tasks and powers of guest officers, OJ 2007 No. L199/30. 130. Council Regulation 377/2004/EC of 19 February 2004 on the creation of an immigration liaison officers network, OJ 2004 No. L064/1. 131. ECRE, Defending Refugee’s Access to Protection in Europe, . 132. Ruth Weinzierl, Human Rights at the EU’s common external maritime border, German Institute for Human Rights, . 133. Council of the European Union, Council conclusions on 29 measures for reinforcing the protection of the external borders and combating illegal immigration, 2998th Justice and Home Affairs Council meeting, Brussels, . 134. The Stockholm Programme, supra note 3, para. 5.1, at 56. 135. Para. 1 of the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions examining the creation of a European Border Surveillance System (EUROSUR), Brussels, 13.2.2008, COM (2008) at 68 final.



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those applying for protection (EURODAC). The development of those databases and the focus of the Stockholm Programme on the creation of a computerised system of information exchange and data processing make it very likely that, in the future, personal data included in the databases will travel among States for crime-prevention purposes.136 The reason for such activity is the assumption that foreigners applying for asylum and those residing in the EU are often involved in the preparation of terrorist crimes. Such opinions are raised, even though those who caused the terrorist attacks in the US had valid or expired visas, and those responsible for the metro bombing in London were citizens of the UK.137 In the words of the Council, the aim of this wide development of border monitoring technology is to create a system of external border controls including various interoperable databases.138 According to Bigo, the intention of those measures is to introduce some sort of electronic Maginot line139 that is however not presumed to seal the borders but to control specific people guaranteeing freedom to others.140 These developments raise however concerns over criminalisation of immigrants expressed by NGO’s and academics which have also been spelled out in the recent report of the Council of Europe on ‘Criminalisation of Migration in Europe’.141 The report points inter alia to a steady advance of the discourse on irregular immigration and the practices of criminalisation of immigrants. This includes such areas as entry into the territory, residence, exercise of economic activities, application for protection or further issues concerning the stay of those people in the territories of various Member States.142 The report underlines that criminalisation of immigrants constitutes currently the most problematic phenomenon in relation to the policy of management of immigration in Europe. In particular, it confirms concerns expressed above by pointing out that reference to human rights obligations, included in preambles to various documents adopted at the EU level ‘does not appear to influence, in practice, the approach towards criminalisation’.143

136. Anneliese Baldaccini, ‘Counter-Terrorism and the EU Strategy for Border Security: Framing Suspects with Biometric Documents and Databases’, 10 European Journal of Migration and Law (2008) 31-49, at 39, 48. 137. Ibid., at 33. 138. Stockholm Programme, supra note 3, at para 5.1. 139. Bigo, ‘Criminalisation’, supra note 9, at 78. 140. Ibid., at 82. 141. Council of Europe, Commissioner for Human Rights, Criminalisation of Migration in Europe Human Rights Implications, Human Rights Publications, . 142. Ibid., at 38. 143. Ibid., at 39.

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4.4. The Growing gap between ‘the Good’, ‘the Bad’ and ‘the Ugly’ The analysis above shows how the impact of the economic integration and securitisation of the Area of Freedom, Security and Justice on developments of the EU immigration policies can be seen as a growing gap between human rights and policies on immigration. Unlike in the case of EU citizens, their family members and other third-country nationals whose stay is considered to be beneficial for Member States, the EU and Member States are increasingly resorting to measures aimed at fighting irregular migration and limiting the flow of other third-country nationals. The practice of States and some elements of the acquis communautaire cause doubts as to their consistency with international human rights law as standards proposed by adopted instruments are often lower than States’ obligations emerging from international treaties. The conflict between preferences and obligations is especially visible with respect to protection-seekers. For instance, lack of effective substantial and procedural guarantees in asylum legislation is exacerbated by a lack of measures safeguarding foreigners’ rights in the expulsion procedure. Even if included, requirements to act in accordance with international law are often unaccompanied by any measures that would assure their implementation or the monitoring of their application. This poses a question about the willingness of the EU countries to fulfil their international human rights obligations without discrimination on the basis of the legal status of foreigners. The following of this article address the implications of the existing conflict between human rights and immigration and question the role of human rights in relation to the immigration policy of States.

5. Governing Immigration What are the implications of this conflict and in particular what are the consequences of the tightening of the immigration policy by Member States and the Union? It is evident that the adoption of more restrictive legal measures forces many immigrants and asylum seekers to use alternative methods to access the territory of the EU and to reside in Member States without permit.144 Analysis of the EU legislation reveals a path of exclusion created by adopted regulations and directives that deprives certain categories of third-country nationals of rights that are guaranteed by international human rights instruments, such as the 1951 Refugee Convention145 or the ECHR. Legislation and policies aimed at 144. See ex. British Refugee Council, ‘Remote Controls: how UK border controls are endangering the lives of refugees’, . 145. Convention Relating to the Status of Refugees, 28 July 1951, in force 22 April 1954, 189 UNTS 137.



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limiting the possibilities to enter the common territory in a legal manner result in attempts of irregular entry and residence. For those who enter the common territory and apply for protection, asylum directives do not provide guarantees for their protection claims to be fully examined. In addition, even in cases where the need for protection is found to be non-existing, the expulsion procedure also does not guarantee protection of rights of immigrants. As a result, many of those who are in need of protection are expelled from the EU territory or, in States with less effective immigration systems, forced into state of irregularity if they cannot return to their countries of origin. This practice reveals certain systematic patterns. In fact, the policy of exclusion in many cases produces irregular immigrants whose existence is later used in national and international discourses as justification for the further limitation of the rights granted to third-country nationals. The circularity of those arguments constitutes the foundations for the current migration policy of the EU, which is based on the exclusion and criminalisation of certain categories of unwanted immigrants. This ‘logic of exclusion’ is justified by the need to protect the security of EU citizens.146 As a result, Member States feel encouraged to limit their obligations at the national level both through adopting minimal standards of directives and by attempting to derogate from certain obligations based on the need to protect society from irregular immigrants and terrorists. The argument claiming how this production of irregular immigrants constitutes a part of the technology of security may be raised taking into consideration many factors. In particular, the approach of European States which base their regulatory immigration policies on the assumption that immigrants are rational and calculating actors who weigh risks and gains when choosing their destination of refuge, turns out, under closer scrutiny, to be only partially justified. The motives behind the phenomenon of forced immigration are primarily determined by the political or humanitarian situations in the countries of origin of immigrants that are forcing them to look for protection elsewhere and not the leniency of immigration policies of particular States. In addition, the reasons for choosing a particular state for refuge are based rather on economical, historical and political or social ties than on the liberal immigration policies of States.147 As Thielemann shows, the choice of country is based only to a certain extent on rational calculations deriving from some knowledge about this country, in particular concerning the right to employment and the recognition rates of asylum applications. It seems however, that immigrants have little detailed knowledge about the State they are 146. Kostakopoulou, ‘The ‘Protective Union’’, supra note 28, at 510. 147. Eiko Thielemann, The Effectiveness of Governments’ Attempts to Control Unwanted Migration, Craig A. Parsons and Timothy M. Smeeding (eds.), Immigration and the Transformations of Europe (Cambridge University Press, 2006) 442-472, at 468. Böcker and Havinga, ‘Asylum Applications’, supra note 12, at 256.

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planning to access and hence the phenomenon of real and systematic ‘asylum shopping’ does not seem to exist.148 On the other hand, the deterrent measures used may not have much of an impact on the asylum seekers’ choice of country.149 For example in Germany, the success of limiting number of asylum seekers has been often ascribed to the tightening of asylum policy and to the introduction of the concept of a ‘safe third country’. It has been claimed, however, that this drop in asylum claims correlates with a general 52% drop of asylum seekers in Europe, and in particular with a 70% drop of applications from former Yugoslavia, which constituted the main country of origin of German asylum seekers.150 This could mean that the influx of immigrants in need of protection may not be overly affected by the tightening of immigration policies by the receiving States.151 What those arguments show, is that the process of harmonization of immigration policies can be tentatively perceived as some sort of a governmental project or rather a hybrid of multiple governmental projects,152 one of which focuses on immigrants as, according to neo-classical economic migration theory,153 reasonable and calculative actors who weigh the risks and gains of the Member State they choose to arrive to, while simultaneously threatening in their ‘otherness’ the cohesion and security of this very state. The first approach reflects the concept of homo œconomicus or rather entrepreneur, focused on the perpetual development of oneself as human capital, pointed out by Foucault as the dominant subjectivity within the neoliberal art of government. According to Foucault ‘[i]n the elements making up human capital we should also include mobility, that is to say, individual’s ability to move around and migration in particular [...] Migration is an investment; the migrant is an investor. He is an entrepreneur of himself who incurs expenses by investing to obtain some kind of improvement’.154 This approach seems to fit well with the idea of the EU encompassing the freedom of movement for citizens of Member States. However, in the case of people who do not possess enough financial resources or intellectual or social capital (some third-country nationals but also EU citizens such as Roma155) and want to move in order to improve their situation, their migration becomes considered not an opportunity but rather a threat or a danger.156 148. Thielemann, ‘The Effectiveness’, supra note 146, at 468. See also Shahram Khosravi, ‘The ‘illegal’ traveller: an auto-etnography of borders’, 15 Social Anthropology (2007) 321-334. 149. Thielemann, ‘The Effectiveness’, supra note 146, at 468. 150. Ibid., at 466. 151. Ibid., at 469. 152. William Walters, The Political Rationality of European Integration, in Wendy Larner and William Walters (eds.), Global Governmentality, Governing International Spaces (Routlege, 2006) 155-173 at 170. 153. Thielemann, ‘The Effectiveness’, supra note 146, at 450. 154. Foucault, The Birth, supra note 53, at 230. 155. See the discussion concerning Romanian and Bulgarian citizens of Roma origin in Finish media, for example 156. Bigo, ‘Criminalisation’, supra note 9, at 62.



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This reflects well the division between ‘the Good’ and ‘the Bad’ immigrant but affects also those seeking protection, identified above as ‘the Ugly’, who are often perceived as economic immigrants or bogus asylum seekers and treated as being economically harmful or constituting a threat to security. The consequence of this perspective is therefore the exclusion and criminalization of immigrants and asylum seekers and the tightening immigration policies in order to create a negative demand, and to protect nationals from this danger by the use of various methods of control. At this point the neoliberal governmentality of homo œconomicus meets what Bigo calls ‘governmentality of the unease’.157 Within this governmentality, state actions are focused on groups of immigrants such as ‘the Bad’ or ‘the Ugly’ who are considered to constitute the risk or the source of concern for the given population.158 However, as has been pointed out above, through the technology of security, this unease is produced by governments and professionals with the use of knowledge that allows targeting them and letting the majority continue to live in freedom.159 In consequence, it can be claimed that ‘[t]he securitization of migration is, thus, a transversal political technology, used as a mode of governmentality by diverse institutions to play with the unease, or to encourage it if it does not yet exist, so as to affirm their role as providers of protection and security and to mask some of their failures’.160

6. The Role of Human Rights There is a widespread belief that States with relatively more lenient immigration policies will be considered as a ‘soft touch’ and will consequently have to cope with a disproportionately high number of refugees.161 This influences the view that obligations to respect human rights deriving from international conventions seriously restrict States’ abilities to manage immigration in the way that they would consider as effective to limit irregular immigration and protect their national interests. What is, therefore, the nature of the relationship between human rights and immigration and does the obligation to respect human rights, deriving from international conventions, indeed remain in conflict with the aim of the EU and Member States to limit irregular immigration and enhance security? In the traditional understanding of the role of human rights, the conflict would underline the importance of an effective system of human rights protection which prevents States from acting in an arbitrary manner, in particular towards third-country nationals being in risk of having their rights violated. What we can 157. Bigo, ‘Security’, supra note 10, at 64. 158. Ibid. 159. Bigo, ‘Criminalisation’, supra note 9, at 82. 160. Bigo, ‘Security’, supra note 10, at 65. 161. European Parliament, ‘What System of Burden-Sharing Between Member States for the Reception of Asylum’, 2010, at 20.

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observe however is that the advancement of human rights in the EU, in through particular recent changes introduced by the Lisbon Treaty, does not equate to the improvement of the rights of immigrants. As the analysis of the development of legal instruments on immigration shows, the protection of rights depends on the legal status of the foreigner. In the situation when this legal status is uncertain, as in the case of ‘the Ugly’, human rights, by setting the standards of protection, undertake the role of agents in processes of inclusion and exclusion. For instance, as has been pointed out by Bigo, human rights are parts of the securitisation process when they ‘play the game of differentiating between genuine asylum seekers and irregular immigrants, helping the first by condemning the second and justifying border controls’.162 It could be claimed therefore that the application of human rights does not prevent violations per se but the latter rather allow human rights to develop themselves on both material and procedural levels. At the same time, the advancement of human rights makes violations reappear in different forms or in different spheres. Human rights and state interests are therefore not external to each other but they influence each other in a dialectical manner. Within this approach, any solution that would allow ending the existing conflict between human rights and immigration could not be based on the re-enforcement of rights but would have to transgress this dialectical logic by either a change in States’ perception of their own preferences towards migration into more positive ones or through the redefinition of the role of rights. The first perspective is based on the presumption that by changing their perception of immigration and adopting a positive approach towards immigrants, States will no longer have to treat this phenomenon as a threat to their economic interests or the security of the society. Such an approach would have to be based on arguments questioning the rationality of securitisation of immigration and would force States to reflect on the meaning of membership in the European polity.163 As the argument goes, by adopting ‘a relaxed, positive, liberal and enlightened approach to migration flows’, the EU would not only be able to fulfil its human rights obligations but also to actively look for ways to treat immigration as a natural part of its social reality. Only by resigning from the security oriented approach to immigration and by viewing it in the broader light of economic, social or cultural dimensions, States could adopt a reasoned approach to immigration.164 As a result, the fundaments of the conflict between immigration policies and human rights would cease to exist as respecting the human rights of immigrants would remain one of the main interests of the EU and Member States. This idealistic approach must however be confronted with reality. Taking into consideration current discourses at the EU level, for example 162. Bigo, ‘Security’, supra note 10, at 79. 163. Kostakopoulou, ‘The Protective Union’, supra note 28, at 509. 164. Bigo, ‘Criminalization’, supra note 9, at 82-83.



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the above mentioned statement of the UK Home Office to opt out from the proposed recast of the Asylum Procedures Directive, the negative approach of States to changes in the Dublin system, the strengthening the powers of FRONTEX or in general the security oriented discourse of the Stockholm Programme, this approach does not seem to be feasible. Thus, the necessary concerted efforts aimed at liquidating the human rights deficit, called for by Bigo, Carrera and Guild are not likely to take place in the close future. The above analysis, in particular the nature of the relationship between immigration law and human rights shows the limits of a human rights-based approach to immigration. In consequence, the approach taken by this article allows approaching the existing conflict from the perspective of the European art of governing immigration and focusing on the redefinition of the role of rights.165 Within the Foucauldian technology of power governmentality is not separated from sovereignty. It rather utilizes and retains its techniques, rationalities and institutions, departing from them and seeking to reinscribe and recode them.166 Therefore, those techniques are not any more external to power but instead are used by it for its own ends. In consequence, within this technology of governmentality, laws, being the mechanisms of sovereignty, are not abandoned, but used by governmentality as its tactics.167 As Foucault said ‘I do not mean to say that the law fades into the background or that the institutions of justice tend to disappear, but rather that the law operates more and more as a norm, and that the judicial institution is increasingly incorporated into a continuum of apparatuses (medical, administrative and so on) whose functions are for the most part regulatory’.168 This deployment of rights as tools of technology of governmentality is confirmed by their role as the inclusion/exclusion agents. Approaching the conflict between rights and the preferences of States as a part of a certain technology of governmentality allows therefore going beyond the traditional way of thinking about rights as operating within the sovereign domain of power. Any attempt to solve this conflict necessitates therefore rethinking the role of rights within contemporary government.169 What Foucault sees as the possibility to transgress the current role of rights is the creation of new forms of rights that would be able to go beyond the principle of sovereignty170 and the challenge processes and tactics applied by governmentality. Unfortunately due to his premature death Foucault did not develop his idea of new rights much further. Certain directions for studies on rights can however be found in his work on ethics, where he sees the promise 165. William Walters, ‘The Political’, supra note 151, at 165. 166. Dean, Governmentality, supra note 41, at 19. 167. Foucault, ‘Governmentality’, supra note 42, at 95. 168. Michel Foucault, The History of Sexuality, Volume 1, An Introduction (Penguin, 1990) at 144. 169. Dean, Governmentality, supra note 41, at 25. 170. Foucault, ‘Two Lectures’, supra note 40, at 108.

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of human rights in undetermined or radically contingent human being.171 What he means by this is the need of undoing the grounds of the subject, to produce something that does not yet exist.172 An example of this approach to rights can be found in the interview of 1981 where Foucault, focusing on gay rights spells out the need for rethinking the role of rights and for creating new relational rights that would be able to resist the normalising mechanisms of power. According to him ‘[r]ather than arguing that rights are fundamental and natural to the individuals we should try to imagine and create a new relational right that permits all possible types of relations to exist and not be prevented, blocked, or annulled by impoverished relational institutions’. As an example of such a new relation Foucault mentions the right to adopt an adult friend what could challenge our current way of thinking about notions of family and friendship.173 A Similarly experimental and creative approach could be adopted in the case of immigration. Since the subjects of immigration laws are defined generally as persons who do not possess the citizenship of the countries in question, the only way of challenging the contemporary asylum and migration policies would be a radical change of the notion of citizenship that would transform its role as an inclusion/exclusion mechanism of governmental power determining whose rights to be respected. Because the creation of the new rights, capable of transgressing the limits of governmental power, always implies working on the limits of our actuality,174 it leaves us to act in a state of uncertainty and contingency. However, it allows us to come up with means for circumventing the mechanisms of power, forcing it to react to what may eventually lead to its transformations.

7. Conclusions This article analyses and rethinks the nature of the conflict between the obligations and interests of the Member States of the EU in relation to three groups of immigrants – ‘the Good’, ‘the Bad’ and ‘the Ugly’. This conflict constitutes an inherent part of the common immigration policy which is based on the one hand on the presumption that immigrants classified as belonging to groups of ‘the Bad’ and ‘the Ugly’ remain a threat to security and economic growth of States and the EU, and, on the other hand, on human rights as the limits to the sovereign rights of States to freely manage this immigration policy. Referring to 171. Ben Golder, ‘Foucault and the Unfinished Human of Rights’, 3 Law, Culture and the Humanities (2010) 354-374 at 373-374. 172. Ibid. 173. Michel Foucault, ‘The social triumph of the sexual will’ in Essential Works of Foucault 1954-1984, Volume 1 Ethics, (The New Press, 1997) at 158. See also Roger Mourad, ‘After Foucault: A New form or Right’, 29 Philosophy & Social Criticism (2003) 451-481 exploring the new form of antydisciplinarian rights liberated from sovereignty. 174. Paul Patton, ‘Foucault, Critique and Rights’, 6 Critical Horizons (2005) 267-287 at 284.



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a Foucauldian analysis of governmental power the article shows that the perspective of governmentality could prove more useful than the one of sovereignty for understanding the nature of the dynamics between human rights and migration policies. Further, as human rights and States’ interests are not external to each other, they cannot be analysed from the perspective of rights as tools to constrain the actions of governments. Therefore new forms of rights need to be created which could prove more fruitful for approaching the conflict between human rights and immigration law as a part of the European art of governing immigration.

The question of collective responsibility of France for crimes committed under Vichy Stiina Löytömäki* Abstract: In this article I examine the legal-historical evolution towards France assuming collective responsibility for crimes committed under Vichy government. The first sections of the article discuss the different interpretations of the Vichy past that were legally constructed in the post-war context and during the trials of collaboration in 1990s. It is argued that the trials of Paul Touvier and Maurice Papon were important in terms of memory concerning Vichy and the Holocaust but did not shatter the interpretation of Vichy as a work of a handful of traitors for whose actions the French state is not responsible. I then move on to maintain that the processes of restitution that followed in the early 2000 mirror a novel historical understanding among the French political and administrative establishment about the role of Vichy in carrying out the Holocaust. It is argued that France’s denial of responsibility for crimes committed under Vichy was gradually undermined by the powerful force of politics of reparation concerning the Holocaust. The concluding section of the article reflects on the notion of intergenerational responsibility and sets France’s acknowledgement of collective responsibility for Vichy crimes in an international context. Keywords: collective responsibility, Vichy crimes, politics of reparation, the Holocaust, crimes against humanity, trial

1. Introduction: The French State Giving in to Memory Demands On the 16th of February 2009, France’s highest administrative tribunal, the Council of State (Conseil d’Etat), ruled that the French government was responsible for the deportation of thousands of Jews to Nazi death camps during World War II.1 This decision made formal a doctrine that has been accepted by *

Doctor of Laws. Research fellow at the Erik Castren Institute of International Law and Human Rights, University of Helsinki. The author would like to warmly thank Professor Vivian Curran and the anonymous reviewers for their valuable comments to the draft of this article. 1. Avis du Conseil d’État et la jurisdiction administrative, 16. February 2009, n.315499.

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successive governments since Jacques Chirac’s apology in 1995. In his speech, delivered during the commemoration of the ‘Vel’ d’Hiv’2, the political establishment apologised for the French state’s role in the Holocaust, acknowledged the guilt and ‘collective fault’ of France and recognised that the state had failed during the years of 1940-1944.3 Before that, the French political establishment had resorted to different historical constructions about Vichy in their denial of responsibility, claiming that it was not the French Republic that committed the persecution of Jews and other wrongful acts during the years of German occupation, but an illegal puppet government in the service of the Nazis. While this discourse has increasingly lost credibility among the French public since the 1970s, the verdict of the Council of State marks one of the clearest and most authoritative official admissions of responsibility for the role of the collaborationist Vichy government in the persecution of Jews during four years of German occupation. The verdict of the Council of State is a result of intense politics of memory and politics of reparation relating to the Vichy era which started to intensify in France in the late 1970s.4 For decades now, different organisations representing Jews together with human rights and other non-governmental organizations (NGOs) have kept the crimes of the Second World War on the agenda, and demanded acknowledgement and reparations from the state. In France, organisations such as L’association des fils et filles des deportes juifs de France (Association of the Sons and Daughters of Jews Deported from France), created in 1979, Fondation pour la Memoire de la Shoah (Foundation for the Memory of the Shoah) and Nazi hunters such as Serge and Beate Klarsfeld have advocated for the prosecution of Nazis and their collaborators, demanded reparations to deportees and their descendants and kept memory of the Shoah alive. Before a series of successful reparation cases in the early 2000s the most notable legal cases relating to Vichy consisted of charges against five individuals for crimes against humanity in the 1980s and 90s for their actions during the Second World War.5 Of these, only three were convicted, namely 2. The Vel’ d’Hiv Roundup refers to a mass arrest in Paris on July 16th and 17th, 1942, leading up to 13, 152 victims to be arrested and held at the Vélodrome d’Hiver cycle track and the Drancy internment camp, to be shipped by railway transports to Auschwitz for extermination. In his speech, Chirac apologised for the role of French policemen and civil servants in the raid. 3. For Chirac’s apology see Juliette Fette, ‘Apology and the Past in Contemporary France’, 28 French Politics, Culture&Society (2008) 78-113 at 81-84. 4. For politics of reparation see: John Torpey, Politics and the Past: On Repairing Historical Injustices (Rowman & Littlefield: Lanham, 2003); Jon Miller and Rahul Kumar (eds), Reparations: Interdisciplinary Inquiries (Oxford University Press, 2007). For reparations relating to the Holocaust in specific, see Michael R. Marrus, Some Measure of Justice. The Holocaust Era Restitution Campaign of the 1990s (University of Wisconsin Press, 2009). 5. Apart from the prosecutions of Klaus Barbie, Paul Touvier and Maurice Papon, charges of crimes against humanity were also filed against Jean Leguay, a delegate of the General Secretary of the National Police in the occupied zone and René Bousquet, a Chief of Police under the Vichy government. Leguay died during the investigation of his case, while Bousquet was



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Klaus Barbie, Paul Touvier and Maurice Papon, and only two of the convictions concerned collaboration, given that the first individual to be prosecuted and convicted for crimes against humanity, Klaus Barbie, was a German Nazi.6 The 2009 decision of the Council of State must be read within the global context in which most countries with a relation to the Holocaust have had to concede to critical self-examination of their Second World War past, and often to reparations. France, Italy and even Switzerland, Denmark, Sweden and Holland underwent in the last decade of the 20th century extensive debates about collaboration, slave labour and ‘Nazi gold’.7 For decades, Holocaust survivors and their families have been waging legal battles in French courts both against the state and state-owned and private companies.8 While politics of reparation, understood as a variety of symbolic, economic and legal activities that aim to repair or make up for the injustices of the past, today concern an increasingly ample spectrum of past events, they have been first and foremost carried out by Jewish victims persecuted during the Holocaust and by their descendants, followed by a whole range of victims of different past injustices.9 While the Holocaust and the suffering of Jews did not mark highly neither in the French public consciousness nor in trials immediately after the Second World War, it was precisely the feeling that the Holocaust had been juridically forgotten that paved the way for new legal demands in France since 1970s. In the trials that followed, the fate of Jews in the Holocaust was to play a major role. In this article I maintain that the French state’s position towards assuming responsibility for Vichy crimes has changed over time, and that this change

6.

7. 8. 9.

assassinated just before he was about to be indicted. I am only discussing the trials of Barbie, Touvier and Papon in this article. For legal analysis of French trials of crimes against humanity see: Vivian Grosswald Curran, ‘The Politics of Memory’, 14 Law and Critique 3 (2003) 309-323; Vivian Grosswald Curran, ‘Politicizing the Crime against Humanity: The French Example’, 78 Notre Dame Law Review (2002-2003) 677-710; Jean-Paul Jean and Denis Salas (eds.), Barbie, Touvier, Papon (Autrement: Paris, 2002); Jean-Olivier Viout, The Klaus Barbie Trial and Crimes against Humanity, 3 Hofstra Law & Policy Symposium (1999) 155-166; Vivian Grosswald Curran, ‘The Legalization of Racism in a Constitutional State: Democracy’s Suicide in Vichy France’, 50 Hastings Law Journal (1998-1999) 1-96; Calvin Peeler, ‘The Politics of Memory: Reconstructing Vichy and the Past the French Chose to Forget’, 19 Whittier Law Review (1997-1998) 353-369; Leila Sadat Wexler, ‘Reflections on the Trial of Vichy Collaborator Paul Touvier for Crimes Against Humanity in France’, 20 Law & Social Inquiry (1995) 191-221; Guyora Binder, ‘Representing Nazism: Advocacy and Identity in the Trial of Klaus Barbie’, 98 Yale Law Journal (1989) 1321-1383. Jan-Werner Müller, ‘Introduction: the power of memory, the memory of power and the power over memory’ in Jan-Werner Müller (eds.) Memory and Power in Post-War Europe. Studies in the Presence of the Past (Cambridge University Press, 2002) 1-35 at 6. For instance in 2001, French banks reached a multimillion dollar settlement with Holocaust victims in a suit brought by a New York law firm. John Torpey, ‘Introduction’ in John Torpey, Politics and the Past: On Repairing Historical Injustices (Rowman & Littlefield: Lanham, 2003) 1-35 at 2.

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can be detected in the legal decisions concerning Vichy. I depict the gradual development in the legal realm towards the acknowledgment of collective responsibility for injustices committed by Vichy officials by analysing the 1990s French trials of collaboration together with the recent restitution cases relating to the Occupation period. My focus is not in pointing out the legal-normative basis, or the lack of it, for the establishment of collective or state responsibility for Vichy crimes. Rather, I analyse how the notion of the collective responsibility of France comes up in these various legal cases and on what kinds of historical and political understandings this notion of collective responsibility of France is based. The analysis is thus legal-historical rather than jurisprudential. In the first sections of this article I examine the involvement of law in the construction of different historical narratives about Vichy that have dominated French collective understandings about the era, referred to as Vichy myths. These official historical understandings about Vichy, according to which collaboration with Germany was an exception under duress, relate to the question of collective responsibility for Vichy crimes because if Vichy was an illegal exception in the republican legality, as was maintained, the French Republic could not be held responsible for the acts undertaken by Vichy officials. The processes of restitution in the early 2000, on the other hand, mirror a novel historical understanding about the position of Vichy in the carrying out the Holocaust among the French political and administrative establishment. In the concluding part of this article this French development in relation to Vichy crimes is set in a contemporary international context where nations are increasingly expected to assume collective responsibility for previous wrongdoing. I discuss restitution as a mode of collective responsibility, and examine rationales for the mounting understanding that nations bear responsibility for historical injustices.

2. Why Vichy Matters Since the end of 1970s, the Vichy past has been the predominant memory occupation of the French, complemented and to a certain extent replaced by the Algerian war and colonialism in the last decade. The intense politics of memory, understood as public contestation of the past by different groups, surrounding Vichy and later the Algerian war are representative of a wider phenomenon in Western societies that are increasingly preoccupied with consequences of traumatic events, the history and memories of the wars, the World Wars in particular, of the Holocaust, and of totalitarian systems.10 Common to different memory demands in various countries is that the state and its representatives have wronged in the 10. Henry Rousso, ‘History of Memory, Policies of the Past: What For?’, in Konrad H. Jarausch



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past and victims and their advocates, such as human rights organisations, seek for acknowledgement and reparation for these past acts. Increasingly, memory battles are waged in the contours of law which is a forum for public debates about the appropriate meaning to be attributed to contested national pasts. In processes of legal memory politics taking place in different national contexts, the states increasingly acknowledge responsibility for acts committed by previous governments, apologising and repairing on their behalf, and allocate recognition and reparation to the victims. The French efforts to re-examine the Vichy past, particularly Vichy’s involvement in the Holocaust, are manifestations of this trend of nations assuming collective responsibility for past injustices. The key issue that the legal cases discussed in this article pose for French national identity is the question of whether Vichy represents ‘France’ as a collective actor or the ideology and deeds of certain Frenchmen. In legal terms, this issue can be framed as whether the crimes committed under the name of Vichy are attributable to France as a collective or to a few collaborators. The stand taken in the debate of whether Vichy forms continuity with the past that preceded and followed it, or whether Vichy is seen as rupture with the past and the subsequent Fourth Republic, formed in 1944, largely determines whether the current French Republic could be held liable for the crimes committed in the name of Vichy. In fact, as maintained by W. James Booth, the dealing with the Vichy period forms a paradigmatic case for how the question of the moral-temporal dimension of identity of political community and the question of the continuity of a community across time relate to ideas of attribution and responsibility for past deeds.11 If it is accepted that Vichy represented the Republic, then the contested period itself poses a problem for French collective identity: how is it possible that the persecution of Jews and other atrocities were committed under the Republic which stood for equality and human rights? How could logics of exclusion, detected in the policies and legislation of Vichy regime, come to be practiced within a state whose self-identification still today, at least in official discourse, is based on the notion that France represents universal values of human rights? As noted by David Fraser, Vichy offers a case study about the ways in which a European post-war political and legal system refused to deal with its involvement in the extermination of Jews while maintaining the myth of an uninterrupted republican and democratic legality.12

and Thomas Lindenberger (eds), Conflicted Memories. Europeanizing Contemporary Histories (Berghahn Books: Oxford, 2007) 23-36 at 29. 11. See W. James Booth, ‘Communities of Memory: On Identity, Memory, and Debt’, 93 American Political Science Review (1999) 249-263 at 249. 12. David Fraser, Law after Auschwitz (Carolina Academic Press: Durham, 2005) at 149.

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3. Official Truths about Vichy and their Legal Construction That it was possible in the first place to establish responsibility for the French state for the deportation of the Jews during the Second World War, as undertaken in the Conseil d’État decision of 2009, required prior relativisation in French society of different official truths about Vichy, which have been persistent in French collective memory since the post-war decades. These official narratives about the Vichy past served political needs of the post-war French state. In this section, I examine official constructions about Vichy past in order to be able to discuss to what extent the legal cases analysed in this article took distance from them on one hand, and renewed them on the other. The post-war obfuscation of the extent of French collaboration with the Nazis, constructed and held up by the Gaullist story of the French united in Resistance, enabled the idea of France as a representative of universal values such as human rights to remain largely intact.13 It was argued that Vichy and its collaborators had betrayed France. Thus it was not necessary for the French Republic to take responsibility for actions committed in the name of Vichy.14 What took place during the Vichy years in France was indeed grim and possibly too much for the public to take, in the immediate aftermath of the war. In July of 1940, only weeks after France’s sudden defeat to the Germans, democracy in France ended by a vote of democratically elected members of the Parliament. The hero of the First World War, Marshal Pétain, was given the powers to create a new constitution, and subsequently, a new constitutional act gave Pétain all governmental and legislative powers. France became the only great economic and military power to have been entirely defeated and occupied by Germany, and the only occupied country with a legal government that collaborated with Germany. Allegedly, in no other country did the German occupation so abruptly lead to a change in political, cultural and social life so contrary to the pre-war situation as in France.15 During the authoritarian and anti-Semitic Vichy regime (1940-1944), public 13. The founding myth of post-war France was established by de Gaulle to serve the political needs of the time. The function of this so called ‘myth of resistance’ was to create unity and cohesion for the state and the people and to set the path for the future. According to this myth, the liberation and salvation of Paris had come from ‘eternal France’, that is from Free France in exile. The role accorded to Vichy and collaboration in this story became clear when, in August 1944, the leader of Free France was requested to ‘formally proclaim’ the newly established Republic. The response was: ‘The Republic has never ceased to exit. Free France, fighting France, the French Committee of National Liberation has by turn embodied it. Vichy was and is null and void.’ Henry Rousso, The Vichy Syndrome. History and Memory in France since 1944 (translated Arthur Goldhammer, Harvard University Press: Cambridge, 1991) at 16-17. 14. Tony Judt, Postwar. A History of Europe since 1945 (Penguin Books: New York, 2006) at 816. 15. Henry Rousso, ‘Vichy and Resistance’, in Lawrence Kritzman (eds), The Columbia History of Twentieth-Century French Thought (Columbia University Press, New York 2006) 122-128 at 122.



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freedoms and individual rights were limited, a separate legal system for the exclusion and the persecution of Jews was instituted and special courts were set up to judge former political leaders and ‘terrorists’.16 Whole categories of individuals were excluded from the scope of the supposedly all-embracing French universalism, to the extent that according to the French historian Henry Rousso the logic of exclusion can be considered as one of the hallmarks of the Vichy regime. In addition to Jews, the excluded consisted of Freemasons, foreigners, and a great many political opponents, communists in particular. These groups were not simply repressed or persecuted but totally excluded from the national community.17 And this exclusion was executed through legal rules: the principle of ‘France for the French’ became a matter of law. David Fraser notes that ‘anti-Semitic law’ operated under Vichy as a universalising norm, as a central set of ideological principles which were given legal form in various areas of legal practice.18 By promulgating the first ‘Jewish Statute’ in October 1940, the Vichy regime irreversibly violated the principle of equality among citizens and the very idea of citizenship, eliminating France’s Jewish minority from those who qualified as members of the new French political body. This eventually led to the deportation of an estimated 75,000 Jews from France.19 Jews were deprived of their assets; and industries and businesses had to be defined as ‘Jewish’ by reference to the ‘race’ of the legal owners, which was followed by removing the ‘Jewish’ influence from the business.20 For a long time it was claimed and believed that these measures were the outcome of compelling pressure by the Germans against whom Vichy acted as a protective shield. But as historians Robert Paxton and Michael Marrus demonstrated as early as in the 1970s and 80s, Vichy did not act solely under direct orders and threats of the occupying Nazis but instituted many of the anti-Semitic measures which contributed to the Holocaust in France, even in unoccupied zones, on its own accord and for its own domestic reasons.21 However, through official obfuscation of the extent of collaboration and the responsibility of Vichy in the Holocaust, France became defined as a nation of Resisters, Vichy synonymous with Germany, and the French body politic and population could claim to be free from the responsibility for Nazi atrocities.22 According to so called ‘parenthesis theory’, Vichy had indeed engaged in non16. Yves Beigbeder, Judging war crimes and torture (Brill: Leiden, 2006) at 11. 17. Rousso, ‘Vichy and Resistance’, supra note 15, at 123. 18. Fraser, ‘Law’, supra note 12, at 157. 19. Rousso, ‘Vichy and Resistance’, supra note 15, at 123. 20. Fraser, ‘Law’, supra note 12, at 157-158. 21. Robert O. Paxton, Vichy France. Old Guard and New Order, 1940-1944 (Barrie & Jenkins: London, 1972); Michael R. Marrus and Robert O. Paxton, Vichy France and the Jews (Basic Books: New York, 1981). 22. Vivian Grosswald Curran, ‘The Legalization of Racism in a Constitutional State: Democracy’s Suicide in Vichy France’, 50 Hastings Law Journal (1998-1999) 1-96 at 12, 45 and 47.

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republican acts, but during the Vichy years between 1940 and 1944 ‘true’ France had actually been embodied by the ‘Free French’ consisting of Resisters and located in London and Algiers, behind which the nation stood united against Nazi Germany and its puppet, the Vichy government. This ‘illusionary purity’23 of France, according to which Vichy was a radical break from the Third Republic which ended at the defeat to Germany in 1940, while only republicanism represents true France, was also a legal construction and as such highly authoritative when invoked in political debates, as noted by Mark Osiel.24 There was a legal purge after the war in France during which thousands of prosecutions took place, but it did not undermine the subsequent myth of Resistance because the purge was directed against collaborators. In the post-war context, both de Gaulle and the Resistance actually demanded prosecution of high-ranking Vichy officials.25 In order for the prosecutions to be consistent with laws of treason and sedition, Marchal Pétain’s Vichy regime would have to be considered illegal, meaning established by an unconstitutional armistice with the enemy. The notion of the illegality of Vichy was based on alleged defects in the parliamentary proceedings that led to the granting of constitutional powers to Pétain. It was claimed that even if the legislators had a right to reform the Constitution in July of 1940, they were not entitled to delegate that right to Pétain. This, it was claimed, rendered the new Constitution and consequently Vichy null and void. However, if accepted, this argument would have also delegitimised de Gaulle’s 1958 mandate, as demonstrated by Vivian Curran.26 Vichy’s legality was moreover attacked on the grounds that Article 121 of France’s Constitution forbade making peace with an occupying enemy, and Article 75 of the Criminal Code criminalised intelligence cooperation with the enemy. 23. The term is Mark Osiel’s. See Mark Osiel, Mass Atrocity, Collective Memory, and the Law (Transaction Publishers: New Brunswick, 1997) at 159-160. 24. Ibid., at 159-160. 25. During 1944-45 about 9000 people were killed without legal procedure, and most of the executions were perpetrated while the war was still on. Out of 100 cases examined by the High Court, 7 were executed. In courts 310 000 cases were compiled, and of these 58 000 judgments were given, of which 767 ended in execution. To this score must be added military tribunals who condemned to death around 800 people. In total, the number of legal death sentences carried out was around 1500, while the total cost of life during the purge was over 10000. Henry Rousso, ‘Did the Purge Achieve Its Goals?’, in Richard J. Golsan (ed.), Memory, the Holocaust, and French Justice. The Bousquet and Touvier Affairs (Dartmouth College, University Press of New England, 1996) at 100-102. 26. De Gaulle came to power in June 1958 after a political crisis caused by a putsch attempted by rightwing French generals in Algiers who opposed the independence of Algeria. De Gaulle accepted the post of a Prime Minister during the crisis on the condition that a new Constitution would be drafted that would give the president much greater power than had been the case during the Fourth Republic. De Gaulle himself led the writing of the new Constitution of the Fifth Republic and he was subsequently chosen as the first President of the Fifth Republic in 1958.



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Consequently Pétain’s government would have been illegal because its purpose was to make peace with Germany. But the procedures of the Third Republic were followed with respect in the July 10 vote in 1940 which gave Pétain his powers. Parliament had been duly convened, and the proposal for constitutional revision was approved by a large majority.27 Since, allegedly, Vichy had come to power through unlawful constitutional procedure, it could not be said to represent the true will of the democratic French people. The legal corollary of this was the law of 9 August 1944, passed in the aftermath of the fall of Vichy, which stated that the form of the French government was and always had been the Republic and that all legal measures taken in France after 16 June 1940, the date on which Maréchal Phillipe Pétain came to power, were null and void.28 According to this ‘Gaullist legal history’29, the Vichy government under Pétain could only claim the status of a ‘de facto’ but not a ‘de jure’ government. With the myth of the continuity of French republicanism and the illegality of Vichy, all acts taken in the name of Vichy were illegal and illegitimate without any prior legal evaluation.30 A few collaborating Frenchmen were to be blamed and the rest were absolved of responsibility, including France itself. This conclusion entailed a convenient message for those collaborationists that were accused after the war, because if the Vichy regime was illegal to begin with, the actions of minor figures of collaboration were merely lawful acts within an illegitimate state.31

4. Prosecuting Vichy Officials The pressure from the international Holocaust debate and global politics of memory, together with the rise of human rights norms and international criminal law, have relativised the notion that dealing with Vichy is a purely internal matter of the French state. These developments have moreover contributed to challenging the idea that France as some kind of abstract republican entity represents universal values such as human rights even if individual representatives of Vichy committed crimes. The trials of Paul Touvier in 1994 and Maurice Papon in 1996-1997, together with the surrounding public debates, paved the way to the acknowledgement of the responsibility of France as a collective entity for the crimes of Vichy. The trials of collaboration for their turn paved the way to the cases of restitution in the early 2000s which explicitly acknowledged the collective guilt of France. 27. Grosswald Curran, ‘The Legalization’, supra note 22, at 24. 28. Fraser,‘Law’, supra note 12, at 153. 29. The term is David Fraser’s. 30. Fraser, ‘Law’, supra note 12, at 154. 31. Osiel, ‘Mass Atrocity’, supra note 23, at 159-160.

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However, although the trials of Paul Touvier and Maurice Papon did bring to light the complicity of Vichy officials in carrying out the Holocaust, the verdicts did not (and could not) pronounce anything about the collective aspect of responsibility for Vichy crimes. While the individuals who are prosecuted symbolically stand for the larger collective in the name of which the crimes were committed, criminal trials individualise guilt. This enables the state to continue its discourse according to which, as far as criminal acts are concerned, it was question of individual breaches of human rights. Criminal trials thus seem to work as a ‘technique’ to ameliorate the painful consequences of dealing with the past for the state. The trials of collaboration have been extensively analysed in previous legal and historical literature. In the following analysis I concentrate on discussing what kinds of historical narratives about the role of Vichy in the Holocaust these trials constructed. To a certain extent, the persistence of the idea of Vichy as exception facilitated the prosecutions of French collaborators. While individual collaborators breached the values of the Republic, this need not necessarily challenge the universalism of the French Republic. There still exist historians, politicians, and others in France who consider that Vichy did not represent the French Republic or its officials.32 Nevertheless, the trials of Touvier and Papon were facilitated by the fact that the story about Vichy as a parenthesis in the history of the Republic was to a certain extent relativised already before the 1994 trial of the member of the Vichy Milice, Paul Touvier. This growing awareness in French society of the complicity of the French in the Holocaust was set in place not only by the work of the American historian Robert Paxton, published in 1972, but also by the documentary film the Sorrow and the Pity by Marcel Ophüls which appeared in 1969 but was banned for years in France and shown on French television only in 1981. What complicated subsequent prosecutions of collaborators, however, was that most actions of the defendants, as officials of Vichy government, were lawful under French domestic law at the time they were committed, even though, as noted by Leila Sadat, they were (arguably) later criminalised under international law.33 What facilitated the prosecutions was the strong collective sentiment that the purge after the war had been inadequate. The prosecutions of Touvier and Papon followed a very different logic to the post-war purge. The objective of the post-war purge was to ‘purify’ and unify the nation in order to legitimise 32. For instance many Resisters are of the opinion that this is the case. They see themselves as the embodiment of ‘true’ France at the time of Vichy years. Stanley Hoffman, ‘The Nation, Nationalism, and After: The Case of France’ (The Tanner Lectures on Human Values, Delivered at Princeton University March 3 and 4, 1993) at 280. 33. Leila Nadya Sadat, ‘The Legal Legacy of Maurice Papon’ in Richard J. Golsan (eds), The Papon Affair: Memory and Justice on Trial (2000) 131-160 at 131-132.



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the basis of the political and social reconstruction of the Republic. The purge thus represented the interests of the contemporary political power.34 During the post-war purge collaborators were charged with treason, collaboration with the enemy, and acts harmful to national defence, which meant that the complicity of collaborators in the persecution and deportation of Jews did not fully emerge. This reflected the widespread perception at the time that collaboration with the enemy constituted a more serious crime than Vichy’s anti-Jewish measures. It was this lack of focus on the Holocaust that later gave rise to the feeling, among victims and the public, that post-war trials and the subsequent amnesties had deceived victims.35 In contrast, the later trials of Touvier and Papon were, first and foremost, to render duty to the memory of the Holocaust, to keep alive the memory of the suffering of the victims of the Holocaust. That it was judicially possible in France to prosecute individuals for acts taken place half a century before is due to the French law on imprescriptibility of crimes against humanity, dating from 1964. The law of 1964 was a reaction to a notice by the West German government that the statute of limitations for all crimes committed during the Second World War would come into effect in May 1965 (this action was later postponed).36 The series of German trials of concentration camp administrators held in 1963-65, together with the trial of Adolf Eichmann in Jerusalem further prompted the passing of the law of 1964.37 The French parliament was consensual about not letting the German Nazi criminals, the only war criminals discussed in parliamentary debates, escape justice. Even if the Charter of the Nuremberg tribunal of 1945, to which the law of 1964 referred, explicitly mentioned accomplices, the prospect of applying the law to French collaborators was never raised in parliamentary debates.38 However, the bill did provoke criticism for inventing new grounds of incrimination and being created in order to be applied retroactively.39 During the prosecution and 1985 conviction of the German head of Gestapo in Lyon, Klaus Barbie, for crimes against humanity, the question of Vichy’s responsibility for the Holocaust did not really rise as a topic. Barbie’s trial did not inflict new guilt on France itself, although Barbie’s defence lawyer, Jacque Vergès, 34. Henry Rousso, ‘Justice, History, and Memory in France. Reflections on the Papon Trial’ in John Torpey (eds), Politics and the Past (2003) 277-294 at 283-284. 35. Nancy Wood, ‘Memory on Trial in Contemporary France. The Case of Maurice Papon’, 11 History and Memory (1999) 41-76 at 45-46. 36. Rousso, The Vichy syndrome, supra note 13, at 96-97. 37. Tony Judt, ‘Myth and memory in post-war Europe’ in Jan-Werner Müller (eds), Memory and Power in Post-War Europe. Studies in the Presence of the Past (Cambridge University Press 2002) at 170. 38. Rousso, The Vichy syndrome, supra note 13, at 96-97. 39. Richard J. Golsan, ‘History and the “Duty to Memory” in Postwar France’ in Howard Marchitello (eds), What Happens to History. The Renewal of Ethics in Contemporary Thought (Routledge: New York, 2001) 23-39 at 28.

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did draw an analogy between German acts during the Second World War and those of the French in the colonies.40 However, after the crimes against humanity had been redefined and the law of 1964 applied to a German defendant, there was little excuse for not using the same law against French defendants accused of similar crimes.41 Yet the prosecutions of Touvier and Papon made their way through the French courts extremely slowly, struggling with the political pressure exerted to prevent the cases from coming to trial and the legal obstacles involved.42 The trial of the ex-milicien Paul Touvier in 1994 was the first time that a Vichy collaborator was successfully charged under French law with crimes against humanity for his activities during the Second World War. The trial became a vehicle for the debate about the activities and legitimacy of the Vichy regime, and regardless of Touvier’s modest position as a milicien in the hierarchy of Vichy, it was popularly identified as a trial of the Vichy government.43 While Touvier was 40. Henry Rousso, The Haunting Past. History, Memory, and Justice in Contemporary France (University of Pennsylvania Press, 2002) foreword at xii. Klaus Barbie had been the head of the Gestapo in Lyon and his chief responsibilities were the suppression of the Resistance, communists and Jews. For the French, he symbolised Nazi evil also because of the capture and death under torture of Jean Moulin, the leftist leader of the French Resistance and national hero took place under Barbie’s orders. The original charges against Barbie included among others, the arrest and deportation of 43 Jewish children at Izieu; the arrest, torture, and execution of more than 60 persons, primarily Jews, around Lyon during the years 1943 and 1944; the deportation of 650 persons to the concentration camps of Auschwitz and Ravensbrück from Lyon in 1944; the shooting of 70 Jews previously incarcerated at Bron in 1944. See Leila Sadat Wexler, ‘The Interpretation of the Nuremberg Principles by the French Court of Cassation: From Touvier to Barbie and Back Again’, 32 Colum. Columbia Journal of Transnational Law (1994-1995) 289-380 at 333, Richard J. Golsan, ‘Introduction: Maurice Papon and Crimes Against Humanities in France’ in Richard J. Golsan (ed) The Papon Affair. Memory and Justice on Trial (Routledge: New York, 2000) 1-33 at 29. Barbie was twice sentenced to death in absentia after the war by French courts. The military tribunal of Lyon convicted him for war crimes in 1952 for assassinations, arson, pillaging, and illegal arrests committed in the Jura region in France and in 1954 for similar crimes committed in Lyon and Saint-Genis-Laval. The punishments for these two convictions eventually prescribed. In February 1982, the public prosecutor of Lyon filed charges of crimes against humanity against Barbie for a series of crimes not mentioned in the previous judgments. 41. Rousso, The Vichy Syndrome, supra note 13, at 211-212. 42. Sadat, ‘The Legal Legacy’, supra note 33, at 131-132. The French government delayed the prosecution of Touvier and Papon and in 1993 President Francois Mitterrand admitted that he had pressured the Ministry of Justice not to pursue Papon and the cases of other Vichy collaborators, possibly fearing that the trials would undermine state sovereignty, or its result being divisive for the French nation. 43. Touvier was an ex-regional Chief of the information services of the Milice at Leon, and thus a rather minor figure in the hierarchy of Vichy officials, and not responsible for formulating government policy. The Milice was a special para-military force, separate from the police and the judiciary, established to combat the resistance and other enemies of Vichy, and explicitly anti-Semitic. Members of Milice were involved in arrests, torture and executions of those thought to be opponents of Vichy. During the post-war purge members of Milice were among those particularly targeted and many of them were executed. This would have been the fate



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not a bureaucrat, nor was he directly linked to the implementation of the Final Solution in France, he was a devoted fascist and an anti-Semitist, and consequently his trial came to emphasise the existence of an ideologically-driven complicity of Vichy in carrying out the Holocaust.44 During Touvier’s prosecution, French courts had to balance between what was considered to be established facts of history, and the expectations of the French public to have Touvier prosecuted. At the time of his trial, the prosecution wanted to prove at any cost that Touvier, accused of the murder of seven Jewish hostages in 1944, had acted under the order of the German Sicherheitspolizei of Lyon. Since Barbie’s case, French law held that a defendant could not be rendered guilty of a crime against humanity unless he or she acted in the service of a regime practicing a policy of ideological hegemony. Consequently, a crime against humanity could only have been committed by the Third Reich, and a French national could only have acted in complicity.45 In the first decision given at Touvier’s case, the Indicting Chamber of the Paris Court of Appeals reversed the decision of the juge d’instruction in 1992 and concluded that there was no cause to prosecute Touvier on any of the charges as either the evidence was insufficient to support the charge in question, or even if Touvier’s participation in the criminal activity was clear, he could not be held guilty because the element of specific intent was missing. The court analysed the historical record of the Vichy government (its policies toward the Jews and its relationship to the German occupier) and found that Vichy France simply could not be considered a hegemonic state. As regards the question of anti-Semitism of Vichy, the court acknowledged that the policies of Vichy were not ‘devoid of anti-Semitism’ but denied that there was ever an ‘official proclamation of antiSemitism’.46 Therefore, with respect to the one crime for which Touvier could incontestably be held responsible, the massacre at Rillieux47, one of the requisite elements of a ‘crime against humanity’ was missing. In accordance with the view shared by most historians, the court found that Touvier was not carrying out any German plan at Rillieux, but that Rillieux was entirely ‘une affaire entre Francais’ (a French affair). The court thus rejected also the idea that Touvier could be guilty of being an accomplice of the Gestapo.48

44. 45. 46. 47. 48.

of Touvier as well had he not gone into hiding. See Leila Sadat Wexler, ‘Reflections on the Trial of Vichy Collaborator Paul Touvier for Crimes Against Humanity in France’, 20 Law & Social Inquiry (1995) 191-221 at197. Nancy Wood, Vectors of Memory: Legacies of Trauma in Postwar Europe (Berg: New York, 1999) at 125. See Guyora Binder: ‘Representing Nazism: Advocacy and Identity in the Trial of Klaus Barbie’, 98 Yale Law Journal (1989) 1321-1383. Judgment of April 13, 1992, Cour d’appel de Paris, Première chamber d’accusation. Seven Jews were executed at the cemetery of Rillieux-la-Pape in June 1944. Sadat Wexler, ‘The Interpretation’, supra note 40, at 346-350.

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The court freed Touvier of all charges which led to a public uproar. Tzvetan Todorov, among others highlighted to the “strange definition of crimes against humanity fashioned by the Cour de Cassation” (French Supreme Court, Court of Cassation) which dictated that ‘the same acts are crimes if they are committed by Germans or anyone in their service, but cease to be so if their authors are French, acting for the sake of the French state or French institutions.’49 Even the French National Assembly denounced the verdict. The decision of the Paris Court of Appeals was brought to the Criminal Chamber of the Court of Cassation which sent the case back to the Court of Appeals of Versailles. This court held in 1993 that Touvier could indeed be tried for his participation in the massacre at Rillieux since he did act at the instigation of the Gestapo and thus held the intent of furthering the plan of a state practicing a hegemonic political ideology.50 The case was subsequently set for trial at the court of Assizes, a unique French institution used only for the trial of serious offences,51 and Touvier was finally convicted of complicity for crimes against humanity for having ordered the arrest and murder of seven Jews at Rillieux in 1944. The court that convicted Touvier for crimes against humanity thus reproduced one of the ‘myths’ about Vichy which had prevailed since the war: that French anti-Semitic policies and actions were imposed by the Nazi occupants of the country and Vichy officials acted ‘only’ in complicity. The irony is, as noted by the French historian Henry Rousso, that ‘in the eyes of the public opinion and by virtue of the duty to memory in its French version, this trial purported to show precisely that the Nazis were not the only ones to persecute the Jews, and that the French had also committed this type of crime, without submitting to pressure from the German occupier.’ Most historians agreed that in relation to the acts that he was prosecuted for, the micilien Touvier had acted without any German orders, in a context of the war that the French Milice conducted, among others, against Jews. This was an obvious contradiction in the Touvier trial between ‘an established historical truth, on one hand, and an imposed judicial truth, on the other’.52 On the other hand, while the 1992 acquittal by the Paris Court of Appeals did seem to be based on a historical account in line with the findings of most historians of Vichy that Touvier in the Rillieux incident acted on his own without 49. As quoted in Wood, ‘Memory on Trial’, supra note 35, at 48. It should be noted that the German Klaus Barbie had already been prosecuted and condemned for crimes against humanity in France. 50. Sadat Wexler, ‘The Interpretation’, supra note 40, at 351-353. 51. Sadat Wexler, ‘Reflections’, supra note 43, at 203-204. 52. Rousso, ‘Justice’, supra note 34, at 285-286. Most notably the work of Robert Paxton on Vichy France showed how the Vichy regime operated very much under its own dynamic, irrespective of the demands of the Nazis. See Robert O. Paxton, Vichy France: Old Guard and New Order, 1940-1944 (Barrie & Jenkins: London 1972).



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German orders, many historians were of the opinion that Vichy did posses a coherent ideology and practiced a ‘politics of ideological hegemony’, a prerequisite for crimes against humanity to have taken place under French law.53 And ironically, even if one would accept the historical understanding expressed by the Versailles verdict of 1994 according to which Touvier acted in Rillieux as a German agent, the murders at Rillieux appeared as an isolated act of reprisal for the execution of Vichy’s minister of Propaganda Philippe Henriot by the Resistance, rather than as part of a ‘concerted plan’ of persecution.54 The latter interpretation, however, was a legal prerequisite for crimes against humanity to have taken place. The subsequent Papon trial, in turn, was principally a trial of the Vichy administration and of its direct involvement in the extermination of Jews, maintains Rousso.55 Maurice Papon, a former secretary general of the prefecture of the Gironde was charged for deporting Jews from the Bordeaux region to death camps between 1942-1944.56 The prosecution of Papon was the first during peacetime to put a high civil servant with such important administrative and political responsibilities on trial for acts committed during the exercise of his duties and in conformity with the politics and policies of the government that he had served.57 As such, Papon’s case seemed well suited to force the issue of Vichy into the forefront. Papon’s files revealed that from 1942 to 1944 he had ordered and arranged for the arrests and deportations of some 1700 Jews in obedience to explicit, documented orders from his French superiors in the Vichy government. This rendered Papon’s acts ‘state acts’ of Vichy.58 The Indicting Chamber of the Bordeaux Court of Appeals indicted Papon in 1997 for complicity in crimes against humanity, an indictment that was confirmed by the Court of Cassation. The court’s opinion is the first official French document that openly admits Vichy’s collaborationist role as an indispensable actor in the Nazi machinery of destruction. Due to Papon’s high position in Vichy, the court’s opinion can be read as a symbolical condemnation not only of Papon but the entire administrative apparatus that was involved in the massacre of French Jews.59 In his appeal Papon argued, however, that his acts did not constitute ‘complicity’ in the legal sense because there was no proof that he adhered to the ‘hegemonic political ideology’ of the Nazis. Papon instead pointed to his membership in the 53. 54. 55. 56.

Golsan, ‘History and the ‘‘Duty to Memory’’’, supra note 39, at 32. Ibid. Rousso, ‘Justice, history and memory in France’, supra note 34, at 280. Richard J. Golsan, Vichy’s Afterlife. History and Counterhistory in Postwar France (University of Nebraska Press: London, 2000) at 2. 57. Rousso, ‘Justice’, supra note 34, at 280. 58. Leila Sadat Wexler, ‘Prosecutions for Crimes Against Humanity in French Municipal law.’ American Society of International Law Proceedings of the 91st Annual Meeting (1997) 270–274 at 272. 59. Ibid.

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Resistance as evidence that he opposed the Nazis’ Final Solution. As is well-known, legal logic does not acknowledge ‘shades of grey’, and Papon’s contributions to the French Resistance were overlooked by the prosecution, as if it would have been impossible to be both a cog in the Vichy administration that orchestrated the persecution of Jews and a member of the Resistance against the occupying power. While this trajectory was something that de Gaulle’s resistentialist myth had kept hidden, it was not at all uncommon for a great many Vichy civil servants to go from loyalty to the Pétain government to dissidence and later to join the Resistance, out of careerist motivations. This was the trajectory of Francois Mitterrand, among others.60 The courts rejected Papon’s defence that he did not know what would happen to the deportees and thus lacked the requisite intent of a crime against humanity, that of ‘ideological persecution’. But, as pointed out by Rousso, it was nearly impossible to answer the question of whether Papon was aware or unaware of the Final Solution as early as June 1942 with certainty. After all, the Nazi plan to exterminate Jews was only put into effect in 1941 and 1942.61 Finally, in January 1997, the Court of Cassation issued a ruling according to which it was not necessary for the accomplice of a crime against humanity to have adhered to the policy of ideological hegemony of the principal authors of the crime. It sufficed that the accomplice knowingly facilitated the preparation or consummation of the crime. In Papon’s case it meant that it needed to be proven that Papon accepted the post in Bordeaux knowing that the bureau of Jewish affairs would be under his authority and that he committed acts that furthered the Nazis’ plans for the extermination of Jews.62 This interpretation was apparently reached as the court was faced with an absence of ideological motivation of Papon on one hand, (instead easily proved in the case of the anti-Semite milicien Touvier), and with the political and public determination to see Papon prosecuted and convicted, on the other.63 The question of how to frame, in penal terms, an attitude of an opportunistic functionary who remained at his post, became central for the court judging the Papon case.64 Papon’s verdict eventually became an articulation of the jury’s moral condemnation of Papon’s failure to extricate himself from the ‘chain of 60. Rousso, ‘The Haunting Past’, supra note 40, at 73. The term maréchalisme has been used to describe a position which was hostile to the German occupation and the Nazi ideology, even to full-fledged pétainisme, but yet was supportive of elements of collaborationist policy, in particular ‘tactical’ accommodation with the German occupiers. The social acceptability of this ideological position was such that one could be a maréchaliste before becoming a resistant, or even after entering the Resistance. Wood, Vectors of Memory, supra note 44, at 129. 61. Rousso, Haunting Past, supra note 40, at 73. 62. Sadat Wexler, ‘Prosecutions’, supra note 58, at 273 fn. 9. 63. Wood, ‘Memory on Trial’ supra note 35, at 52. 64. Ibid., at 53.



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responsibility’ and to exercise the right to disobey orders, or simply to resign.65 Touvier’s trial had emphasised the existence of an ‘ideologically driven complicity in the Final Solution’. The Papon verdict, as noted by Nancy Wood, was a symbolic judgment of the attitude of Vichy officials, many of whom, including Papon, implemented Vichy policies more out of opportunism rather than out of some kind of anti-Semitist zeal or fascism.66 The Vichy administration was immersed in the long-standing culture of obedience of French public officials that prevailed during the Occupation years in which the more resolute forms of revolt like resignation and anti-German activity were extremely limited.67 The Papon trial thus shed light on the ‘culture of obedience’ of Vichy officials of whom Papon became a representative, and thus serves as a salutary legal and moral lesson about the dangers of technocratic attitude for today’s officials who are increasingly involved in complex, impersonal administrative systems that tend to dilute personal responsibility.68 Through the focus on Papon’s post-war years69, the trial also had the potential to shed light on the long disregarded fact that most of the administrative elites, including lawyers, magistrates, judges and police officials, passed smoothly from the Third republic to the regime collaborating with Nazis, and continued their administrative duties and daily routines as if nothing had changed.70 This message has potential implications beyond French borders, as this seems to have been the pattern in Germany and in most European countries either occupied by Germany or collaborating with Germany.71 But did Papon serve as a scapegoat, as the defendant himself and many observers maintained? If Papon was condemned for his actions as a high official, efficient and indifferent to the consequences of his actions, then from this perspective thousands of ordinary officials, including Papon’s superiors, escaped justice.72 65. See Éric Conan, ‘Procès Papon Résistance’, L’Express, 5 March 1998. 66. Wood, ‘Memory on Trial’ supra note 35, at 57. 67. Ibid. at 57-60. For the attitudes of Vichy officials see especially Marc-Olivier Baruch, Servir l’État francais. L’administration en France de 1940 à 1944 (Fayard 1997). Also Robert O Paxton’s Vichy France: Old Guard and the New Order, 1940-1944 (1972) discusses the motives of French high officials to collaborate with Germany. 68. Wood, ‘Memory on Trial’ supra note 35, at 57-61. 69. After the war Maurice Papon had a splendid career as an administrator. He was named a prefect of police in Paris in 1958, a post that he occupied until 1967, and eventually becoming Minister of Finance in 1978. Under the authority of Papon, as the prefecture of the police in the middle of the Algerian war, a violent repression of a demonstration of Algerians took place in Paris which resulted in several dozen, perhaps several hundred victims. Consequently, Papon’s prosecution became a trial not only about Vichy but about crimes committed by the French Republic during the Algerian war. 70. Fraser, ‘Law’, supra note 12, at 156. 71. See Christian Joerges and Navraij Singh Ghaleigh (eds), Darker Legacies of Law in Europe: The Shadow of National Socialism and Fascism Over Europe and Its Legal Traditions (Hart Publishing: Oxford, 2003). 72. Wood, Vectors of Memory, supra note 44, at 128-129.

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And while Papon was found guilty of complicity for crimes against humanity, that is the ‘arrests and sequestrations’ that were part of the Nazis persecution against the Jews, Papon was found not guilty of ‘complicity in the murder’ of the deportees, meaning that in the end he was considered by the jury to be ignorant of the ultimate destination and fate of the deportees in the context of the Final Solution. If one accepts the notion that the Papon judgement was somehow the symbolic judgment of Vichy, then a verdict that found Papon guilty of complicity in arrests and detentions but not in murder actually reduced Vichy’s culpability. In the end, Papon was just a wheel in the Nazi machinery.73

5. Towards Acknowledging Collective Responsibility It was only through President Jacques Chirac’s acknowledgment in 1995 that France was responsible as a political entity for what had been committed in the name of Vichy that collective responsibility for Vichy was officially accepted by the French state. Chirac’s acknowledgement distances itself from the story of Vichy as a parenthesis in French history. Whatever the nature of the previous government of Vichy, there exists a political collective, France, which assumes political responsibility for past acts committed in its name. ‘France, the land of the Enlightenment and of Human Rights, land of hospitability and asylum, France, on that day, committed the irreparable’.74 Chirac’s acknowledgement was in line with Germany accepting responsibility for the Holocaust,75 and a response to obstinate memory campaigns since 1992 for official proclamation on behalf of the political establishment that the French state is responsible for crimes against Jews.76 Chirac’s apology seemed to correspond to the general sentiment among the French and to fulfil the wishes of human rights groups, Jewish victims’ organisations and others who had publically rallied for the acknowledgement of collective responsibility by the French state for crimes committed under Vichy. Official France appeared to have finally faced up to the reality of the Occupation years.77 73. Golsan, ‘Introduction’, supra note 40 at 2, 26. 74. For Chirac’s apology see Fette, ‘Apology’, supra note 3, at 81-84. 75. Alfred Grosser in ‘La morale de l’histoire’. Table ronde avec Francois Bédarida, Alftred Grosser et Pierre Vidal-Naquet in Dimitri Nicolaidis (eds), Oublier nos crimes. L’amnésie nationale, une spécificité francaise? (Éditions Autrement: Paris, 1994) at 219. 76. Fette, ‘Apology’, supra note 3, at 81-82. Those lobbying for a public acknowledgement for Vichy crimes included various individuals and groups, for instance the coalition Comité V´l’ d’Hiv’ 42. A petition signed by over 200 intellectuals and artists was published by le Monde in 1994 demanding official proclamation of responsibility. 77. Benjamin Stora and Thierry Leclère, La guerre des mémoires: La France face à son passé colonial (Éditions de l’Aube: Paris, 2007) at 21. Also Fette, ‘Apology’, supra note 3, at 82. Chirac’s declaration was saluted by the associations of French Jews and the public. According to a poll conducted a few days after the declaration 72 percent of those polled approved of Chirac’s apology.



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But mere symbolism seldom suffices to compensate victims for past injustices. Consequently, Chirac’s recognition eventually transformed itself to calls for financial reparations by Jewish victims and their descendants from the French state and state-owned companies. This was encouraged by successful politics of reparation by different Jewish organisations directed against Germany and German companies from whom indemnities have been requested. From the end of the Second World War until the present, Germany has together with German businesses paid billions of Euros in restitution for the victims of the Holocaust and their descendants. Along with governments, this process has extended itself to institutions: banks, corporations, bureaucracies, churches.78 In January 1997, the Mattéoli Commission, one of the creators of which was the Nazi hunter Serge Klarsfeld, was set up in France to investigate spoliation of Jewish property during the war. The findings of the commission eventually lead to the compensation of orphans of Jewish deportees and to the creation of a memory foundation providing assistance to Holocaust victims and their descendants.79 While the findings of the Commission reflect a recognition of collective responsibility and some form of historical continuity between Vichy and the Republic, the work of the commission has also been criticised for continuing to construct Vichy as fundamentally foreign to French legality, and thus not completely shattering the story of Vichy as an exception. Its 2000 documents, including all laws and regulations containing anti-Jewish measures were published under the title, La Persécution des Juifs de France 1940-1944 et le Rétablissement de la Légalité Républicaine (The Persecution of Jews in France 1940-1944 and the Re-establishment of Republican Legality), suggesting that Vichy had operated as a point of rupture with republican, that is true French legality which pre-existed Vichy and was re-instituted after the Liberation.80

6. Restitution Cases Noting legal continuities between Vichy and the previous and subsequent republics may be important for the self-understanding of administrators and the state in question,81 but it is not a prerequisite for establishing the idea of continuity of the state or for assuming collective responsibility for acts of the previous regime. In a decision made in June 2006, an administrative tribunal in Toulouse held 78. Michael R. Marrus, ‘Official Apologies and the Quest for Historical Justice’, Munk Centre for International Studies, Occasional Paper, no.111 (2006) at 24-25. See also Vivian Grosswald Curran, ‘Globalisation, Legal Transnationalization and Crimes Against Humanity: The Lipietz Case’, 56 American Journal of Comparative Law (2008) 363-401. 79. Fette, ‘Apology’, supra note 3, at 84. 80. Fraser, ‘Law’, supra note 12, at 154-155. 81. See Christian Joerges and Navraij Singh Ghaleigh (eds), Darker Legacies of Law in Europe (Hart Publishing: Oxford, 2003).

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the French National Railroad (SNCF) and the French Republic responsible for the arrest and deportation of Jews and ordered the SNCF and the government to pay damages of 60,000 Euros for the plaintiffs for the deportations during the Second World War.82 After this decision, referred to as ‘l’affaire Lipietz’ after the plaintiff, thousands of French have demanded indemnification from the SNCF and the Republic. The Toulouse tribunal finding is the first ruling against the French Republic or one of its agencies that establishes liability for the Holocaust. Moreover, the ruling declares that the French state and SNCF did more than what was expected of them by Nazi occupiers and thus affirms the direct responsibility of Vichy in the Holocaust.83 In court, the French railways argued that they had no autonomy of action during the war but had to do as they were ordered by the Vichy government acting in collaboration with the German occupier. In previous cases for restitution, the courts had indeed considered that the SNCF had been commandeered by German forces during the war.84 However, at the Toulouse trial the plaintiff successfully argued that President Jacques Chirac’s recognition of France’s role in the persecution of Jews, and the trial of Vichy official Papon proved the participation of the government in the deportations. The Toulouse court indeed established that the SNCF ‘was not in any way in a state of constraint so as to justify such dealings’.85 The plaintiffs had sought to find the French state an accomplice in crimes against humanity, but this was rejected by the court that affirmed, instead, liability of the state and the SNCF on the basis of ‘a grave fault’.86 In earlier court proceedings a plaintiff had moreover demanded for an explicit recognition of responsibility from the SNCF leadership. This was refused by the SNCF, but the French national railroad company initiated a research colloquium in 2000 to examine its involvement in the processes of deportation.87 However, the question of whether the SNCF was an autonomous and voluntary actor in the deportations remains contested. The Toulouse ruling was criticised by historians, lawyers, and even families of Jewish deportees who maintained that the legal responsibility for the deportations should belong to the French state and to Germany. Henry Rousso estimated that the latitude for manoeuvre by the SNCF, which according to the armistice agreement was at the disposal of the Germans and in areas free from occupation acted under the orders of Vichy, was extremely limited under the Occupation. The Nazi hunter and lawyer, Serge 82. Arrêt du tribunal Administratif de Toulouse 2ème chamber, 16 May 2006, n.0104248. 83. Ibid. 84. ‘La justice condamne l’État et la SNCF pour leur role dans la deportation de juifs’, Le Monde, 6 June 2006, ‘La SNCF poursuivie dans la deportation des juifs’, Libération, 20 March 2003. 85. Ibid. 86. Ibid. 87. Ibid.



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Klarsfeld, the president of the Association of the Sons and Daughters of Deported French Children claimed that ‘The SNCF didn’t want it, but did it. How can it be criticised today for not having hidden its trains? That would amount to putting on trial a Frenchman who didn’t enter the resistance movement’.88 His son, Arno Klarsfeld justified the SNCF collaboration by stating that ‘Those who did it [participated in the Resistance] are heroes, the others have always been, are and will remain the norm. Indifference to the crime of others is not a crime; it is part of the human condition’.89 The 2006 decision was considered a victory for the victims. However, in 2007 the appeals court of Bordeaux reversed the Toulouse court ruling against the SNCF (the French state did not appeal) on the basis that administrative courts cannot decide on the liability of the SNCF. The court ruled that the SNCF was not an arm of the state but an entity in its own right which should be covered by the ordinary judicial system, meaning that plaintiffs will have to bring their cases before civil or criminal courts. The court also ruled that the SNCF had been requisitioned by the collaborationist Vichy government and had not acted on its own authority.90 This decision thus allocated the responsibility for the deportations on the Vichy regime, (instead of the Nazi occupiers) but exonerated the SNCF, marking a symbolic victory for those who advocated further official acknowledgement of Vichy’s responsibility. However, the ruling denied compensation from the SNCF, thus putting an end to demands for compensation by at least 1,200 families and groups following the original ruling.91 In February 2009, France’s highest administrative tribunal, the Council of State, explicitly ruled that the French government was responsible for the deportation of thousands of Jews to Nazi death camps during the Second World War.92 This ruling is in line with the previous decision of the Council of State in 2002, undertaken in the aftermath of the Papon prosecution, in which the Council of State concluded that the French state was partly liable for the actions of Vichy. This decision marked a change in jurisprudence in relation to the French state’s responsibility, given that until then jurisprudence, fixed by decisions of 14 June 1946, 4 January and 25 July 1952, had referred to the ordinance of 9 August 1944 which re-established the ‘republican legality’ and declared as null acts undertaken by the French administration under Vichy. This ordinance considered

88. Anne-Charlotte De Langhe, ‘Déportation: les historiens défendent la SNCF’, Le Figaro, September 1, 2006. 89. Pierre Mabut and Antoine Lerougetel, ‘French State Rail Company found guilty of Nazi collaboration’, 21 September 2006. wsws.org. Available online at (visited 6 April 2011) 90. Arrêt de la cour administrative d’appel de Bordeaux, 21 March 2007, n.06BX01570. 91. Ibid. 92. Avis du Conseil d’État et la jurisdiction administrative, 16 February 2009, n.315499.

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that the state could not be condemned to compensate for the wrongs committed by Vichy administrators. In its 2002 decision the Council of State partly affirmed the argument of Maurice Papon who had addressed the court, according to which the financial penalty that accompanied his conviction for complicity to crimes against humanity should be assumed by the French government under the orders of which Papon was acting at the time of his crime. The Council of State found that the creation of the Merignac internment camp and the order given to the prefect and the police to arrest and intern Jews there were facts attributable to the French government, and not attributable directly to orders by the occupying authority. This recognition of the responsibility of the French state was accompanied by financial accountability when the court ruled that the French state had to pay half of Papon’s legal fees owed to victims because the ‘acts and actions of the French government, which did not directly result from the constraints of the occupier and which were independent of the personal actions of Maurice Papon, enabled and facilitated operations that constituted the prelude to deportations’.93 The court referred to both the Vichy government and the current French state as ‘the French administration’, thus creating legal continuity between the current Fifth Republic and Vichy, in line with Chirac’s speech.94 Moreover, the court stated that this extreme persecution by French authorities contradicted the values and principles safeguarded by the Declaration of the Rights of Man and of the Citizen and by the republican tradition, specifically the dignity of human life. Both this court ruling and Chirac’s apology thus reasserted the sense of nationhood and nationalist continuity by diluting images of a wrongful Vichy with affirmations of positive republican values.95 The 2009 decision of the Council of the State, referred to as ‘l’affaire Hoffman-Glemane’, responded to a request for a ruling from a lower administrative tribunal that was hearing a claim from the daughter of a Jew who had perished at Auschwitz. She demanded compensation from the French state for the death of her father and for the hardships she herself suffered during and after the war. The symbolic value of the ruling is important, but it is unlikely to have practical consequences for the victims and their descendants given that the Council also ruled that reparations paid to deportees and their survivors by the French government since 1945 ‘have repaired, as much as this is possible, all the wrongs 93. Communiqué de presse, ‘Le Conseil d’État statuant au contentieux, sur le rapport de la 1re sous-section de la Section du contentieux, No.238689, Séance du 5 avril 2002.’ Available online at (visited 6 April 2011) See also Fraser, ‘Law’, supra note 12, at 155. 94. Vivian Grosswald Curran, ‘Globalisation, Legal Transnationalization and Crimes Against Humanity: The Lipietz Case’, 56 American Journal of Comparative Law (2008 ) 363-401 at 372. 95. Peter Carrier, Holocaust Monuments and National Memory Cultures in France and Germany since 1989: The Origins and Political Function of the Vél’ d’Hiv’ in Paris and the Holocaust Monument in Berlin (Berghahn Books:Oxford, 2005) at 76-78, 89.



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suffered’.96 According to the court, the reparations have been decided in accordance with European human rights standards and were similar to reparations paid by other European governments. The Council’s judgment thus appeared to signal a dismissal of the plaintiff’s claim for reparations in the lower court and of a number of similar claims before various French courts, given that the Council is the highest instance in French administrative law. The lawyer of the plaintiff in question announced that she would appeal to the European Court of Human Rights.97 In its February 2009 verdict deciding the responsibility of the French state in the persecution of Jews, the Council of the State created a juridical novelty by pronouncing that the reparation of such exceptional suffering as endured by persecuted Jews cannot limit itself to financial measures, but must include the acknowledgement of the injustice suffered collectively by the individuals in question, and the role played by the State in their persecution. The court also stated that the ‘memory’ of the state must include the suffering of these individuals and their families.98 In this way, the court responds directly to demands for duty to memory carried out by victim groups in a much more explicit manner than has been done by French courts before. According to the court, the following acts and initiatives by the state or state representatives have, however, already accomplished this recognition and acknowledgment: the law of 26 of December 1964 on the imprescriptibility of crimes against humanity, the declaration of the 16 of July 1995 by the President of the Republic acknowledging the responsibility of the French state for the deportation of the Jews and the declaration of 26 December 2000 of the establishment of a Foundation for a memory of Shoah.99 The 2009 ruling of the Council of State can be read as an attempt by the French state to acknowledge its wrongs, to respond to demands of memory, while at the same time limiting the practical and juridical consequences this kind of recognition would likely lead to.

7. The ‘Guilt of Nations’: the Question of Political Continuity of the State and Intergenerational Responsibility The understanding of Vichy as a parenthesis, and the reluctance of the French state to acknowledge responsibility for it were based on a notion of constitutional96. Avis du Conseil d’État et la jurisdiction administrative, 16. February 2009, n.315499. 97. Edward Cody, ‘France Responsible in II WW Deportations’, The Washington Post, 17 February 2009. Available at (visited 6 April 2011) 98. Avis du Conseil d’État et la jurisdiction administrative, 16 February 2009, n.315499. 99. Avis du Conseil d’État et la jurisdiction administrative, 16 February 2009, n.315499.

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republican conception of political identity which grounds the sameness of the identity of a political community across time in its institutional and constitutional-normative continuity. Regime forms that break from the institutional and constitutional continuity of the state, as Vichy did, cease to be ‘ours’. ‘We’ are not the inheritors of this past which belongs to others, to Nazi Germany or to Vichy collaborators. Since ‘we’ do not share a political identity with the perpetrators, we are not accountable for their injustices.100 This self-absolution, engaged in for decades by the French state in relation to Vichy, is further entrenched by individual criminal liability, established in relation to Vichy crimes during the trials of Touvier and Papon. Individual criminal responsibility allows the state to continue the discourse according to which it was a question of individual breaches of human rights, instead of state policy. It is increasingly acknowledged that when systematic criminality committed by state or government officials, such as Vichy officials, is tackled by individual criminal liability, collective mechanisms that enabled the crimes to take place are disregarded or even shadowed.101 On the other hand, while for instance the verdicts of the courts prosecuting Touvier and Papon could pronounce solely on the complicity of these particular collaborators in the carrying out the Holocaust, the debates at courts and the surrounding public debates did shed light on the role of the Vichy administration in general in the Nazis’ plan to exterminate the Jews. Whereas criminal prosecutions end up individualising guilt and responsibility, the paying of reparations is a way of assuming some notion of collective responsibility in the face of increasing demands for states to acknowledge past wrongs. Reparations have become an important means to ‘rectify’ past injustices both in national and international contexts. Reparations may be complementary to criminal prosecutions or may substitute them in particular if the crimes have fallen under statutes of limitations or the individuals responsible are no longer alive, or cannot be identified, or if the consequences of the wrong or injustice in question persist until today. The paying of restitution potentially serves the needs of reconciliation between different parties because restitution cases escape the adversary composition of trials (that do not necessarily favour reconciliation). Not only does restitution imply the acknowledgement of collective responsibility by the state for past acts, but goes beyond the mere symbolic acknowledgment of past wrongdoing, such as expressed in official gestures of repentance, towards monetary compensation. 100. W. James Booth, ‘Communities of Memory: On Identity, Memory, and Debt’, 93 American Political Science Review, June (1999) 249-263 at 250. 101. See André Nollkaemper and Harmen van der Wilt (eds), System Criminality in International Law (Cambridge University Press, 2009), Mark A. Drumbl, Atrocity, Punishment, and International Law (Cambridge University Press, 2007).



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However, in many cases of reparation claims, in particular those that refer to injustices which took place decades, even centuries before, the legal basis for restitution from the state is not very strong and may be hampered for political reasons. Consequently, many cases for restitution against states are put forward in moral terms, or they are accompanied by legal demands for restitution against private companies which were involved in state practices.102 But on what grounds can we claim that those who did not commit the harm in the first place should repair it? As we have seen in the French case, subsequent governments are reluctant to apologise for or repair the wrongs committed by previous governments, but face increasing pressure to do so from the part of human rights organisations and victim groups. The notion of Vichy as a parenthesis in the history of the French Republic worked as a way to deny responsibility for what was committed under its name. On the other hand, when Jacques Chirac apologised for the deportations and courts established liability to the French state, the notion of state continuity was constructed between Vichy and the previous and subsequent governments. However, the claim that present generations should make amends for historical injustices committed by previous generations is a controversial one and requires further suppositions. According to the idea of intergenerational responsibility, supported for instance by David Miller and Janna Thompson, the present generation has historical obligations towards past generations; the fact that our predecessors were the ones who committed the wrongs does not excuse us from responsibility for reparation.103 According to David Miller, we have to think of nations as ‘intergenerational communities’ in the sense that a nation that wants to claim the advantages created by previous generations must also accept responsibility to offer redress for the injustices they inflicted.104 This formulation is based on the idea of continuity of the nation which is conceived primarily in cultural rather than legal-political terms, implying cultural identification with the nation and its past.105 Hence the claim is that one cannot legitimately enjoy inherited benefits (like funds, but also intangible goods such as cultural heritage) without at the same time acknowledging responsibility for such aspects of the national past which have involved the unjust treatment of people inside or outside the national community itself, and liability to provide reparation. The idea of nations as intergenerational communities supports the claim to inheritance of advantages, but also imposes liability.106 This may thus not only assign rights to some, and responsibility for others, but may also play a role in terms of how 102. See Thomas McCarthy, ‘Coming to Terms with our past, Part II: On the Morality and Politics of Reparations for Slavery’, 32 Political Theory (2004) 750-772 at 755. 103. Janna Thompson, Taking Responsibility for the Past (Polity Press, Cambridge, 2002) at xviii. 104. David Miller, Global Justice and National Responsibility (Oxford University Press, 2007) at 161. 105. McCarthy, ‘Coming to Terms with our past’, supra note 102, at 756. 106. Miller, Global Justice and National Responsibility, supra note 104, at 155.

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nations understand themselves, and which aspects of their past they conceive as their ‘cultural heritage’.107 Interpreted to the case of Vichy and its involvement in the Holocaust, the idea of intergenerational responsibility would suggest that contemporary France is liable for the crimes of Vichy. In French national sentiment the responsibility of contemporary France concerns also a certain ‘duty to memory’ to keep the Holocaust in public consciousness. The understanding that nations need to repair for past wrongs and keep the memory of injustices alive was fuelled by the atrocities of the Second World War, and the Holocaust in particular, and not surprisingly, has found resonance in particular in Germany. Hannah Arendt contended in the post-war context that ‘we can no longer simply afford to take that which was good in the past and simply call it our heritage, to discard the bad and simply think of it as a dead load which by itself time will bury in oblivion. The “subterranean” stream of Western history has finally come to the surface and usurped the dignity of our traditions.’108 Jürgen Habermas and other intellectuals have repeated the theme of the continuity of national traditions and the corresponding need to come to terms with the past.109 Habermas insists on the ‘burden of the past, and on the imprescriptible nature of the Holocaust within it’, a legacy which needs to be ‘sheltered from the erosion of time, forgetting and normalisation’ by even those that bear no agency-based responsibility.110 Habermas first formulated his idea of an appropriate political ideology for post-war Germany, ‘constitutional patriotism’, during the so-called ‘historians’ dispute’ of 1986. In terms of historiography, this controversy revolved around the issue of singularity of National Socialism and the Holocaust and their comparability to Stalinism and crimes committed under its name. On a political level, however, it was question of German collective identity which a number of conservative historians, according to Habermas’ view, tried to ‘normalise’ with attempts to encourage Germans to adopt a conventional form of national pride. In Habermas’ view constitutional patriotism, understood as a political ideology seeking reconciliation between the universal aspirations of liberalism with the republican idea of a robust political identity which includes shared history, was the only permissible form of political identification for West Germans due to their collective ‘heritage’ of National Socialism.111 107. Ibid., at 265. 108. Hannah Arendt, ‘Preface to the First Edition’, The Origins of Totalitarianism (Harcourt Inc.: San Diego, 1973/1951). 109. See Jürgen Habermas, The Inclusion of Other. Studies in Political Theory (MIT Press: Cambridge, 1998). 110. W. James Booth, Communities of Memory: On Witness, Identity, and Justice (Éditions Complexe: Brussels, 2006) at 60-62. 111. Jan-Werner Müller, Constitutional Patriotism (Princeton University Press, 2007) at 26. On the



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On the other hand, one may also ask for how long France, Germany, or other European nations must actively, publicly keep the memory of the Holocaust alive.112 The rise of memory and ‘politics of regret’ has been associated with a retreat from transformative politics and with juridication of public life.113 Narrating a story about one’s past and dwelling in injustices may turn into an enterprise of sentimentalising the past and perversely, deriving consolation from it, while remaining politically passive in the present.114 At the time of the Touvier prosecution in France, Tzvetan Todorov pointed out that the French were obsessively dwelling in the crimes of Vichy that had taken place half a decade before, while they completely ignored Serb’s ethnic slaughter of Bosnians and Croats which took place ‘an hour away by plane’.115 Generally speaking, condemning the Holocaust from a distance of more than half a century is politically safer than fighting contemporary evils.116 France currently witnesses memory battles and increasing pressure to acknowledge human rights violations that took place during colonialism, in particular during the Algerian war. Over the summer of 2010 France also caused controversy with the expulsion of the Roma, leading to claims that France was re-acting its Vichy years. The Holocaust and Vichy are powerful references that are used not only to make a point about the past but also about the present. Not surprisingly, human rights organisations and other groups draw on successes of memory politics relating to the Holocaust in their efforts to have other injustices of the past recognised and rectified. So intense are memory confrontations both in relation to Vichy and concerning the legacy of French colonialism that critics claim that France, a country that has traditionally relied on a very positive image of its past, has lost herself in the ‘tyranny of the present’, in demands for debts and rectification arising out of the past.117 However, the reality in the present is that the construction of historical narratives of nations implies more pointing out burdens and injustices of the past, and the consequent collective faults of nations, rather than making sanguine traditions on the basis of the past.

historians’ dispute see for instance Charles S. Maier, The Unmasterable Past: History, Holocaust, and German National Identity (Harvard University Press, 1998). 112. Norbert Frei, ‘Le Retour du Droit en Allemagne’ in Brayard Florent (ed.), Le Génocide des Juifs entre procès et histoire 1943-2000 (Éditions Complexe: Brussels, 2000) at 58. 113. Müller, ‘Introduction’, supra note 7, at 15-16. 114. Ibid. 115. Golsan, ‘History and the ‘Duty to Memory’, supra note 39, at 36. 116. Malgorzata Pakier and Bo Stråth, ‘Introduction: A European Memory?’ in Malgorzate Pakier and Bo Stråth, A European Memory? Contested Histories and Politics of Remembrance (Berghahn Books: Oxford, 2010) 1-20 at 8-9. 117. Jean-Pierre Rioux, La France perd la mémoire (Perrin: Paris, 2006) at 149-150.

Climate Change, Human Rights and Distributive Justice Dimitris Efthymiou* Abstract: The Human Rights Council has formally placed human rights at the centre of legal debates about climate change by adopting resolutions 7/23 and 10/4 recently. Proponents of human rights may have reasons to be optimistic about the positive effects these resolutions may have on the equity of future climate change legislation. I would like to raise some doubts here about the adequacy of a human rights approach in dealing with climate change. I shall argue that it is difficult for human rights approaches to climate change to explain the degree to which justice requires redress for past, present as well as future CO2 emissions in a way that accounts for the global, intergenerational and distributive dimensions of climate change whilst also avoiding imposing unreasonably high costs and burdens on less advantaged countries. An appeal to liberal egalitarianism may be able to explain why an equal per capita share of global CO2 emissions is a more equitable approach to climate change than the ‘threshold’ approach advocated by human rights theorists. An equal per capita share of CO2 emissions is also defended from critics who claim that such a proposal may be too demanding or costly to be legally recognized and enforced. Keywords: human rights, climate change, CO2 emissions, distributive justice, global justice, intergenerational justice, Intergovernmental Panel on Climate Change, emission trading, European Union Emission Trading Scheme, Kyoto protocol, COP 16

1. Introduction When Henry David Thoreau remarked ‘thank God men cannot fly, and lay waste the sky as well as the earth’ he was perhaps a little hasty in thanking God for depriving men of the ability to fly but surely right to be pessimistic about our species’ future treatment of the environment.1 Recent studies of the effects * M.Phil., B.A., PhD Candidate at the European University Institute. 1. H. D. Thoreau, J. S.Cramer (Ed.), I to myself: an annotated selection from the journal of Henry D. Thoreau (Yale University Press, 2007) at 449.

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of human activity on the environment only confirm this pessimism; the earth’s climate is undergoing rapid changes.2 Our planet is becoming warmer and extreme weather phenomena such as flooding and hurricanes will become more intense and frequent in the near future. These adverse climatic changes pose a challenge to both our everyday activities and the legal institutions that regulate them. They force us to realize that our planet’s atmosphere is a limited resource that we need to decide how to preserve and share. Human rights have become the common currency of contemporary legal and political discourse and as such they are seen by many as a necessary component in our approach to environmental burdens and benefits. But what kind of a statement does a human rights claim to a sustainable environment make? What duties and obligations does a human rights approach to climate change generate within and between different generations and peoples? How can the adequacy of a human rights approach to climate change be justified and how should these proposals be assessed? Must international law be the principal or even a necessary means of implementation of policies against climate change? The purpose of this paper is to question both the need and adequacy of a human rights approach to environmental justice.3 More specifically, and in response to the first question, I question whether a human rights approach is adequate for dealing with intergenerational, intragenerational and distributive dimensions of climate change. I then argue that liberal egalitarian theories of distributive justice square well with the intergenerational and global dimension of climate change. In response to the third question I defend a qualified version of the proposal for an equal per capita quota of emissions as a superior alternative to the human rights approach. The last part of the paper examines a number of possible defences of the human rights

2. See the latest synthesis report (i.e. 2007) of the Intergovernmental Panel on Climate Change available at (visited 18 March 2011). 3. Influential works in this research area include: B. Barry, ‘Sustainability and intergenerational justice’, in A. Light (eds), Environmental ethics: an anthology (Wiley-Blackwell, 2003) at 487499, S. Caney, ‘Climate Change, Human Rights and Moral Thresholds’ in S. Humphreys (eds), Human Rights and Climate Change (Cambridge University Press, 2009) at 69-90, S. Caney, ‘Cosmopolitan justice, responsibility, and global climate change’, 18 Leiden Journal of International Law (2006) 747–775. S. Caney, ‘Cosmopolitan justice, rights and global climate change’, 19 Can. JL & Jurisprudence (2006) 255-278, T. Hayward, Constitutional environmental rights (Oxford University Press, 2005). A comprehensive summary of most relevant topics can be found in S. M. Gardiner, ‘Ethics and Global Climate Change’, 114 Ethics (2004) 555–600. Two extensively cited contributions are: H. Shue, ‘Subsistence emissions and luxury emissions’, 15 Law & Policy (1993) 39-59 and P. Singer, ‘One Atmosphere’ in One World: The Ethics of Globalization (Yale University Press, 2004) 14-50. A good collection of essays can be found in A. Dobson, Fairness and futurity: essays on environmental sustainability and social justice (Oxford University Press, 1999). A more recent yet comprehensive monograph is S. Vanderheiden, Atmospheric justice: A political theory of climate change (Oxford University Press, 2008).



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approach, and shows how the proposed liberal egalitarian analysis may be used to evaluate existing legal agreements such as the Kyoto protocol.

2. The Story So Far 2.1. The Facts Climate change is not an imagined eco-warrior narrative but a well-established fact. Discussions of climate change formally entered the international legal and political arena in 1988 when the United Nations Environment Program and the World Meteorological Office established the Intergovernmental Panel on Climate Change.4 The IPCC has since published four reports, in 1990, 1995, 2001 and 2007, and the results have remained consistent.5 More specifically, the IPCC concluded that human activities have changed ‘the atmosphere in ways that are expected to affect the climate’ by significantly increasing the concentrations of greenhouse gases in earth’s atmosphere. Anthropogenic climate change is mainly the result of CO2 emissions.6 The IPCC reports that ‘the (CO2) concentration has increased by 31% since 1750’; and even more strikingly that ‘the present CO2 concentration has not been exceeded during the past 420,000 years and likely not during the past 20 million years’. Moreover, it notes that ‘the current rate of increase is unprecedented during at least the past 20,000 years ... at about 1.5 ppm [parts per million] per year’.7 The Intergovernmental Panel on Climate Change predicts that as result of these activities, our planet will get warmer by a range of 1.1 to 6.4 degrees Celsius.8 This rise in temperature will bring about dramatic changes to the climate of our planet. Precipitation levels will change resulting in wet and dry extremes such as flooding and drought. Another effect of higher temperature will be a reduction of glaciers and snow cover affecting the water reserves of the planet.9 4. IPCC’s reports have recently become the object of intense debate because of errors found in the 2007 report. These errors include a false claim that Himalayan glaciers would melt away by 2035 and wrongly stating that 55% of the Netherlands lies below sea level when only 26% of the country does. An independent study of the report, conducted by the Dutch government, found twelve minor errors but concluded that the report contained ‘no errors that would undermine the main conclusions’ concerning the consequences of climate change. See (visited 18 March 2011). 5. See Gardiner, ‘Ethics’, supra note 3, at 560. 6. The main anthropogenic sources of CO2 are the use of fossil fuels and changes in land-use patterns deforestation. See IPCC, Climate Change 2001: Synthesis Report (Cambridge University Press, 2001) in Gardiner, ‘Ethics’, supra note 3, at 560-1. Available also at (visited 18 March 2011). 7. IPCC in Gardiner, ‘Ethics’, supra note 3, at 560-1. 8. Ibid., at 560-1. 9. See J. Garvey, The Ethics of Climate Change: Right and Wrong in a Warming World (Athlone

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As a result of these climatic changes around15% to 37% of plants and animals could face extinction by 2050.10 The last time our planet experienced a similar rate of extinction was at the time of dinosaurs. These changes could also have an effect on our species. As many as 35,000 people died as a result of an acute and prolonged heat wave during the summer of 2003 in Europe. Anticipated changes in sea level rises will result in serious flooding. Half of the world’s population lives in coastal areas and some countries like Bangladesh might lose as much as half of its habitable land.11 The first of the IPCC reports had a direct impact on the United Nations’ decision to draft an environmental treaty. A framework convention was finally signed by 181 governments at the Rio De Janeiro conference on Environment and Development held in 1992. The convention signed called for stabilization of greenhouse gases below a safe threshold and stipulated that this should be done ‘on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities’.12 Furthermore, the convention called for developed nations to ‘take the lead in combating climate change and the adverse effects thereof ’ as well as to maintain their emissions to 1990 levels by the year 2000; however this commitment was not legally binding.13 The Rio De Janeiro convention was followed by the Kyoto protocol in 1997. The overall aim of this protocol was to reduce the developed world’s total emissions by 5 percent below 1990 levels. The Kyoto Protocol also introduced the principle of emissions trading, by which one country is allowed to increase its quota by buying emissions credits from another country that can reach its target with something to spare. There were nonetheless significant differences among the targets of developed nations. Some like the United States and the European Union had to reduce their emissions by 8 and 7 percent respectively whereas others such as Australia were allowed to go over their 1990 levels. More recently, however, a summit on climate change in Cancún failed to result in a more equitable agreement.14 These differences in the sharing of environmental burdens and benefits should not come as a surprise since legal treaties are often influenced by political bargaining among the parties required to be part of the treaty for it to be effective. As Peter Singer puts it: ‘these targets were arrived at Press, 2008) at 25-7. 10. On the risk of extinction see especially C. D. Thomas, A. Cameron, R. E. Green, M. Bakkenes, L. J. Beaumont, Y. C. Collingham, B. F. N. Erasmus, et al. ‘Extinction risk from climate change’ 427 Nature (2004) 145–148. 11. Garvey, ‘The Ethics of Climate Change’, supra note 8, at 25-7 12. See Singer, ‘One Atmosphere’, supra note 3, at 21-23. 13. See Singer, ‘One Atmosphere’, supra note 3. 14. See For a summary of the decisions taken in Cancún see: (visited 18 March 2011).See also Singer, ‘One Atmosphere’, supra note 3, at 22.



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through negotiations with government leaders, and they were not based on any general principles of fairness, nor much else that can be defended on any terms other than the need to get agreement.’ In what follows I question whether the human rights approach to climate change succeeds in providing us with such general principles of fairness as both theoretical and practical guidelines to future legal agreements.

2.2 The Sceptics Human rights proponents as well as most of those concerned with the relationship between climate change and distributive justice, among and between different generations, are critical supporters of the Kyoto Protocol. Many believe that it can serve as a first step in tackling climate change fairly. In the sections that follow I analyse their arguments in some detail but before doing so it is important to understand what is at stake in these debates. It is therefore essential to begin by noting that some of the most influential thinkers on climate change are highly critical not only of the Kyoto protocol but also of any efforts to mitigate climate change. The best approach to follow, they claim, is ‘adaptation’ to climate change.15 The most sophisticated forms of these criticisms come from a number of economists, including William Nordhaus and Bjorn Lomborg who use CostBenefit-Analysis (hereafter CBA) to support their claims. Their argument is that since measures such as the Kyoto agreement will not bring climate change to a standstill, the costs of putting the agreement into effect outweigh any benefits from it. More specifically, since it will be far more expensive to cut carbon-dioxide emissions radically to the threshold needed to prevent climate change it is better to pay for the lower costs of adaptation to the increased temperatures and new climatic conditions.16 It is scepticism about these proposals that fuels the debate on environmental justice. To begin with, CBA is insensitive to how the projected net benefit is to be distributed among beneficiaries. This reflects a more general methodological problem with CBA. To illustrate, CBA would allow me to harm you if the expected benefit from my actions is predicted to be higher than your loss.17 Moreover, CBA analysis is consistent with me continuing to emit my CO2 as I usually would, while you face all the harmful consequences of my emissions, provided you are prepared to accept such compensation as I see fit for your new 15. See B. Lomborg, The Sceptical Environmentalist (Cambridge University Press, 2001) and W. Nordhaus, Managing the Global Commons: The Economics of Climate Change (MIT Press, 1994). See also discussion of CBA in Singer, ‘One Atmosphere’, supra note 3, at 25. 16. See ibid. For a methodological critique of Nordhaus and Lomborg see J. Broome (eds), Ethics out of Economics (Cambridge University Press, 1999) at 44–67. 17. For example, if I borrowed 100 Euros from you but I am able to make more than 100 by not paying you back my debt then CBA would recommend I do not honour the debt.

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predicament.18 This model of analysis does not give you the choice not to be harmed by my actions if compensating you for my harmful actions is less costly than mitigating or preventing the harm in the first place.19 Given that it is the planet’s most disadvantaged inhabitants that are going to be on the receiving end of the harm incurred it becomes clear that in practice CBA privileges the well-off by depriving the poor of even the choice not to be harmed.20 Furthermore, and perhaps more significantly, CBA only suggests that compensating those who have to adapt to climate change is less costly than investing in mitigating climate change. It does not claim that those harmed by climate change are entitled to compensation. In fact, CBA analysis is also consistent with not compensating for the damaging effects of climate change if that would maximize the expected benefits of some beneficiaries even more (and if they can get away with it). In addition, we also need to ask how empirically likely it is that rich nations would spend the money in this manner. Both their recent and longer-term record suggests the opposite.21 If so, then a comparatively economically suboptimal solution that would help the poor may be better than not helping them at all. In fact, given humanity’s dark past, it is far more probable that both the developed and developing nations might be convinced to join a more equitable Kyoto Protocol in the future than it is that developed nations would offer the developing world the resources suggested by Lomborg’s economic analysis.22 18. ‘Satisfactory’ here merely means equivalent to one’s reservation price. The reservation price is the lowest price one would be willing to accept in a negotiation given one’s bargaining power. For example, the reservation price of illegal immigrant workers is lower in relation to the reservation price of legal immigrants or/and unionized workers. In this case, and since the reservation price of the well-off is higher than the reservation price of the worst-off, CBA would, ceteris paribus, favour harming the worse-off. CBA, therefore, is partial to the interests of the well-off. 19. One can argue that this is not necessarily so since compensating harm can be more costly than preventing it. Notice that my statement allows for this possibility hence the use of the conditional. My point here is that CBA is not necessarily incompatible with allowing or not even compensating for such harms. 20. For a more thorough discussion of cost-benefit based economic analysis, as well as the concept of reservation price, and its theoretical implications see B. Barry, Theories of Justice, (University of California Press, 1989) especially Chapters 1-3. 21. For a recent example of such disappointing evidence see Unicef ’s recent report on child poverty at (visited 18 March 2011) A more comprehensive a historical analysis can be found in T. Garton History of the Present (Allen Lane, 1999) at 368. See also Singer, supra note 3, at 23. 22. Singer, supra note 3, at 23-25. Lomborg however concedes that the Kyoto Protocol could bring a net benefit of 61 billion dollars if developed nations are serious about tackling their emissions and developing nations join in the Kyoto Protocol, especially if the scheme allows for global emissions’ trading. Furthermore, the Intergovernmental Panel on Climate Change has projected that the financial effect of compliance through trading within the Kyoto commitment period will be limited at between 0.1-1.1% of GDP among trading countries. By comparison, the Stern report estimated that the cost of mitigating climate change would be



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Another practical problem with Lomborg’s cost-benefit analysis is the way in which it factors in certain ‘costs’ of global warming such as deaths from tropical diseases, the flooding of certain areas of the planet, the extinction of species and eco-systems.23 What makes the calculation of the ‘costs’ of such irreversibly catastrophic events appear more affordable is what cost-benefit analysts refer to as a ‘standard discount rate’.24 In practical terms, this rate results in reducing the predicted cost of disadvantages that will be felt by future generations by a given percentage vs. the predicted cost of the same disadvantages on the present generation.25 But favouring the present vs. the future generations seems arbitrary. As Peter Singer forcefully puts it: True, our investments may increase in value over time, and we will become richer, but the price we are prepared to pay to save human lives, or endangered species, may go up just as much. These values are not consumer goods, like TVs or dishwashers, which drop in value in proportion to our earnings. They are things like health, something that the richer we get, the more we are willing to spend to preserve. An ethical, not an economic, justification would be needed for discounting suffering and death, or the extinction of species, simply because these losses will not occur for 40 years. No such justification has been offered.26

It is therefore a concern about this disregard for future generations in favour of the present generation along with a concern for the sharing of environmental burdens and benefits among members of the same generation that must lie at heart of an equitable approach to climate change. Cost-effective and economically ‘pragmatic’ approaches such as CBA fail to address these two dimensions of climate change adequately, as we saw above. Dealing with climate change

23.

24. 25. 26.

1 per cent of global GDP but that the costs of inaction would be five to 20 times higher. See B. Lomborg, The Sceptical Environmentalist (Cambridge University Press: Cambridge, 2001) at 323. For the Stern review see N. Stern, The Economics of Climate Change: The Stern Review (Cambridge University Press, 2007) at 35–37. Lomborg also seems to recognize that the cost of stabilizing greenhouse gasses at infinitum is far from unbearable. He in fact points out that within a year the cost incurred would be the same as the growth curve. In simple terms, this is tantamount to saying that humanity would have to wait until 2012 to enjoy the economic prosperity that would otherwise enjoy in 2011 if it were to opt for a sustainable path forever. Lomborg, however, is not concerned with whether this is a price worth paying for the future well-being of humanity. Instead he is concerned by the fact that humanity would lose a net benefit of 150 billion dollars by going forward with the Kyoto protocol and reducing emissions. See Singer, ‘One Atmosphere’, supra note 3, at 24. For a recent discussion of the standard discount rate see Stern, ‘The Economics’, supra note 22, at 35–37. For a critical discussion of the ‘standard discount rate’ see D. Parfit in Reasons and Persons (Oxford University Press, 1986) at 480–86. This percentage varies but usually it is between 1% and 5% annually. In the case of Lomborg it is 5% whereas in the case of Stern 1%. See Singer, ‘One Atmosphere’, supra note 3, at 28-29.

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equitably, I argue below, requires that we conceive the phenomenon as one that falls under the rubric of distributive justice.

2.3 Climate Change And Distributive Justice At this point a metaphor may help to illustrate in what sense climate change falls under the rubric of distributive justice as well as what is meant by this term. Think of the atmosphere as a sink into which we can pour our waste gases. Now assume that we reach a point where the sink is full. Once this point has been reached, as it has been, the capacity of this ‘atmospheric’ sink becomes a finite resource over which all interested parties have competing claims. The problem then becomes how to equitably allocate those claims among the parties who have an interest in using the sink.27 It is at this point that climate change becomes a subject matter for distributive justice. In this context, it is important to see international law and international legal agreements, such as the Kyoto Protocol, as instantiations of distributive equity and to assess them as such. As we saw above CBA approaches are unfit for this task because they are not concerned with intra- and inter-generational equity. This is not however to deny that which CBA seems to be taking for granted. Inequalities of bargaining power are very often constitutive of legal agreements.28 As we shall see in the following sections, perspectives concerned with equity do not deny this. They only ask us to consider what a perfectly equitable approach to climate change would be like in the absence of such inequalities in bargaining power. However, this counterfactual task is only the first step. The second step is to examine how, and to what extent, we can practically reach a more equitable solution given where we are now. But first we need to ask what such agreement would need to be like to satisfy the requirement of distributive equity or justice.29 This is the aim of the following sections of this paper. In the following section I examine whether a human rights approach to climate change meets this requirement.

27. Ibid., at 28. 28. Inequalities of power, as we saw above in brief, are not only intra-generational but also intergenerational. Future generations have no power to influence the decisions of the current generation hence their future life choices depend on decisions of the current generation. See also section 4 below. 29. See Singer, ‘One Atmosphere’, supra note 3, at 29.



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3. The Human Rights Approach to Climate Change 3.1 The Human Rights Approach to Climate Change and Distributive Justice Proponents of a human right to a sustainable environment argue that climate change raises a distinct theoretical challenge to theories of distributive justice. Neither the global nor intergenerational dimension of climate change, less still the very nature of the phenomenon, square well with conventional approaches to distributive justice that focus on wealth and income. Since conventional theories of distributive justice are not suited to deal with the distinct characteristics of climate change, it should follow that a distinct department of theory is needed to deal with issues of environmental justice.30 In this paper I do not engage with the various empirical debates and questions surrounding the existence and interpretative legal potential of a human right to a sustainable environment. Even if a case for such a right can be made, my aim in this section is to show that the most plausible version of environmental justice is not in need of such a right. The most a human rights approach can do, I claim, is to remind us of the general interest all human beings have in being protected from environmental harms and in being provided with environmental benefits. This reminder however does not suffice to account for how these environmental burdens are to be distributed equitably. The arguments in this section are thus purely negative: they only establish that we cannot move un-problematically from the premise that all human beings have certain basic interests across time and space to the conclusion that it must therefore be the case that a distinct human rights approach to the distribution of environmental burdens and benefits is warranted. This section does not establish that environmental justice is a subset of conventional theories of distributive justice. In order to justify that conclusion, it would be necessary to provide a positive argument, and this task is left until the next section of this paper. With this outline in mind, let us consider the strongest reasons that proponents of a distinct human rights approach to climate change put forward. It is possible to distinguish two approaches. The first is that anthropogenic climate change constitutes a violation of one or even a bundle of human rights. More specifically, severe weather events, higher temperatures and drought jeopardize the human right to life, the human right to health, and the human right to subsistence respectively. Hence, this first approach relies on the normative

30. See S. Caney, ‘Cosmopolitan justice, responsibility, and global climate change’, supra note 3, at 756-759. Below I contest Caney’s claim that in the case of climate change such a distinct department of theory is warranted.

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underpinnings of established human rights to make its case against climate change. We may call this the ‘argument from establishment’.31 The second approach is more ambitious. It aims to show that a case for a distinct or ‘new’ right to a sustainable environment can be justified. Here the right to an adequate environment is seen as corresponding to a significant and general interest shared by all. This is the interest in avoiding the environmental burden of climate change as well as the general right of benefiting from the use of our natural environment.32 Given the central role that such an interest has in our life projects it can be inferred that a right to an adequate or sustainable environment corresponds to a human interest at least as significant and general as others that are already protected as human rights. By analogy the right to an adequate environment must be given a place among other recognized human rights due to its comparable yet distinctive importance for human well-being. Since such a right fulfils the case in the light of the criteria that a genuine human right can reasonably be required to fulfil then the right in question must be given a place among those already legally recognized. We may call this ‘the argument from analogy’.33 As I shall show in section 3.2, both approaches face a number of difficulties that are symptomatic of the difficulties human rights theory encounters when confronted with intergenerational, intra-generational and distributive dimensions of climate change.

3.2 Why The Human Rights Approach Is Insufficient An interest in one’s natural environmental, as specified above, is clearly common to all human beings and is therefore easily to universalize. What is less clear, however, is why recognizing that humanity has such an interest implies anything 31. See Caney, ‘Climate Change, Human Rights and Moral Thresholds’ , supra note 3. 32. For example, when we benefit from our hot water boiler then that action of ours necessarily results in us emitting CO2 to the atmosphere. Unless such CO2 emitting actions are kept within a certain threshold they would result in the burdens associated with climate change. 33. This is in effect a summary of Hayward’s argument in T. Hayward, Constitutional environmental rights (Oxford University Press, 2005). The problem with the second approach is the analogy drawn there. In simple terms, the analogy asks us to accept a problem, as not a problem, if it applies equally to all similar cases. But this is surely a fallacy. It is like pointing to some dirt on your glass in a restaurant, only to be told by the waiter, that all other glasses in the restaurant are dirty. That surely does not change the fact that your glass is dirty. I nonetheless think that Hayward makes a good point about an interest we all have in an adequate environment, but as I argue below, this point alone is not sufficient for a comprehensive response to climate change. The first approach also suffers from a similar problem of theoretical justification since established rights are only legitimate if what rendered them ‘established’ is in its turn legitimate. In the case of human rights this can only be human rights theory and hence this is subject of the discussion in section 3.2.



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more than acknowledging that fact. In other words, it is not clear why having an interest as such is sufficient for granting a right. To illustrate, think of a case involving the following plausible scenario involving a person, Aili, who lives in a part of the world where climate change is likely to have a positive effect in the near future. For instance, the average temperature will increase making winters less harsh, although still pleasantly crisp, while summers sunnier and warmer. Let’s further assume that Aili owns a Hummer (i.e. a SUV vehicle with very high CO2 emissions). Wouldn’t it be in her environmental interest, as well as of that of her compatriots, for her to continue driving this vehicle or even using it more often so that she enjoys the benefits of climate change even more rapidly? She may recognize that others also have a similar human interest but she refuses to see why this would mean that she should act to prevent climate change. Thus, emitting more CO2 might be good for the environmental interests of some but bad for the same interests of others. Hence, and given how differently people can benefit or suffer from climate change depending on where they live, it must follow that the very notion of a ‘weighty’ environmental interest poses a serious challenge to the HR approach to climate change. In other words, acknowledging that all human beings have an environmental interest is insufficient to establish that all human beings have a duty to prevent climate change of the kind required to establish that there is a right to a sustainable environment. There is a variation of the above illustration that raises even deeper problems for the human rights approach to climate change. This would involve such a case where the effects of climate change affect members of different generations. Suppose then that Aili, and her generation, continue their everyday activities to the detriment not of themselves but of future generations’ (let’s call them generation X), by making it necessary for the present generation to bear heavy costs for adopting their plans of life to climate change. How does it follow from the interest of Aili and her generation alone that they have a duty to refrain from apathy? Human rights theorists might respond that future persons also have interests that the contemporary generation must respect. However, it is not clear, as will become apparent below, how it is possible for generation X to harm the interests of an individual, still less a group of individuals such as a generation, who does not yet exist. There are two possibilities here; either the language of interests employed by human rights theorists to support their claims is fundamentally flawed or human rights theory is not congenial for dealing with the inter- as well as the intra-generational dimensions of climate change. In the sections that follow I show in what ways human rights are inadequate for this role and demonstrate the ways in which the language of interests is relevant in assigning environmental burdens and benefits fairly. Before returning to the intra-generational dimension of climate change I examine in more detail

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how exactly human rights theory fails when it comes to its inter-generational dimension. Human rights theories assume that the object of a right must be an agent capable of having duties or obligations.34 Nonetheless, if we were to follow this line of thinking, unborn and dead persons undoubtedly do not possess any such capacities and therefore cannot be treated as objects of human rights.35 The second, and associated premise, is that rights must be relational and for that reason owed to assignable persons.36 But, since there is no mutual cooperation and no exchange between future or past and present members of different generations, it is not possible to assign the corresponding duties and claims to any person in particular.37 This paradox becomes even more apparent in cases that involve claims to human rights violations in the past. For instance, how can present persons be 34. Capable may be seen to refer or cover ‘will’ theories of rights whereas ‘assignable’ refers to ‘interest’ theories of rights. On the distinction between ‘will’ and ‘interest’ theories of rights see M. H. Kramer, N. E. Simmonds, and H. Steiner, A debate over rights: philosophical enquiries (Oxford University Press, 2000). 35. The very non-existence of claimants implies that obligations only make sense when they are owed to people who actually exist. People who existed in the past would thus not qualify as rightful recipients of such obligations. This argument was first pressed by Parfit in his Reasons and Persons (Oxford University Press, 1986). In the context of environmental justice the argument has been adopted by W. Beckermain and J. Pasek, Justice Posterity and the Environment (Oxford: Oxford University Press, 2001) at 11-28, 15-16, 19 and is as follows: Premise 1: To possess a right one must be in existence. Premise 2: One cannot possess anything unless one is alive. Conclusion: Therefore, people who are not alive cannot have (or possess) rights. 36. I say ‘associated’ here because an opponent can accept my first argument but maintain that the first premise is not necessary for the timeless application of human rights. In other words she can claim that one needs only to rely on the validity of the second premise to support her case for the intergenerational relevance of human rights. Against my first argument, one can also claim, that losing a capacity is not sufficient for not becoming the object of a right. It might be claimed that ‘not possessing a capacity any more’, as in the case of a dead person, or ‘not possessing a capacity yet’, as in the case of an unborn person (that concerns us here), is not sufficient for dismissing the interests of these persons. Persons who have been tortured to death cannot themselves raise rights claims against their assassins but it is implausible to infer from this fact that no one, not even their relatives, are uninterested in raising a right claim against the killer. In other words, a second critique may accuse me of understanding human rights solely in terms of the ‘will’ model against which it seems as if I am arguing mainly against. Even if this is true for the first premise, my argument nonetheless exposes the ambiguities inherent in some or part of contemporary understandings of human rights. My second reply would be that although the first premise is not necessary for the intergenerational application of rights, the second is. And it is this second premise (or theory of human rights) that I contest here and below. For an account of relational rights and Hohfeld’s approach to correlative rights and duties see chapter 1 of T. Hayward, Constitutional Environmental Rights, supra note 33, and W. N. Hohfeld, ‘Fundamental legal conceptions as applied in judicial reasoning’, 26 Yale Law Journal (1917) 710–770. 37. This is mainly because members of generation of B cannot do anything to change the decisions of generation A that comes before them. Furthermore, the ill-effects on generation B do not



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held responsible for ‘wrongs’ committed before they were born? Furthermore, in the absence of past injustices many of the past victims’ current successors would never have come to exist at all or come to find themselves in their present circumstances. Hence, victims cannot claim, ceteris paribus, that they would have been benefited more had these injustices not occurred.38 It follows that an HR approach to climate change fails to capture the inter-generational dimension of environmental equity as it leaves open the question of whether we have moral obligations to future generations. Non-theoretically inclined or ‘philosophobic’ human rights lawyers might feel that my argument is comprised of conceptual gymnastics with little practical import. It is true that it is often difficult to see the practical implications of these theoretical debates clearly when we discuss their intergenerational dimension. What obscures things here is the fact that in the case of intergenerational justice human rights theory is aiming at the right thing but with empty theoretical ammunition.39 However, as long as everyone takes the ammunition for real the practical job of deterring the sceptics can be successful. The cost in theoretical knowledge is real but secondary, one could argue. However, as we shall see below, this pragmatic line of thinking has its limits. In the case of intra-generational justice the human rights approach to climate change is not as fortunate, since it ends up burdening those who least deserve it. To illustrate this problem let’s assume that a person, again we can call her Aili, has an interest in avoiding the flooding associated with current CO2 emission levels but also an interest in using her Hummer (CO2 emitting) SUV car to do her shopping at the local shopping mall. If, for example, the CO2 levels surpass the threshold needed for climate change to be prevented then there would be flooding that will result in Aili (and her relatives as well as her children) having to abandon the location they are currently living in. Note also however that it is consistent with Aili’s interest (to avoid environmental burdens and enjoy environmental benefits) for her to want to continue to drive her SUV to the shopping mall, as usual, while opting for a policy that would require others to cycle, give up long haul flights during holidays or much more if only that would be sufficient for flooding to be prevented. Even though her preferred policy is successful in making others conform to actions that keep CO2 levels below the required threshold for flooding to be avoided, it is clear that the burden of keeping CO2 below the required threshold is not shared by her. If we assume that Aili solely depend on the actions of generation A but also on the actions of generations that come before it (i.e. generations A-1, A-2, etc). 38. ‘Ceteris paribus’ is important here because a different conclusion can be drawn if one considers how past injustices can affect one’s life if the very existence of that life does not depend directly on the injustices committed. 39. That is aiming at mitigating climate change.

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represents the developed world and that those asked to make sacrifices to their life plans so that the former could continue business as usual are the developing world, this is essentially the situation in which the world finds itself presently. The human rights approach to climate change as a threshold approach is consistent with such unequal sharing of burdens because it only requires that all parties only respect basic rights. As long as the sharing of environmental burdens does not result in Bangladeshis starving, any proposed solution is good enough. However, having one’s welfare and life plans protected from the adverse effect of climate change surely surpasses that threshold. Hence, there is a need to place the sharing of environmental burdens and benefits within a broader theory of distributive justice where bundles of benefits and burdens are fairly shared. This still leaves us with the question: what is the fairest way of dealing with the burdens created by global climate change? In the section that follows I defend an egalitarian theory of environmental justice, respond to a number of possible criticisms, and account for the role that past emissions must be given in current international environmental law.

4. An Alternative To The Human Rights Approach 4.1 The Approach in Brief Even if the above doubts about the congeniality of the human rights approach to climate change are valid, we also need to know why we should endorse the view that environmental justice is a subset of distributive justice. As mentioned earlier, there are two major challenges to the ideas of linking environmental and distributive justice. First, we must explain why a theory of global distributive justice could include an account of environmental justice. Even if climate change necessarily has a global and intergenerational scope, the conclusion that a distinct human rights approach is required to deal equitably with climate change may seem stronger and less controversial than the conclusion that theories of distributive justice are compatible with these characteristics of climate change.40 Second, we must also explain why such a broadly distributive approach to environmental burdens and benefits does a better job in explaining why we have moral duties to those who aren’t yet born as well as to those who live far away from us. Since I have claimed that an interest in enjoying environmental benefits and avoiding environmental burdens is what drives our concern for climate change, how can an alternative approach avoid the problems that plague the human rights 40. By ‘distributive justice’ here I mean an equitable solution to a distributive problem where there is a conflict of individual interests as to how a particular good, or more broadly benefits and burdens, are to be shared; in this case, environmental burdens and benefits and more specifically CO2 emissions.



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approach to climate change? From a point of individual interest moral duties seem irrelevant. The difficulty for a theory of distributive justice is to explain what reasons we would have to abide to the moral obligations required for the fair distribution of environmental burdens and benefits. In this section I argue that climate change does not raise a distinct kind of theoretical challenge for ‘conventional’ theories of distributive justice. Climate change is an intergenerational and global phenomenon, but this does not mean that theories of distributive justice are necessarily ill-prepared to deal with the phenomenon. The obligation to share environmental burdens and benefits fairly must cohere with the belief that a fair solution must be impartial, and I suggest that this belief—the belief that it is wrong for bias, prejudice or unequal bargaining power to guide our choice of legislation—can explain why we have a moral obligation to tackle climate change.41 Let’s begin with an account of justice that can provide us with reasons to observe moral obligations before we turn to the first of the two difficulties mentioned above. The difference between the interest-based human rights threshold approach and my preferred approach can be illustrated in terms of the distinction Jeremy Waldron draws between ‘immunities’ based and ‘reason blocking’ based theories of justice.42 Immunity theories aim to protect the interests of persons from harmful incursions. On the other hand, reason-blocking theories, while sensitive to such incursions, emphasize that these theories fail to recognize that there can be reasons given for restricting the interests of some for the sake of safeguarding the interests of the worst-off even if that requires going beyond the thresholds set by human rights. This ‘reason blocking’ approach is best expressed by adopting an impartial perspective on our political and legal decisions. My view is that such an approach can best encapsulate what it is to share environmental burdens and benefits fairly.

41. This is only partly in line with Rawls’s idea of the ‘Original Position’ for reasons that I explain below. In his well-known account, Rawls argues that a theory of justice is constituted by the principles we would choose from an original position behind a veil of ignorance that blinds each person to any facts about him or herself that might introduce bias. The purpose of the veil is to ensure the impartiality of the choice by preventing bias, prejudice, or unequal bargaining power to influence to selection of the principles in question. Rawls argues that those placed behind such a ‘veil of ignorance’ will select what he refers to as the ‘conception of justice as fairness’ as the theory best suited to protect their rights and interests. See J. Rawls, A Theory of Justice (revised edition, Oxford University Press, 1999) at section 22. 42. See J. Waldron, ‘Pildes on Dworkin’s Theory of Rights’, 29 The Journal of Legal Studies (2000) 301–307 at 303-4.

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4.2 Intra- and Inter-Generational Impartiality More recent developments in both legal and political theory have been triggered by a concern for developing such a reason-giving theory. John Rawls has been at the forefront of these efforts, and his A Theory of Justice has been particularly prominent.43 Rawls’s constructivist methodology bares similarities and differences to that of immunities or interest based theories. Like interest theorists Rawls believes that well-being matters and considers certain goods to be necessary all purposive means to achieving it.44 Hence, he treats those goods as basic or necessary means to well-being. Rawls nonetheless understands that in circumstances where resources are scarce there is conflict over how we are to share such means. This is also the case, as we saw above, with our basic interest in the environment. Hence, the question that is at stake here is analogous to the one that animated Rawls: How are we to distribute environmental burdens and benefits so that we treat each other impartially and not merely as means to our partial interests?45 Rawls’s answer is based on a thought experiment where participants are to place themselves behind, what he calls a ‘veil of ignorance’. The central idea behind the ‘veil of ignorance’ - as a constructivist approach to distributive justice - is that it is sufficient for citizens to decide upon the choice of the principles of justice without knowing certain information about themselves that would influence their impartiality. It is this condition of impartiality that ensures that the decision would be fair to all. To ensure impartiality of the decision taken, choosers stand on an equal footing due to the lack of information about themselves. Those deciding behind this veil of ignorance on the principles of justice do so not as Christians or Muslims, right or left-wingers, rich or poor, weak or strong but as citizens who are equal among each other in this condition. The social and individual characteristics that usually make one’s decisions partial are bracketed and hence impartiality allows for principles of justice to be chosen. Rawls argues

43. See Rawls, ‘A Theory of Justice’, supra note 41.For an approach that is more congenial to the egalitarian argument developed here see: B. Barry, Justice as impartiality (Oxford University Press, 1995). 44. These are basic liberties, opportunities, wealth, income and the bases of self-respect. As Rawls forcefully puts it in paragraph 60 of Rawls, ‘A Theory of Justice’, supra note 41, at 348: ‘Rational individuals, whatever else they want (my emphasis), desire certain things as prerequisites for carrying out their plans of life. Other things equal, they prefer a wider to a narrower liberty and opportunity, and a greater rather than smaller share of wealth and income. That these things are good seems clear enough.’ There is no reason not to assume that a basic interest in avoiding environmental burdens and enjoying environmental benefits does not fall under the category of basic goods or that it even has a lax priority over them given the fact that it might be a prerequisite for their granting. 45. See Rawls, ‘A Theory of Justice’, supra note 41, at 165-6, 99.



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that only this kind of hypothetical agreement can serve as a normative benchmark for actual agreements.46 The regulating idea behind the ‘veil of ignorance’ (VOI hereafter) is to mitigate the influence of social contingencies and natural fortune on the distributive shares. The distribution of income, wealth and opportunities should not be claimed by virtue of factors for which people can claim no credit. It shouldn’t be based on factors for which people cannot be held responsible for. The contrary would be arbitrary from a moral point of view because it would hold people responsible for circumstances over which they cannot exercise any control, such as their socio-economic class and their genetic make-up. The same can be said for the generation one is born into47. Hence, since no future generation can be held responsible for the state of the planet it inherits, no future generation deserves to be worse off than we are.48 Time and place do not provide a morally relevant basis on which to differentiate the weight to be given to the interests of different people.49 The veil of ignorance device merely renders this idea vivid by asking us how we would choose for environmental burdens and benefits to be shared if we didn’t know where and when we were to be born. What would the Hummer 46. See Rawls, ‘A Theory of Justice’, supra note 41 at section 28, section 20. 47. In other words, my position is that an impartial approach to the sharing of environmental burdens and benefits requires not only interpersonal and intragenerational but also intergenerational neutrality. I believe that intergenerational neutrality is necessary for impartiality. Any principle of justice that appeals to basic good or needs should not discount the needs of future persons simply because they do not yet exist. 48. It is sometimes argued that future generations would be able to avoid or even prevent climate change due to their access to advanced technology. We saw above that the IPPC predictions control for these factors but nonetheless predict a bleak future. Note also, however, and in connection to the argument here, that the technological fix argument is also unfair to future generations in another sense related to justice. By not bearing our generational burden we make it more difficult for future generations to deal technologically with the problem. We impose an epistemic burden on them that could be avoided if we were to do our bit. Furthermore, we impose costs resulting from further investments in research and deployment of the technology needed to deal with a problem of a greater magnitude than it would have been if we fulfilled our obligations. 49. Rawls has not written extensively on this topic. His views on intergenerational justice and his principle of just savings aims to specify when and to what extent savings are required. It asks whether we should be allowed, forced, or prevented from transferring less or more to our immediate descendants. It is not clear to me, whether Rawls’s views on intergenerational justice and his principle of just savings are consistent with the contractarian stipulations he makes. If they aren’t then my approach here is impartialist but non contractarian in the Rawlsian sense of the word. If they are consistent then my approach is Rawlsian in the sense that it is consistent with Rawls’s approach to intergenerational justice and the just savings principle. The qualification of this point goes well beyond the scope of this paper. For an ‘impartialist’ reading of Rawls see Barry, ‘Justice as Impartiality’ , supra note 43 and for an attempt to show the ways in which Rawls’s approach might be consistent with his just savings principle see D. Attas, ‘A Transgenerational Difference Principle’, in A. Gosseries, Intergenerational Justice (Oxford University Press, 2009).

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driver of our illustration in section III choose to do if she didn’t know whether she would end up driving her Hummer to the nearby shopping mall or seeking drinkable water in sub-Saharan Africa or for a new dwelling in flood-hit Pakistan? If one’s share is not influenced by social and natural contingencies then no one could claim that she has a greater claim to part of the atmosphere than any other. Hence, an equal sharing of burdens and benefits seems impartially fair, at least as a starting base line.50 If we were to follow this normative ruling then allocation per person would conveniently work out at about 1 metric ton of CO 2 per year.51 This therefore would become the basic equitable entitlement for every human being on the planet. A comparison with some major industrial nations is revealing. The United States currently produces more than 5 tons of carbon per person per year. Japan and Western European nations have per capita emissions of 1.6 tons to 4.2 tons respectively, with most European countries emitting around 3 tons. In the developing world, average emissions stand at 0.6 tons per capita, with China at 0.76 and India at 0.29. It follows that in order to reach an ‘evenhanded’ per capita annual emission limit of 1 ton of carbon dioxide per person India would be allowed to raise its carbon emissions more than three times. Even China would be able to increase its emissions by 33 percent. On the other hand, the United States would have to reduce its emissions to no more than one-fifth of its present levels.52 Below in section V we will examine reasons for departing from such an equal share but, as we shall see in section VI, none of these reasons is fundamentally at odds with what is proposed here. In what follows I show that 50. Nonetheless, the approach I endorse here is not a strict egalitarian one. This is because I do not believe that everyone must necessary stick to their equal share, for instance even if they don’t want to or if they would happily exchange it for something more valuable to them. The role of the equal entitlement principle is to serve practically as a veto against powerful parties invading the fair share of less powerful players without the consent of the disadvantaged. Although it is not by itself sufficient to prevent exploitation it can help the disadvantaged to improve their material condition if they are unwilling to use the quota fully. (However, to safeguard from exploitation and domestic corruption any such agreement must be the object of assessment by international organizations and bodies.) Preventing such exploitative agreements would require spelling out a comprehensive theory of global distributive justice as opposed to a theory of distributive justice focused on the sharing of environmental burdens and benefits. If however I am correct in arguing that environmental justice is a subset of distributive justice then the two approaches are not only analogous but also complementary. 51. Quantitatively speaking this quota is very similar to Singer’s in ‘One Atmosphere’, supra note 3. See also C. Marland, T. A. Boden and R. J. Andres, Global, Regional, and National Fossil Fuel CO2 Emissions (Carbon Dioxide Information Analysis Centre, Oak Ridge, Tennessee) available at (visited 6 April 2011). 52. The approach I deploy here is more restricted and less ambitious than Rawls’s veil of ignorance device. It is less restricted because it aims to justify an entitlement to a particular basic good or interest and less ambitious in that it allows for a less self-interested motivation among its participants. It must be also noted that the egalitarian approach is compatible with a negative duty not to interfere with environmental entitlements of others. It therefore avoids problems associated with positive duties.



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this approach is theoretically superior and as practically useful as a human rights perspective in terms of addressing climate change.

4.3 How the Proposal Fares Inter- and Intra- Generationally Global climate change raises a distinct kind of theoretical challenge because to construct an intergenerational theory of global environmental justice requires us to rethink at least two assumptions underpinning orthodox theories of distributive justice: global and intergenerational objections.53 In order to see what is at stake in these debates it makes sense to begin with the global objection. Proponents of the human rights approach argue that conventional theories of distributive justice concern themselves with the distribution of burdens and benefits within a state whereas the issues surrounding climate change require us to examine the global distribution of burdens and benefits.54 For this reason any theory of justice must address the question of whether the global dimensions of the issue make a morally relevant difference.55 This objection can only be raised against those who appeal to Rawls’s own global account of justice as fairness as it is sketched in The Law of Peoples.56 It is far from clear that the objection pressed here reflects the truth about all theories of distributive justice that appeal to the original position device. What is the alleged morally relevant difference that justifies a distinct approach? Rawls’s own reply is multifaceted but the central point is that a global egalitarian theory of distributive justice would have to be backed by sanctions.57 However, sanctions require a world government and such a government does not exist. Therefore, the best we can aim for in the global arena is a more restrictive and non-egalitarian theory of justice that national delegates would be more inclined to agree to.58 Thomas Pogge has questioned Rawls’s claim. He has argued that it is more consistent with the rationale of the theory to start, and end, with a global original position that deals with the world at large. This is because where one is born is no less morally arbitrary than all the other factors of bias that are kept behind the veil of ignorance such as information about one’s sex, skin colour or the wealth of one’s parents.59 Hence, there is no necessary relevant moral difference between domestic and global justice. Rawls’s objections are not intrinsic to his theory 53. We can distinguish between two different kinds of objections: Internal and External. Here I deal with the internal and below in section VI with the external. 54. See Caney, ‘Cosmopolitan justice’, supra note 3, at 756-759. 55. See ibid.   56. For Rawls’s own justification see especially sections 1-3 of Part I of J. Rawls, The Law of Peoples (Harvard University Press, 1999). 57. See ibid. section 4, at 36, 38-9, 42. 58. For this criticism see T. W. Pogge, ‘An Egalitarian Law of Peoples’ 23 Philosophy and Public Affairs (1994) 195–224. 59. See ibid., at 198-9.

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of justice but ad hoc.60 It follows then that the theoretical justification for the egalitarian distribution of emissions quotas provided above is compatible with the global dimension of climate change. Since human rights approaches to climate change face difficulties in justifying obligations between different generations as well as in disallowing for the influence of social contingencies and natural fortune on the distributive shares of environmental burdens and benefits it follows that egalitarian theories of distributive justice are in a better position to determine what amounts to a fair share of environmental burdens and benefits.61 The second major objection concerns the intergenerational dimension. It is true that a reason-giving approach is not necessarily interest and person dependent, a critic might concede. A critic can also concede that this is clearly an advantage this approach has over the human rights approach. It avoids the problem of correlative duties that is intrinsic to human rights theory. In other words, what one is required to do by this approach does not depend on who that person is and consequently on whether that person exists. What matters here is whether it would be reasonable to expect a person to choose to be bounded by a hypothetical agreement regardless of whether that person exists or not. The critical question here is whether a contract theory can deliver such a conclusion. The objection often raised here is that Rawls’s approach, and presumably my distinct but similar approach, is not able to justify intergenerational obligations due to its dependence on contract theory. Hence, a social approach is no better than HR in failing to justify intergenerational obligations. The rationale that informs this objection is that contract theories are premised on the physical overlap between the different parties that are part of the agreement. This is a necessary condition for the mutual enforceability of the agreement because physical presence is practically required for obligations to be enforced. Since future generations lack any power to enforce obligations on previous generations, the element of mutual enforceability is necessarily missing in intergenerational relations.62 In the absence of mutually enforceability, therefore, self-interested persons behind the veil of ignorance would not be motivated to choose a saving principle. They would be even less likely to choose an intergenerational egalitarian principle because they would know they would only live within the timeframe of one generation. Why then bother to choose a non-enforceable principle that would serve the interests of more than one generation? Contract theorists like Rawls have tried to overcome such difficulties by postulating some kind of chain of connection between generations. However, such attempts

60. I say ‘ad hoc’ in the sense of introducing an extraneous hypothesis that is not intrinsic to the rationale of a theory. 61. See sections 3.1 and 3.2. 62. See A. Gosseries and L. H Meyer, Intergenerational Justice (Oxford University Press, 2009) at 3.  



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have proven inadequate thus far.63 Given this, it seems either that mainstream contract theory needs to be rethought, or that a new, specifically intergenerational, contract theory is needed. Above I opted for the latter. In what follows I will briefly discuss the former possibility. The fact that there is no connection of the type usually employed by contract theories does not mean that there is no such theory is possible for cases where reciprocity is only indirect and impersonal. Think of a case of a campsite by a remote lake that is consistently but infrequently visited by different groups of travellers. Suppose further that for the place to retain the natural qualities that attract visitors it must be kept unspoiled by these visits. Let’s stipulate further that a given group of visitors finds the site in pristine condition, obviously carefully cleaned by the previous inhabitants. Would it not seem natural for them to feel a responsibility to do the same before they leave? The answer to this question appears to be ‘yes’.64 The same can be argued for the case of climate change. Those who fail to fulfil their moral obligation to act as ‘stewards of the planet’ fail to impartially honour an obligation that all of us have. It follows that the reciprocity of the kind assumed in contract theory is not necessary for the condition of impartiality to be met. An equitable solution to climate change need not rely on stringent contractual stipulations to serve as a normative yardstick. The following sections examine possible objections to the alternative egalitarian approach outlined above and discuss how such a normative theory can practically guide law and social policy.

5. Climate Change and Past Injustices Before we proceed to discuss a series of more general objections we need to address one important issue that concerns the intergenerational dimension of climate change. This is the fact that the youngest members of the current generation cannot be held responsible for the current climatic condition of the planet. They inherited an environmental burden for which the previous generations are mainly responsible. If we accept the distributive and egalitarian approach proposed in section 4 then it follows that the climate change that is under way is the result of earlier generations exceeding their generational quota. One common way of thinking about the unfair burdens created for us by others is to claim who those have caused the problem are responsible for bearing its costs.65 The problem here is of course that most of those who have caused the 63. See also S. M. Gardiner, ‘A Contract on Future Generations’, in A. Gosseries and L. H Meyer, Intergenerational Justice (Oxford University Press, 2009). 64. This illustration is a slightly modified version of an example used by Gardiner, ‘A Contract on Future Generations’, supra note 63, at 106-7. 65. This is also known as then ‘you broke it, you fix it’ principle. Its equivalent in International

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problem are no longer alive. Furthermore, past quotas have been used mainly, if not exclusively, by the developed world to their advantage. Hence, the current predicament is the aftermath of a past violation of inter and intra-generational justice. How can the proposed theory account for this fact? First of all, we need to note that a distinction needs to be drawn between the actions of recent and less recent generations. This is because the latter were not and in fact could not have been aware of the consequences of their actions on the planet’s climate. The same however cannot be said for those who lived from the 1960’s onwards and even more so for those alive after the early 1990’s. The current generation is fully aware of the future consequences of its actions and hence fully accountable to future generations. Hence, even though we have inherited a problem the full consequences of which previous generations couldn’t foresee, our generation will pass on to future generations a problem the consequences of which we are fully aware. This condition undoubtedly imposes on our generation a heavier burden but the question remains: how are we to deal with the fact that we inherited that burden from the past?66 We can consider how past actions influence current emissions quotas with the help of an illustration. Let’s assume that A, a past generation, emitted CO2 to develop technology T or to make use of technology T to construct or use infrastructures. Generation B, which follows generation A, cannot be held directly responsible for the emissions emitted from the development and use of technology T by generation A but it can be made directly responsible for inheriting the opportunity to use and more generally to take advantage of emissions for the technology T and the products (i.e. infrastructure) for which more than a fair share of emissions was used. (This is because generation A did not legitimately ‘own’ all the emissions spent on developing that technology and using it). It is then more accurate to distinguish between two types of benefits accrued from emissions: transferable and non transferable. Non-transferable benefits are benefits that result from the imminent production of emissions like driving one’s car. In turn, transferable benefits from emissions are those that result from emissions produced in the development of technological ‘know-how’ and the country’s infrastructure. Generation B inherits the burden of emissions produced by using, as well as to developing, CO2 emitting technology and goods. However, the same generation also inherits transferrable, and tradable, benefits of these past Environmental Law is the ‘polluter pays’ principle. See P. Sands, Principles of International Environmental Law (Cambridge University Press, 2003). 66. These problems are also discussed by Caney in ‘Cosmopolitan justice, responsibility, and global climate change’, supra note 3. The solution proposed here is sensitive to Caney’s concern about interpretations of the principle of ‘common but differentiated responsibility’ that hold present generations fully accountable about the decisions of earlier generations. My point is that present generations are ceteris paribus accountable to the extent that they continue to benefit from past violations. See also last paragraph of section 6.2.



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CO2 emissions such as infrastructure and know-how. Since generation B inherits a benefit, the production of which required something that didn’t belong to generation A, it follows that generation B cannot claim to be the legitimate and full heir of those benefits before it compensates those whose shares generation A used illegitimately. One way to deal with this past injustice is to adjust the future CO2 levels of developed nations accordingly. The transferable benefits inherited by nations are then deducted from the quota of the next generation of a given country C. In some cases this might practically drive the quota of generation B to a very low level, perhaps even to zero.67 The problem however can be resolved if generation B is asked to pay a levy on the transferable benefits it inherits. Thus, and in this way, generation B of country C can share fairly the benefits of transferable, but illegitimate, emissions with all other interested parties.68 To sum up an egalitarian approach to the distribution of environmental burdens and benefits avoids the problems of the HR approach. Furthermore, it provides a comprehensive answer to climate change since it can serve as a normative yardstick for assessing the extent of past environmental injustices and for preventing future ones. However, no theory is practically sufficient unless it can inform the rationale of binding treaties. As with HR rights no such treaties exist with respect to their environment. Therefore the best we can hope for at the moment is their extension in line with what fairness requires. Before moving to 67. One obvious objection is that it is difficult to assess the exact amount of emissions produced by previous generations. This is true but poses no problem for prima facie claims to justice as such. Consider the following analogy; From the fact that I don’t know exactly how much money you stole from my drawer it does not follow that you didn’t do anything wrong. Merely it means that it is difficult, if not impossible, to know exactly how much money you stole from me. My concern here is not with whether we possess the information needed to make the relevant calculations. Rather I am interested in the question of our practical actions should this information were to become available to us (For a fuller discussion of similar criticisms and on how such issues might influence they way in which justice is ‘doled out’ see section VI below). 68. There is a potential difficulty with such an approach that underlines the principle of ‘common but differentiated responsibility approach’ as a principle of international environmental law. The principle seems to assume that individual members of future generations are held responsible as members of particular communities. This might imply that the entitlement is group based and not individual based and that it entails the problems associated with collective as opposed to individual responsibility. The proposed levy could be tax calculated on the basis of the usage of particular inherited infrastructures. However, even a group or country based levy is -all things considered- better to address injustice than no such measures. A comprehensive overview of the principle of ‘common but differentiated responsibility’ can be found in Sands, ‘Principles of International Environmental Law’, supra note 65, at 285-288. Furthermore, taking past environmental injustices into consideration allows members of developing nations to claim that compensation for the use of such resources must be paid in the form of a ‘top-up’ of the emission quota to which members of developing nations are entitled. This is also fully compatible with the principle of ‘common but differentiated responsibility’ as specified and defended above.

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discuss this possibility we should first deal with some possible objections to it. This is the function of section six.

6. Responses to Criticisms 6.1 An Outline of the Criticisms It is worth considering a number of objections to the egalitarian distributive approach to climate change and sketching some possible responses to them. We can broadly distinguish between four types of objections. The first type of objections asks if it makes sense to examine climate change outside of the political context in which relevant legal agreements are made. We may call this the contextualist objection. The second type of criticism asks if it is simply futile to hope for a fair solution to climate change when any such solution seems to allow for free-riding. We may call this the moral motivation objection. The third objection is theoretically deeper and asks if it would be wiser to opt for the solution that has the greater probability of success in mitigating climate change as opposed to aiming for the fair distribution of environmental burdens and benefits. We may call this the pragmatic objection. Finally, and in the light of the above criticisms, one can object that the proposed theory has little, if any, comparative advantage over the HR approach.

6.2 Insufficiently Contextual? The first objection, as noted above, challenges our approach to climate change for failing to treat climate change as a problem with a particular socio-political context. Instead of focusing on fair shares and ideal agreements, we are told, our analysis must highlight the fact that it is mainly because of the reluctance and vested interests of certain countries of the developed world, such as the United States, that so little has been agreed to with respect to climate change and still less implemented. This is most probably true but if there is anything wrong with what the United States is doing then this can only be because the US is politically unwilling to do what justice requires from it. In other words, examining the fairness of environmental entitlements and obligations is logically prior to determining who is responsible for violating these entitlements and obligations. It is also clear that the very essence of climate change as a natural phenomenon is such that it weakens any nation’s claims to exception from treaties on the basis of self-determination. This is because climate change can and does have a harmful effect on those living outside the borders of a polluting nation. What makes the problem of climate change particularly congenial to discussions of global justice is that it is necessary global in scope. CO2 emissions recognize no national borders. Hence, CO2 emissions are by their nature not only ‘self-harming’ to the nation that produces them but also ‘other-harming’ to other nations. In



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this context invoking national sovereignty on the part of the developed world (e.g. the United States) or any other nation state is tantamount to invoking a supra-sovereign right to harm other sovereign nations, and their future citizens. Therefore, the distributive approach proposed and defended in this article is necessary if we want to point to the interpretive boundaries of international law even within particular socio-political contexts. Those that invoke ‘sovereignty’ to evade doing their bit for combating global climate change are simply beyond the pale of such interpretive boundaries. It is nonetheless possible to accept the above reply and still insist that speaking in terms of moral entitlements and obligations ultimately serves the interest of those nations powerful enough to legally dictate the meaning of these terms. A mere commitment to such a theory may in practice serve as a new discursive weapon of economic domination in the hands of the powerful, we are told.69 Debates of this sort, it could be argued, are little other than excuses for economic exploitation. This objection conceives my position too narrowly since I do not claim that an environmentally sustainable world is always better in relation to a non-sustainable world. I simply argue that a sustainable world is all things equal better than a non-sustainable world. ‘All things equal’ is an important qualifier here because it allows for the conclusion that a sustainable world with economic exploitation is better than a non-sustainable world with no economic exploitation in a single respect. It does not, however, allow for the conclusion that the former world is all things considered a better world in relation to the latter. Hence, any priority given here to combating environmental injustices is lax in relation to other forms of distributive injustices such as socio-economic injustices. We may phrase this in the form of a dual criterion of fairness: Measures that improve social justice must not involve degrading the environment and measures that improve sustainability must always involve compensating measures for social injustices. Opting for either the former or the latter alone is not sufficient for distributive justice as a whole.70

69. One can add procedural qualifications to this objection, e.g. the idea that any agreement must be the result of open democratic deliberation among those concerned. I have no qualms about this objection because I believe that most probably it would, as it has already to some degree in less ideal circumstances, result in accepting an impartial and egalitarian solution to climate change. See also D. Efthymiou, ‘Equality and Legitimacy: A Critical Review’, 7 European Political Science (2008) at 411-421. 70. This is also my reply to claims that per capita allocations may favour rich countries with large populations versus poor countries with small populations. This is the first of two criticisms of per capita allocations raised by E. A. Posner and C. S. Sunstein in ‘Should Greenhouse Gas Permits Be Allocated on a Per Capita Basis?’, 97 California Law Review (2009) 51-94. In reply, one can also point out that per capita allocations are not the only currency of global justice. Hence, environmental equity does not suffice alone to combat global inequities in the allocation and exchange of the world’s resources. Environmental equity is an important

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6.3 Not Pragmatic Enough? Those concerned with neo-imperialist domination and exploitation will most probably find the above ‘contextualisation’ of my arguments satisfying. These parties are perhaps the easiest to convince. Those objections motivated by more pragmatic considerations are undoubtedly more forceful. Above I used the terms moral motivation and pragmatism to refer to different sets of objections, however I should explain how the two are related. All motivational objections are ultimately pragmatic objections and in this sense they make a claim about the motivational impracticality of a theory. However, not all pragmatic objections are cases of motivational impracticality therefore the latter term is only a subset of the former. For this reason I first start with the pragmatic considerations and then move on to discuss motivational objections.71 The pragmatic objection I would like to consider here is a consequentialist one. This is the view that what matters is for climate change to be avoided; avoiding climate change by unjust measures is overall better than not avoiding climate change by obstinately fixating on just measures. Notice however that this objection can only be levelled against my approach by those who claim that we should always aim to prevent human suffering; that is those who believe that human well-being is the ultimate universal normative value that climate change diminishes. And since climate change diminishes or threatens human well-being, they would argue, we have a moral duty to prevent climate change. There is also one more version of pragmatic, or better a pragmatist objection, that could be levelled against the distributive approach I defended above. This is the idea that any proposal concerning climate change or any other social problem must be assessed solely on the basis of whether it will have an “effect on practice”.72 My discussion of this objection is very brief since I find it very difficult to see how it can be defended. Moreover, I am not aware of any piece of legislation concerning climate change that even implicitly endorses such a view. This would be the view aspect of global distributive justice but it does not exhaust its scope. For a reply to the second criticism see section 6.3 and footnote 82 of section 7. 71. Pragmatic objections against an equal per capita allocation of mission quotas are raised by Posner and Sunstein in ‘Should Greenhouse Gas Permits Be Allocated on a Per Capita Basis?’ supra note 70. See also footnote 82. 72. My use of the term ‘pragmatist’ here relates to Rorty’s idea that: ‘The question that matters is not whether a vocabulary possesses meaning or not, whether it raises real or unreal problems, but whether the resolution of that debate will have an effect in practice, whether it will be useful’ in R. Rorty, P. Engel and P. Savidan, What’s the Use of Truth? (Columbia University Press, 2007) at 3. One is tempted to ask: useful for what except for something that ultimately matters even to Rorty? Furthermore, knowledge and our interest in it are not merely practical and in that sense instrumental or practical. In mathematics, for example, there are many questions and inquiries that we take seriously without having any concern about their practical impact. Knowledge need not be practical to be valid; therefore a fixation on practical questions evades rather than directly responds to questions of knowledge validity.



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that whatever resolves the problem of climate change is a good enough solution; that is even irrespective of how the solution would affect human well-being.73 This is, however, inconsistent since it implies that it is good to deal with climate change while also claiming that there is nothing inherently good about doing so. Only moral nihilists are committed to such inconsistent positions or to even more far-fetched positions that imply that there is no objective reason to favour the prevention of human suffering over promoting human suffering. Fortunately, as the very debate on climate change proves few human beings believe that promoting the extinction of our species is no worse than preventing it. Let us then move to a discussion of pragmatic objections proper. Why is an impartial approach necessary for climate change? Isn’t it more important for us to adopt the solution that is practically or pragmatically more likely to save the planet? In real life terms isn’t it the case that an impartial approach or even a human rights approach hinders sustainability by demanding too much from us and our governments? To respond to this objection, we need not deny the importance of pragmatic considerations. However, let’s assume that we are confronted with a choice between two pragmatic solutions of which one is more impartial than the other. If I am right in arguing that an equitable approach is more congenial to the distributive, intragenerational and intergenerational dimensions of climate change then it follows that avoiding climate change is a second best to avoiding climate change by just measures. Therefore, even when there are good reasons to give pragmatic considerations a lexical priority (which I contest below) this still does not make a concern for fairness irrelevant. Indeed, this allows for the claim that avoiding climate change by just measures is better than avoiding climate change by unjust measures when both options are available. Hence, considerations of fairness necessary enter our decision-making even though they might not always enjoy absolute priority in our policy-making. But can a pragmatic approach alone be so important as to be granted absolute priority in our decisions? Imagine a case where a mob demands that an innocent person be convicted either because they don’t like his social habits or because they are partial towards the available evidence. It would compatible with a pragmatic approach to convict the innocent person because this would maximize e.g., overall well-being given how satisfied the mob would be. The reason we are inclined not to hand over the innocent person to such a fate is because we believe that justice should here trump pragmatic considerations. Applying the same pragmatic ration-

73. Notice that this objection is not about the prioritization of human well-being vs. the wellbeing of other animals because even taking that position necessary entails that our ultimate goal must be the well-being of both human and non-human animals.

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ale to climate change does not remove the absurdity of the pragmatic approach, it merely confirms it.74 It is often true that what are we prepared and willing to do is not on a par with what justice would require from us or with the more just (or less unjust) of the feasible alternatives available to us. This brings us to the next objection in our list; that of moral motivation. It can be argued that the theory is motivationally impossible due to its incongruence with our self-interest and thick conceptions of the good. The first part of the argument is as follows: environmental justice of either the egalitarian or the HR sort is impossible in practice because of the ‘free-rider’ problem. It is always in our self-interest to evade our personal or even national environmental obligations when all others remain committed to them.75 When generalized this condition entails that in the absence of sanctions we would all be inclined to succumb to self-interest rendering collectively optimal results impossible. Notice however that if the drive of self-interest were so strong then no sanctions would be stable over time. The structure of human motivation is not as monistic as some neo-Hobbesians want us to believe and this is what makes free-rider problems avoidable (see also paragraph below). Furthermore, as we shall see in section seven, we can devise measures that can harness some of the existing self-interested motivational structures for the sake of environmental justice. One could that our contemporary conceptions of the good life are such that they render the mitigation of climate change impossible. We all agree that the effects of climate change will be catastrophic but most of us seem to lack the motivation needed to make (voluntarily at least) those lifestyle choices needed to prevent it (by for instance cutting down on driving or taking long-haul flights). This is where law comes in the picture. It is also the point at which what justice demands overlaps with the Hobbesian view that a ‘covenant without the sword is but words’.76 Not only can legislation make it costly for us to pursue our climatically destructive habits, it can also shape our attitudes and practices. It can help us conform to the moral standards to which we aspire but are incapable of reaching alone.77 The test here is to ask if such environmental legislation would be 74. For a reply that treats climate change as merely one important desideratum, see the ‘all things considered’ reply above. 75. For instance, if we are all allowed to evade our taxes then there would be no resources to fund public services. 76. See T. Hobbes, Leviathan (first published 1651) (Cambridge University Press, 1996) at 117. 77. This case, I believe, falls under ‘weakness of the will’ whereby we recognize that something is the right thing to do but are unable to do it unless externally motivated or even coerced to do it. However, the ‘weakness of the will’ case differs from the classic case of coercion in that we can’t complain against the rationale behind our being forced. We recognize that what we are now forced to do is the right thing to do and even feel happy for achieving what would have been practically impossible without such measures.



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so demanding as to become unstable over time. My view is that the answer is no. It is difficult to imagine citizens rallying for their right to take long-haul flights when alternatives such as high-speed trains are available. The point here is not that such measures would not necessarily interfere with some of our conceptions of the good life but that the interference is bearable given the alternative means available for the fulfilment of the very same plans of life. A more cynical version of the pragmatic objection is as follows: If our individual contributions to preventing climate change are negligible why then bother in the first place? An obvious reply here is that no one expects an individual to do more than their bit. It is true that our individual actions are nothing but a drop the ocean but this is also what makes our contribution so undemanding. It is just a drop in an ocean of other individual contributions. Doing one’s share implies contributing that drop to the ocean, no more, no less. It goes without saying that political institutions can be more effective than individuals in assigning and monitoring the fulfilment of those obligations via environmental legislation. However, that might also imply that when states fail to do this then citizens have a duty to bring them back in line as well as to do their best to fulfil these obligations themselves.

6.4 Why Not a Human Rights Approach? This brings us to the last part of this section. Here we should ask if the above objections mean that we should abandon the egalitarian sharing of environmental burdens and benefits for other alternative approaches. Let’s begin with the human rights approach or the threshold approach. It could well be conceded that we might adopt the threshold proposal for purely practical reasons. Indeed, it could be argued that the threshold achieved by such proposals is not sufficient and still contended that it is better than any of the available alternatives. In other words, there are distinct rationales for endorsing a threshold proposal only one of which is a rights-centred one. Those subscribing to the egalitarian alternative to the human rights approach have excellent reasons (for instance, minimizing existing unfairness) to endorse a threshold approach in non-ideal circumstances characterized by the availability of limited choices of which the rights-threshold approach is the best (or less worse) of those available. To put it in Rawlsian terms, one may seek to develop an ‘overlapping consensus’, in which there are several distinct rationales for endorsing a strong program of mitigation and adaptation, one of which is an egalitarian rationale of the kind defended above.78 By adopting this approach, one would not forfeit the virtues of an egalitarian approach. It 78. This is the idea that all reasonable doctrines can endorse a liberal political conception of justice, each from its own point of view. See J. Rawls, Political Liberalism (Columbia University Press, 2005) at 134. Here the concept is used in a looser and more pragmatic way to support the idea that a human rights approach to climate change can be pragmatically endorsed by those

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would also be possible to avoid the disadvantages of relying solely on an egalitarian analysis when it comes to framing these proposals in the context of existing legislation and the discursive dominance of human rights. Put slightly differently, even if some of the objections are true then it would only follow that an egalitarian proposal is not practically feasible in present non-ideal circumstances. However, this does not render the egalitarian proposal irrelevant because it can be parametrically applied so as to help us choose the less unjust solution to climate change from the currently available feasible sets of legislation. The theory can also practically help us guide our everyday behaviour by giving us moral reasons for our actions. It may therefore serve to galvanize an environmentally conscious citizenry. Having granted the importance of law I will now try to show how an egalitarian approach to climate change might help us to evaluate as well as to draft environmental legislation.

7. International Law, Climate Change And Distributive Justice Since covenants without the sword are often nothing more than words, at this point we need to go back to our starting point; that is to the state of international agreements concerning climate change and propose how they can be developed to express a greater concern for intergenerational as well as intragenerational justice. The recent environmental summit in Cancún seems to offer some hope for optimism with regard to the Kyoto protocol.79 For instance, it is recognized that taking measures to mitigate climate change to a 2 degrees Celsius rise in temperatures is insufficient and that dramatic cuts to 1990 levels are needed. But, at present the developed world appears unwilling to tackle climate change more effectively. Pledges made so far by 80 countries will practically result to a minimum increase of 3.2 degrees Celsius.80 These climatic changes will mainly hit badly the developing world.81 To put this in the perspective of an equal per capita allocation: those countries with the lowest per capita emissions are asked to shoulder the heaviest burdens of climate change. A per capita allocation of emission quotas allows us to point to this paradox by explaining the decisions taken in Cancún as partial to the interests of the developed world. Hence,

who would prefer a more egalitarian approach to climate change, when a perfectly egalitarian policy alternative is not available. 79. See . For a summary of the decisions taken in Cancún see: (visited 18 March 2011). 80. See (visited 18 March 2011). 81. See section 1 of this article.



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the distributive approach to climate change argued for in this article helps us to identify inequity in climate protocols and proposed treaties.82 The decisions taken in Cancún are fortunately not the whole story, however. The EU has recently taken steps towards implementing the Kyoto protocol with the European Union Emission Trading System (EU ETS) that is premised on the idea that the total quantity of emissions must be in line with a member state’s Kyoto target.83 The future goals set for emissions quotas converge towards an equal per capita share among EU members. The more developed countries of the union are expected to make the biggest reductions.84 Yet while these proposals are congenial to what was proposed above, they are also marked by shortcomings. First, their implementation is hindered by apparent political reluctance to combat climate change fairly. Second, this legislation would be binding only for a small part of the world and as a consequence of world emissions. Third, the current free allocation of emissions quotas will lead to an increase in the prices of energy for all, that is, even for those whose rate of consumption is lower than the per capita emissions entitlement. Furthermore, the free allocation of emission allowances to business is more likely to increase economic inequalities by disproportionately affecting the purchasing power of those households with lower than average incomes.85 Even the allocation of the quotas by auction to private companies would not change much for these consumers unless additional measures are taken. How then can we amend the proposals to make them sensitive to these concerns? A first and necessary step would be extending the above proposals globally, proposing a Kyoto 2.86 Emissions quotas would be allocated to countries and 82. Climate treaties based on equal per capita allocations are rejected by Posner and Sunstein in ‘Should Greenhouse Gas Permits Be Allocated on a Per Capita Basis?’ supra note 70. One of their (two) core arguments is that the per capita allocation of emissions quotas entails the ‘transfer of hundreds of billions of dollars annually from the United States to China and India’ and hence makes it impossible for the United States to agree on a climate treaty. I think that the conclusion drawn (in the second part of the preceding sentence) is a non-sequitur for two reasons. First, transfers of money from one part of the globe to another are certainly possible and have never been practically easier in human history. Hence, it is surely not impossible but merely unappealing to the United States to proceed with a climate treaty based on equal per capita allocations of emission quotas. But who says that justice doesn’t sometimes come with a heavy price tag for the culprits? Second, an equal per capita allocation is compatible with second-best solutions and hence with political negotiations that are most likely to result in relatively modest transfers from United States to the developing world. Hence, a per capita approach also allow us to select the most equitable (or less inequitable) among the sub-ideal but feasible legal alternatives. See also sections 5 and 6 of this paper on ‘feasibility objections’ to equal per capita allocations of emission quotas. 83. See (visited 18 March 2011). 84. See again . 85. O. Tickell, Kyoto2: How to Manage the Global Greenhouse (Zed Books, 2008). 86. Ibid.

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auctioned by governments on a national and an international market. Those companies who were to buy the quotas would pass that cost on to consumers. The resulting higher prices of CO2 emission associated products and services would act as a disincentive and less CO2 will be emitted. These measures, however, must be accompanied by a distributive concern for intra and inter-societal equity to be equitable to all. For this to happen, the revenue from the auctioning of the allocated quotas in countries where the overall emissions are low can be directly paid to all those (most in this case) whose predicted consumption within the population is below the required threshold in the form of rebates (as long as their individual consumption stays below the threshold). In developed nations or where average consumption exceeds the thresholds required (hence no rebates are paid), government can spend the rest of their revenues from the auction to subsidise research to new green technologies. The theory of environmental justice developed here not only informs our starting point in the auction but also our decision not to burden further those who honour their inter-generational and intra-generational obligations. What initially appeared to be an abstract or ideal theory of climate change is in fact practical all the way down.

8. Conclusion This article has examined the relationship between human rights, climate change and distributive justice. Advocates of a human rights approach to climate change point to the ways in which climate change jeopardizes basic human rights or ‘weighty’ interests. They think that the problem of climate change can be equitably addressed by assigning correlative duties to all moral agents; individual or collective. In this paper I showed why their approach fails to address the intergenerational, intragenerational and distributive dimensions of climate change. I argued that a liberal egalitarian theory of distributive justice can address these issues successfully and hence I concluded that a human rights approach to climate change, although practically valuable, is theoretically speaking, neither necessary nor sufficient. An egalitarian account can provide a more impartial and yet comprehensive answer while taking on board most of the core theoretical insights of the human rights approach to climate change.

State and Individual Responsibility in Internal Conflicts: Contours of an Evolving Relationship Phoebe Okowa* Abstract: The central argument of this article is that a regime of state responsibility has a continuing role to play in the emerging framework of accountability for international crimes. For this reason it must be seen as an integral part of the system of international criminal justice, operating in tandem with individual prosecutions. The literature on international criminal law as well as the practice of states has been primarily pre-occupied with individual prosecutions as a method of accountability for international atrocities. Yet central to some of the recent debates in the literature has been a realisation that the international system of justice has in many ways overstated the overall effectiveness of individual prosecutions. These debates accept that other processes of accountability must now be explored. The International Court of Justice (ICJ) has in four significant cases now been called upon to deal with questions of state responsibility for atrocities committed in internal conflicts. This article is intended as a corrective to the narrow focus on individual prosecutions by highlighting the continuing relevance of state responsibility in light of the recent jurisprudence of international tribunals. The resurgence of surrogate warfare in which outside powers involve themselves in internal conflict also raise the question of the obligations of such powers for atrocities committed by their surrogates in conflict zones. The article examines the varied contexts in which questions of state responsibility for atrocities committed in internal conflict arise and the substantive implications for the emerging law. Keywords: state and individual responsibility, international crimes, international court and genocide, rebels accountability of, complicity, attribution, internal conflicts

1. Introduction: An Outline of the Problem The central argument of this article is that a regime of state responsibility has a significant role to play in the emerging framework of accountability for inter*

Phoebe Okowa, Reader in Public International Law Queen Mary, University of London. I am grateful for the research assistance of Angela Giannotti in preparing this article.

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national crimes. For this reason it must be seen as an integral part of the system of international criminal justice, operating in tandem with individual prosecutions. The renewed interest in prosecutions for international crimes that assumed prominence after the Balkan conflicts of the 1990’s in many ways displaced state responsibility as the primary medium for accountability in that field.1 For the last two decades, international lawyers have been primarily pre-occupied with the prosecution of individuals before the ad hoc UN tribunals established in relation to the conflicts in Yugoslavia and Rwanda.2 The internationalised special tribunals in Sierra Leone, East Timor, and Iraq have also generated searching scrutiny in the legal literature.3 It is telling that in the last decade there has been no serious study on the responsibility of states for international crimes.4 Yet central to some of these debates in the literature has been a concern that the international community has in many respects overstated the overall effectiveness of individual prosecutions as a means of achieving accountability.5 Nearly two decades have passed since the resurgence of interest in international prosecutions. Although these prosecutions have been a significant step in ending impunity, they have also provided a very mixed picture on their effectiveness in deterring future atrocities through criminal law processes. 1. Although this dominance has been increasingly subjected to challenge at any rate since the advent of human rights law, see H. Lauterpacht, International Law and Human Rights, (Stevens & Sons: London, 1950) at 6-7. 2. B. Broomhall, International Justice and the International Criminal Court (Oxford University Press, 2003); R. Cryer, Prosecuting International Crimes (Cambridge University Press, 2005); W. Schabas, The UN International Criminal Tribunals (Cambridge University Press, 2006); S. Ratner’ J. Abrams, J. Bischoff, Accountability for Human Rights Atrocities in International Law (Oxford University Press, 2009). 3. C. Romano, A. Nollkaemper, and J. Kleffner, Internationalized Criminal Courts (Oxford University Press, 2004); T. Kuosmanen, Bringing Justice Closer: Hybrid Courts in Post Conflict Societies (Erik Castrén Institute of International Law: Helsinki, 2007). 4. But see N. Jørgensen, The Responsibility of States for International Crimes (Oxford University Press, 2000). However the decisions of the International Court of Justice in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide cases (Preliminary Objections), ICJ Reports 1996, 595 and Judgment, General List No. 91, 2007 (hereafter, Bosnia Genocide Case), have generated much interest, See M.Milanovic, ‘State Responsibility for Genocide: A Follow-Up’, 18 European Journal of International Law (2007) 669-694; S.Talmon, The Responsibility of Outside Powers for Acts of Secessionist Entities’ 58 International and Comparative Law Quarterly (2009) 493-517. 5. In a seminal study Mark Drumbl has argued that individual prosecutions significantly fail to achieve the broadly declared objectives of international criminal justice, M. A. Drumbl, Atrocity, Punishment, and International Law (Cambridge University Press, 2007); N. Jørgensen, ‘The Abandoned Nuremberg Concept of Criminal Organisations in the Context of Justice in Rwanda’, 12 Criminal Law Forum (2002) 371-406; M.Mutua, ‘Never Again: Questioning the Yugoslav and Rwanda Tribunals,’ 11 Temple International & Comparative Law Journal (1997) 167-187 at 170; M. Koskenniemi, ‘Between Impunity and Show Trials’ 6 Max Planck Yearbook of United Nations Law (2002) 1-35; P. Akhava, ‘Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?’ 95 American Journal of International Law (2001) 7-31.



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This article is intended as a corrective to the narrow focus on individual prosecutions by highlighting the continuing relevance of state responsibility. It argues that the increased confidence in the regime of individual criminal responsibility is misplaced and masks a myriad of contested and difficult questions in relation to regimes of responsibility in conflict zones. They ignore the fact that individual prosecutions remain partial, selective and political, and in relation to a number of conflicts virtually non-existent.6 In Rwanda for instance, there has been much disquiet that the jurisdiction of the International Criminal Tribunal for Rwanda (ICTR) does not extend to atrocities committed by the ruling party, Rwanda Patriotic Front (RPF), in the immediate aftermath of the Rwanda genocide.7 Moreover, virtually all the international criminal tribunals operate within the confines of temporal or territorial restrictions. The jurisdiction of the International Criminal Tribunal for Yugoslavia (ICTY) only relates to events occurring in the territory of the former Yugoslavia since 1 January 1991.8 The Rwanda and Sierra Leone Courts are also singularly concerned with events occurring in those territories.9 Many of these atrocities that are of international concern occurred on a mass scale, in some cases such as Rwanda and the Democratic Republic of the Congo (DRC), implicate a very substantial number of the adult population. Many of these are unlikely to be prosecuted. A consensus is therefore emerging that in these situations prosecution of those individuals implicated is neither realistic nor feasible.10 Moreover the crimes in question usually occur in the course of ideologically motivated political programmes, perceived by the perpetrators to be for the general good – they are not driven as such by motives that normally underpin

6. It has been estimated for instance that the trial of all the suspects involved in the Rwanda Genocide would take at least two hundred years. See ‘Genocide and Justice’ Official Website of the Government of Rwanda, (visited 26 October 2010). 7. The crimes committed by the RPF, including those amounting to genocide, crimes against humanity and war crimes have now been extensively documented. See Report of the UN High Commissioner for Human Rights, N. Pillay, Democratic Republic of Congo 1993-2003, Report of the Mapping Exercise Documenting the Most Serious Violations of Human Rights and International Humanitarian Law Committed within the Territory of the Democratic Republic of the Congo between March 1993 and June 2003 (UNHCHR, 2010); R. Wedgewood, Kagame and Rwanda’s Faux Democracy, Sunday August 8 2010, Blog of the European Journal of International Law (visited 28 October 2010). 8. Articles 1 and 8, Statute of the ICTY, (visited 26 October 2010). 9. Articles 1 and 7, Statute of the International Criminal Tribunal for Rwanda, SC Res 955, 8 November 1994, Annex; Article 1, Statute of the Special Court for Sierra Leone, (visited 26 October 2010). 10. Drumbl, ‘Atrocity, Punishment and International Law’, supra note 5; Jørgensen, ‘The Abandoned Nuremberg Concept’, supra note 5.

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domestic criminality. It is for this reason that a response rooted in conventional criminality is increasingly seen as fundamentally flawed.11 The most significant forum for the trial of individuals remains the International Criminal Court (ICC). However, it is a notable limitation that its jurisdiction only extends to events occurring after it entered into force in 200212 and even then only for the contracting parties. A further significant limitation is the provision that allows signatory states to opt out of the Court’s jurisdiction in relation to war crimes for a period of seven years.13 In practical terms, this may have the consequence that war crimes committed in the most recent conflicts remain outside the reach of international justice, at any rate where the intention is to prosecute individual perpetrators. Moreover, the general consensus that states have universal jurisdiction in relation to international crimes, irrespective of the locus of the crimes, has only been of marginal relevance since in practice states only act when their direct national interests are affected.14 Crucially the jurisdiction of all international tribunals remains intensely political and in the case of the ICC subject to a further qualitative limitation – the Court will only have jurisdiction in relation to the most serious crimes.15 Yet even in conflicts such as that in the DRC, which on any view would meet the threshold of seriousness, there have been a number of significant obstacles and so far only a handful of cases are under investigation in the context of a conflict that has resulted in the death of at least 5 million people.16 It is therefore entirely appropriate that other processes of accountability be explored. 11. Drumbl, ‘Atrocity, Punishment and International Law’, supra note 5, chapter 4, especially at. 121 and Jørgensen, ‘The Abandoned Nuremberg Concept’, supra note 5. 12. Only 16 cases are currently before the International Criminal Court, most of which on the basis of self- referral. See Referal of the Situation in the Democratic Republic of Congo, ICCOTP-20040419-50. The Security Council has also referred the Situation in Sudan, Security Council Resolution 1593 (2005) and the Prosecutor has also exercised his proprio motu powers in relation to the situation in Kenya, ICC-CPI 20100331-PR512. The cases currently on the Court’s docket as a result of a referral by the Democratic Republic of Congo include: The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04/06; Prosecutor v. Germain Katanga and Mathieu Nqudjolo Chui, ICC-01/04-01/07; Prosecutor v. Bosco Ntaganda, ICC-01/04-02/06. 13. Article 124, Rome Statute, 17 July 1998, in force 1 July 2002, www.icc-cpi.int/Menus/ICC/ Legal+Texts+and+Tools/> (visited 26 October 2010). 14. L. Reydams, Universal Jurisdiction: International and Municipal Legal Perspectives (Oxford University Press, 2003) at 223-224. The attempt by Belgium to prosecute international crimes in situations where no obvious interest of Belgium was involved met with sustained protest from the international community and in the end Belgium was forced to change the legislation which had formed the basis of the prosecutions. 15. Articles 1 and 5(1), Rome Statute, supra note 12. 16. For cases referred in relation to the conflict in the Congo, see Prosecutor V. Thomas Lubanga Dyilo, ICC-01/04-/06; Prosecutor v. Germain Katanga and Mathieu Nqudjolo Chui ICC-01/0401/07; Prosecutor V. Bosco Ntaganda ICC-01/04-02/06.



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The pendulum in any event is swinging towards increased recognition of other forms of accountability including state responsibility for international crimes.17 Drumbl, for instance, in a recent masterly study, has made a compelling case for exploring other processes of collective accountability as a means of responding to mass atrocities. Criminal prosecutions, he argues, do not on the whole meet the declared objectives of the international criminal justice system because mass criminality does not lend itself readily to goals such as deterrence, or rehabilitation. Participation in these crimes is usually based on a conviction that the outcome is politically desirable and rarely because the participants are criminally inclined. He goes on to make the case for other processes of accountability which facilitate societal reconciliation such as the traditional Gacaca courts used in Rwanda. These studies by Drumbl and others have on the whole been concerned with how domestic legal systems can be mobilized to provide alternative forms of justice that are prompt, realistic and effective.18 While I do not explore those collective mechanisms of accountability, the article contributes to the same debate by examining how at the international level, regimes of state responsibility can be offer an alternative medium for holding those who commit atrocities responsible at the inter-state level. The International Court of Justice (ICJ) has in three significant recent cases confirmed the responsibility of states for international atrocities, and in the context of conflicts where individual prosecutions had proved particularly problematic. The ICJ cases also involve a more complex and therefore less partial narrative of participation in international crimes. The availability of provisions on the submission of counter-memorials, as well as claims and counter-claims by litigant states, make it possible for both applicant and respondent states to put on record their version of the story. In Armed Activities in the Territory of the Congo, the ICJ upheld the responsibility of Uganda for a number of serious violations of human rights, and humanitarian norms as well as acts of pillage, rape and torture committed by members of its armed forces and armed militia under its control in the Ituri region of Congo.19 The ICJ ordered Uganda to pay compensation in respect of conduct that could also be independently subject to prosecutions under the ICC statute.20 The DRC had sought compensation amounting to 10 billion dollars, although anecdotal 17. Drumbl, ‘Atrocity, Punishment and International Law’, supra note 5; Jørgensen, ‘The Abandoned Nuremberg Concept’, supra note 5. See also J. Klabbers, ‘Just Revenge? The Detterrence Argument in International Criminal Law’, 12 Finnish Yearbook of International Law (2001) at 253. 18. These process include the Gacaca Courts, currently in use in Rwanda. In Northern Uganda, the Acholi ritual of forgiveness known as Mato Oput, which involves collective reconciliation on a mass scale has generated much interest, see ‘Uganda’s mato oput ritual: forgiveness for brutal 20-year war’, Agence-France Presse (23 January 2008). 19. Armed Activities in the Territory of the Congo (Democratic Republic of the Congo v. Uganda) Judgment, ICJ Reports (2005) 168, at para. 345. 20. Article 8(2)(a)(iv) and Article 8(2)(b)(xvi), Rome Statute, supra note 12.

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evidence suggests that Congo was well aware that compensation of that magnitude was unlikely to be forthcoming and was only interested in a public acknowledgement of wrongdoing.21 The most significant decision to date on the putative role of state responsibility remains that of the ICJ in the Bosnia Genocide case.22 In its 2007 judgment, the ICJ upheld the responsibility of Serbia, for failing to prevent and punish acts of genocide committed by Serb paramilitary groups operating under Serbia’s influence and control.23 The decision received a chorus of approval from the international community,24 and although no monetary compensation was awarded, it no doubt played a part in securing Serbia’s cooperation with the ICTY in arresting and handing over suspects for trial. In 2009, Belgium brought a case at the ICJ against Senegal, arguing that by failing to bring proceedings against the former president of Chad, Mr Hissène Habré, for acts of torture and crimes against humanity, Senegal was in violation of its obligations under the 1984 UN Convention against Torture.25 The objective of the applicant state was to compel Senegal to either institute proceedings against Mr Habré or extradite him to Belgium, to answer for these crimes before Belgian courts. The case has not proceeded to the merits stage but the provisional proceedings had the desired practical effect: Senegal gave assurances that it would try Mr Habré in Senegal as soon as funding for his trial was made available by the international community.26 Many other instances of state responsibility in the jurisprudence of international tribunals have virtually gone unnoticed in the literature. The Inter-American Court for instance, found in favour of the applicants in a case brought against Peru for failing to prevent and punish acts of torture.27 These cases serve as a reminder that in so far as the first obligation of states is to prosecute crimes themselves, failure to carry out prosecutions may engage the responsibility of the state in question. Crucially, compensation and restitution of property to victims – especially in cases of prolonged atrocities involving large sections of the population and institutions of the State – can only be meaningfully carried out by the government. Criminal justice systems increasingly provide for reparation and the legislative 21. 22. 23. 24.

Unrecorded conversation with one of the counsel involved in the case on file with the author. Bosnia Genocide Case (Judgment), supra note 4. Ibid., at paras. 438 and 448-450. See for instance, M. Milanovic, ‘State Responsibility for Genocide: A Follow-Up’, 18 European Journal of International Law (2007) 669-694; for a critical perspective, see P. Gaeta, ‘On What Conditions Can a State Be Held Responsible for Genocide’, 18 European Journal of International Law (2007) 631-648. 25. Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Application Instituting Proceedings, 16 February 2009. 26. Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal) (Provisional Measures), ICJ Order (28 May 2009). 27. Gomez-Paquiyauri Brothers v. Peru, Series C, No. 110, Inter-American Court of Human Rights, Judgment (July 8 2004).



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provisions of most states also contain provisions on compensation through civil proceedings. However, in almost all cases the accused are usually in no position to pay compensation.28 It is suggested that rights of victims that are increasingly at the centre of international criminal justice systems are likely to remain horatory unless there is a significant level of governmental involvement.29 At one level this may require no more than the provision of funds by the responsible state but it also may require an acknowledgment of state responsibility and the payment of appropriate compensation where the state and its institutions have been implicated in the atrocities. Forced displacement of populations in pursuit of a policy of ethnic cleansing may require not just the restitution of property but also a return of the displaced population and it is difficult to see how these can be carried out without engaging the responsibility of states. The example of Nuremberg is particularly poignant here. Although individual Nazi leaders were prosecuted for war crimes and crimes against the peace at Nuremberg, it was left to the post-war German governments to pay compensation to Jewish victims of Nazi atrocities.30 It is suggested that the success of rehabilitation and reparation to victims ultimately depends on an enforceable framework of state guarantees. It is significant that in the case brought by Croatia against Serbia and Montenegro, in addition to the surrender of suspects wanted by the ICTY, Croatia also sought the restitution of cultural property, allegedly taken by Serbia, as well as the return of the remains of those who had disappeared in the course of the alleged acts of genocide.31 Moreover, it is suggested that a crime such as aggression is in fact parasitic on a finding of state responsibility. Despite the general consensus that aggression is a crime that entails individual criminal responsibility, it remains unclear whether individual criminal prosecutions can be carried and effected without a finding of state responsibility. Aggression involves the use of force as an instrument of state policy, and it is difficult to see how those who effect this policy can be prosecuted unless there is a finding of state responsibility in the first place.32 28. Drumbl, ‘Atrocity, Punishment and International Law’, supra note 5. 29. M. Cherif Bassiouni, ‘International Recognition of Victims Rights’ in M. Cherif Bassiouni (ed.) International Criminal Law: Volume III International Enforcement (3rd edn., Martinus Nijhoff: Leiden, 2008) 635-702. 30. German Compensation for National Socialist Crimes, (visited 26 October 2010); See also U. Kriebaum, ‘Restitution Claims for Massive Violations of Human Rights During the Nazi Regime – The Austrian Case’ in G. Ulrich and L. Krabbe Boserup (eds), Human Rights in Development Yearbook 2001 (Martinus Nijhoff: Leiden, 2003) 163-210. 31. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Croatia V. Serbia), Preliminary Objections, ICJ Reports (2008) 412. Written Statement of the Government of Croatia, (23 April 2003), para. 4.12, 4.25. 32. See Claus Kreb, ‘Some Reflections on the International Legal Framework Governing Transnational Armed Conflicts’, 15 Journal of Conflict and Security Law (2010) 245-274 at 270.

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Focus on individual responsibility also ignores the general requirement that there must be in existence a jurisdictional nexus between the state and the ICC for the prosecutions to take place. While this is in any case problematic in most cases, it presents a particular challenge in situations of protracted armed conflict, especially where the de jure government has lost control of territory. Disputes about which group or groups of claimants is entitled to exercise governmental power make it difficult for local authorities to mobilise international institutions that have mandate to conduct individual prosecutions. In addition, in these situations, national prosecutions are hardly practical, or are simply manipulated by one party to the conflict as a means of silencing its opponents.33 Furthermore, the jurisdiction of the ad hoc tribunals and the ICC is largely confined to the three core crimes, genocide, war crimes and crimes against humanity. This still excludes from their remit, crimes of international concern such as terrorism, or torture unless committed in the course of genocide, war crimes or crimes against humanity. Although in theory, enforcement in relation to these crimes is still possible at the national level, the international oversight provided by the regime of state responsibility is equally significant. National governments cannot always be relied on to undertake prosecutions when it is not in the national interest. The article in the first part explores the role of state responsibility in the system of international criminal justice. It examines the various categories of responsibility as well as the conceptual and practical problems involved in their application. Many of the atrocities are committed by rebels or insurgent groups, yet these groups remain outside the formal framework of regulation under international law. The second part of the article examines the case for extending responsibility to insurgent groups as a collectivity, and the mechanisms available under the lex lata content of international law for doing so. The increased public sensitivity to human rights values and the importance attached to due process requirements partly accounts for the general reluctance to create a framework for collective, organisational or group based criminality within the international justice framework. The recent conflicts in Congo, Sierra Leone, as well Georgia’s breakaway republics, support the thesis that individual accountability alone deflects from the true character of these atrocities, as acts of collective groups pursuing a common political or social agenda. For instance, the atrocities committed by the Sierra Leonian group, Revolutionary United Front for Sierra Leone (RUF), in the end resulted in individual prosecutions of the principal leaders.34 Yet the evidence that emerged at all stages of the trial was that of a criminal enterprise carried out in the pursuit of common goals and objectives. 33. M. Arsanjani and W. Reisman, ‘Law – in Action of the International Criminal Court’, 99 American Journal of International Law (2005) 385-403. 34. Prosecutor v. Issa Hassan Sessay, Morris Kallon, and Agustine Gbao, Case No. SCSL-04-15-A, Appeals Chamber (26 October 2009).



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In these situations, prosecution of the leaders alone distorts the character of the atrocity as an organisational project and ignores the broad structural and political context that informed the atrocities. The civilian population will have perceived the crimes in question as an act of the organisation and not the random acts of individuals. To put it another way, the organizational unit threatens international public order and only by punishing the unit can the true character of the wrong be exposed. Furthermore, to the extent that these trials are also intended to provide an accurate historical record of the atrocities and acknowledgment of what transpired, individual prosecutions alone fall short of what might be expected in these instances. Yet apart from those circumstances where the group is acting as a surrogate or under the control of a state, public international law has in general eschewed imposing responsibility directly on groups.35 The cases before the ICJ arising out of the Balkan conflict and a significant number of cases before the European Court of Human Rights (ECtHR) on the responsibility of states for serious human rights abuses committed by insurrectionists have brought to the fore the question of the relationship between state and individual responsibility.36 It is not suggested that state responsibility is a panacea for all the shortcomings of individual prosecutions, but it can address problems that are beyond the reach of individual prosecutions or offer an alternative when individual prosecutions are not forthcoming in some cases. International oversight with regard to the discharge of these duties must therefore be seen as an inescapable part of the narrative on international criminal justice.

2. State Responsibility in the General Scheme of International Crimes In principle, the idea that states would incur responsibility for international crimes has generated little controversy even if the occasions for its application 35. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (Merits), ICJ Reports (1986) 14, at para. 102-106. Bosnia Genocide Case (Judgment), supra note 4 at para 393 and 397; S. Talmon, ‘The Responsibility of Outside Powers for Acts of Secessionist Entities’ 58 International & Comparative Law Quarterly (2009) 493-517. 36. See Bosnia Genocide Case (Judgment), supra note 4, para. 379; Armed Activities on the Territory of the Congo (Judgment), supra note 19; Application of the International Convention on the Elimination of All forms of Racial Discrimination (Georgia v. Russian Federation) (Provisional Measures), Application Instituting Proceedings (12 August 2008) at para. 2 and, ICJ Order (15 October 2008); Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia) (Preliminary Objections), ICJ Reports (2008) 412; Ilaşcu and Others v. Moldova and Russia, Application No. 48787/99, European Court of Human Rights, Grand Chamber, Decision (8 July 2004), at para. 384; Loizidou v. Turkey (Merits), Case No. 40/1993/435/514, European Court of Human Rights, Grand Chamber, Decision (28 November 1996), at para. 56.

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have been infrequent. At Nuremberg it was accepted without question that delictual responsibility was a normal consequence of a war of aggression. It was the suggestion that crimes against the peace gave rise to individual responsibility that was regarded as controversial and a violation of the nullum crimen principle37. The post war compensation agreements entered into with Germany, as well the substantive German compensation law, incorporated without question the principle of state responsibility. The grave breaches provisions of the Geneva Conventions of 194938 and the 1948 Genocide Convention39 explicitly impose direct duties on states to prevent and punish the substantive crimes that they establish. Significantly, the Genocide Convention in Article IX specifically contemplated state responsibility as a direct consequence of the violations of its provisions.40 The centrality of state responsibility is also highlighted in the 1984 Torture Convention.41 The proceedings brought by Bosnia against Serbia specifically relied on the obligation to ‘prevent and punish persons’ who commit Genocide as provided for in Article 1 of the Genocide Convention as one engaging the responsibility of states.42 The co-existence of regimes of state and individual responsibility was also implicitly accepted in the Nuremberg judgments. In a passage that has been cited frequently, the tribunal had observed that ‘crimes against international law are committed by men and not by abstract entities and only by punishing the individuals who commit such crimes can the provisions of international law be enforced’.43 This passage was not a denial of state responsibility. It was a response to the defence argument that only states had duties under international law.44 The defence had argued that the waging of aggressive war was no more than a state 37. B. Smith, The Road to Nuremberg (Basic Books: New York, 1990) at 95. 38. See Articles 49, 50, 129,146 of each Convention respectively. 39. Article 5, Convention on the Prevention and Punishment of the Crime of Genocide 9, December 1948, in force 12 January 1951, 78 UNTS 277. 40. Sir Gerald Fitzmaurice in introducing the article explicitly stated that the responsibility contemplated was civil not criminal. See Official Records of the General Assembly, Sixth Committee, Summary Records, 21 September-10 December 1948, 440; See J. Crawford ‘International Crimes of States’ in J. Crawford, A. Pellet and S. Olleson, The Law of International Responsibility (Oxford University Press, 2010) at 405. 41. Article 5(2), Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, GA Res. 39/46, 10 December 1984, Annex. 42. Bosnia Genocide Case, surpa note 4, Memorial of the Republic of Bosnia (15 April 1994), ICJ written pleadings, Chapter 1, 1.3.05. 43. Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, Vol. 22 (1948) 466. 44. Earlier in the judgment the Court had observed that the effect of the League Covenant and the Kellogg-Briand Pact of 1928 was to confirm that the waging of a war of aggression was a state delict and controversially at least at the time, as one that also gave rise to individual criminal responsibility. It noted that ‘international law imposes duties and liabilities on individuals as well as upon states’.



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delict and did not as such engage the responsibility of the individual. The judgment however remained an isolated affirmation that international crimes could engage the direct responsibility of states. Yet the principle of state responsibility involved was never doubted even though the occasions for its application were notably absent after Nuremberg.45 The reasons for this had more to do with inertia triggered by the Cold War politics than a denial of the principle of responsibility. There are other reasons why the responsibility of states appeared until recently to be in terminal decline. In practice state responsibility was viewed with scepticism, as a smokescreen for the evasion of individual responsibility by political leaders. In many cases, the populations themselves had been victims of atrocities at the hands of their leaders. Any claims for compensation visited on the population would therefore be seen as a penalty on the population in disguise. It is significant that responsibility for international crimes per se did not attract controversy when the International Law Commission (ILC) took on the project on state responsibility. As argued below, it was the attempt to impose penal consequences on states that proved controversial and was inconclusively left to one side when the ILC adopted its draft articles in 2001.46 Indeed it was not until the horrors of the Balkan conflict, perpetrated with the involvement of states and non-state groups, that the possibility of state responsibility, existing in parallel with individual accountability, was canvassed. The disintegration of Yugoslavia and the emergence of new states, effectively polarised along ethnic lines, created a situation where the traditional reticence to inter-state claims was no longer operative. The initial proceedings were commenced by Bosnia in 1993,47 and in the case of Croatia in 1999,48 in the face of apathy and the slow progress of individual prosecutions before the ICTY. The first cases before the ICTY had focused on minor operatives in the Balkan conflict, with the ring leaders largely untouched, Serbia having failed to arrest and surrender them to the ICTY.49 To the extent that accountability through individual prosecutions was not forthcoming, state responsibility at the very least offered a strategic advantage of bringing pressure to bear on Serbia, which could result in co-operation with the criminal tribunal. Second, state responsibility offered an avenue for the public acknowledgement of wrongdoing which even if not accompanied by compensation, would 45. There were quite simply no international prosecutions until the UN tribunals set up after the Balkan conflict. See Report of the Secretary pursuant to Paragraph 2 of Security Council Resolution 808 (3 May 1993), UN Doc. S/25704, para. 12; SC Res. 807, 19 February 1993. The Security Council subsequently passed a second resolution establishing an international criminal tribunal for Rwanda, SC Res. 955, 8 November 1994. 46. See Official Records of the General Assembly, Fifty-sixth Session, Supplement No. 10, UN Doc. A/56/10, Ch. IV (2001). 47. Bosnia Genocide Case, supra note 4, Application instituting proceedings (20 March 1993). 48. Croatia Genocide Case, supra note 34, Application instituting proceedings (2 July 1999). 49. W. Schabas, The UN International Criminal Tribunals (Cambridge University Press, 2006) at 23.

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play an important part in providing a balanced narrative on the history of the conflict in context. The Balkan conflict also brought to the fore the accountability of paramilitary groups for atrocities committed by them in territories under their control and the extent to which the involvement of third states was appropriately dealt with in the existing framework of international law.50 The conflict also revealed the limitations of individual accountability in the absence of state co-operation. The central charge against Serbia, in addition to the claim that it had directly committed acts of genocide, revolved around its failure to provide information or extradite suspects wanted for international crimes committed during the Bosnian conflict.51 The ICTY was effectively paralysed for a considerable period by Serbia’s reluctance to prosecute or surrender the key suspects involved in the Yugoslav conflict. Within the framework of the European Convention on Human Rights (ECHR), the European Court has also been called upon to consider the nature of state responsibility for atrocities committed by insurgents or paramilitary groups acting with the support or under the influence of States Parties.52 But if state responsibility was to exist alongside the prosecution of individuals, its parameters were clearly untested. Under what circumstances was the State to be held responsible for international crimes? Was this conditional or dependant on the prosecution of individuals who had carried out the atrocities? Could the State be held responsible for the acts of rebel groups that it had given support to and, if so, to what extent and under what circumstances? Could state responsibility exist for crimes such as genocide, one of the key elements of which was the specific intent to destroy a national, ethnical group in the absence of a positive finding that individuals had committed the crimes? If a state was found to be responsible, what consequences attached to this finding of responsibility? Was the obligation of the state limited to the payment of compensation or did international law envisage other consequences? Crucially what was the continuing relevance of state responsibility in an international system that increasingly favours individual responsibility? One could conceivably think of an infinite number of situations where although individual criminal responsibility is not possible, state responsibility remains a 50. The International Court in the Nicaragua Case had already considered in general terms the responsibility of a state for atrocities including violations of human rights and humanitarian norms committed by paramilitary groups under its direction and control. Nicaragua case, supra note 35 51. Application Instituting proceedings submitted by the Government of Bosnia and Herzegovina, supra note 45; Application Instituting Proceedings submitted by the Government of Croatia, supra note 47. 52. See for instance Ilaşcu V. Moldova and Russia, supra note 34, at para. 319; Loizidou v. Turkey (Preliminary Objections), European Court of Human Rights, Series A, No. 310, (23 March1995) at 20 and 24; Loizidou v. Turkey (Merits) supra note 34, at para. 52; Cyprus v. Turkey, Application no. 25781/94, European Court of Human Rights, Judgment (10 May 2001) at para. 76.



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distinct possibility. For instance, individual criminal responsibility is not possible where a plea of immunity has been successful,53 or where the prosecuting authorities have decided that a trial would not be in the interest of justice.54 Moreover international criminal tribunals are courts of limited jurisdiction and lack the competence to deal with cases falling outside their temporal or territorial jurisdiction. Non-prosecution may also arise where the Security Council has exercised its powers of deferral – but, or course, while this may be a specific bar to individual prosecutions before the ICC, it would not necessarily be a bar to a claim of state responsibility.55 The same could also be said of situations where crimes against humanity or torture are committed as part of state policy. It may not be possible to commence any prosecutions while the leaders are in power as the experiences in the Sudan and former Yugoslavia clearly illustrate. The imposition of state responsibility may in fact be commenced as a public denunciation intended to bring pressure on a government to institute domestic prosecutions or hand over suspects to an international tribunal. The case brought by Belgium against Senegal discussed previously had precisely this objective.56 That the regime of state responsibility would remain of continuing relevance is clearly envisaged in the Rome Statute. Article 25(4) indicates that the Statute was never intended to close the door to parallel actions on the international plane.57 Moreover, it is clear that there can be no successful individual criminal prosecutions without the co-operation of states. The obligations of co-operation so carefully choreographed in the statutes of international criminal tribunals are obligations of states.58 A failure to comply with these duties would clearly entail state responsibility.

53. Case Concerning the Arrest Warrant of 11th April 2000 (Democratic Republic of the Congo v. Belgium) ICJ Reports (2002) 3, at para. 75. 54. R. v. Bow Street Metropolitan Stipendiary Magistrate and Others ex parte Pinochet Ugarte (No. 3) [1999] 2 All ER 97, HL. 55. Article 16 of the ICC Statute provides that: ‘No investigation or prosecution may be commenced or proceeded with under this statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations has requested the Court to that effect; that request may be renewed by the Council under the same conditions’. 56. See Prosecute or Extradite (Belgium v. Senegal) Application, supra note 23 and Provisional Measures Order, supra note 24. 57. It provides that ‘No provision in this statute relating to individual criminal responsibility shall affect the responsibility of States under international law’. 58. See Rules of Procedure and Evidence, ICTY Rule 54; ICTR Rule 54; Rome Statute Articles 86, 88 and Rule 193 respectively; See also C. Kress, ‘Penalties, Enforcement and Co-operation in the International Criminal Court’, 6 European Journal of Crime, Criminal Law and Criminal Justice (1998), 442-460.

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3. Is There a Distinct Role for Penal Consequences? 3.1. Parameters of the Debate One of the most controversial issues surrounding state responsibility for international crimes is whether its consequences should be more severe than those that attach to other international wrongs. The period after Nuremberg was accompanied by increased public sensitivity to the importance of human rights values. One immediate discernible consequence for international crimes was the recognition that these obligations were owed erga omnes with the result that their suppression was a matter of international concern.59 A second was dissatisfaction with the delictual consequences and the recognition that the importance of the values underpinning international crimes should be reflected in the form of additional, substantively more serious consequences, such as punitive damages.60 The traditional understanding of international law on responsibility has always been that it was essentially delictual. International law did not attach penal consequences: a finding of state responsibility in all instances was limited to a declaration of illegality, cessation of the activity or payment of reparation.61 As is well known, there was a sustained and vigorous debate in the years between the wars, whether in addition to criminal responsibility, the German State and its people should also be subjected to penal consequences.62 The suggestion had been made that Hitler’s policies had been carried out with the knowledge and complicity of the German state; that in so far as this was an educated population, well aware of what was being carried out on their behalf, the entire German nation should be subjected to collective punishment. These ranged from flogging to forced labour and punitive damages.63 In the event, there was a fragile consensus against state criminality; it would offend international sensibilities by advocating a regime of collective punishment and the very significant strides made in entrenching due process guarantees in the international system. At the codification level, the ILC rather unsuccessfully attempted to enact a separate regime of state crimes different from delictual responsibility.64 It was envisaged that not only would this new regime be conceptually different, but 59. Barcelona Traction Case (Spain V. Belgium) Second Phase, 1970 ICJ Reports, 3 at 32, paras 33-35. 60. R. Ago, Third Report on State Responsibility, Yearbook of the International Law Commission (Vol. 2, United Nations, 1971), 208 at para 36. 61. I. Brownlie, Principles of Public International Law (6th edn, Oxford University Press, 2009); C. Gray, Judicial Remedies in International Law (Oxford University Press, 1988). 62. N. Jørgensen, The Responsibility of States for International Crimes, supra note 4. 63. Ibid., at 167-186. 64. See Draft Article 19, Draft Articles on State Responsibility adopted on First Reading by the Commission (1996), (visited 27 October 2010).



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that it would also be different in terms of its consequences.65 The ILC struggled with two separate ideas; First there was an attempt to formulate a legal framework for public interest litigation, effectively giving all states standing for the purpose of enforcing the rules in question. The second was an attempt to attach penal consequences to violations of these fundamental obligations. The feasibility of a penal regime was to occupy the ILC for more than two decades.66 As is well known, it became one of the most contested and divisive issues in the context of what was already a complex and controversial project.67 At one level the Commission’s project was in part a nod to the ICJ’s much cited dictum in the Barcelona Traction case. There the Court had envisaged an alternative regime for enforcing what it perceived as public law rules, significantly more important than ordinary wrongs. It said that: an essential distinction must be drawn between the obligations of a State towards the international community as a whole and those arising vis–à-vis another State in the field of diplomatic protection. By their very nature the former are the concern of all states. In view of the importance of the rights involved, all states can be held to have a legal interest in their protection; they are obligations erga omnes. Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression and of genocide, as also from principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination…. Obligations the performance of which is the subject of diplomatic protection are not of the same category.68

However the rhetoric of state criminality was not supported by a coherent framework giving effect to it. There was never any consensus as to what the consequences might be and how these would differ from those that attach to delictual responsibility.69 In event, the project was shelved and failed to be included in 65. See Arangio-Ruiz, ‘Seventh report on on State Responsibility’, extract from the Yearbook of the International Law Commission (Vol. 2, United Nations, 1995), UN Doc. A/CN.4/469 and Add.1-2. 66. See J. Crawford, ‘Responsibility to the International Community as a Whole’, in J. Crawford, International Law as an Open System (Cameron May: London, 2002) at 341-359; G. Gilbert, ‘The Criminal Responsibility of States’ 39 International & Comparative Law Quarterly (1990) 345-369. 67. It also generated a vast literature. See for instance: A. Pellet, ‘Can a State Commit a Crime, Definitely Yes!’ 10 European Journal of International Law (1999) 425-434; N. Jørgensen, ‘A Reappraisal of Punitive Damages in International Law’, 68 British Yearbook of International Law (1997) 247-266; B. Graefrath, ‘International Crimes and Collective Security’ in K. Wellens (eds), International Law: Theory and Practice (Martinus Nijhoff: The Hague, 1998) at 237-252; S. Rosenne, ‘State Responsibility and International Crimes: Further Reflection on Article 19 of the Draft Articles on State Responsibility’ 30 New York University Journal of International Law and Policy (1998) 145-166. 68. Barcelona Traction Case (Second Phase), ICJ Reports (1970) 3 at 32, paras. 33-35. 69. Crawford, supra note 64, at 352-353.

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the final articles adopted in 2001. The fallacy inherent in a separate regime of state criminality when the intended consequences were no different from those that ordinarily attach to delictual conduct was immediately apparent to the ILC and the many commentators on the topic.70 It did not make sense to insist on a separate regime when the only feasible reaction was condemnation, for instance through the political processes of the United Nations. An attempt to include a special provision on aggravated damages was also rejected. However, the debate in the ILC on the nature of state responsibility for international crimes was largely theoretical. No actual instances of state responsibility, at any rate for international crimes, had been the object of proceedings in an international tribunal since Nuremberg. Indeed it is only after the 1990s, in the immediate aftermath of the Balkan conflicts, that the debate assumed a practical perspective when cases were brought against Serbia for state responsibility. As noted already, there have been other cases relying on responsibility in relation to atrocities in Chad, DRC and also in the jurisprudence of human rights tribunals in relation to atrocities committed by insurgent groups in Europe and the Americas. Some of the more significant cases from this jurisprudence therefore deserve extended treatment. What do they tell us about the nature of state responsibility? In what ways if at all have they advanced the debates on the nature of responsibility for international crimes?

3.2. State Criminality in the Recent Jurisprudence of International Tribunals The international and specialised tribunals that have been set up since the end of the 1990’s have been specifically mandated to deal only with questions of individual responsibility.71 They have not been concerned as such with questions of state responsibility. Yet on the few occasions when the issue has arisen, the tribunals have been unequivocal that the consequences intended are clearly civil and not criminal. For instance in Prosecutor v. Blaškić, the ICTY observed that the applicable regime of state responsibility was essentially delictual. The tribunal said: Under current international law States can only be the subject of countermeasures taken by other States or of sanctions visited upon them by the international community i.e. the United Nations or other intergovernmental organisations …. It is clear that States, by definition, cannot be the subject of criminal sanctions akin to those provided in national criminal systems.72 70. Ibid. 71. See e.g. Article 5 ICTR Statute, supra note 9; Article 6 ICTY Statute, supra note 8; Article 6, SCSL Statute, supra note 8. 72. Prosecutor v. Blaškić, Case no. IT-95-14-AR 108 bis, Appeals Chamber, Decision on the Objection of the Issue of Subpoenae Duces Tecum, Judgment (29 October 1997) 110 ILR 688 at 697-698, para. 25.



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Although the tribunal did not elaborate in any detail on this conclusion, it echoed a concern of the ILC and others about the futility of a regime of state criminality. The only possible consequence of state criminality was the imposition of sanctions or other forms of non-forcible reprisals, but these were already available under the existing system of international law. In other words, it was difficult to see how a punitive regime would be a qualitative improvement on the existing arrangements. The nature of state responsibility for international crimes was central to the case brought by Bosnia against Serbia and Montenegro. It equally formed an important element of the case brought by Croatia against Serbia. Both cases highlight, more than any incident in recent practice, the legal and conceptual issues raised by a regime of state responsibility in the context of crimes and therefore deserve extended treatment.

3.3. Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide 3.3.1. Some Incidental Questions In the first of the cases brought by Bosnia against Serbia, the International Court gave its judgment on the merits in 2007 after a protracted litigation, lasting 14 years and marred by setbacks at each stage.73 As a precedent, it was hardly a ringing endorsement of state responsibility as a viable alternative to individual prosecutions. Like the protracted prosecutions before the ICTY, the resulting judgment could hardly be described as prompt. Whilst the ICTY cases were dominated by difficulties relating to the surrender of suspects and obtaining the cooperation of Serbia and Croatia, the State responsibility cases presented difficulties of a different kind. There were technical complexities in relation to the jurisdiction of the court and the admissibility of the various claims. The Court was also troubled by Serbia’s statehood and in particular whether Serbia was a successor state to Yugoslavia and therefore bound by obligations under the 1948 Genocide Convention. Serbia had also objected to the Court’s jurisdiction on the grounds that Bosnia’s own claim to statehood at the time of the application was contested, with the result that it was never properly a contracting party to the Genocide Convention at the time it purported to institute proceedings under the jurisdictional clause in article IX of the Genocide Convention.74 The respondent state had also contended through73. Bosnia Genocide Case, supra note 4; and Croatia Genocide Case, supra note 34. 74. Counter-Memorial of the Republic of Serbia, at 246, para 3.1.1.5. Article IX provides: ‘Disputes between Contracting Parties relating to the interpretation, application or fulfillment of the present convention, including those relating to the responsibility of a State for Genocide or for any of the other acts enumerated in Article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.’ On the problems of suc-

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out the proceedings that the atrocities were committed by ‘Republic Sprska’ an independent entity responsible for its own affairs. The identity of the respondent state was further complicated by the independence of Montenegro in 2006, leaving the Court to issue its final judgment against Serbia alone. The Court also had to deal with the question whether the jurisdictional clause under Article IX could form the basis of proceedings in respect of other acts of genocide that were not strictly speaking violations of the 1948 Convention, such as a failure to exercise universal jurisdiction over genocide.75 In addition, the Court had to take into account the detailed counter-claims by Serbia that Bosnia itself had participated in genocidal acts against ethnic Serbs and that the application made by Bosnia was only one aspect of a much wider and complex conflict. There was the added complication that the alleged acts of genocide were not committed on the territory of the respondent state. On the face of it, the Genocide Convention had contemplated that states would take action to prevent acts of genocide on their own territory. The case thus raised the question of the extent to which obligations under the Genocide Convention could be regarded as having an extra-territorial reach. That the case proved to be so protracted and difficult is symptomatic of the kind of problems that accountability through state responsibility give rise to. Once a dispute is submitted to the processes of international adjudication, it cannot be confined to the specific question brought by the parties but must be considered in the broad context of other large questions of international law that it raised. The 14 years it took before a judgment was delivered on the merits is the clearest evidence that the regime of state responsibility has significant shortcomings too. However, there were positive advantages too: By allowing both applicant and respondent states to put forward their story, it made it possible for the atrocities to be evaluated in a broad contextual framework and beyond the immediate interests of the perpetrators and victims of crimes. 3.3.2. Genocide: State Delict or Crime? It is significant that the International Court in the Bosnia Genocide case confirmed that state responsibility for genocide was not conditional or dependant on prior successful criminal prosecutions. Although state responsibility was not necessarily subsumed or supervened by individual prosecutions, the court accepted that the factual and evidential findings in criminal trials could form an important element of state responsibility claims. To this end the ICJ relied extensively on the evidential findings of the ICTY.76 cession raised by these cases, see M. Craven, The Decolonization of International Law (Oxford University Press, 2007) at 8-12 75. Counter-Memorial of the Republic of Serbia, at para. 4.16.1.1. 76. Ibid., at para 395; Milanovic, supra note 4 at 676.



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In the Bosnia Genocide case, the applicant state asked for reparation for acts of genocide, allegedly committed by Bosnian Serb paramilitary groups between 1992 and 1993. Bosnia alleged that these groups had acted either at the behest or with the complicity of Serbia and Montenegro. However, it also sought a number of ancillary orders, in particular that the respondent state be compelled to carry out its obligations to punish acts of genocide and to transfer individuals accused of genocide to the ICTY. The proceedings were therefore in the nature of a civil law claim, and the applicant state did not raise or argue for the criminal responsibility of the respondent as such.77 Yet the question of state criminality for genocide was introduced by the respondent state in an indirect way. Serbia argued that the Genocide Convention did not contemplate state responsibility for genocide but was limited to the prosecution of individuals. It relied on the fact that although the Convention was a response to Nazi atrocities, and therefore aimed at the direct commission of acts of genocide by a state, the core obligation in Article II did not overtly address the question of state responsibility for genocide.78 In fact that the specific question of whether a state could commit genocide had proved very controversial during the negotiations of the Convention. Serbia relied extensively on the Convention’s drafting history to support the contention that only physical persons could be subject to punishment. It argued that genocide was a crime that required specific intent, and that a state was incapable of having the requisite intent for purposes of the crime.79 On the facts, the objection was uncalled for since Bosnia, the applicant state, had never argued that the regime envisaged by the genocide convention was criminal. The pleadings were categoric that the responsibility contemplated was civil not criminal. Bosnia maintained that: The Genocide Convention, in describing genocide as a ‘crime in international law’ does so for a limited, specific purpose: to assert that States, in ratifying the Convention, ‘undertake to prevent and to punish’ the persons who commit such crimes. This provision does not purport to criminalize violations by States against other States … under the terms of the Genocide Convention and the Court’s Statute, this is a civil action. The travaux make this clear … most delegates were willing to endorse the introduction of ‘responsibility of a state’ only insofar as this was understood to extend to civil rather than criminal, responsibility.80

A second argument put forward by Serbia was to deny that Bosnians fell within the category of groups protected by the Convention. In the pleadings Serbia ad77. Memorial of the Republic of Bosnia, para. 5.1.2.5, 5.2.2.2 and 5.2.2.3. 78. Article 1 provides that: ‘The Contracting parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.’ See further J. Crawford, supra note 37, especially at 413. 79. Counter-Memorial of the Republic of Serbia, para. 4.1.1.2 ;4.10.1.2 and 4.10.1.19. 80. Memorial of the Republic of Bosnia, para. 5.3.2.1 and 5.3.2.3.

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vanced the argument that Bosnia was a non-existent ethnic or religious group and therefore did not come within the ambit of protection under the Convention.81 Thus quite apart from the specific question whether Serbia had committed genocide, the Court was also dragged into the controversy about the nature of state criminality and whether international law envisaged penal consequences for states and its relationship to the accountability of individuals. The International Court paid short shrift to Serbia’s objections to the applicability of the Genocide Convention.82 First it noted that although the convention itself did not expressly prohibit states from committing genocide, such a prohibition must be implied from the obligation to prevent persons or groups not directly under their authority from committing an act of genocide or any of the other acts mentioned in Article III. The Court observed that the obligation to prevent genocide necessarily implied the prohibition of the commission of genocide.83 In the second place, the Court noted that there was nothing in the wording or the structure of the provisions of the convention relating to individual criminal liability which would displace the meaning of Article I as read with paragraphs (a) to (e) of Article III. The Court noted that these provisions imposed obligations on states distinct from the obligations which the Convention requires them to place on individuals. The separate existence of a regime of state responsibility was not affected by the fact that Article VI and VII exclusively focussed on individuals.84 The Court also attached significance to the fact that the jurisdictional clause in Article IX expressly contemplated disputes relating to the responsibility of a state for genocide.85 But what were the differences between state and individual responsibility in relation to the crime of genocide? That the jurisdiction of the Court under Article IX was limited to states was clearly not in dispute. As a consequence the Court had no mandate or competence to pronounce on questions of individual responsibility even if they arose from the same facts. Of some significance was Bosnia’s argument that the evidentiary burden involved in state responsibility claims was in the nature of a civil law claim, and therefore considerably less demanding than that involved in the criminal prosecution of individuals. Unlike in a criminal trial where every element of a crime had to be proved beyond reasonable doubt, civil responsibility entailed a lower evidentiary standard, in general that of the balance of the evidence or probabilities.86 The Court, Bosnia argued, should be prepared to infer the presence of genocide from all the surrounding circumstances 81. 82. 83. 84. 85. 86.

Counter-Memorial of the Republic of Serbia, at para. 4.9.1.5. Bosnia Genocide Case, supra note 4, at para. 174. Ibid., at para. 166. Ibid., at para. 174. Ibid., at para. 169. Memorial of the Republic of Bosnia, at paras. 5.3.3.2 and 5.3.3.3.



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even in the absence of a genocidal master plan.87 This was especially the case in relation to the obligation to prevent, investigate and punish genocide.88 Bosnia maintained that in view of the magnitude, duration and brutality of the killings, rapes and similar acts and their geographical proximity to the territory of Serbia and Montenegro, it was not unreasonable to require the state to rebut the inference of complicity in genocide with evidence that it had done all that could be expected of a reasonable and diligent state in the circumstances.89 In reply, Serbia argued that in so far as genocide was a crime that required specific intent, it was necessary to establish that a crime of genocide had been committed, and the state making that claim had to prove the existence of intent, which could not be presumed. Furthermore, Serbia submitted that the burden of proving that there was no genocidal intent could not be shifted to the defendant.90 The International Court rejected the substance of Serbia’s arguments. It observed that that the obligation to prevent the commission of genocide by implication also entailed an obligation on the part of a state not to commit genocide. It decisively rejected Serbia’s contention that a state could not commit genocide and that the Convention had only ever contemplated individual criminal responsibility.91 It is significant that on the specific question of whether the responsibility contemplated by the Convention was civil or criminal, the court was unequivocal. It said: … the obligations in question in this case, arising from the terms of the convention and the responsibilities of States that would arise from breach of such obligations, are obligations and responsibilities under international law. They are not of a criminal nature. This argument accordingly cannot be accepted.92

3.3.3 The Issue of Standing A particular problem with state responsibility is that the jurisdiction of the International Court has remained discretely bilateral, and only states whose direct interests are affected have standing to institute proceedings within a jurisdictional structure dominated by state consent. This framework is particularly problematic in relation to international crimes, since the alleged perpetrators of the crimes are 87. Ibid., at para. 5.3.5.2. 88. Elsewhere in the Memorial the point was developed by Bosnia when it noted that ‘…the culpable intent of a state charged with genocide under Article IX of the Convention would appear to be demonstrable by evidence of a pattern of acts the natural and actual consequence of which is “the destruction in whole or in part of a national, ethnical, racial or religious group, as such”’, at para. 5.3.5.8. 89. Ibid., at para. 5.3.3.9. 90. Counter-Memorial of the Republic of Serbia, para. 4.4.1.9. 91. Bosnia Genocide Case, supra note 4, at paras. 167-169. 92. Ibid., at para. 170.

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also the very states who control access to international forums for the settlement of disputes. As is well known, within this bilateralist framework, there have been arguments for exceptions where the obligations at stake affect not just the direct interests of litigant states but of the international community as a whole. In addition to claims on its own behalf, Bosnia also argued that the obligations imposed on Serbia were not bilateral but were owed to the international community. It submitted that as a result, ‘the right to seize the Court for such disputes, even when the claimant State or its nationals are not direct victims of the genocidal acts, is nothing but the logical consequence of the fact that the ‘rights and obligations enshrined by the Convention are rights and obligations erga omnes’.93 It supplied evidence that Serbia had committed acts of genocide not only on the territory of Bosnia but also elsewhere on the territory of the former Yugoslavia. In particular, that the atrocities were committed not only on the citizens of Bosnia and Herzegovina but also on Albanians, Sandzak Muslims, Croats, Hungarians, and other minorities. It is true that some of these minorities were nationals of Bosnia, but Bosnia also made it clear that it was bringing a claim in respect of acts of genocide against persons who were nationals of Yugoslavia itself and that the nature of the obligations involved entitled it to bring claims on behalf of third state nationals.94 The Court found it unnecessarily to give a definitive judgment on this point. It noted that genocide was a crime that required a specific intent to eliminate a targeted group and that as a result the group had to be identified positively, a burden which the applicant had failed to discharge.95 Moreover, as the Court had reached the conclusion that Serbia had not been involved in the direct commission of acts of genocide, it was not necessary for it to speculate as to which groups would fall within the ambit of protection. It is possible to read from this passage that the Court was not contesting the applicant’s right to bring a claim in respect of atrocities committed against persons who are not its nationals. The Court was merely concerned that, on the specific facts before it, the applicant had been unable to prove that these nationals of a third state had been the victims of genocide. The opportunity to clarify the nature of actio popularis and the extent to which such a right was recognised under contemporary international law in a clear and decisive manner was nevertheless missed. It is in the area of interna93. Ibid., at para. 185. 94. Reply of the Government of Bosnia and Herzegovina ( 23 April 1998) at 972. 95. Bosnia Genocide Case, supra note 4, at paras. 368, 369 and 373. It said that the ‘applicant’s contention that the very pattern of the atrocities committed over many communities, over a lengthy period, focused on Bosnian Muslims and also Croats demonstrates the necessary intent, the Court cannot agree with such a broad proposition. The dolus specialis, the specific intent to destroy the group in whole or in part, has to be convincingly demonstrated to exist; and for a pattern of conduct to be accepted as evidence of its existence, it would have to be such that it could only point to the existence of such intent’.



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tional crimes that the possibility of litigation actio popularis holds the greatest promise. Many of the atrocities are committed by governments against their own populations and unless third states can bring claims, there is little possibility that these states would be held to account. There are of course a number of justifiable concerns about permitting an actio popularis in this context as in others. There is nothing to stop states from bringing politically motivated cases on the international plane for the sole purpose of causing difficulty for the respondent state. There are also problems of managing the process of litigation and reliable criteria for determining how cases are brought in the event of competing claims to institute proceedings. It is also possible to see the Court’s decision on this point as part of its general reticence on the issue of standing, in relation to claims brought by states when their direct interests are not affected. In other contexts, the International Court has continued to be particularly reluctant to attach any special legal consequences to the breach of international crimes as erga omnes obligations. Moreover, at the procedural level, the ICJ has held that the erga omnes character of the obligations do not override the specific jurisdictional ties that must exist before the Court can hear a case. In the DRC v. Rwanda case, the ICJ rejected Congo’s argument that the erga omnes character of the obligations under the Genocide Convention, entitled the Court to assume jurisdiction even in absence of a specific jurisdictional mandate from the defendant state. Rwanda had made reservations to Article IX of the Genocide Convention thus depriving the Court of jurisdiction under that provision.96

3.4. Croatia Genocide Case97 The substantive issues raised by Croatia’s application are identical to those just considered in the Bosnia Genocide case and it would be futile to rehearse the same arguments in detail here. Although the dispute is essentially about acts of genocide committed by Serbia against nationals of Croatia, a number of preliminary issues have been raised and in respect of which the Court must give a judgment before it can get to the substance of the dispute. The statehood of Serbia has again featured prominently, with Serbia arguing that it did not come into existence until its formal admission to the UN in 2000. That as a state in the process of formation, prior to 1992 it could not be held responsible, in relation to breach of the terms of a Convention that was inapplicable before its statehood.98 The dispute has also raised issues pertaining to the statehood of Croatia, and the 96. Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda) (Provisional Measures) ICJ Order (10 July 2002), at paras. 22, 25. 97. Croatia Genocide Case, supra note 36, Application Instituting Proceedings (2 July 1999). 98. Preliminary Objections of the Federal Republic of Yugoslavia (1 September 2002), Part IV, especially at 113-114.

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extent to which as a successor state to the former Yugoslavia, it was entitled to rely on the provisions of the Genocide Convention before its formal accession to that instrument. Significantly the Court is once again called upon to examine the extent to which Serbia bears responsibility for acts of genocide committed by Serb-controlled militia in the territory of Croatia.99 The orders sought by Croatia also have a particular resonance for the regime of state responsibility. These include a request that Serbia be compelled to hand over suspects under its jurisdiction or control to the ICTY for trial, a return of the remains, as well as information on the whereabouts of Croats missing as result of Serbia’s genocidal campaign. It has also requested the return of cultural property removed by Serbia in the course of its genocidal acts.100 These requests directly implicate organs of the state, and by their nature, they are obligations which can only be discharged through the medium of state responsibility. The Croatia genocide case, like that brought by Bosnia again illustrates that delay remains a significant limitation of the state responsibility regime. The proceedings were instituted in 1999 and the Court is yet to deliver a judgment on the merits.

3.5. Conclusions It is difficult to overestimate the contribution of the Bosnia Genocide case to the legal regime of state responsibility. At the substantive level, the decision is an important affirmation that states continue to have obligations even in situations where individual prosecutions have taken place or are continuing before international criminal tribunals. The focus of individual prosecutions has been on punishment of the offenders and to this end they are intended as mechanisms for achieving criminal law objectives of retribution and deterrence. Although the international court emphasised the centrality of individual punishments in the overall scheme of accountability for international crimes, it was quick to note the linkage with state responsibility. In particular, effective prosecutions are only possible if states co-operate with criminal tribunals set up for this purpose. Serbia, the court noted, had failed in its obligations in this regard by failing to hand over suspects to the ICTY.101 However, the decision has also highlighted the limitations of state responsibility as a method of accountability. The system is susceptible to delays, with a considerable time taken up with ancillary questions of jurisdiction, locus standi, issues of capacity under the international law of statehood and succession, as well as consideration of circumstances in which a state could assume responsibility for the conduct of non-state entities. The very protracted nature of proceedings in the Bosnia Genocide case, lasting 14 years, is hardly an endorsement of state 99. Memorial of the Republic of Croatia, paras. 8.32- 8.70; Reply of Croatia, at para. 3.54. 100. Written Statement of the Republic of Croatia, supra note 31. 101. Judgment, supra note 4, at para. 142.



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responsibility, if what is desired is prompt and effective justice. Moreover as the proceedings were instituted under the Genocide Convention, the Court lacked a jurisdictional mandate to consider other atrocities that did not amount to genocide such as war crimes, crimes against humanity and torture that had occurred in the same conflict.102 Yet a technical restriction of this kind is unlikely to be viewed favourably by the victims of the crimes or applicant states whether at the domestic or international level. It is difficult to imagine that the victims of these horrendous atrocities would have been impressed with such artificial restrictions as to what properly fell within the Court’s mandate. For all their shortcomings, individual criminal prosecutions once commenced, would in almost all cases include all the crimes committed that fall within the temporal and territorial jurisdiction of the Court. The ICTY has rarely convicted on charges of genocide but it has been prepared to make findings of crimes against humanity on the same evidence.103 The need to prove guilt beyond reasonable doubt in criminal trials partly accounts for the limited number of cases that have been successfully prosecuted on the basis of individual prosecutions. The lower evidential standard should in theory lead to greater accountability on the basis of state responsibility. But state responsibility too is not without its problems; many of these atrocities occur in situations of war, with significant implications for the administration of justice. Evidence gathering in situations of armed conflict is particularly difficult. The complexities of evidence in part accounts for the 14 years it took before the genocide convention case was brought to a successful conclusion and even then the court was unable to find on the evidence that the respondent had committed acts of genocide. The dispute had raised an important point of general interest: whether a state could bring a claim in respect of atrocities committed against persons who are not his nationals, as a vindication of the interests of the international community at large. As noted previously the Court did not find it necessary to make a formal ruling on this, having reached the conclusion that the alleged atrocities against Serbia’s own nationals, Croats and Albanian’s were on the facts unproven. It is nevertheless significant that as a matter of principle, there was no objection as such to litigation in the public interest. Whether states take the lead and act on this opening remains to be seen, but it does offer an opportunity to publicly challenge state conduct especially in situations where domestic prosecutions have not been forthcoming. However, litigation in the public interest is not without its problems in an international adjudicatory framework that is still primarily for the settlement of bilateral disputes specifically along the lines circumscribed by the parties’ arguments in the pleadings. It has been noted that the Court has 102. Judgment, supra note 4, at para. 147. 103. W. Schabas, Genocide in International Law (Cambridge University Press, 2000) at 378-381.

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been manifestly reluctant to accept any general principle of actio popularis in its jurisprudence.

4. Forms of Responsibility in Situations of Insurgency 4.1. The Relevance of Insurgency as a Category On the face of it, singling out state responsibility for international crimes committed in the context of rebellion, insurgency and civil war for special treatment may seem odd; after all, the bulk of international crimes are committed against the background of some form of civil unrest. However, there are a number of reasons why atrocities committed in armed conflict are markedly different, at least in terms of legal responses, from those that occur in situations of peace. The chaos that accompanies such conflicts usually has debilitating effects on systems of justice, making individual prosecutions unrealistic. There are also complex and difficult problems in relation to the gathering of evidence, in dysfunctional states where law enforcement agencies may be virtually non-existent. Thirdly, the potential reach of the substantive law is also not without its problems. The obligations, non-observance of which lead to commission of international crimes, are essentially state obligations, dependant on the states themselves signing the relevant treaties under customary law. As the Balkan genocide cases have demonstrated, there may be doubts about the applicability of the substantive law when the statehood or identity of an entity is itself contested. Furthermore, state responsibility regimes do not envisage or provide for power vacuums or situations where there are competing claims to governmental power, making it difficult to identify who has primary authority for the implementation of international obligations.104 It is a well-established principle of international law that the responsibility of states is predicated on the presumed control that states have over territory.105 But what is the position when there is no government in a state or where the exercise of governmental power is itself disputed? If state responsibility is predicated on territorial control, then the presumption must surely disappear where such control is contested. Who bears responsibility for acts of rebels in situations where there is no identifiable executive authority? The resurgence of surrogate warfare in which outside powers involve themselves in internal conflict also raise the question of the obligations of such powers in respect of any atrocities 104. In Ilaşcu V. Moldova and Russia, supra note 36, at para. 319; See C. Greenwood, ‘International Humanitarian Law (Laws of War)’ in Frits Kalshoven (eds.), The Centennial of the First International Peace Conference: Reports & Conclusions (Martinus Nijhoff: The Hague, 2000) 161-259 at 125. 105. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports (1971) 16.



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committed by their surrogates in conflict zones, and whether domestic obligations of outside powers have an extra-territorial reach. In this section I examine three potentially applicable categories. The first relates to the situation where the rebel activity is so closely intertwined with the central apparatus of the state to support the claim that the rebels are the de facto agents of the state. I analyse the implications of this for international criminal responsibility, and whether rebel activity in this situation should be viewed no differently from those carried out by the formal organs of the state. The second instance relates to the situation where the rebels, although not treated as de facto organs nevertheless acted under the direction and control of the state in circumstances that engage the latter’s responsibility. I explore the extent to which state responsibility can be predicated on governmental complicity in rebel conduct as well as the nature and ambit of that responsibility. In the third and final category, I examine the extent to which the existing body of international law imposes direct responsibility on the rebels themselves. The value of state responsibility as an accountability mechanism is considerably diminished where the state has lost control and where rebels have effectively assumed the day-to-day administration of the territory. Yet apart from exceptional situations under humanitarian law, international law has not developed a coherent framework for the accountability of non-state groups.

4.2. Responsibility of Third States for the Actions of Insurgents in Conflict Zones As is widely known, the prohibition on use of force in the UN Charter was accompanied by equally stringent restrictions on intervention in internal conflict. This is not the place for a lengthy discussion of the law on intervention, except to note that the injunction has in practice not deterred states from intervening in inter-state conflicts.106 Moreover, many of the atrocities committed by rebel groups have in part only been possible because of the substantial financial and logistical aid provided by third states.107This in turn has raised the question of the extent to which such involvement entails the responsibility of the intervening states. In the absence of a realistic mechanism for holding insurgents directly responsible, it comes as no surprise that in the most recent cases attempts have been made to secure accountability by passing the baton to the so-called sponsoring state.108 The involvement of third states in internal conflicts has proved to be 106. C. Gray, International Law and the Use of Force (3rd edn, Oxford University Press, 2008); T. Franck, Recourse to Force: State Action Against Threats and Armed Attacks (Cambridge University Press, 2002). 107. On which see Ibid., Chapter 3. 108. A large number of cases before the International Court of Justice and the European Court of Human Rights have raised the question of the responsibility of third states on the grounds that they either supported or directed the activities of rebel groups. See in particular Nica-

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the most complicated and litigated aspect of responsibility in conflict zones in recent years.109 That responsibility in these circumstances has proved controversial is not surprising. The link between financial support and the commission of an international crime by a rebel group is not very easy to establish as the Special Court for Sierra Leone has found in the Taylor case: Taylor had financed and trained Sierra Leonian rebels groups in exchange for diamonds, but it remains an open question as to which of the many horrendous activities committed by the rebels are attributable to him.110 The resources are never earmarked for specific activities and it is easy to see that even where a state has sympathy for the causes espoused by an insurgent group, it is unlikely to approve in an overt manner their involvement in criminal conduct. Moreover in relation to crimes such as genocide which require specific intent, proving that the state knew of the intention to exterminate a population is very difficult indeed.111 A related difficulty is the clandestine nature of such involvement. As a matter of principle, it seems fair that where a third state has given extensive support to an insurgent group, it should be required to bear some responsibility for atrocities committed by them. In many cases the responsibility is not intended to supplant the primary duty of the territorial state, although it may displace it altogether, where the State has lost control to rebels. The existing literature in international law has had no difficulty in accepting that, where there is a substantial degree of involvement on the part of foreign governments in the activities carried out by rebels, the government in question may be held responsible for the conduct of the rebels on an analogy with the law of agency. The test to be employed in assessing the required degree of governmental involvement has not, however, been free from controversy.112

ragua (Merits), supra note 33 at para. 391; Bosnia Genocide Case, supra note 4, at para. 384; Loizidou v. Turkey (Preliminary Objections) supra note 51, at para. 20; Cyprus v. Turkey, supra note 51, at para. 76; Ilaşcu v. Moldova and Russia, supra note 36, at para. 319; P. Dumberry, ‘New State Responsibility for Internationally Wrongful Acts by an Insurrectional Movement’, 17 European Journal of International Law (2006) 605-621; S. Talmon, ‘The Responsibility of Outside Powers for Acts of Secessionist Entities’, 58 International & Comparative Law Quarterly (2009) 493-517. 109. Nicaragua (Merits), supra note 33; Bosnia Genocide Case, supra note 4; Croatia Genocide Case, supra note 34; DRC v. Uganda, supra note 19; Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Burundi) Application Instituting Proceedings (23 June 1999); Georgia v. Russia, Application Instituting Proceedings, supra note 36. 110. Prosecutor v. Charles Ghankay Taylor, Case No. SCSL-03-01-PT. 111. Bosnia Genocide Case, supra note 4. 112. ILC, 2001 Articles on State Responsibility; J. Crawford, The International Law Commission’s Articles on State Responsibility (Cambridge University Press, 2002) at 110-113; Prosecutor v. Tadić, Case no. IT-94-1-A, ICTY Appeals Chamber, Judgment (15 July 1999) ILM Vol. 38, 1518; Nicaragua (Merits), supra note 35, at 391.



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4.2.1. Responsibility on the Basis of Agency Two distinct sets of circumstances are envisaged under this rubric. The first relates to situations where the insurgent groups are completely dependent and are totally dominated by the sponsoring state, in circumstances where it would be accurate to regard them as part of the latter’s internal organs – in effect de facto incorporation into the administrative structure of the state. From a practical perspective, this is only likely to occur in the most exceptional circumstances. No credible group of revolutionaries with political aspirations would willingly embrace being treated as the de facto agents of a foreign power.113 However the point of principle is nevertheless a significant one. A state should not be able to escape responsibility by using non-state groups to carry out its wrongful conduct in circumstances where if the conduct had been carried out directly by its agents, its responsibility would without question be engaged.114 In the Nicaragua case, Nicaragua argued that the United States should be held directly responsible for atrocities committed by the Contras, a right-wing guerrilla group, committed to the overthrow of the Marxist–Leninist government of Daniel Ortega that had come to power after the overthrow of the Somoza regime in 1979. In support of its claim, Nicaragua provided evidence that US trained mercenaries were responsible for the torture, rape, killing of prisoners, and civilians, in circumstances that could not be justified by military necessity.115 Furthermore that the contras had no real autonomy and that any offences committed by them should be directly attributed to the United States.116 There was plenty of evidence before the Court and elsewhere that the United States had supplied the Contras with financial and logistical support. However the nexus between this support and the atrocities committed by the contras was not immediately apparent.117 On the evidence, the ICJ rejected Nicaragua’s argument that the degree of involvement was such as to make the Contras equivalent to agents of the United States for the purpose of responsibility. It noted that for the Contras to be treated as approximate to internal organs of the United States, it was necessary to show that the relationship was one of dependence on the one side and control on the other, necessitating the conclusion that contras were de facto agents for legal purposes. The Court concluded that as the evidence did not reveal complete dependence on the United States, it was inappropriate to conclude that the Contra force may

113. Nicaragua (Merits), supra note 35. 114. It is telling that in the cases where responsibility on this basis has been raised, there has nevertheless been no positive finding on the facts. 115. Nicaragua (Merits), supra note 35 at para. 113. 116. Ibid., at para. 114. 117. Ibid., at paras. 91, 94, 95 and 106.

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be equated, for legal purposes, with the forces of the United States.118 Thus even where there has been extensive third state involvement in the activities of rebels they are unlikely to be regarded as agents unless the state completely took over the detailed management of their strategy and operations. In the Bosnia Genocide case, the ICJ amplified on this point and observed that: persons, groups of persons or entities may for purposes of international responsibility be equated with state organs even if that status does not follow from internal law, provided that in fact the persons, groups or entities act in complete dependence on the state of which they are ultimately merely an instrument. In such a case, it is appropriate to look beyond legal status alone, in order to grasp the reality of the relationship between the person taking action, and the state to which he is so closely attached as to appear to be nothing more than its agent: any other solution would allow states to escape their international responsibility by choosing to act through persons or entities whose supposed independence would be purely fictitious…119

In relation to the specific case before it, the Court concluded that the applicant, Bosnia, had not been able to show that Republika Srpska and the VRS lacked real autonomy but were mere instruments through which the Federal Republic of Yugoslavia (FRY) was acting.120 It observed that although the ties between federal authorities in Belgrade and the Bosnian Serb political and military organisations were close, they were not such that the latter could be equated with organs of the FRY. As a result it was unable to find in favour of the applicant that the acts of genocide at Srebrenica could be attributed to Serbia as having been committed by its organs or by persons or entities wholly dependent on it in circumstances that would entail its responsibility.121 In truth, and as the Court in the Bosnia Genocide case pointed out, responsibility under this head is likely to be exceptional.122 Paramilitary groups with aspirations of their own are unlikely to countenance a relationship of complete dependency in which they would be regarded as the de facto agents of a third state. Moreover, the situation envisaged is one that most governments would shy from. It potentially entails long term political costs for both third states and insurgents, with very few strategic benefits. 4.2.2. Responsibility on the Basis of Direction and Control The second situation relates to groups which, although not part of the State’s internal organs, nevertheless carry out atrocities under its direction and control 118. Ibid., at 62-63, para. 110. 119. Bosnia Genocide Case, judgment supra note 4 at para. 392. 120. Ibid., at paras. 393-395. 121. Ibid., at para 386-394, especially at 394-395. 122. Ibid.,para 393; See also Nicaragua Case, supra note 35 , para 111; Prosecutor v. Tadić, supra note 112, at para. 585.



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and in circumstances that make it possible to infer governmental complicity. It is precisely this situation that was envisaged by the ILC in Article 8 of the Articles adopted in 2001. It provides that: ‘the conduct of a person or group of persons shall be considered an act of state under international law if the person or group of persons is in fact acting on the instructions of or under the direction or control of that state in carrying out the conduct.’123 The covert nature of third party participation in internal conflicts present significant evidential problems in almost all cases, where the responsibility of a state is raised on the basis of direction and control. The precise test to be employed in attributing responsibility has been a matter of conjecture and the decisions of international tribunals on this point are far from a model of clarity.124 Second, even assuming governmental involvement, it is still unclear which aspects of rebel conduct are to be attributed to the state. To what extent, for instance, should certain consequences be regarded as too remote and therefore not a proper basis for the responsibility of the sponsoring state?125 A state that provides extensive financial support may in fact have only minimal involvement in the policies and strategies being pursued by the insurgent group. Should a state in that position assume responsibility for all atrocities committed by the rebel group, including those that amount to international crimes? The Special Rapporteur of the ILC in commenting on Article 8 on responsibility on the basis of direction and control had observed that: ‘such conduct will be attributable to the State only if it has directed or controlled the specific operation, and the conduct complained of was an integral part of the operation’.126 As a matter of principle, it is suggested that it would be entirely appropriate if conduct which was incidentally or peripherally associated with delictual conduct did not engage the responsibility of the state. In the Nicaragua case, it will be recalled that in addition to the arguments based on agency, Nicaragua had also argued that the United States should be held directly responsible for atrocities committed by the Contras, a right-wing guerrilla group committed to the overthrow of Nicaragua’s left-wing government. There was plenty of evidence before the Court and elsewhere, that the United States had supplied the Contras with financial and logistical support which made it possible for them to carry out attacks on the territory of Nicaragua. Nicaragua argued at length that atrocities carried out by the Contras had only been possible because of the substantial involvement of the United States in circumstances that engaged the latter’s responsibility.127 123. ILC Draft Articles (2001), supra note 111. 124. See the very different approaches by the ICTY in Tadić, supra note 111, and the International Court of Justice in Nicaragua (Merits), supra note 33, and in the Bosnia Genocide Case, supra note 4. 125. Loizidou v. Turkey, supra note 51. Bosnia Genocide Case, supra note 4. 126. J. Crawford, supra note 111 at 110. 127. Nicaragua (Merits), supra note 35 at 64, para. 115.

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The dispute thus brought to the fore the precise test to be employed in attributing the conduct of non-state groups to a sponsoring state. In rejecting Nicaragua’s arguments that the conduct of the Contras was attributable to the United States, the Court observed that ‘for conduct to give rise to legal responsibility of the United States, it would in principle have to be proved that the state had effective control of the military or paramilitary operations in the course of which the alleged violations were committed’.128 In other words financial and logistic support without involvement in the strategic planning and execution of the activities of the organisation was not enough to engage the responsibility of the state. This restriction, it is suggested, reflects sound policy. Governments may give support out of genuine sympathy with the goals being pursued by a liberation organisation or secessionist movement, without approving or having the knowledge of the group’s participation in conduct that is delictual or criminal under international law. The specific attribution test employed in Nicaragua however did not find favour with the ICTY in its decision in the Tadić case. It rejected the test employed in that case, finding instead that it was sufficient for purposes of attributing responsibility that the conduct in question was under the overall control of the sponsoring state.129 The issue of attributability arose by way of a preliminary question, which required the court to determine whether the conflict in the former Yugoslavia was an internal or an international armed conflict. The determination of this question was of significance since the grave breaches provisions of the Geneva Convention, in respect of which Tadić had been charged, only applied in the context of an international armed conflict.130 The defence had advanced the argument that as the conflict was internal, the grave breaches provisions did not apply. The Court thus had to consider the argument that the Bosnian Serb paramilitary groups at whose behest Tadić had acted, were being directed and controlled by the former Yugoslav army, the JNA, in circumstances that made these militia groups their agents.131 In order to answer this question, the Court had to determine the nature of the relationship between Yugoslavia and Bosnia Serb paramilitary groups and the test to be employed if their conduct was to engage the responsibility of Yugoslavia. The Appeals Chamber considered this a question of general international law to be resolved by way of renvoi to rules in that field and not the more specific rules in the field of humanitarian law.132 The Court rejected the test employed in Nicaragua, that the responsibility of a state could only be engaged if there was 128. Ibid., at 65. 129. Tadić, supra note 111 at paras. 145 and 156. 130. Ibid., at para. 81. 131. Ibid., at 1518, at 1541. 132. Ibid., at para. 98.



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effective control. It adopted the less stringent test of overall control and observed that: ‘In order to attribute the acts of a military or paramilitary group to a State, it must be proved that the State wields overall control over the group, not only by equipping and financing the group, but also by co-ordinating or helping in the general planning of its military activity.’133 The Court emphasised that it was not a necessary condition of responsibility that the state should also issue, either to the head or members of the group, instructions for the commission of specific acts or even more fundamentally, specific instructions to commit the crime that is the subject of dispute.134 It applied an ‘overall control test’ emphasising that a state could not be expected to know or give specific instructions in respect of all acts carried out by paramilitaries over whom it has influence.135 In the Bosnia Genocide Convention case, the International Court had to consider the argument of the applicant state that even if Bosnia-Serb militia groups were not agents of Yugoslavia, they had nevertheless acted under its direction and control, and in circumstances that engaged Serbia’s responsibility. Specifically, the Court was asked to rule on the question whether the atrocities that had been committed at Srebrenica in July 1995, constituted acts of genocide and whether the conduct of the Bosnian Serb militia were attributable to Serbia, as conduct taken under its direction and control. In the previous section, it was noted that the International Court had rejected Bosnia’s argument that the relationship between Serbia and Republika Sprska and the VRS, was such that the para-paramilitary groups should be considered the de facto organs of the state of Serbia.136 The Court was now called upon to consider the alternative argument that responsibility should in any case be visited on Serbia on the grounds that BosniaSerb paramilitary groups had acted under its direction and control. An answer to this question involved a choice between the effective control test employed in the Nicaragua case and the overall control test preferred by the ICTY in Tadić.137 In a clear preference for the approach in Nicaragua, the International Court cast grave doubts on the competence of the ICTY, a penal tribunal, to pronounce on general questions of international law of state responsibility. The Court was at pains to confine the Tadić decision to the specific issue it was called to determine and noted that the overall control test may well have been appropriate for deciding the character of the conflict in Bosnia, in particular on whether it was international on account of third party involvement. However, it noted that the application of the overall control test to determine the question of state responsibility for acts committed by paramilitary units not forming part of a state’s armed forces was 133. Ibid., at para. 131. 134. Ibid., at paras. 131 and 137. 135. Ibid., at paras. 145 and 156. 136. Bosnia Genocide Case, supra note 4, at paras. 394-395. 137. C. Greenwood, ‘International Humanitarian Law and the Tadić Case’, 7 European Journal of International Law (1996) 265-283.

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unpersuasive. Central to the Court’s reticence was a concern that the imposition of responsibility in the absence of a firm nexus between the acts of insurgents and the sponsoring state could alter the character of state responsibility by making the state accountable for conduct that was not attributable to it.138 The Court did not rule out the possibility that different tests may have to be applied depending on the issue to be determined. It noted that: the degree and nature of a State’s involvement in an armed conflict on another State’s territory which is required for the conflict to be characterised as international, can very well, and without logical inconsistency, differ from the degree and nature of involvement required to give rise to that State’s responsibility for a specific act committed in the course of the conflict.139

In the Nicaragua case, the Court held that ‘[f ]or this conduct to give rise to legal responsibility of the United States, it would in principle have to be proved that the state had effective control of the military or para-military operations in the course of which the alleged violations were committed’.140 In the literature the view has been expressed that Nicaragua rather than the Tadić case reflects the applicable standard in general international law, the Tadić case having been formulated for the specific requirements of criminal responsibility.141 The express preference given to the Nicaragua formula in the Bosnia Genocide case strengthens the argument that state responsibility on the basis of complicity presupposes a degree of effective control on the part of the sponsoring state. The extent to which states can assume responsibility for the conduct of rebels who have allegedly acted under their direction and control also formed a central part of the litigation in the Armed Activities case brought by the DRC against Uganda.142 Both the applicant and respondent states accused each other of supporting and directing the activities of rebels in circumstances that entailed their respective responsibilities. In the subsequent phases of the proceedings, Congolese pleadings concentrated on the direct responsibility of Uganda for what Congo described as illegal use of force amounting to acts of aggression.143 138. Bosnia Genocide Case, supra note 4, at paras. 408-415. 139. Ibid., at para. 405. 140. Nicaragua (Merits), supra note 33, at para. 65. 141. See M. Shaw, International Law (6th edn, Cambridge University Press, 2008) at 791; I. Brownlie, Principles of Public International Law (7th edn, Oxford University Press, 2008) at 446-450; J. Crawford, supra note 111, at 112; For a sceptical view of the effective control test see, A. De Hoogh, ‘Articles 4 and 8 of the 2001 ILC Articles on State Responsibility, The Tadić Case and the Attribution of Acts of Bosnian Serb Authorities to the Federal Republic of Yugoslavia’, 72 British Yearbook of International Law (2001) 255-292 at 291.p. 255-292 142. DRC v. Uganda, supra note 19. The issue arising in this context are discussed in P. Okowa, Congo’s War: The Legal Dimension of a Protracted Conflict’ British Yearbook of International Law (2006), 203-255 at 203. 143. See generally application instituting proceedings filed in the registry of the Court, 23 June 1999.



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However, Congo’s alleged support for Ugandan insurgents formed a central part of Uganda’s defence in its counter-memorial. Uganda argued that successive Congolese governments, first under President Mobutu’s leadership, and subsequently under Presidents Laurent and Joseph Kabila, had given support and sanctuary to anti-Uganda insurgents, principally Allied Democratic Forces (ADF) and Lord’s Resistance Army (LRA) Uganda argued that although these insurgents had existed since 1986, they only posed a serious threat to Uganda after they started receiving extensive military support from the government in Kinshasha, the latter acting in collusion with the government of Sudan.144 The anti-Uganda insurgents were responsible for some of the worst atrocities committed against a civilian population including the murder of foreign tourists at Virunga national park. Although the argument was not couched in those terms, the attacks could easily qualify as crimes against humanity. The Court was unable to find any evidence of direct Congolese complicity in these attacks. It accepted that Uganda had been the victim of vicious attacks from anti-Uganda insurgents operating on Congolese territory, but in its view these groups were acting alone and not under the proven direction or control of the Congolese state or its instrumentalities.145 The acts of the Uganda rebel groups, it noted, could not be attributed to the DRC as they were not sent by or on behalf of the DRC. In concluding that the DRC was not responsible for the acts of rebels, the Court implicitly accepted that where governmental complicity was proven the state would incur responsibility. The difficult question of where responsibility lies in the absence of governmental complicity was not addressed. Responsibility on the basis of complicity also forms a central element of the case brought by Georgia against Russia in connection with violation of human rights and humanitarian norms by separatists in Georgia’s breakaway Republics of Abkhazia and South Ossetia. In its application instituting proceedings, Georgia argued that these separatists were acting at the behest or under the direction and control of Russia and that as a result Russia must be held responsible for their activities.146 Responsibility on the basis of complicity has been a key factor in a number of cases before the European Court of Human Rights. Although these cases were essentially concerned with violations of human rights obligations, the point of principle at stake would equally apply to responsibility for international crimes. In the Ilaşcu case, the ECtHR had no difficulty in holding Russia and Romania responsible for atrocities committed by separatists in the breakaway 144. Oral pleadings, CR/15/2000, Counter-memorial submitted by the Republic of Uganda, Vol. I, at 37-40, paras 359ff and rejoinder of the government of Uganda, at 117 and para 674 145. Armed Activities in the Territory of the Congo (Democratic Republic of the Congo v. Uganda) Judgment, ICJ Reports (2005) 168 at para. 146. 146. See Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Application Instituting Proceedings, 12 August 2008, para 2, (visited 6 April 2011).

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region of Transdniestria, on the basis the of influence exercised by Russian forces over the separatist groups.147 The Court had reached a similar conclusion in the earlier case of Loizidou v. Turkey in holding Turkey responsible for violations committed in the Turkish Federated State of Northern Cyprus on the basis of influence and control exercised by Turkish forces in the area.148 In sum, a state may be held responsible for the conduct of insurgents because the nature of its relationship with them is such that they can be regarded as its de facto organs, or because it has directed and controlled the activities that are the subject matter of international concern.

5. Extra-Territorial Application of the Substantive Law Assuming there is a prima facie case of responsibility, it remains to consider by what substantive law the state’s conduct is to be judged. Is the state under whose direction and control insurgents have acted to be judged against the standards that the state has accepted in the treaty instruments or is the applicable law that of the state in whose territory the delictual conduct is taking place? In the cases discussed in the previous section it was argued that in so far as the respondent states had ratified the relevant international instruments, these instruments acted as a standard by which their extra-territorial conduct had to be judged. The issue has arisen in a number of cases before international tribunals and it is necessary to consider the contexts in which these arguments have been made.149 In its memorial, Bosnia argued that in so far as the prohibited acts had been committed in areas under the de facto jurisdiction and control or exclusive influence of the federal authorities in Serbia, Serbia’s responsibility was engaged. Bosnia maintained that the: duty to take preventive measures within the competence of the authorities is not confined solely to the territory within the sovereign jurisdiction of those authorities but also extends to areas over which they exercise de facto control or where they have the influence to prevent-or even merely to make their best effort to try to prevent the occurrence of a human tragedy, especially when that tragedy is at least in part, of those authorities own making.150

The respondent state in reply argued that the obligations under the Genocide Convention were territorially circumscribed and that a state could not assume 147. Ilaşcu and Other v. Moldova and Russia, supra note 34 at para. 311. 148. Loizidou v. Turkey, supra note 51. 149. Georgia v. Russia, supra note 34; Loizidou v. Turkey, supra note 51; Bosnia Genocide Case, supra note 4; Croatia Genocide Case, supra note 36. 150. Memorial of the Republic of Bosnia, at para. 5.2.3.2; Serbia in its Counter-Memorial denied having any territorial competence in the territory of Bosnia, Counter-Memorial of the Republic of Serbia, at paras. 3.11.1.1 and 3.11.1.2.



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responsibility for acts of genocide occurring outside its territory.151 Serbia argued that responsibility to prevent genocide outside the territory of a state was not within the competence of individual states but rather of the UN’s political organs.152 Much was made of the fact that the obligation in Article VI of the Genocide Convention was very much defined in terms of territorial applicability.153 The Court rejected Serbia’s argument that the application of the Genocide Convention was confined to the territory of a signatory state.154 As long as the conduct in question is attributable to the state under the rules of state responsibility, for instance because it was committed by an organ of the state or persons acting under its direction and control, the responsibility would be engaged irrespective of the locus of the delictual conduct. The argument that state obligations under international human rights and humanitarian law have an extraterritorial application was also central to the case brought by Georgia against the Russian Federation.155 Georgia’s substantive claim relied on Russia’s obligations under the Convention on the Elimination of All forms of Racial Discrimination (CERD).156 It argued that the obligations under this treaty acted as an effective constraint on Russia even when operating outside its territorial frontiers. That as a result, Russia’s conduct in giving support to the separatists in Abkhazia and Ossetia, and the consequential attacks on ethnic Georgians was a violation of Russia’s obligations under this treaty. Georgia argued that obligations under CERD did not have a spatial limitation and were equally applicable to Russia’s conduct on Georgia’s territory.157 In its order on provisional measures, the International Court overwhelmingly rejected Russia’s argument that the CERD had a territorial application.158 It noted that the provisions of the Convention were of a general nature and applied even in those situations when a state acted beyond its borders. The judgment involves the acceptance, at least in principle, that a state’s legal obligation, especially those 151. Counter-memorial of the Republic of Serbia, at para. 1.1.5.1. 152. Ibid., at paras. 4.12.1.4 and 4.15.1.5. 153. Article VI of the Convention provides that: ‘persons charged with genocide or with any of the other acts enumerated in Article III shall be tried by a competent tribunal of the state in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those contracting parties which shall have accepted its jurisdiction’ 154. Bosnia Genocide Case, supra note 4, at para. 183. 155. Application Instituting Proceedings Submitted by Georgia, 12 August 2008, at 25 and 26, para 70; P. Okowa, ‘The Georgia V. Russia Case: A commentary’ Hague Justice Portal, (visited 28 October 2010). 156. International Convention on the Elimination of All Forms of Racial Discrimination, GA Res. 2106 (XX), 21 December 1965, entered into force 4 January 1969. 157. Request for the Indication of Provisional Measures submitted by the Government of the Republic of Georgia, 14th August 2008.; See in particular Oral hearings, CR/Monday 8 September 2008, arguments of Mr. Zimmerman, para 2 ff. 158. Order of 15 October 2008, General List No. 140.

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in the field of human rights and humanitarian law have an extraterritorial reach, with the result that its responsibility could be engaged for atrocities committed by paramilitary units to which it has given support and who carry out violations of human rights and humanitarian law in foreign territory. The Ilaşcu and Loizidou cases before the ECHR also involved the affirmative recognition that state obligations under the ECHR had an extra-territorial effect. That as a result the responsibility of Russia and Turkey were involved, in connection with violations committed by separatists extra-territorially, in circumstances where the separatists had acted under their presumed direction and control.

6. Direct Responsibility of Rebels 6.1. An Outline of its Evolution From the previous paragraphs, it is immediately apparent that the conventional approach in international law is to channel responsibility for activities committed in the context of insurgency to a sponsoring state broadly defined. Responsibility is either based on state complicity in the activities of rebels or more exceptionally on the basis of implied agency where the rebels have acted as de facto agents of the state. The arguments in the Balkan genocide cases, as well in the case brought by Georgia against Russia were primarily concerned with responsibility where there is some form of governmental involvement in the activities carried out by the rebel groups.159 But what is the situation in those instances when rebel conduct cannot be linked to the activities of any state? Are there circumstances where the rebel themselves assume direct responsibility under the existing framework of international law? For much of the period before the 19th century, classical international law paid very little attention to internal conflicts, treating them in large measure as a matter of domestic concern.160 In general, they were viewed as domestic matters for the incumbent government to deal with as it saw fit under its municipal law. Successful revolutions on the other hand were treated as a fait accompli, the consequences of which could not be ignored. This attitude of benign indifference was tempered by limited acceptance that in situations where revolutionaries presented a credible challenge to governmental authority, there may be consequences on the international plane. Recognition was most likely to occur, when the rebels had succeeded in displacing the authority of the de jure government by acquiring territorial control. In these instances, revolutionaries for limited purposes could be viewed not as outlaws but as rival political authorities. In formal terms, the conduct of rebels was dealt with through the 159. Bosnia Genocide Case, supra note 4; Croatia Genocide Case, supra note 36. 160. See generally B. Roth, Governmental Illegitimacy in International Law (Oxford University Press, 2000).



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institutions of belligerency and insurgency.161 Recognition as insurgents or belligerents entailed a number of rights in the relationship with third states but significantly it also created an expectation that the rebels would comply with the laws of war.162 Roth has suggested that recognition of insurgency in practice also relieved the de jure government from legal responsibility for acts carried out in insurgentheld territory by or at the direction of the insurgents, in those instances where the conduct could not be attributed to the government on the theory of implied agency.163 This aspect of recognition of insurgency has survived and explains why atrocities committed by rebels in areas under their control do not as a general rule engage the responsibility of the central authorities.164 Moir has also suggested that recognition was extended to the belligerents in the hope that a sympathetic attitude was likely to be more conducive in encouraging them to observe the laws of war. Moreover, recognition of belligerency had a distinct advantage, the predominant view being that in the absence of such recognition, the laws of war did not apply, although the actual practice is much more equivocal.165 The greatest advantage was that the rebels assumed a significant amount of responsibility for activities under their administrative control.166 Although the formal categories of belligerency and insurgency have now fallen into desuetude, the legal problems that arise when rebels assume control of territory are still very much in existence. It is suggested that this extant law on insurgency and belligerency offers a useful framework for assessing the accountability of rebels in today’s internal conflicts. However, it is worth bearing in mind that the law on insurgency and belligerency could in any event not be stated with certainty. In general, it did not provide a clear yardstick to be employed in distinguishing serious situations giving rise to the recognition of belligerency or insurgency and rebellions. The law such as it was, was applied in a haphazard manner depending on the political interests of the states involved.167 Much of this law developed at a time of considerable indifference on the part of international law to the regulation of conflict and its consequences. Although the 1899 and 1907 Hague Conventions prohibited certain inhumane conduct in conflict, it remained a matter of considerable uncertainty 161. B. Roth, Governmental Illegitimacy in International Law (Oxford University Press, 1999); L. Moir, The Law of Internal Armed Conflict (Cambridge University Press, 2002). 162. H. Lauterpacht, Recognition in International Law (Cambridge University Press, 1947) at 270 163. B. Roth, ‘Governmental Illegitimacy in International Law’, supra note 160. 164. R. Jennings and A. Watts, Oppenheim’s International Law, Vol. I, (9th edn, Oxford University Press, 2008) at 165-166. 165. L. Moir, ‘The Law of International Armed Conflict’, supra note 161 at 17. 166. H. Waldock (ed.), Brierly’s Law of Nations (Clarendon Press: Oxford, 1963) at 142-143. 167. A. Cullen, ‘The Concept of Non-International Armed Conflict in International Humanitarian Law’ (Cambridge University Press 2010) at 12.

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what the consequences were for states and rebels alike. Modern humanitarian law, especially the provisions of Common Article 3 of the 1949 Geneva Conventions apply to rebels as well, but the exact reach of legal constraints, as well as the applicable consequences outside the framework of individual accountability remains shrouded in uncertainty.168 It may be argued that this attitude of benign indifference is misplaced. Although the categories themselves have disappeared, the legal issues involved have merely been set aside. The prohibition on force has not eliminated internal conflict or the occasions when competing factions assert governmental authority. The examples given in this article in relation to the Balkans, DRC, Moldova, Turkish Federated State of Northern Cyprus and Russia’s intervention in Georgia, all involve competing claims to governmental authority and the desire for a legal framework for apportioning responsibility on these groups. The abandonment of the above mentioned categories has also meant that the problems that had been dealt with under the institutions of belligerency or insurgency, even if haphazardly, have continued without any clear legal framework or manageable standards for dealing with them. For instance, Georgia continued to maintain the domestic character of the conflict in South Ossetia and Abkhazia even though it is clear that the conflict is widespread and it does not really exercise control in the disputed territory.169 Crucially the conflict has also raised the question of who should bear responsibility for atrocities committed by the separatists in Abkhazia and Ossetia.170 It was noted that in the case before the International Court, Georgia has attempted to deal with this by arguing that Russia as the sponsoring state should assume responsibility for atrocities committed by the separatists. The Court was therefore indirectly called upon to consider whether separatists should assume direct responsibility for atrocities committed by them.171 In what situations and to what extent are rebels held responsible for atrocities that they have, in the absence of third state involvement? What are the legal consequences of such responsibility? The next sections attempt to address these issues.

168. L. Zegveld, The Accountability of Armed Opposition Groups in International Law (Cambridge University Press, 2002) chapter 1. 169. Application Instituting Proceedings submitted by Georgia, 12 August 2008, supra note 36 at 25 170. Georgia v. Russian Federation, Memorial of Georgia (2 September 2009) at paras. 9.29, 9.61, 9.62 and 9.80-9.83. 171. In its judgment of 1 April 2011, the Court concluded that it had no jurisdiction to entertain the application on the merits.



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6.2. Responsibility of Paramilitaries and Armed Groups: Contours and Definition Some of the worst atrocities committed against civilian populations in conflict zones have been carried out by organised insurgencies, usually in pursuit of a common and identifiable ideological objective. It therefore seems sensible that an effective legal regime of accountability, in addition to the responsibility of states and individuals should also directly confront the collective nature of such criminality. The extent to which insurgency should attract direct accountability of rebels as opposed to that of the state on whose territory they are operating, was considered extensively by the ILC in three separate articles.172 However, the resulting legal rules are not free from controversy. A distinction was maintained between those situations where the rebels/insurrectionists were successful and became the new government of the state and situations where the rebellion was ultimately unsuccessful. In the case of successful revolutionaries, it was presumed that their responsibility was retroactive and extended to acts committed by them during the period of insurgency. The justification for this seemingly anomalous exception was never properly articulated in the ILC Articles. The Special Rapporteur had argued that once in power, the rebels should not be allowed to disclaim responsibility for past acts. Curiously, there was no explicit acknowledgement of responsibility in those situations where the rebels are not defeated outright but are instead incorporated for instance, into a government of national unity as part of a political process of national reconciliation. Yet unsuccessful revolutions or political compromises are in general far more common than successful revolutions. The distinction between outright political victory and partial success, from the point of view of legal responsibility is difficult to defend.173 The ILC also acknowledged that the state may be able to assume responsibility for rebels on the basis of implied agency, in those situations where the rebels have for instance carried out day-to-day administrative tasks in the face of governmental paralysis or extensive loss of authority. Article 9 of the 2001 articles provides that: The conduct of a person or group of persons shall be considered an act of State under international law if the person or group of persons is in fact exercising elements of the governmental authority in the absence or default of the official authorities and in circumstances such as to call for the exercise of those elements of authority.

In the case brought against it by the DRC, Uganda had argued that its activities in the DRC, including support to the alleged rebels, must be assessed in the 172. Articles 8, 9 and 10, Draft Articles on Responsibility of States for Internationally Wrongful Acts (2001), supra note 113; A. DeHoogh, supra note 139, at 255. 173. J. D’Aspremont, ‘Rebellion and State Responsibility: Wrongdoing by Democratically Elected Insurgents’, 58 International & Comparative Law Quarterly (2009) 327-442 at 427.

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context of the fact that these groups were exercising governmental functions in areas under their control and in the absence of any credible challenge from the de jure Congolese government for a period of more than four years. Implicit in the argument was the suggestion that rebels should in these circumstances be treated as de facto governmental authorities, and any infraction of norms by rebels in areas under their control was attributable to the rebels themselves. Counsel for Uganda specifically argued that the rebels alone should bear responsibility for non-compliance with human rights and humanitarian norms in areas under their control during the armed conflict.174 The International Court did not pronounce on this specific issue, having reached the conclusion that Uganda was directly responsible for human rights violations in rebel held territory, as an occupying power in accordance with Hague Regulations and the Fourth Geneva Conventions.175 It is nevertheless regrettable that Court’s judgment did not directly address the question of what legal consequences attach to rebel administration of territory as a matter of jus in bello or under the law of international responsibility. The judgment failed to countenance the possibility that there may be more than one entity entitled to exercise governmental authority within a state. The degree of power and control exercised by rebel groups over territory in some cases means that they are the most effective agents for the realisation of the preventive duties at the heart of the international criminal justice system. As a matter of principle the argument put forward by Uganda is of some significance. If, in general, state responsibility is predicated on territorial control, then it should surely follow that rebels are directly responsible in those instances where they have displaced state control.The traditional law on insurgency and belligerency considered previously had proceeded on these premise. The possibility that insurgents or rebels may have direct rights and obligations under the applicable law has received extensive consideration under humanitarian law. Although it remains the case that humanitarian law obligations like those in other areas of international law are primarily state obligations, there is nevertheless a crucial distinction here – for it has been accepted that legal status may be extended to rebels with the result that they incur direct obligations under the applicable treaties and, as a consequence, responsibility for any violations.176 The recognition extended to rebels under the provisions of Additional Protocol II to the Geneva Conventions (AP) is the clearest modern equivalent of recognition of insurgency. It applies to armed conflicts: which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other recognised armed groups which, under 174. Rejoinder submitted by the Republic of Uganda, paras. 328 and 330. 175. Ibid., at para. 179. 176. See generally, L. Zegveld, The Accountability of Armed Opposition Groups in International Law, supra note 157.



State and Individual Responsibility in Internal Conflicts 185 responsible command, exercise control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.177

In practical terms, the jurisprudence of international tribunals has significantly narrowed the difference between internal and international armed conflict with the result that the bulk of humanitarian law principles apply equally to both types of conflict. The Tadić decision178 and those that followed in the ICTY, ICTR and elsewhere have extended the ambit of humanitarian law applicable to internal armed conflicts beyond the specific requirements of AP II and Article 3 of the Geneva Conventions.179 However, in terms of consequences, it would seem that these are firmly grounded within the framework of individual responsibility. However, it may asked that if these are crimes committed in furtherance of a group or premeditated policy of insurgents, is it juridically feasible that the organisational unit should also assume responsibility whether criminal or delictual for the atrocities committed? To what extent and in what ways can public international law impose responsibility on the organisation as such? What consequences can attach to group criminality that would be conceptually different in terms of consequences from the responsibility imposed on states or individuals? A number of suggestions were put forward as a basis of giving effect to the concept of group or organisational criminality. In the early phase of the evolution of responsibility for international crimes, it was suggested that the tribunals should try the individual members of these organisations but there would be a presumption of guilt based on membership which could be rebutted. As a procedural strategy, it was envisaged that criminalising the organisation, would make for a simple and expeditious process of holding those responsible accountable without the need to prove guilt or innocence in each case. Furthermore, it had the distinct advantage of condemning the organisation as a unit, making it possible to have a public acknowledgement of the guilt even if no other specific consequences such as monetary penalties were imposed. As is well known, the international tribunal at Nuremberg had envisaged and attempted to implement a legal regime of group criminality.180 Certain Nazi organisations, such as the 177. Additional Protocol II to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) 6 ILM 1442 (1977); L. Zegveld, supra note 168. 178. Prosecutor v. Duscko Tadić, Case no. IT-94-1-A, Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (2 October 1995) at para. 137; See also Prosecutor v, Blaškić, Case no. IT-95-14-T, Trial Chamber Judgment (3 March 2000) at para. 161. 179. For a discussion on the contribution of these tribunals to the enforcement of war crimes in non-international conflicts see W. Schabas, The UN International Criminal Tribunals (Cambridge University Press, 2006) at 231 ff. 180. See The Trial of German War Criminals: Proceedings of the International Military Tribunal Sitting at Nuremberg (1949), 27 February - March 1946.

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cabinet of the Nazi government (Reichsregierung), the leadership corps of the Nazi party, Gestapo, SS and SA and the General Staff and High Command of the German Armed forces were criminalised and their leaders prosecuted for being members of the organisation.181 The subsequent codification processes have distanced themselves from this aspect Nuremberg project as incompatible with the rule of law and due process guarantees that have been central to the criminal justice system since 1945. The idea that individuals could be found guilty on the basis of membership alone has generally been regarded as an anathema, entailing as it did the idea of collective guilt and punishment.182 Although the responsibility of commanders was an attempt to impose direct obligations on the leadership of the organisation, penal consequences envisaged are individual and there are no repercussions as such on the organisation itself under international law as it stands at present. It is perhaps telling of the legal difficulties involved in the concept of group criminality, that the only sentences imposed at Nuremberg were on natural persons and not the group as a collectivity. Even in relation to those trials based solely on group membership, the Nuremberg tribunal was understandably reticent. In the case of the Tokyo tribunals, no prosecutions under this head took place even though Article 5 of its Charter clearly envisaged prosecutions on the basis of collective criminality.183 Perhaps the strongest case in support of holding insurgent organisations directly responsible stems from the very considerable difficulties in achieving successful prosecutions of individuals in the face of mass atrocities committed in civil war contexts. The significant delays that have accompanied individual trials in relation to the atrocities in Rwanda, Sierra Leone, and Yugoslavia support the case for holding the organisations involved directly responsible.184 The Congo conflict for instance has taken place over a period of more than 10 years, involving at least 21 armed groups and several state parties.185 In the case of Rwanda it was estimated at one point that more than 100000 people were awaiting trial, with little prospect of these trials being brought to a just and speedy conclusion.186 It is difficult to envisage how individualised prosecutions can take place in these circumstances. Yet any form of collective accountability would only be 181. See in particular Articles 9-11 of the Charter of the International Military Tribunal (London, 8 August 1945) (visited 27 October 2010). Jørgensen, The Responsibility of States for International Crimes, supra note 4 at 59. 182. Jørgensen, The Responsibility of States for International Crimes, supra note 4. 183. For an extended discussion see Jørgensen, supra note 4 168, Chapter 3. 184. In the case of Rwanda, it has been suggested that as many as 100000 people were awaiting trial, See Ibid., at 69. 185. P. Okowa, Congo’s War, supra note 142, at 205. 186. Jørgensen, ‘The Abandoned Nuremberg Concept’, supra note 5, at 69; Drumbl, ‘Atrocity, Punishment and International Law’, supra note 5.



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defensible if carried out in a manner consistent with the rule of law. That should rule out processes based on collective guilt and collective punishment. Within the existing structures of international law, there is the possibility of achieving partial accountability through the imposition of sanctions. These may range from immigration control measures, freezing of economic assets of the organisation, commodity sanctions, restrictions on the purchase and movement of weapons among others. In other words enforcement of responsibility is still feasible but only through extra-judicial processes. However, it is difficult to escape from the fact that the implementation of responsibility of an insurgent, whatever its practical benefits, remains only a theoretical possibility given the current state of the international legal structure. The international legal framework remains stoically state-centred and it is doubtful whether the ends of justice will be significantly improved by extending the mandate of these tribunals to adjudicate over claims against rebels and paramilitary groups as such.187

7. Conclusions This preceding discussion has attempted to isolate the varied contexts in which questions of responsibility for atrocities arise and their substantive implications. The very significant strides made in the last two decades in accountability for international crimes are most encouraging. What first appeared as a series of ad hoc solutions to specific atrocities has now developed into a fully-fledged standing framework for ensuring that those who commit atrocities should not be able to escape punishment. In theory, national courts have a very broad jurisdictional mandate and it is expected that the majority of prosecutions will take place at the domestic level. International criminal tribunals remain courts of last resort but retain a significant international oversight should national courts either fail or inadequately discharge their duties. Yet it is also the case that state action proprio motu remain the exception and many states quite simply do not initiate prosecutions as required by international obligations. Moreover, it is the case that in cases of mass atrocities, criminal law processes are placed under considerable strain, making them in such cases a partial solution in a continuum of accountability processes. State responsibility either directly or for the acts of insurgents is an important part of that continuum. Moreover, reparation for loss of property, surrender of suspects, redressing unacceptable forms of property transfer, as well as the repatriation of missing persons and their remains are distinctly state obligations, enforceable through the medium of state responsibility even in situations where successful individual prosecutions have been carried out. 187. Ibid.

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For this reason it is suggested that the legal framework of state responsibility will continue to play an important role in ensuring that governments discharge their international obligations. In any case, the most significant aspect of obligations in relation to international crimes is prevention, through public education, and dissemination of information and punishment at the domestic level. These are essentially state obligations which are antecedent to legal regimes of individual criminal responsibility. The cases brought by Belgium against Senegal, and those brought against Serbia by Bosnia and Croatia, have all reinforced in different ways that state responsibility remains an important tool for policing and enforcing compliance with obligations in the field of international criminal responsibility. These cases have also illustrated the threats to public order posed by insurgencies – the principal agents for the commission of atrocities in recent conflicts. These groups to a large extent remain beyond the reach of the formal institutions of public international law. In many of these conflicts accountability through individual prosecutions has only partially possible and in some cases totally non-existant. State responsibility offers a strategic advantage in creating a procedural framework for the accountability of insurgencies either in addition to individual prosecutions or where those prosecutions are not possible Given the frequency of governmental involvement in internal conflicts, it would be highly undesirable and counterproductive if any momentary or transitory form of support entailed the responsibility of the state for the full range of activities carried out by the armed militia. The restriction of responsibility in the Bosnia Genocide Convention case to those situations where the government has exercised some form of effective control over rebels reflects sound policy. There are of course justifiable concerns that an overzealous application of the effective control test would effectively make it impossible to find states responsible for atrocities committed by rebels. Evidentially, it is already quite difficult to prove the extent of third party involvement in internal conflict; a rigid application of what is, after all, a flexible concept would make a finding of responsibility impossible. Moreover, given the political aspirations of most rebel groups, it is unlikely that evidence would be forthcoming about the nature of their involvement. However, the existence of a parallel regime of state responsibility for atrocities committed in conflict zones will continue to play an important role in the general framework of accountability. Although strictly speaking litigation in the public interests remains a distant possibility, it continues to exist as a promise of international police measures, where international crimes have been committed, and individual prosecutions are not feasible. It is therefore significant that in the Bosnia Genocide case the acts of genocide in respect of which the application was brought also included atrocities committed against third party nationals.

Fragmentation and the Leeway of the VCLT: Interpreting the ECHR in Light of Other International Law Ragnar Nordeide* Abstract: In recent years a debate on the function of the general rules on treaty interpretation against the backdrop of fragmentation of international law has been developing, with the central question being how to interpret the jurisdictionendowing treaty in light of other international law. Two main strands of response stand out in the current debate, both of which are based on Article 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT). Whilst one strand maintains that the provision expresses a general principle of systemic integration, the other strand focuses rather upon the wording of the provision and the weight to be given to it within VCLT Article 31. The purpose of this article is to engage with the two strands of response. This will be done by analysing how they relate to the inherent flexibility (‘leeway’) of the VCLT , and to the approach taken by the European Court of Human Rights. The argument pursued in this article is that neither of the two strands sufficiently preserve the inherent leeway of the VCLT. It is furthermore argued that the leeway of the VCLT is a central part of the Court’s methodology, and that the two strands therefore also fail to resonate with the Court’s approach. On this basis the article proposes that the current debate should be supplemented, and that greater attention be given to how the leeway of the VCLT influences international courts in their approaches to interpreting the jurisdiction-endowing treaty in light of other international law. Keywords: ECHR, Fragmentation, Leeway, Systemic Integration, Treaty Interpretation, VCLT

*



Research Fellow/Ph.D. candidate, Department of Public and International Law, University of Oslo and Visiting Fellow, Graduate Institute of International and Development Studies, Geneva. I would like to thank Marius Emberland, Andrea Bianchi, Matthew Saul, Eirik Bjørge and Isabelle Van Damme, as well as the two anonymous reviewers, for their very helpful comments on earlier drafts of this article. All errors remain my own.

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1. Introduction Central to discussions on fragmentation of international law are analyses of the methods of interpretation by international courts.1 This should come as no surprise, since treaty interpretation belongs to ‘those parts of international law that are regarded as “structural” in nature’,2 and it is precisely ‘in the concern that different structural rules ... are developing within particular regimes or domains’3 that we find one of the central expressions of unease that underpin the fragmentation discourse. How one understands the nature of this concern with the development of diverging structural rules may differ, however. Some might perhaps subscribe to the view that it is simply an expression of ‘postmodern anxieties’,4 while others may rather see it from the perspective that ‘different interpretations of the structure of the “General Rule” in Article 31 [of the Vienna Convention on the Law of Treaties (VCLT)]5 ... would at least appear to suffice to call in question the success of these provisions’.6 There may also be differing views as to whether the very notion of fragmentation should be cast in derogatory or complimentary language. Some are inclined to understand fragmentation in terms of the erosion of a once homogenous system of international law, the emergence of conflicting jurisprudence, increased ‘forum shopping’ and the loss of legal security. Others view fragmentation as a natural consequence of increasing international cooperation and the need for specific legal frameworks to regulate such activity.7 Following on from discussions on the nature of fragmentation, in recent years a debate on the function of the general rules on treaty interpretation against the 1. See in general International Law Commission, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission, Finalized by Martti Koskenniemi, UN Doc. A/CN.4/L.682 (2006) (hereinafter: ‘ILC Report’). 2. Matthew Craven, ‘Legal Differentiation and the Concept of the Human Rights Treaty in International Law’, 11 European Journal of International Law (2000) 489-519 at 492. 3. Matthew Craven, ‘Unity, Diversity and the Fragmentation of International Law’, 14 Finnish Yearbook of International Law (2003) 3–34 at 33. 4. Martti Koskenniemi and Päivi Leino ‘Fragmentation of International Law?: Postmodern Anxieties’, 15 Leiden Journal of International Law (2002) 553-579. 5. Vienna Convention on the Law of Treaties, 23 May 1969, in force 27 January 1980, 1155 UNTS 331. 6. Mark E. Villiger ‘The Rules on Interpretation: Misgivings, Misunderstandings, Miscarriage? The “Crucible” Intended by the International Law Commission’, in Enzo Cannizzaro (ed.) The Law of Treaties Beyond the Vienna Convention (Oxford University Press, 2011) 105–122 at 119. 7. For illustrations of differing views, see the collections of articles in the Symposium Issue: The Proliferation of International Tribunals: Piecing together the Puzzle, 31 New York University Journal of International Law and Politics (1999) 679-933, and in Diversity or Cacophony: New Sources of Norms in International Law Symposium, 25 Michigan Journal of International Law (2004) 849-1349, especially 849-1075. See also ILC Report, supra note 1, at 10-17, paras 5-20.



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backdrop of fragmentation has also been developing, with the central question being how to interpret the jurisdiction-endowing treaty in light of other international law.8 The term ‘other’ international law denotes what the International Law Commission’s (ILC) Study Group on fragmentation referred to as a tribunal ‘situating the relevant jurisdiction-endowing instrument’ in its ‘relationship to its normative environment - that is to say “other” international law’.9 Two main strands of response stand out in the current debate, both of which are based on Article 31(3)(c) of the VCLT.10 One strand maintains that Article 31(3)(c) expresses a general principle of systemic integration.11 Although not coined by the ILC’s Study Group on fragmentation, the Study Group’s emphasis on the ‘principle of systemic integration’ in its report on fragmentation cemented the principle’s presence in the discourse on fragmentation.12 In the view of the Study Group the principle of systemic integration can act to counter problems of fragmentation, since it entails that ‘although a tribunal may only have jurisdiction in regard to a particular instrument, it must always interpret and apply that instrument in its relationship to its normative environment’.13 The other strand, whilst not denying the systemic nature of international law, focuses rather upon the wording of Article 31(3)(c) and the weight to be given to the provision within the ‘General Rule’ of Article 31 of the VCLT. This strand does not deny the necessity for systemic integration, but is sceptical towards the notion that Article 31(3)(c) can act in such a general way as the first strand submits. In general, both the wording of the provision and the weight to be given to it are present in discussions of the provision.14 However, a focus 8. For international courts in general, see e.g. Philippe Sands, ‘Treaty, Custom and the Crossfertilization of International Law’, 1 Yale Human Rights & Development Law Journal (1998) 100-100 at 102; Campbell McLachlan, ‘The Principle of Systemic Integration and Article 31(3) (c) of the Vienna Convention’, 54 International Comparative Law Quarterly (2005) 279-320; Duncan French, ‘Treaty Interpretation and the Incorporation of Extraneous Legal Rules’, 55 International Comparative Law Quarterly (2006) 281-314 at 302. For human rights courts, see e.g. Frédéric Vanneste General International Law Before Human Rights Courts: Assessing the Specialty Claims of Human Rights Law (Intersentia: Antwerp, Oxford, Portland, Oregon, 2009). For the WTO context see e.g., Robert Howse ‘The Use And Abuse Of Other “Relevant Rules Of International Law” In Treaty Interpretation: Insights From WTO Trade/Environment Litigation’, NYU IILJ Working Paper 2007/1. For the European Court of Justice, see e.g. Grainne de Burca ‘The European Court of Justice and the International Legal Order after Kadi’, NYU School of Law Jean Monnet Working Paper 01/09. 9. ILC Report, supra note 1, at 212-13, para. 423. 10. Article 31(3)(c) of the VCLT reads as follows: ‘3. There shall be taken into account, together with the context: … (c) any relevant rules of international law applicable in the relations between the parties.’ 11. From the sources given supra note 8, see especially Sands, ‘Treaty, Custom’; McLachlan ‘The Principle of Systemic Integration’; Howse ‘The Use And Abuse Of Other’. 12. ILC Report, supra note 1. 13. Ibid., p. 212, para 423 (emphasis in original). 14. See e.g. Richard Gardiner, Treaty Interpretation (Oxford University Press, 2008) at 250-91;

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upon the wording appears to be especially present in the WTO context,15 while the weight to be given to the provision within Article 31 seems to be particularly highlighted in the human rights context in connection with giving preference to the object and purpose of human rights treaties.16 The general practice of international courts seems to belong to the second strand, as most tribunals focus upon an exploration of the nature and boundaries of VCLT Article 31(3) (c) rather than explicitly referring to a general principle of systemic integration.17 Although discussions on the nature of fragmentation has a relation to the issues examined in the present article, it is not the intention to deal directly with this aspect of the fragmentation debate.18 The intention is rather to engage with the two strands of response to the function of the general rules on treaty interpretation against the backdrop of fragmentation–outlined above–and relate them to the approach taken by the European Court of Human Rights19 when it interprets the European Convention on Human Rights20 in light of other international law. The analysis takes as its point of departure the central common trait of the two strands, namely their basis in Article 31(3)(c) of the VCLT. Both responses have as such their main focus upon one of the provisions within the ‘General rule of interpretation’ as formulated in Article 31 of the VCLT. As will be elaborated upon, the manner in which Article 31 as a whole is applied is directed by the integral relationship between the different means of interpretation, and which in

15.

16.

17.

18. 19. 20.

Mark E. Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (Martinus Nijhoff Publishers, 2009) at 433. Benn McGrady, ‘Fragmentation of International Law or “Systemic Integration” of Treaty Regimes: EC–Biotech Products and the Proper Interpretation of Article 31(3)(c) of the Vienna Convention on the Law of Treaties’, 42 (4) Journal of World Trade (2008) 589-618; Howse, ‘The Use And Abuse Of Other’, supra note 8. Alexander Orakhelashvili, ‘Restrictive Interpretation of Human Rights Treaties in the Recent Jurisprudence of the European Court of Human Rights’, 14 European Journal of International Law (2003) 529-568, at 560. For a different take, but similarly highlighting the object and purpose of human rights treaties in this context, see George Letsas, ‘Strasbourg’s Interpretive Ethic: Lessons for the International Lawyer’, 21 European Journal of International Law (2010) 509-100. Oil Platforms (Iran v. U.S.), 2003 ICJ REP. 161, para. 41 (Nov. 6); id. at 225, paras 45–49 (sep. op. Higgins, J.); id. at 270, paras 21–24, 28 (sep. op. Buergenthal, J.); id. at 324, para. 9 (sep. op. Simma, J.); see also Panel Report, European Communities—Measures Affecting the Approval and Marketing of Biotech Products, WT/DS291–293/R, paras 7.67–.72 (adopted Nov. 21, 2006); Belgium v. Netherlands, Award, paras 58, 79 (Permanent Ct. Arb. May 24, 2005); Ireland v. United Kingdom, Final Award, paras 101–05 (Perm. Ct. Arb. July 2, 2003); id., Diss. Op. Griffith, Arb., paras. 2(2), 9, 19 Documents for arbitrations under the auspices of the Permanent Court of Arbitration, (visited 24 May 2011). For insightful thoughts on this facet of the fragmentation debate, see Anne-Charlotte Martineau, ‘The Rhetoric of Fragmentation: Fear and Faith in International Law’, 22 Leiden Journal of international law (2009) 1–28. Hereinafter the ‘Court’. European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, ETS No. 5, 213 UNTS 222, hereinafter the ‘Convention’ or ‘ECHR’.



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VCLT terminology has been termed the ‘crucible’ approach. This is a reference to what the ILC understood as the various means of interpretation being thrown into the ‘crucible’,21 thus evoking the image of the process of treaty interpretation involving the ‘melting’22 of different means of interpretation to produce the legally relevant outcome. The ‘crucible’ approach is therefore a central feature of the inherent flexibility of the VCLT provisions on treaty interpretation. It is moreover a central element–within the framework of the VCLT–that provides room for the development of distinct methodological approaches by different interpretive agents. The term ‘leeway’ (which is not a VCLT term of art) used in the present article is meant to cover this aspect of the flexibility of the VCLT (i.e. the flexibility within the framework of the VCLT which has its basis in the ‘crucible’ approach, and which provides room for the development of distinct methodological approaches by different interpretive agents). What will furthermore become evident as the analysis progresses, is that the Court has articulated its own principles for interpreting the Convention in light of other international law, without seeing any need to justify these principles by reference to either the wording of Article 31(3)(c) or the principle of systemic integration the provision is said to express. Against this background the present article aims at examining what significance the leeway of the VCLT has for the Court’s approach to interpreting the Convention in light of other international law. A corollary to this will be to situate the Court’s approach against the two strands of response outlined above, and provide insight into whether the Court can be said to have developed its own distinct response to the function of the general rules on treaty interpretation against the backdrop of fragmentation. The article is structured in two main parts. The first part will examine the central facets of the leeway of the VCLT in more detail, and will moreover relate these features to the two strands of response. Following on from this a structured analysis of the Court’s approach to interpreting the Convention in light of other international law, with a keen eye on how it relates to the leeway of the VCLT, will be undertaken. This analysis contains four sections, and starts with exploring certain central structural elements that inform the Court’s approach, before proceeding to how the Court has formulated the basis for its approach. The two remaining sections look at different principles the Court has articulated, and how they appear to be drawn from both the VCLT and from the structural elements explored in the first part of the analysis. 21. See footnote 30 and accompanying text. 22. According to the Oxford Dictionary a ‘crucible’ can also denote a situation in which different elements interact, but the ILC’s formulation of the means of interpretation being ‘thrown into the crucible’ would appear to refer to a ‘crucible’ in the more standard physical sense of a container in which substances may be melted or subjected to high temperatures.

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The article concludes that the two central strands in the current debate on the function of the general rules on treaty interpretation against the backdrop of fragmentation, should be supplemented for two main reasons. The first is that the European Court of Human Rights’ approach does not correspond directly with either of them. Second, this lack of correlation runs deeper than just the Court being a specialised regime with a specialised language. It has its ultimate cause in that both strands have their main focus upon one of the provisions within Article 31 of the VCLT. The two strands therefore fail to sufficiently preserve the inherent leeway of the VCLT; a leeway that appears to be a central element for the Court’s understanding of how to interpret the Convention in light of other international law.

2. The Leeway of the VCLT and Its Relation to Responses to Fragmentation Section 3 on ‘Interpretation of Treaties’ in the VCLT was a product of a ‘history ... full of attempts to formulate sets of rules and principles of interpretation’.23 A sense of this history can be gained by consulting the preparatory work of the VCLT. From the International Law Commission’s final report to the UN General Assembly in 1966 it transpires, firstly, that the ‘utility and even existence’ of such rules had been questioned, including by the Commission’s first two special rapporteurs on the law of treaties.24 Even those who recognised the existence of ‘some general rules’ within the ‘so-called canons of interpretation’, found that these general rules could only amount to a few basic ‘principles’.25 Secondly, differences were maintained concerning the relative weight to be given to the text, the intentions of the parties, and the ‘declared or apparent objects and purposes of the treaty’.26 Against this background the Commission accordingly ‘confined itself to trying to isolate and codify the comparatively few general principles which appear to constitute general rules for the interpretation of treaties’.27 The decision by the Commission to isolate and codify these general rules, must be understood against the inherent flexibility of the general rules that the Commission clearly meant to maintain despite their codification. In responding to a question as to whether it would not be better to label them ‘guidelines’ rather than ‘rules’, special rapporteur Waldock, in his final report to the Commission in 1966, spelled out this flexibility as follows: 23. Gardiner, Treaty Interpretation, supra note 14, at 36-37 and chapter 3 for a detailed examination of this history. 24. Yearbook of the International Law Commission, (1966), Vol. II, at 218. 25. Ibid. 26. Ibid. 27. Ibid., at 218-19.



Fragmentation and the Leeway of the VCLT 195 The Special Rapporteur understands this query primarily as a caveat against formulating the general principles for the interpretation of treaties in such a manner as to give them a rigidity which might deprive the process of interpretation of the degree of flexibility necessary to it. The Commission was fully conscious in 1964 of the undesirability – if not impossibility – of confining the process of interpretation within rigid rules, and the provisions ... when read together, as they must be, do not appear to constitute a code of rules incompatible with the required degree of flexibility.28

This flexibility was also stressed by the the Commission, which observed that: the application of the means of interpretation in the article would be a single combined operation. All the various elements, as they were present in any given case, would be thrown into the crucible, and their interaction would give the legally relevant interpretation’. Thus, [the proposed] article 27 [which became article 31] is entitled ‘General rule of interpretation’ in the singular, not ‘General rules’ in the plural, because the Commission desired to emphasize that the process of interpretation is a unity and that the provisions of the article form a single, closely integrated rule.29

For the Commission it was therefore the ‘interaction’ of the different means of interpretation that would produce the ‘legally relevant interpretation’. In this way, the process itself would have an impact upon the different means of interpretation; placing the text, the context, and the object and purpose of the treaty in their proper light according to the specific circumstance of the case at hand. Part and parcel of this ‘crucible’ approach is Article 31(3)(c); the provision which the ILC’s study group on fragmentation singled out as the principal interpretive tool to avoid problems of fragmentation.30 Looking at the preparatory work of the VCLT, a particularly interesting discussion for the current debate on the role of Article 31(3)(c) in light of the challenges of fragmentation is found in Waldock’s sixth report. The discussion was prompted by the Netherlands Government’s proposal concerning sub-paragraph 1(b) in the proposed Article 69. Paragraph 1 of the proposed Article 69 stated that ‘[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to each term: (a) In the context of the treaty and in the light of its objects and purposes; and (b) In the light of the rules of general international law in force at the time of its conclusion’.31 The Netherlands Government advocated the ‘total deletion’ of the proposed sub-paragraph 1(b), since: 28. Sir Humphrey Waldock, ‘Sixth Report on the Law of Treaties’, Yearbook of the International Law Commission (1966) Vol. II, at 94. 29. Yearbook, supra note 24, at 219-20 (emphasis of ‘crucible’added). 30. ILC Report supra note 1, para. 420 and paras 479-80. 31. Yearbook, supra note 24, at 199.

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In its view, the sub-paragraph would require that, wherever a treaty appears to refer to a concept of international law, an effort should be made to determine the intention of the parties by considering the meaning of those concepts elsewhere in international law and independently of the treaty. It considers that the principle regarding context and objects and purposes in sub-paragraph (a) does not possess the same value as the principle regarding rules of international law in sub-paragraph (b); and that recourse should only be had to the latter when the application of sub-paragraph (a) has proved ineffective.32

The Special Rapporteur was not overly convinced by this argument, responding that: The objection taken by the Netherlands Government to sub-paragraph (b) does not seem to the Special Rapporteur to carry conviction; for it involves interpreting the sub-paragraph in a manner which could hardly be justified as an interpretation in good faith. Certainly, it is a manner of interpreting the reference to rules of international law which has not occurred to any other Government and which did not occur to members of the Commission in 1964 or to members of the Institute of International Law in 1956 when they adopted the resolution on the interpretation of treaties mentioned in the Special Rapporteur’s third report. Paragraph 1 has to be read as a whole and, when this is done, it does little more than say that the terms of a treaty have to be interpreted in the light of the fact that it is an instrument concluded under the international legal order existing at the time of its conclusion.33

It can be seen that the strand of response to fragmentation that argues for constraining the leeway in favour of the object and purpose of a treaty is reminiscent of the argument by the Netherlands Government regarding the difference of weight to be given to the proposed sub-paragraphs a) and b). The response given by Waldock ought still to have every relevance today, even if today’s international legal system looks quite different from that in 1966. For although there today exist a multitude of different international courts which all serve the purpose of adjudicating upon disputes within their respective field, and as such have to apply the specialised language within that particular field, they all rely on those parts of international law that are regarded as structural in nature (such as state responsibility, creation of custom, etc.).34 The response that focuses on a principle of systemic integration may be the subject of the first part of the argument put forward by the Netherlands Government, raising concerns about an interpretation being undertaken ‘independently of the treaty’. This possible element of Article 31(3)(c) (and hence, in the language of the ILC, the underlying principle of systemic integration) seemed 32. Yearbook, supra note 24, at 96. 33. Ibid. It should be added here that this did not concern the issue of inter-temporal law; this was commented upon later in the discussion, ibid., at 97. 34. Craven, ‘Legal Differentiation’, supra note 2, at 492.



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to be the cause for concern voiced by many of the dissenting judges of the ICJ in the Oil Platforms case. Looking at the practice of applying Article 31(3)(c) by international courts in general, it would seem that there is no clear common understanding on how to approach the provision.35 This might be due to the ILC’s articulation of how Article 31(3)(c) and the principle of systemic integration it expresses should operate: [The principle of systemic integration] points to the need to carry out the interpretation so as to see the rules in view of some comprehensible and coherent objective, to prioritize concerns that are more important at the cost of less important objectives. This is all that article 31(3)(c) requires; the integration into the process of legal reasoning – including reasoning by courts and tribunals – of a sense of coherence and meaningfulness. Success or failure here is measured by how the legal world will view the outcome.36

If ‘all’ that the provision and its inherent principle of systemic integration requires is ‘to carry out the interpretation so as to see the rules in view of some comprehensible and coherent objective’, this still leaves unanswered what this objective should be. If the principle is understood by judges as directing them towards a common purpose outside the jurisdiction-endowing treaty, rather than towards the leeway of the VCLT, this might be perceived as stifling the methodological choices inherent in the flexibility of the VCLT provisions. Basing such a restraint of the leeway of the VCLT on a general common purpose would furthermore seem to presuppose a uniform understanding of the structure of international law. As such it would appear to be vulnerable to a critique from the perspective that it employs ‘the supposition that we already have a coherent “system” of law and that we are no longer climbing the mountain, so to speak, but poised at its summit looking down’.37 A related question could then be, as Klabbers has observed, whether Article 31(3)(c) is about turning the process of interpretation into a search for the best way to keep the system intact.38 Keeping the system intact, then, would be the concern to ‘prioritize ... at the cost of less important objectives’.39 In Klabbers’ view, applying this objective would however raise the question of doing so would entail changing the very basis of treaty interpretation in international law, and turn treaty interpretation into a ‘quasi-legislative exercise’ instead of a ‘search for the intentions of the parties’.40 This approach to treaty interpretation would ‘thus be vulnerable to the criticism 35. 36. 37. 38.

For references, see surpa note 17. ILC report, supra note 1, at para. 419. Craven, ‘Legal Differentiation’, supra note 2, at 490. Jan Klabbers, ‘Reluctant Grundnormen: Articles 31(3)(c) and 42’, in Matthew Craven, Malgosia Fitzmaurice and MariaVogiatzi (eds), Time, History and International Law (Martinus Nijhoff Publishers: Leiden, 2006), 141-161 at 159-60. 39. Ibid. 40. Ibid.

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that it does away with what the parties may have had in mind’, as appears to be the basis for judge Higgins’ reservations towards the use of Article 31(3)(c) in her separate opinion in the Oil Platforms case.41 Against the background of the above account of the characteristics of the provisions on treaty interpretation in the VCLT, an apt depiction of them would appear to be that they ‘do indicate what is to be taken into account (in the sense of text, preamble, annexes, related agreements, preparatory work , etc) and, to some extent, how to approach this body of material (using ordinary meanings in context, in the light of the treaty’s object and purpose, and so on)’.42 Their manner of application, however, must be seen as ‘leaving a margin of appreciation for the interpreter to produce an outcome’,43 and as such ‘is to be in the enlightened sense described by Waldock, treating them as regulations, principles, or guidelines as appropriate’.44 In light of this, and in particular the ‘crucible’ approach that the ILC saw as the central characteristic of applying the general rules on interpretation, it does not come as a surprise that Gardiner’s recent general study on the application of Articles 31-33 of the VCLT should conclude that ‘[p]ractice ... shows that courts and tribunals habitually refer to these provisions as ‘rules’ while often applying them more as ‘principles’.45 This combined effect of the inherent flexibility both of the term ‘rule’ and as regards the crucible approach to the means to which these rules point, have the effect of giving room for development of distinct approaches to treaty interpretation within this flexibility. As Villiger has observed, it provides the ‘interpreting agency with considerable flexibility, enabling it in particular to adapt the various means of interpretation to the type of treaty (bi-and multilateral treaties, human rights treaties, etc.)’.46 This understanding must furthermore be seen in light of the fact that the VCLT does not ‘purport to be an exhaustive statement of the international law rules of interpretation’.47 This is often observed in the context of the European Convention on Human Rights, when referring to the Court’s developed methods of interpretation as a regional human rights treaty, such as the margin of appreciation doctrine; the principle of subsidiarity; European consensus; autonomous interpretation; and the ‘living instrument’ doctrine.48 41. Ibid., at 160, with further reference to Separate Opinion of Judge Higgins in the Oil Platforms case, supra note 17, at 237. 42. Gardiner, Treaty Interpretation, supra note 14, at 9. See also Villiger, ‘The Rules on Interpretation’, supra note 6, who proposes there to be nine means of interpretation in Articles 31-32 (at 108-113). 43. Gardiner, Treaty Interpretation, supra note 14, at 27. 44. Gardiner, Treaty Interpretation, supra note 14, at 38 (reference omitted). 45. Gardiner, Treaty Interpretation, supra note 14, at 37 with further reference to the study undertaken in chapter 5-9 of the book. 46. Villiger, ‘The Rules on Interpretation’, supra note 6, at 122. 47. McLachlan, ‘The Principle of Systemic Integration’, supra note 8; Gardiner, Treaty Interpretation, supra note 14, at 38. 48. Most standard textbooks on ECHR law include a general account. For a recent detailed



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After having considered the origins and central characteristics of the leeway of the VCLT, the next section explores the Court’s approach to this leeway when interpreting the Convention in light of other international law.

3. The Court’s Approach to Interpreting the ECHR in Light of Other International Law and Its Relation to the Leeway of the VCLT

3.1. Structural Elements that Inform the Court’s Approach When speaking about human rights treaties: ‘are we, at any moment, referring to the fact that they are treaties, or to the fact that they instantiate human rights’?49 This question serves to highlight the relationship between the ‘form’ and ‘function’ of human rights treaties. In form, human rights treaties are – as other treaties – ‘constructed in the form of agreements between states’.50 Their function, however, appears to differ from ordinary treaties, as they ‘seem to be premised upon the idea that the rights pre-exist not only the treaties themselves, but also explain or justify the competence of the governments in relation to them’.51 This relationship between form and function can furthermore be used as a basis for articulating different methodological approaches to the operation of human rights treaties. The approach emphasising the legal form argues that human rights treaties can adequately be accommodated within the bilateralist framework. This approach thus ‘negotiates a path between accepting the special characteristics of human rights treaties whilst maintaining the credibility of the existing structures of treaty law’.52 For its part, the approach that relies on the function of human rights treaties, argues that human rights treaties are properly understood to be concerned with the protection of the legal interest of the individuals or the regime itself, rather than those of states themselves.53 As early as 1968, the Court pronounced that the Convention was to be viewed as a ‘law-making’ treaty,54 and this view of the nature of the Convention was reiterated by the Court in 1975 in the Golder case.55 Just what this meant as

49. 50. 51. 52. 53. 54.

55.

study, see Jonas Christoffersen, Fair Balance: Proportionality, Subsidiarity and Primarity in the European Convention on Human Rights (Martinus Nijhoff Publishers: Leiden, 2009). Craven, ‘Legal Differentiation’, supra note 2, at 493. Ibid. Ibid. Ibid., at 514. Ibid., at 515. Wemhoff v. Federal Republic of Germany, Application number 2122/64, Judgment (27 June 1968), ECHR Series A (1968), No. 7, at para. 8, in which the Court stated: ‘Given that it is a law-making treaty, it is also necessary to seek the interpretation that is most appropriate in order to realise the aim and achieve the object of the treaty, not that which would restrict to the greatest possible degree the obligations undertaken by the Parties’. Golder v. United Kingdom, Application number 4451/70, Judgment (21 February 1975),

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opposed to other treaties, is not easy to deduce from the Court’s observations in these cases. The defining notion of the Court’s understanding of the nature of the Convention as opposed to other treaties, is explained in the Court’s judgment in an inter-state complaint between Ireland and the United Kingdom in 1978. In that case the Court observed that: Unlike international treaties of the classic kind, the Convention comprises more than mere reciprocal engagements between Contracting States. It creates, over and above a network of mutual, bilateral undertakings, objective obligations which, in the words of the Preamble benefit from a ‘collective enforcement’.56

The Court has reiterated this understanding of the nature of the Convention also in the context of individual complaints in its more recent judgments in Loizidou, Mamatkulov, Blecic, and Paladi.57 Thus, in the Court’s understanding, the Convention has created objective obligations over and above the reciprocal engagements that constitute the foundation of the Convention. This characterisation of Convention obligations has important implications for the Court’s development of principles for interpreting the Convention in light of other international law. This will especially come to light in the last section, which explores the Court’s development of principles that appear to draw their inspiration more from the nature of the Convention than from the terms of the VCLT. Before turning to that issue, the next section will first address the Court’s articulation of the basis for its approach to interpreting the treaty in light of other international law.

3.2. The Basis for the Court’s Approach The case of Demir and Baykara v. Turkey58, rendered by a Grand Chamber in 2008, provided the Court with an opportunity to respond to an objection by the respondent state specifically aimed at the Court’s method of interpreting the Convention in light of other international law.59 In Turkey’s view the use of other international instruments in the interpretation of the provisions under the Convention had to comply with the criteria set out in Article 31(3)(c) of ECHR series A (1975), No. 18, at para. 36. 56. Ireland v. the United Kingdom, Application number 5310/71, Judgment (18 January 1978), ECHR Series A (1978), No. 25, at para. 239. 57. Loizidou v. Turkey, Appication number 15318/89, Judgment on preliminary objections (23 March 1995), ECHR Series A (1995), No. 310, at para. 70; Mamatkulov and Askarov v Turkey, Application numbers 46827/99 and 46951/99, European Court of Human Rights, Judgment (4 February 2005), at para. 100; Blecic v. Croatia, Application number 59532/00, European Court of Human Rights, Judgement (8 March 2006), at para. 90; Paladi v. Moldova, Application number 39806/05, European Court of Human Rights, Judgment (10 March 2009), at para. 84. 58. Demir and Baykara v Turkey, Application number 34503/97, European Court of Human Rights, Judgment (12 Nov 2008). 59. A general analysis of the case is provided in Ragnar Nordeide, ‘Demir & Baykara v. Turkey’, 103 American Journal of International Law (2009) 567-74.



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the VCLT in order to be ‘legitimate­’­­.60 Turkey emphasised in this regard that account could be taken only of those instruments by which the respondent state was bound. The Court responded by devoting a separate section of the judgment (running 26 paragraphs) to ‘the methodology to be adopted’ when interpreting ‘the Convention in light of other international instruments’.61 Although the Court explicitly referred to Article 31(3)(c),62 it did not embark upon an analysis of the provision itself.63 Rather, the Court set forth an extended analysis of its own practice of interpreting the Convention in light of other international texts and instruments, in which it presented examples from its own case law of the ‘[d]iversity of international texts and instruments used for the interpretation of the Convention’.64 Although Article 31(3)(c) of the VCLT would appear to be relevant to discuss in such an exploration of the range of international legal materials that the Court has used to interpret the Convention, the VCLT was not explicitly invoked by the Court in this subsection.65 The Court did however, when setting out the ‘[b]asis’ for its approach before proceeding to an analysis of its own practice, note its consistent practice since Golder66of being ‘guided mainly’ by the rules of interpretation set out in VCLT Articles 31-33.67 In this context the Court first observed that the VCLT required that it ascertain the ordinary meaning of the treaty terms in their context and in the light of their object and purpose, while drawing on, as necessary, supplementary means of interpretation. It further observed that since the Convention is ‘first and foremost a system for the protection of human rights,’ it needed to be interpreted and applied ‘in a manner which renders its rights practical and effective, not theoretical and illusory’.68 Next, citing both VCLT Article 31(3)(c) and its own case law, the Court stated that it had never considered the Convention’s provisions as the ‘sole framework of reference’ for interpreting

60. Demir and Baykara v Turkey, supra note 58, para. 61. 61. Ibid., paras 60-86. 62. Ibid., in para. 67 the Court made reference to VCLT Article 31(3)(c) in the following way: ‘In addition, the Court has never considered the provisions of the Convention as the sole framework of reference for the interpretation of the rights and freedoms enshrined therein. On the contrary, it must also take into account any relevant rules and principles of international law applicable in relations between the Contracting Parties (see Saadi, cited above, § 62; Al-Adsani, cited above, § 55; and Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], no. 45036/98, § 150, ECHR 2005‑VI; see also article 31 § 3 (c) of the Vienna Convention)’ (emphasis added.) 63. Other international tribunals seem more inclined to conduct an exploration of the nature and boundaries of VCLT Article 31(3)(c) as such, see references at supra note 17. 64. Demir and Baykara v Turkey, supra note 58, paras 69-86. 65. Nordeide ‘Demir & Baykara v. Turkey’ , supra note 59, at 567-74. 66. Golder v United Kingdom, supra note 55. 67. Demir and Baykara v Turkey, supra note 58, paras 65-68. 68. Ibid.

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‘the rights and freedoms enshrined therein.’69 The Court would thus ‘take into account any relevant rules and principles of international law applicable in relations between the Contracting Parties’.70 In view of what it had always taken to be the ‘”living” nature of the Convention,’ the Court also noted the importance of taking into account ‘evolving norms of national and international law in its interpretation of Convention provisions’.71 From this position, it appears evident that the Court perceives the VCLT provisions on treaty interpretation as general guidelines for its point of departure. When laying out the substance of its approach, however, the Court seemed to take the view that there is a leeway in the VCLT that enables it to articulate its own principles for interpreting the Convention in light of other international law, without seeing any need to justify such an articulation by invoking the wording of Article 31(3)(c) or the principle of systemic integration the provision is said to express. As will be shown in the following section, this stance by the Court is not unique to the Demir case. It transpires, albeit in different clothing, from the Court’s reasoning in several cases concerning interpretation of the Convention in light of other international law. The following sections aim to elucidate this in two ways: first, by examining the Court’s general articulations of interpretative approaches relevant to such cases, their relation to the VCLT, and what novel elements the Court introduced in Demir; second, by exploring how two of the Court’s more general interpretative approaches go to the heart of the abovementioned dichotomy between the form and function of the Convention, how they have been used by the Court, and what the Court’s reasoning tells us about its understanding of the methodological choices that exist within the leeway of the VCLT.

3.3. The Court’s General Statements on Interpretative Approach and their Relation to the VCLT The Court has over the years developed a body of case law concerning the interpretation of the Convention in light of other international law.72 From this case law, several recurring general statements from the Court transpire. The Court’s 69. 70. 71. 72.

Ibid. Ibid. Ibid. Some of the most known, which are also regularly referred to by the Court itself, are: Al-Adsani v United Kingdom, Application number 35763/97, European Court of Human Rights, Judgment (21 November 2001); Loizidou v Turkey, supra note 57; Golder v United Kingdom, supra note 55. One could also point to examples of cases within different themes or areas that have arisen in the Court’s case law regarding interpretation in light of other international law, inter alia: concerning state immunity: Fogarty v. United Kingdom and McElhinney v. Ireland, Application numbers 37112/97 and 31253/96, European Court of Human Rights, Judgments (21 November 2001); concerning responsibility of acts or omissions following from membership of an international organisation:

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observation in Demir of being ‘guided mainly’ by the VCLT provisions on treaty interpretation is more commonly expressed by the Court in formulations akin to: ‘‘the Convention must be interpreted in the light of the rules set out in the Vienna Convention on the Law of Treaties’.73 As regards Article 31(3)(c) more specifically, which states that account is to be taken of ‘any relevant rules of international law applicable in the relations between the parties’,74 the Court more commonly uses formulations similar to: ‘[t]he Convention ... cannot be interpreted in a vacuum ... [t]he Convention should so far as possible be interpreted in harmony with other rules of international law of which it forms part’.75 In Demir, the Court chose a slightly different formulation, observing that ‘the Court has never considered the provisions of the Convention as the sole framework of reference for the interpretation of the rights and freedoms enshrined therein’.76 In this context, the Court in Demir was also quite explicit in explaining its view on the required status of other international instruments: ... in searching for common ground among the norms of international law it has never distinguished between sources of law according to whether or not they have been signed or ratified by the respondent State ... it is not necessary for the respondent State to have ratified the entire collection of instruments that are applicable in respect of the precise subject matter of the case concerned. It will be sufficient for the Court that the relevant international instruments denote a continuous evolution in the norms and principles applied in international law or in the domestic law of the majority of member States of the Council of Europe and show, in a precise area, that there is common ground in modern societies.77

As regards the element of interpreting treaties in light of their object and purpose – articulated in VCLT Article 31 – the Court typically observes that it ‘must have regard to the special character of the Convention as a treaty for the

73. 74. 75. 76. 77.

Behrami and Behrami v. France and Saramati v. France, Germany and Norway, Application numbers 13229/03 and 78166/01, European Court of Human Rights, Judgments (2 May 2007); Bosphorus Hava Yollari Turizm Ve Ticaret Anonim Sirketi v. Ireland, supra note 62; concerning the concept of ‘jurisdiction’ in the ECHR and in general international law: Banković and others v. Belgium and others, Application number 52207/99, European Court of Human Rights, Grand Chamber Decision (12 December 2001); Cyprus v. Turkey, Application number 25781/94, European Court of Human Rights, Grand Chamber Decision (10 May 2001); concerning the ECHR and International Humanitarian Law: Kononov v. Latvia, Application number 36376/04, European Court of Human Rights, Grand Chamber Decision (17 May 2010); concerning interim measures: Mamatkulov and Askarov v Turkey, supra note 57, to name a few. See e.g. Al-Saadoon and Mufdhi v. the United Kingdom, Application number 61498/08, Judgment (2 March 2010), para. 126. Article 31(3)(c) of the VCLT reads as follows: ‘3. There shall be taken into account, together with the context: […] (c) any relevant rules of international law applicable in the relations between the parties’. See e.g. Al-Adsani v. United Kingdom, supra note 72, para 55. Demir and Baykara v Turkey, supra note 58, at para. 67. Ibid., paras 78 and 86.

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collective enforcement of human rights and fundamental freedoms’,78 and that ‘the object and purpose of the Convention as an instrument for the protection of individual human beings requires that its provisions be interpreted and applied so as to make its safeguards practical and effective’.79 In Demir, the Court was more specific as regards its view on the use of the element of object and purpose when interpreting the Convention in light of other international law. The Court observed that ‘when it considers the object and purpose of the Convention provisions, it also takes into account the international law background to the legal question before it’.80 The Court has also formulated guiding principles of a more general nature when interpreting the Convention in light of other international law, which do not appear to be drawn from the wording of the VCLT provisions on treaty interpretation, but rather from the Court’s understanding of the nature of the Convention. Thus, when interpreting the Convention in light of other international law, the Court has been guided by both ‘the interest of international cooperation’ and that this interest can ‘be outweighed by the Convention’s role as a “constitutional instrument of European public order” in the field of human rights’. The next section explores how the Court has approached the balance between these guiding interpretative principles, and what this says about its understanding of the form and function of the Convention.

3.4. The Interest of International Cooperation v. the Convention’s Role as a Constitutional Instrument of European Public Order The relationship between these two guiding interpretative principles and the Court’s efforts of balancing them, has been particularly present in cases concerning contracting states’ responsibility under ECHR for acts or omissions following from membership of an international organisation.81 In Bosphorus,82 the Court reiterated its developed principles concerning such cases, observing that as long as the relevant organisation is considered to have an ‘equivalent’ protection of fundamental rights to that of the Convention, the presumption will be that 78. See e.g. Loizidou v Turkey, supra note 57, para. 70. 79. See e.g. Ibid., para. 72. 80. Demir and Baykara v Turkey, supra note 58, at para 76. 81. See Rambus Inc. v. Germany, Application number 40382/04, European Court of Human Rights, Decision, (16 June 2009); Cooperatieve Producentenorganisatie Van De Nederlandse Kokkelvisserij U.A. v. The Netherlands, Application number13645/05, European Court of Human Rights, Decision (20 Jan 2009); Boivin V. 34 State Members Of The Council Of Europe, Application number 73250/01, European Court of Human Rights, Decision (9 September 2008); Beric and Others v. Bosnia and Herzegovina, Application number 36357/04, European Court of Human Rights, Decision (16 October 2007); Matthews v. The United Kingdom, Application number 24833/94, European Court of Human Rights, Grand Chamber Decision, (18 February 1999). 82. Bosphorus Hava Yollari Turizm Ve Ticaret Anonim Sirketi v Ireland, supra note 62.



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the state has not departed from the requirements of the Convention.83 It then formulated the principle that: ... any such presumption can be rebutted if, in the circumstances of a particular case, it is considered that the protection of Convention rights was manifestly deficient. In such cases, the interest of international cooperation would be outweighed by the Convention’s role as a “constitutional instrument of European public order” in the field of human rights.84

In reference to the Court’s statements in Bosphorus, the applicants in Behrami and Saramati85 argued that the military (KFOR) authorities in the UN authorized mission in Kosovo did not provide protection ‘equivalent’ to that of the Convention. The Court’s response was that the circumstances of Behrami and Saramati were ‘clearly distinguishable’ from the Bosphorus case, but it nevertheless found it necessary to add that: There exists, in any event, a fundamental distinction between the nature of the international organisation and of the international cooperation with which the Court was there concerned and those in the present cases. As the Court has found above, UNMIK was a subsidiary organ of the UN created under Chapter VII and KFOR was exercising powers lawfully delegated under Chapter VII of the Charter by the UNSC. As such, their actions were directly attributable to the UN, an organisation of universal jurisdiction fulfilling its imperative collective security objective.86

The Court thus avoided commenting on the requirements concerning the presumption of ‘equivalent protection’ and the questions regarding rebuttal of such a presumption. On its face, the reasoning of the Court therefore does not reveal whether the Court in Behrami and Saramati gave priority to international cooperation over the role of the Convention as a constitutional instrument of European public order. However – until the Court clearly states its view on this issue – a reasonable understanding of its statements in Behrami and Saramati suggests that in this case it favoured international cooperation. This would imply that in cases such as Bosphorus or Behrami and Saramati, the Court does not use general interpretative principles of an absolute and a priori defined nature. Statements such as the following would thus only be one, albeit an important one, out of several guiding general interpretative principles: ... the Court must also bear in mind the special character of the Convention as an instrument of European public order (ordre public) for the protection of individual human beings and its own mission, as set out in Article 19, “to ensure 83. 84. 85. 86.

Ibid., para 155-56. Ibid., para 156. Behrami and Behrami v. France and Saramti v. France, supra note 62. Ibid., para. 151.

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the observance of the engagements undertaken by the High Contracting Parties” to the Convention.87

There is nothing inherently wrong with such a flexible approach to guiding interpretative principles. However, the way in which these guiding interpretative principles are formulated appear to have a bearing on how one is to understand the Court’s approach to the nature of the Convention. As such, they present difficulties when trying to understand the scope of the Court’s observations in Ireland v. UK and Loizidou that the Convention, unlike international treaties of ‘the classic kind’, creates ‘objective obligations’.88 It is to be assumed that the Court will be wary of providing clear statements on the relationship between a flexible usage of guiding general interpretative principles and its understanding of the nature of the Convention. However, it cannot be ruled out that the Court in the future will have no choice but to, at least, make less concealed statements than those in Behramai and Saramti.

4. Conclusions Given its relatively recent revival from ‘obscurity’,89 Article 31(3)(c) of the VCLT has had a remarkable impact on the discourse of fragmentation over the recent years. This is no doubt due to the fact that its basis for revival was a study undertaken by the International Law Commission, and the generally welcoming response the ILC’s study on fragmentation has enjoyed. In light of the ever ‘widening and thickening of the context of international law’,90 the impact of the revival of Article 31(3)(c) on systemic thinking on international law should be welcomed. It should however give pause for thought that international courts in general have given little explicit acknowledgement to a general ‘principle of systemic integration’ as proposed by the ILC. It should further be questioned whether the focus upon the wording of Article 31(3)(c), which has occupied a large part of the scholarly debate, is really the best way to come to understand a rule of interpretation. Be that as it may, it has not been the intention of this article to examine which of the two dominant strands in the current debate should be preferred. The intention of this article has been to shed light on how the European Court of Human Rights has approached the question of how to interpret the Convention in light of other international law, and what its ap87. Neulinger and Shuruk v. Switzerland, Application number 41615/07, European Court of Human Rights, Grand Chamber Decision (6 July 2010), at para. 133 (emphasis added). 88. Ireland v. the United Kingdom, supra note 56, para. 239 Loizidou v Turkey, supra note 57, para. 70. See supra note 53 with accompanying text. 89. McLachlan ‘The Principle of Systemic Integration’, supra note 8, at 279. 90. Rosalyn Higgins, ‘A Babel of Judicial Voices: Ruminations from the Bench’, 55 International & Comparative Law Quarterly (2006) 791-804 at 792.



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proach says about its understanding of the function of the general rules on treaty interpretation against the backdrop of fragmentation. The first conclusion to be drawn is that the Court does not engage directly with either of the two main approaches to Article 31(3)(c). It is furthermore clear that this is not due to the Court employing any ‘self-contained’ language because of its special character as a human rights court. The Court clearly adheres to the VCLT as ‘guidelines’ aiding its interpretation of the Convention in light of other international law. It moreover draws on the VCLT for its articulation of guiding principles. The cause must therefore lie elsewhere. A relevant source was alluded to in the exploration of the leeway undertaken in the first part of this analysis. An inherent difficulty with relying on Article 31(3)(c)–either as a principle, a clear wording, or as revealing some lesser weight than the rest of Article 31–is the fact that it has the consequence of suppressing the inherent flexibility of the ‘crucible’ approach, and therefore also restraining the possibility for the development of distinct methodological choices that this ‘crucible’ approach provides for. In short, stifling the ‘leeway’ of the VCLT. In appreciating that the leeway of the VCLT provisions on treaty interpretation not only exists on some ill-defined and subjective level, but transpires from how specialised regimes articulate interpretative principles, one would be able to supplement the current debate on the function of the general rules on treaty interpretation against the backdrop of fragmentation. This would provide a more precise comprehension of the overarching principles that are being developed concerning the interpretation of the jurisdiction-endowing treaty in light of other international law, and offer a clearer understanding of whether they should be challenged or welcomed. Against this background it is proposed that greater attention be given to how the leeway of the VCLT influences different international courts in their approach to how general rules on treaty interpretation function against the backdrop of fragmentation of international law. This may, as in the case of the European Court of Human Rights, lead to the discovery of a distinct approach. This does not defeat the system of international law however. That the practice of specialised international courts are part and parcel of the development of the general law on treaty interpretation is not new to international law.91

91. Jonathan I. Charney, ‘Is International Law Threatened by Multiple International Tribunals?’, 271 Recueil des Cours (1998) 101; Martin Scheinin and Menno T. Kamminga (eds) Impact of Human Rights Law On General International Law (Oxford University Press, 2009); for similar conclusions as regards the WTO Appellate Body, see Isabelle Van Damme, Treaty Interpretation by the WTO Appellate Body (Oxford University Press, 2009), at 379.

Changing Futures? Science and International Law Jan Klabbers In October 2009, the European Society of International Law and the American Society of International Law organized their first ever event together. The honour to make this work fell upon the Centre of Excellence in Global Governance Research at the University of Helsinki, in conjunction with a number of local co-organizers. The meeting was conceived as a Research Forum, one of the smaller formats pioneered by ESIL as a venue for younger scholars to present work on a common theme, and the theme chosen was ‘Changing Futures? Science and International Law’. This issue of the Finnish Yearbook contains a small set of the papers first presented at the Research Forum, and together these demonstrate the richness and, as yet, largely unexplored nature of the topic. Science and international law have, hitherto, been virtual strangers. While some theorists, perhaps most notably Kelsen, have done much to conceptualize (international) law as a scientific discipline, and while collaboration between lawyers and social scientists is not entirely unheard of (for better or for worse), it would be understating things to claim that international lawyers have been doing much work on how science can affect the law or, conversely, how law can affect science. The papers collected in this volume suggest that the relationship between law and science has many, many dimensions. Anna Riddell’s contribution addresses the role of scientific evidence before the International Court of Justice, and proposes a remedy for curing what she feels is an inadequate procedure. Therewith, her article falls into the category of works on how science is best presented before international tribunals. The role of science before tribunals also comes up in Céline Lévesques contribution, although her field is that of investment tribunals and her approach is geared towards establishing not so much the admissibility of scientific results, but rather their validity: how can investment tribunals make sense of the scientific evidence presented to them? How can they know whether the evidence represents reliable science? While these first two contributions suggest, each in their own way, that science may become an issue before international tribunals, the third piece takes a different track: Maria Weimer explores the connection between law and science from the regulator’s perspective. She argues that the EU would be well-advised

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to consider whether it should present its measures on animal cloning as sanitary and phytosanitary measures or whether a different label might strategically be more appropriate, since different classifications have different implications as to what can be deemed legally justifiable. Interestingly, this suggests how malleable science is. In order to make sense of science, it needs to be classified and categorized, and this remains an eminently unscientific process. The fourth contribution, by Dhrubajyoti Bhattacharya, exposes yet another dimension to the relationship between law and science. To his mind, the development of medical science, e.g., with regard to reproductive technology, produces challenges to legal regimes which those regimes have thus far had a hard time answering to. Thus, he ends with a call to arms: lawyers should re-think what such things as ‘informed consent’ can mean in the face of new technological developments. Lisa Clarke’s contribution presents international lawyers with the puzzles resulting from public/private partnerships in the global health sector, with a specific view to problems of responsibility. Scientists and research institutes participate in the setting of new standards and the introduction of new medications, but what to do if things go wrong? To whom can possible wrongful acts be attributed? Sophie Gambardella takes a related set of problems one step further when she investigates the role of experts in the field of fisheries conservation. The scientific experts advise on decision-making invoking scientific authority and neutrality, but Gambardella wonders whether scientific expertise can ever be considered fully neutral, or whether the authority of scientists is better seen as ‘socio-technical’. It turns out, she maintains, that the expert work is often coloured by a certain amount of normativity. If strict neutrality is a chimera, then this should close the circle and bring the reader back to dispute settlement, and this is precisely what the seventh contribution does. Caroline Foster explores the politics of expertise before courts and tribunals, suggesting that although rules on admissibility of evidence may play a useful role, a strict separation between law and fact is untenable. Taken together, the seven pieces show not only that the relationship between (international) law and science is multivariate, but also that not too much should be expected from science per se. Science needs legal regulation (and not a little legal creativity) in order to create socially useful results, and cannot do our political decision-making for us. For this, we retain full responsibility: passing the buck to panels of scientists or experts simply will not do. This special section of the Finnish Yearbook is opened by the keynote address of Allan Rosas, a judge at the Court of Justice of the European Union and, fittingly, one of Finland’s leading international lawyers. ‘The Death of International Law?’ evokes altogether different images of what science and law stand for than the other contributions with their focus on ‘hard’ science. Instead, Rosas’ title alone provokes



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fleeting associations with literary studies (‘Death of a Salesman’, or Mark Twain’s often invoked quip that reports of his death were greatly exaggerated) and with the idea of international law itself being best regarded a science, albeit one that is perhaps about to become redundant (note the question-mark in Rosas’ title). But that is only proper: as the ESIL-ASIL Research Forum suggested, there are about as many ways in which the links between law and science can be explored as there are lawyers and scientists, and that is perhaps a good thing too. For only by insisting on plurality can the domination of one by the other be prevented. It is, eventually, no coincidence that among participants at the Research Forum, the neologism that became the buzz-word was ‘counter-disciplinarity’.

The Death of International Law? Allan Rosas*

1. Introduction A global world, globalization, the global village…The reader has seen this before and many are probably getting fed up with such buzzwords. Yet they reflect something real and, I would add, something profound. Let me clarify at the outset that I belong to those who think that we are in the midst of a paradigm shift, comparable to the transition, in Europe, from the Middle Ages to Modern Times.1 Why is this shift taking place? It is, to paraphrase President Clinton, a question of technology, stupid. The development of information, communication, transport and other technologies trigger socio-economic changes such as the increasing vulnerability and erosion of national economies and nation-states. Information, capital, services, goods and, to a more limited extent, persons move across national borders in a way which does make an increasing number of us part of communities and networks going beyond the nation-state. There is after all a kind of global community, be it often a global chat of little enduring value. These developments are also reflected in cultural and artistic trends. But it is a long-term process, not just a very recent trend following the ‘Fall of the Wall’ and various declarations of a ‘new world order’. To remain in the world of culture and the arts, Kazimir Malevich exhibited paintings such as ‘Black Square’ and ‘White on White’ during the period 1915-1918, Charlie Parker, Miles Davis and others launched modern jazz in the 1940s – by the way, the Universal Declara*

Judge at the Court of Justice of the European Union (since 2002). Former Armfelt Professor of Law at the Åbo Akademi University (1981-1996), Principal Legal Adviser at the Legal Service of the European Commission (1995-2001) and Deputy Director-General of the said Legal Service (2001-2002). The article is a slightly revised version of a key note speech given at the ESIL – ASIL Research Forum: ‘Changing Futures? Science and International Law’, University of Helsinki, 2 – 3 October 2009. 1. In the same vein see, e.g., Edward McWhinney, ‘Shifting Paradigms of International Law and World Order in an Era of Historical Transition’, in Sienho Yee and Tieya Wang (eds), International Law in the Post-Cold War World: Essays in Memory of Li Haopei (Routledge: New York, 2001) 1-17.

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tion of Human Rights was adopted in 19482 – and John Lennon’s ‘Imagine’ was released in 1971. This time-span of some 100 years has seen many fluctuations and upheavals. The development of public international law has, to a greater or lesser extent, reflected these processes and trends, although, as will be explained below, it has not done so well enough. International law can do little to change the course of history. Otto von Bismarck is reported as having said that the great questions of the day will be decided not by speeches or by resolutions of majorities, but by blood and iron. J.K. Paasikivi, President of Finland in the late 1940s and early 1950s, observed in a radio broadcast of 1948 that recent developments had shown that international events are not shaped by manuals of international law. What mattered, according to him, was real life in all its shades, which international law could try to follow as much as time and capacity allowed.3 While Bismarck’s reference to blood and iron was made in the era of war as a legitimate tool of foreign policy, and while Paasikivi’s pessimistic assessment was presented in the aftermath of the Second World War, with all its turbulences particularly for a small country like Finland, we should not assume that in today’s world the relationship between law and socio-economic developments has fundamentally changed. Today, the reference to ‘blood and iron’ should be replaced by technology, know-how and socio-economic development. This is today what Paasikivi called ‘real life in all its shades’. While international law is thus not the driving force behind societal change, it will – or at least should – largely reflect and hopefully influence such change. It is to changes in the international legal system that I shall now turn, starting with questions of substance or content.

2. Changes in Norm-Content To what extent has the nature of international law changed since the codification process and the creation of international organisations started during the 2. I have underlined the symbolic importance of the Universal Declaration in Allan Rosas, ‘State Sovereignty and Human Rights: Towards a Global Constitutional Project’, 43 Political Studies (1995) 61-78; German translation in Allan Rosas, ‘Globaler Konstitutionalismus, Menschenrechte und Staatliche Souveränitet’, in Hauke Brunkhorst and Matthias Kettner (eds), Globalisierung und Demokratie: Wirtschaft, Recht, Medien (Suhrkamp: Frankfurt am Main, 2000) 151-176. 3. I have discussed this radio speech in Allan Rosas, Sodanaikainen puolueettomuus ja puolueettomuuspolitiikka: Tutkimus kahden puolueettomuusmallin asemasta kansainvälisessä oikeudessa ja Suomen sisäisessä oikeudessa [in English Wartime Neutrality and Neutrality Policy: A Study in the Status of Two Neutrality Models in International Law and Finnish Domestic Law] (Turun yliopiston julkisoikeuden laitos: Turku, 1978) at 108-109.



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second half of the 19th century? Concerning substance or norm-content, it will be recalled that while traditional international law mainly addressed inter-state relations such as war and peace, peaceful settlement of disputes, trade and commerce as well as diplomatic relations, some early international conventions, while being concluded between states, provided rules that were relevant for intra-state relations as well. The intellectual property conventions of the late 19th century and the International Labour Organisation (ILO) conventions following the establishment of the ILO in 1919 are examples of this. Today, of course, it has become normal that international conventions and other instruments are directly relevant for intra-state matters. It is hardly necessary to mention, in this context, examples such as international environmental law, international finance law, international commercial law, international maritime and transport law, international health law, international energy law, international disaster law, or international labour law. Already some 45 years ago, Wolfgang Friedmann observed that ‘[m]any matters formerly reserved to municipal, public or private, law will become proper subjects of international law which may gradually come to encompass the whole range of regulated human activities’.4 Today, his prophesy has become reality. It should be underlined that I am not speaking of European Union Law. In EU law, a distinction between inter-state and intra-state matters does not make much sense or is in any case even more difficult to uphold than at the global level. The Union constitutes a constitutional order with many state-like features, including a sophisticated internal hierarchy of norms with norms of a higher order regulating competences and procedures for creating, interpreting and applying legal norms and a comprehensive judicial system to adjudicate differences.5 The following discussion will largely bypass the specific features of the EU. As to global developments, also conventions which have a clear inter-state dimension, such as the World Trade Organization agreements, may have important repercussions for intra-state matters as well. This is particularly the case for, but is not limited to, the Agreement on Trade-Related Intellectual Property Rights (TRIPS).6 International criminal law, too, contains elements of both inter-state and intra-state law. As to the conventions prepared by the International Law Commission (ILC), which in most cases address intergovernmental problems of a more traditional nature, nine (if the four 1958 Law of the Sea Conventions are counted as one) 4. Wolfgang Friedmann, The Changing Structure of International Law (Stevens & Sons: London, 1964) at 152. 5. Allan Rosas and Lorna Armati, EU Constitutional Law: An Introduction (Hart Publishing: Oxford, 2010). 6. Annex 1 C of the Marrakesh Agreement establishing the World Trade Organization, 15 April 1994, in force 1 January 1995, 1867 UNTS 3.

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were adopted during the period 1950 – 1979 while only five were adopted during the corresponding period of 1980 – 2009.7 What is more important, of the latter five conventions, only one, the Rome Statute on the International Criminal Court,8 is today in force and the Rome Statute, of course, is a highly innovative instrument which was not considered a realistic option during the era of traditional international law. So far, I have hardly mentioned the word human rights. This is not to say that the birth and development of international human rights law is less relevant. To the contrary, I would join all those who underline its fundamental importance and the revolutionary character of the Universal Declaration, adopted 300 years after the Peace of Westphalia.9 The Universal Declaration is a revolutionary document, notably because it: - concerns matters between the state and individuals under its jurisdiction (vertical approach); - concerns, on the other hand, all human beings rather than the nationals or citizens of a given state; and - constitutes a proclamation and interpretation of universal values and principles rather than a negotiated settlement between different wills or interests of states. There is no need to list here all the international human rights conventions and other instruments, including regional instruments, which have sprung up like mushrooms in the rain since 1948. Some will of course argue that such instruments are used as rhetorical devices for hegemonic or other hidden purposes or that their real impact is minimal in some parts of the world.10 But all 7. See (visited on 12 January 2010). The figures indicated in the text do not include optional protocols relating to the peaceful settlement of disputes concerning the application and interpretation of a given convention. 8. Rome Statute of the International Criminal court, 17 July 1998, in force 1 July 2002, 2187 UNTS 3. The four conventions not in force are: Vienna Convention on Succession of States in respect of State Property, Archives and Debts of 1983, Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations of 1986, Convention on the Law of the Non-Navigational Uses of International Watercourses of 1997 and United Nations Convention on Jurisdictional Immunities of States and their Property of 2004. 9. Rosas, ‘State Sovereignty and Human Rights’, supra note 2. On the status, content and interpretation of the Declaration see Gudmundur Alfredsson and Asbjørn Eide (eds), The Universal Declaration of Human Rights: A Common Standard of Achievement (Martinus Nijhoff Publishers: The Hague, 1999); Vinodh Jaichand and Markku Suksi (eds), 60 Years of the Universal Declaration of Human Rights in Europe (Intersentia: Antwerp, 2009). 10. See, e.g., the discussion in Bill Bowring, The Degradation of the International Legal Order? The Rehabilitation of Law and the Possibility of Politics (Routledge-Cavendish: Abingdon, 2009) passim.



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law, including constitutional or otherwise domestic law, may be misused. And if these instruments can be used against tyrants, let us rejoice over such hegemony. As to the real impact of human rights instruments, let me venture that differences in implementation and impact – there are obviously important differences in this regard – relate to deep-rooted differences in socio-economic and cultural levels of development. The Universal Declaration and the ensuing set of binding conventions will have minimal impact in societies still displaying some features of slave, feudal or early-capitalist societies. But the global human rights movement may to a certain extent (but one should not be too optimistic) promote developments in such societies towards what is fashionably called democracy, the rule of law and good governance; developments which may in turn be helpful in promoting socio-economic development. The development of international humanitarian law applicable in armed conflict should also be mentioned in this context. As is well known, the distinction between humanitarian law and human rights has become increasingly blurred.11 For the sake of brevity, I shall limit myself to a few remarks on noninternational armed conflicts. From the perspective of the law of war, as it stood before 1949, the increasing regulation of civil war and other non-international armed conflict is a radical change.12 Common Article 3 of the 1949 Geneva Conventions,13 Additional Protocol II of 197714, the Amendment of 2001 to the Conventional Weapons Convention of 1980, extending the 1980 Convention to non-international armed conflicts,15 and, last but certainly not least, the inclusion, notably in the Rome Statute of the International Criminal Court of

11. See, e.g., the Special Issue on International Humanitarian Law (No. 4) in 78 Nordic Journal of International Law (2009) at 435 et seq. 12. Allan Rosas, ‘Towards Some International Law and Order’, 31 Journal of Peace Research (1994) 129-135 at 132; Allan Rosas, ‘Construing International Law and Order’, in Jarna Petman and Jan Klabbers (eds), Nordic Cosmopolitanism: Essays in International Law for Martti Koskenniemi (Martinus Nijhoff: Leiden, 2003) 89-110 at 91; Allan Rosas, ‘J.-J. Rousseau and the Law of Armed Force’, in Ola Engdahl and Pål Wrange (eds), Law at War: The Law as it Was and the Law as it Should Be (Martinus Nijhoff: Leiden, 2008) 219-230 at 219. 13. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea; Geneva Convention relative to the Treatment of Prisoners of War; Geneva Convention relative to the Protection of Civilian Persons in Time of War, 12 August 1949, in force 21 October 1950, 75 UNTS 31, 85, 135 and 287. 14. Protocol Additional to the Geneva convention of 12 august 1949, and relating to the Protection of victims of Non-International Armed Conflicts (Protocol II), 10 June 1977, in force 7 December 1978, 1125 UNTS 609. 15. Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects (As Amended on 21 December 2001) 10 October 1980, in force 2 December 1983, 1342 UNTS 137.

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1998, of non-international armed conflicts in the definition of war crimes,16 are the most important normative developments in this regard.

3. Norm-Formation Let me turn to the question of norm-formation processes. I shall spare the reader an exposé over instances where international organisations and bodies can take binding or semi-binding decisions, sometimes even by majority voting. Let me simply note that, even in those still quite frequent cases where international standard-setting is done through international conventions concluded mainly by states, it is a fiction to believe that in real life the content of these conventions is determined in equal partnership between 150 or 200 states, on the basis of the notion of sovereign equality of states. The salient features of a convention or other instrument often come about through the interaction of the administration or bodies of an international organisation sponsoring the instrument and some particularly influential or active national delegations, sometimes also non governmental organizations (NGOs), interest groups and other representatives of civil society. An admittedly extreme example is offered by the negotiations leading up to the so-called Copenhagen Accord of 18 December 2009, which was born in negotiations among a small group of states, with the United States and China as leading parties.17 It is true, states which do not form part of such a network or inner circle may sometimes voice special concerns and in any case refuse to ratify the convention once concluded. Quite often such non-ratification is of minor importance, however, already because there are a number of devices which mitigate its effects. Among such devices can be mentioned the development of general international law, be it qualified as customary law or general principles of law, and the increased focus on opinio juris rather than state practice in the strict sense in the formation of customary law.18 Another even more striking feature is the proliferation of various sorts of soft law instruments, which influence general international law and, in any case, often are followed and implemented in practice. They may even be regarded by politicians and other decision-makers as ‘more binding’ than international 16. See Article 8, paragraph 2 (c) - (f ). On the Rome Statute see supra note 8. 17. While the Conference of the Parties (COP15) to the UN Climate Framework Convention on Climate Change (UNFCCC) decided simply to take note of the Copenhagen Accord, which is not a legally binding treaty, it seems at the time of writing that the Accord will constitute a political basis for future efforts to combat global climate change. See, e.g., and (visited on 6 January 2009). 18. Menno T. Kamminga, ‘Final Report on the Impact of International Human Rights Law on General International Law’, in Menno T. Kamminga and Martin Scheinin (eds), The Impact of Human Rights Law on General International Law (Oxford University Press, 2009) 1-22 at 7-8.



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conventions. The Organization for Security and Cooperation in Europe (OSCE) and the institutions and instruments established by it serve as an example.19 The G-20 Forum with its various sub-bodies and groups may develop in the same direction.20 The increasingly difficult and delicate task of getting binding international conventions adopted and ratified explains why important global instruments such as the ILC Articles on State Responsibility are adopted, at most, as soft law pronouncements. 21 It will be recalled that all but one of the ILC-prepared conventions adopted after 1980 have not yet entered into force, not even among a rather small group of states. And speaking of general international law, one cannot but mention the increase in the establishment and use of international courts and tribunals and other adjudicatory bodies, a development to be welcomed by anyone interested in furthering the idea of a global rule of law. There is also an increasing tendency to resort to various transnational mechanisms such as commercial arbitration and an increasing awareness among national and sub-regional courts to have due regard to international norms.22 I am convinced that these developments will enhance an increasing emphasis on general principles of law rather than customary law in the strict sense based exclusively on the practice and opinio of states. Already today one can, as far as general principles are concerned, sense a process of cross-fertilization and interaction between the global, regional and national levels, within a loose framework of ‘multi-level governance’, and, in the adjudicatory context, a ‘dialogue of judges’, be they members of national, regional or global adjudicatory bodies.23

19. Michael Bothe, Natalino Ronzitti and Allan Rosas (eds), The OSCE in the Maintenance of Peace and Security: Conflict Prevention, Crisis Management and Peaceful Settlement of Disputes (Kluwer Law International: The Hague, 1997). 20. See, e.g., G-20 ‘Leaders’ Statement’, The Pittsburgh Summit, September 24-25 2009, (visited on 12 January 2010). 21. For an explanation why the form of a soft law instrument was chosen for the Articles on State Reponsibility see James Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge University Press, 2002) at 58-59. 22. See, in particular, the publications emanating from the Project on International Court and Tribunals (PICT, see visited on 12 January 2010) such as Yuval Shany, Regulating Jurisdictional Relations Between National and International Courts (Oxford University Press, 2007); Chester Brown, A Common Law of International Adjudication (Oxford University Press, 2007). 23. Carl Baudenbacher and Erhard Busek (eds), The Role of International Courts (German Law Publishers: Stuttgart, 2008); Filippo Fontanelli, Giuseppe Martinico and Paolo Carrozza (eds), Shaping Rule of Law Through Dialogue: International and Supranational Experiences (Europa Law Publishing: Groningen, 2010).

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4. The Way Forward The institutionalization – and some would say, constitutionalization24 – of international law does not, of course, imply any straightforward hierarchical system25 or any constitutional order akin to, say, that of the EU. It is a confusing world order full of inconsistencies, anomalies and weaknesses. One aspect of this is the outmoded structure and decision-making procedures of the UN and the whole UN family, which stifles the efforts at filling the gaps and cleaning up the mess. The development of the G-20 Forum and other more flexible mechanisms which are not based on the idea of the sovereign equality of all states, whatever size and viability, attests to the objective need for alternative forms of cooperation and integration. We simply cannot let groups of failed states and/or tyrannical regimes veto decisions that have to be taken. On the other hand, the alternative mechanisms spring up in an incoherent way and they, too, often lack in efficiency, credibility or general acceptance.26 Looking at the recent literature in international law, or indeed at the programmes of ESIL-ASIL Research Forum, one may get the feeling that I am stating the obvious. A lot is being done which contributes to our understanding of current developments and trends. Yet I have the feeling that general textbooks and courses and what may be described as official or semi-official doctrines do not always reflect new realities. Allow me to highlight three areas or tasks for international lawyers which I consider important candidates for a reassessment of traditional approaches: 1) the status and place of international law as a specific branch of law; 2) a reassessment of norm-structures, norm-content and norm-interpretation in some selected subject-areas, from a de lege late and/or de lege ferenda perspective; and 3) disseminating international law developments to a larger, sometimes regrettably ignorant, audience of experts and practitioners in different areas of national law. On the first point, the status and place of international law as a specific branch of law, I think I have already provided a number of hints. The distinction between the international and the national has become more and more blurred. There is, in fact, an increasing interspersion of, and interaction between, the international, 24. Nicholas Tsagourias (ed.), Transnational Constitutionalism: International and European Perspectives (Cambridge University Press, 2007); Jan Klabbers, Anne Peters and Geir Ulfstein, The Constitutionalization of International Law (Oxford University Press, 2009). 25. For a discussion on jus cogens and tendencies towards a hierarchy see, e.g., Christine Chinkin, ‘Jus Cogens, Article 103 of the UN Charter and Other Hierarchical Techniques of Conflict Solution’, 17 Finnish Yearbook of International Law (2006) 63-82 and Alain Pellet, ‘Comments in Response to Christine Chinkin and in Defense of Jus Cogens as the Best Bastion against the Excesses of Fragmentation’, ibid. 83-90. 26. On the G-20, see Anders Åslund, ‘The Group of 20 Must Be Stopped’, Financial Times, 27 November 2009, at 13.



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regional, national and local. We are living in a world, not of sovereigns, but of a patchwork of authorities, regimes and networks.27 One cannot but agree with Armin von Bogdandy, who notes that ‘one doctrine in need of a final resting place is that of state (not popular) sovereignty as the origin and nucleus of international law’.28 Von Bogdandy also proposes to do away with monism and dualism as doctrinal tools for discussing the relationship between international and internal law. I basically agree, although these notions may still explain something as far as the more technical aspects of approval or adherence to norms emanating from another legal system or sub-system are concerned. To use one more of those buzzwords, there is a ‘pluralist’ rather than monist or dualist construction. While there is no straightforward hierarchy in the strict sense, the possibility of norm conflicts and tensions between different systems and sub-systems have to be tackled somehow. Priorities and sometimes even a sort of lex superior situation do exist, as is demonstrated by the existence of jus cogens norms, Article 103 of the UN Charter, erga omnes obligations and the distinction between multilateral treaties which allow and those which restrict or prohibit reservations. The primacy of EU law over national law may also be mentioned in this context. But it is arguable that a system or sub-system does not have an automatic obligation to implement norms trampling on fundamental human rights, particularly if the norm-giver is lacking in terms of basic guarantees of a system of fundamental rights and a rule of law. At any rate, some constitutional systems do reserve for themselves a right, according to internal constitutional law, to control the validity or binding force of such ‘external’ or ‘foreign’ norms. An example is offered by the famous Solange (‘as long as’) ruling of the German Constitutional Court of 1974. While in 1974 the Court asserted a right to control the conformity of EU legislation with German fundamental rights ‘as long as’ the EU did not have a proper fundamental rights system, it raised the threshold of any such control in 1986, as the EU in the meantime had development an equivalent system of fundamental rights protection of its own.29 A similar approach is to be found in the Bosphorus judgment of the European Court of Human Rights of 2005, where the Court in a case concerning Member States’ implementation of EU rules, accepted a – albeit rebuttable – presump27. Allan Rosas, ‘The Decline of Sovereignty: Legal Aspects’, in Jyrki Iivonen (ed.), The Future of the Nation State in Europe (Edward Elgar: Aldershot, 1993) 130-158 at 153. 28. Armin von Bogdandy, ‘Let’s Hunt Zombies!’ Guest Editorial in ESIL-SEDI Newsletter, September 2009. 29. Internationale Handelsgesellschaft v. Einfuhr und Vorratsstelle für Getreide und Futtermittel, ’Solange I’ - decision of the German Federal Constitutional Court of 29 May 1974, BVerfG 37, 271; ‘Solange II’ - decision of the German Federal Constitutional Court of 22 October 1986, BVefGE 73, 339.

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tion of conformity of the act with the European Convention of Human Rights in view of the fact that the EU, while not being itself a Contracting Party to the Convention, had developed an equivalent system of human rights protection.30 The Kadi judgment of the European Court of Justice of September 2008 should also be mentioned in this context. Here the Court did assert a right of judicial review, but precisely in the case of a group of diplomats who, outside any effective judicial control, adopted norms to be implemented in and by the EU which came into conflict with EU fundamental rights (the right to an effective judicial remedy and the right of property).31 In such a situation, the core areas of EU constitutional law, respect for fundamental rights and the rule of law, had to be upheld. This, of course, is akin to the Solange I judgment of the German Constitutional Court of 1974. Such ‘Solange’ solutions attest to the fact that international lawyers should stop pretending that their subject is so special and different from other branches of law that it has to be reserved for a select group. I would in fact suggest that law schools start considering national constitutional law and international law as part of the same subject, in the EU obviously supplemented by EU constitutional law. They should be seen as part of a continuum, covering all sources of law at all relevant levels, including principles on norm-conflict and norm-interaction, as well as institutions and procedures for the formation, application and interpretation, and implementation of norms. Professors of international law, do not despair! Your chairs and your expertise will be needed in the future as well. What will have to change are perspectives and basic concepts. In my view, such efforts to revamp legal thinking and legal training should as far as possible not lose sight of the long-term perspective. I am thinking about socio-economic change and a time-span of, say, 50 years. Perhaps this could be more useful than to spend a lot of time on short-term fluctuations and fashionable trends in legal doctrine or current political events such as who happens to be in charge of the White House. And the longer-term perspective should form a background for concrete and practice-oriented reassessments of existing legal principles and rules. So what I am advocating is, on the one hand, a long-term historical perspective rather than a focus on fashionable trends of today, and on the other hand, an inventory of what concretely should be done in order to render international law doctrine and the general principles and tenets of international law better adjusted to new realities.

30. Bosphorus Hava Yollari Turizm ve Ticaret Anonim Șirketi v. Ireland, Application no.45036/98, European Court of Human Rights, Grand Chamber, Judgment (30 June 2005). 31. Joined Cases C-402/05 P and C-415/05 P, Kadi and Al Barakaat International Foundation v. Council and Commission [2008] ECR I-6351.



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This takes me to my second point, the need for a reassessment of the contents of international law in some specific areas. I can only mention a few examples. Let me start with a subject belonging to the core of traditional inter-state law, namely the law of war. There are some areas of the law of war, that seem increasingly remote from today’s realities and state practice. The law of neutrality belongs to legal history and the law of military occupation, while still being cited also in state practice, may have become so volatile and fragile that one wonders about its continuing relevance. As to humanitarian law, it is a pity that Norwegian proposals for common rules for all armed conflicts failed at the Diplomatic Conference of 1974-1977.32 It is submitted that the distinctions between international armed conflicts, noninternational armed conflicts covered by Additional Protocol II of 1977, noninternational armed conflicts covered by common Article 3 to the 1949 Geneva Conventions, and ‘internal disturbances and tensions’, are outdated and should, de lege ferenda, be replaced by human rights norms applying in times of emergencies. In fact, as war has ceased to be war in the traditional sociological sense, the regulation of armed force should be seen more as a regulation of peacekeeping and peace enforcement missions, or even of armed police operations and the fight against criminality.33 Even the so-called war in Iraq has elements of a police operation, which is without prejudice to the question of its legality (also peacekeeping as well as police operations can be illegal).34 Some steps in the direction of a human rights approach and of regulating international military missions rather than wars in the traditional sense have already been taken. One can mention in this context the tendency, mentioned above, to extend norms applicable in international armed conflicts applicable in non-international conflicts as well, the efforts to reinforce the protection of human rights in situations of public emergencies, soft law proclamations such as the Turku Declaration on Minimum Humanitarian Standards of 199035 and the 1994 Convention on the Safety of United Nations Personnel.36 More radical steps should ideally be taken, but the current system for treaty-making and treaty amendment stifles once again any effort to achieve quick results.

32. Allan Rosas, The Legal Status of Prisoners of War: A Study in International Humanitarian Law Applicable in Armed Conflicts (Finnish Academy of Science and Letters: Helsinki, 1976; reprint by Institute for Human Rights, Åbo Akademi University: Turku, 2005) at 279-280. 33. Rosas, ‘Towards Some International Law and Order’, supra note 12, at 133. 34. Rosas, ‘Construing International Law and Order’, supra note 12, at 105-107. 35. Declaration adopted by an international expert meeting in Turku, Finland, on 2 December 1990, reprinted, e.g., in UN doc. E/CN.4/Sub.2/1991/55, in 85 American Journal of International Law (1991) 377-381 and in 31 International Review of the Red Cross (1991) 328-336. 36. Convention on the Safety of United Nations and Associated Personnel, 9 December 1994, in force 15 January 1999, 2051 UNTS 363.

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Another example of a subject-area, which seems to be in need of a reassessment, is offered by the law of diplomatic and state privileges and immunities. This is not to say that there can be no special rules for protected persons and property. But all this should be seen in a broader functional framework. Why should civil servants carrying the title of ambassador enjoy more privileges and immunities than, say, members of an elected parliament? The need to restrict immunities in the case of grave offences should, of course, also be mentioned in this context.37 To take an example of an area which simply needs to attract more attention rather than reassessment I would mention the area of economy, finance and monetary policy. There is already by now a myriad of institutions and forums active in this area: the G-20, the International Monetary Fund, the networks of important Central Banks, the World Bank, the United Nations Conference on Trade and Development, regional reconstruction, development or investment banks, the Bank for International Settlements, the Organization of Economic Cooperation and Development, UN regional economic commissions, regional economic integration organisations in Africa, Asia and Latin America…the list is almost endless. While these are to some extent studied by lawyers specializing in the field and by economists, I wonder to what extent they are exposed in public international law textbooks and courses devised for all law students. It is submitted that they are more important for an understanding of the global legal order than, say, the ILC and the Sixth Committee of the UN General Assembly. Neglecting them because some of them are soft law creations is no valid defence. Finally, and I am coming to my third point, to bridge the gap between outdated legal doctrines and reality, international lawyers have an important task in explaining to their colleagues working exclusively within the framework of a national legal jurisdiction that they cannot go on pretending to be isolated from what they would call ‘foreign’ legal developments. There are still people practicing or teaching civil or criminal law, or even environmental law, who limit their interest solely to norms enacted by their own jurisdiction. This is no longer a question of choice but a question of incompetence. They, in fact, do not practice or teach the law in force but legal history. If in the context of the EU, they neglect European law as well, the matter is of course even more serious. While public international law – global law, some people prefer38 – should focus on ‘constitutional’ issues, that is, sources of law, methods of interpretation, general principles and institutional frameworks, each area of national law should, to a greater or lesser extent, pay attention to global and regional developments 37. On the question of immunity in cases of serious human rights violations see, e.g., ‘Symposium: State Immunity in Civil Proceedings for Serious Violations of Human Rights’ in 18 European Journal of International Law (2007) 903 et seq. (articles by Lorna McGregor, Christopher Keith Hall, Noah Benjamin Novogrodsky and Alexander Orakhelashvili). 38. Giuliana Ziccardi Capaldo, The Pillars of Global Law (Ashgate: Aldershot, 2008).



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of relevance for a given subject. True, quite often the immediate source of law for the national actor will be a legislative or regulatory act adopted by his own parliament or government, but more often than not this act will be dictated or at least influenced by an external (as seen from the perspective of the jurisdiction in question) norm. I would argue that this is one of the most important tasks of today’s international lawyers. So there is a lot to do, probably more than ever before. My conclusion is thus the following: International law is dead – long live international law!

Scientific Evidence in the International Court of Justice – Problems and Possibilities* Anna Riddell** Abstract: Disputes before the International Court of Justice have in recent years become increasingly fact-intensive, with parties often submitting volumes of scientific evidence, such as in the recent Pulp Mills On the River Uruguay case. The lack of detailed rules on the use of evidence and wide discretion of the Bench in evidentiary matters has prevented the development of a systematic or coherent approach to evidence and the use of experts, which hinders the Court in performing its functions. This view has been supported in several Separate and Dissenting Opinions in the Pulp Mills case, with several judges criticising the Court’s approach. With such concern amongst the Bench regarding these matters, the time is ripe for an examination of the shortcomings of the Court in this area, and some potential improvements which could be made. This paper will examine a series of errors made by the Court in judgments as a result of a lack of understanding of the evidence, assertions that the Court is not the best forum for the resolution of scientific disputes, and compare the procedure with that adopted in Annex VII Arbitrations. It will be concluded that whilst in certain disputes other fora would be more suitable, the International Court of Justice can retain its importance in international dispute resolution, if it sufficiently addresses the easily rectifiable deficiencies in the area of scientific evidence, by making full use of currently existing procedural powers and issuing clarifying Practice Directions. Keywords: international court of justice, scientific evidence, technical evidence, international dispute resolution

*

This paper is based on a chapter of Evidence Before the International Court of Justice A. Riddell and B. Plant (BIICL, 2009), and delivered at the Third ASIL/ESIL Research Forum ‘Changing Futures? Science and International Law’ in Helsinki on October 4 2009, updated to include the recent Pulp Mills Judgment. References to all online sources are accurate as of 18 May 2011. ** PhD candidate at the European University Institute, Florence. Former Research Fellow in European and Public International Law, British Institute of International and Comparative Law, [email protected].

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1. Introduction Major technological and scientific developments in recent decades have ensured that scientific knowledge has developed an important role in the administration of law. As observed by Chan, there is an: ‘illuminating and critical role that scientific evidence can and does play in addressing the increasingly complex questions pressed upon modern-day courts’.1 The issue of how to deal with these technical and scientific issues is currently one of the biggest problems facing the International Court of Justice (ICJ). Not only are these cases harder for the Court to consider because they involve material which is often incomprehensible to a person without the relevant expertise, but frequently the topic is highly politically sensitive, for example, the protection of the environment, or the right to develop nuclear weapons. The Court, possessed of completely flexible powers with regard to evidence, must carefully balance the legal interests and the scientific arguments if it is to produce meaningful judgments on these matters. It must not only face the inherent difficulties of understanding complex aspects of, for example, biology, vessel engineering, chemistry, geology, econometric analysis or psychology, but also the divergent views of the judges from different legal backgrounds on how such information can be integrated and appreciated in the Court’s deliberations and judgments. In the GabčikovoNagymaros case, Judge Weeramantry commented that: The inadequacies of technical judicial rules or procedure for the decision of scientific matters have long been the subject of scholarly comment. We have entered an era of international law in which international law subserves not only the interests of individual States, but looks beyond them and their parochial concerns to the greater interests of humanity and planetary welfare. In addressing such problems, which transcend the individual rights and obligations of the litigating States, international law will need to look beyond procedural rules fashioned for purely inter partes litigation.2

Despite this acknowledgement in 1997 of the importance of engaging with scientific evidence, little has progressed on this matter. The recent Pulp Mills On the River Uruguay case (Pulp Mills) provided a clear opportunity for the Court to reconsider its approach to cases involving scientific uncertainty. However, as two long standing judges of the Court - Judge Bruno Simma and Judge Awn Shawkat Al Khasawneh - noted in their Dissenting Opinion, the Court did not seize this chance:

1. Effie J. Chan ‘The “Brave New World” of Daubert: True Peer Review, Editorial Peer Review, and Scientific Validity’ 70 New York University Law Review (1995) 100-134 at 102. 2. Case concerning the Gabčikovo-Nagymaros project (Hungary v. Slovakia) ICJ Reports 1997 (Separate Opinion of Judge Weeramantry) 118.



Scientific Evidence in the International Court of Justice 231 We regret that the Court in the present case has missed what can aptly be called a golden opportunity to demonstrate to the international community its ability, and preparedness, to approach scientifically complex disputes in a state-of-the-art manner.3

This paper will examine the ICJ’s procedure and fact-finding abilities with regard to their suitability in matters of science, discussing some examples of cases where such considerations have been important, and contrasting the approach of the ICJ with other tribunals, in order to draw some lessons for the Court’s future practice.

2. The International Court of Justice and Fact Finding The ICJ was created as a judicial forum for the resolution of legal disputes, and it was envisaged that cases would predominantly involve questions of law based on agreed facts. It was therefore perceived that complex rules relating to the production and use of evidence were not required, instead giving the Court a degree of flexibility. As Judge Van Eysinga of the Permanent Court of International Justice (PCIJ) emphasised in his separate opinion in the Oscar Chinn Case: ‘the Court is not tied to any system of taking evidence … its task is to cooperate in the objective ascertainment of the truth’.4 Judge Lauterpacht has also stated that ‘the importance of the interests at stake precludes excessive or decisive reliance upon formal and technical rules’.5 The provisions in the Statute and Rules relating to evidence are broadly drawn however. Articles 48 and 49 of the Statute and 62 of the Rules give the Court wide powers relating to the taking of evidence, stating that it may make all relevant orders and arrangements and may also call for the production of evidence from the parties. It may order a site visit,6 or appoint an individual or organisation to carry out an enquiry,7 hear witnesses or experts,8 and the Judges are given complete freedom to evaluate and weigh any evidence before them. The Court has made little use of its powers on the taking of evidence over the 3. Case concerning Pulp Mills on the River Uruguay, (Argentina v Uruguay), (Judgment) ICJ Order (8 November 2010), at (Dissenting Opinion Judges Al-Khasawneh and Simma), at 9, para. 28, emphasis added.

4. Oscar Chinn, PCIJ, series A/B, no. 63 (1934), at 146.

5. H Lauterpacht The Development Of International Law By The International Court (Stevens and Sons: Cambridge, 1958) 366. 6. Article 66 of the Statute of the International Court of Justice, United Nations, 18 April 1946, . References for online sources are accurate as of 6 July 2011. 7. Article 50 of the Statute of the Court, supra note 6 and Article 67 of the Rules of the International Court of Justice, United Nations, 14 April 1978, . 8. Article 62 (2) of the Rules of the International Court of Justice, United Nations, 14 April 1978, .

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years, and has been the subject of considerable criticism for this and its treatment of evidence in certain cases. As Merrills has remarked, for the ICJ: ‘the essential problem is to reconcile continuity with innovation’.9 The desire of the Court to respect the sovereign nature of the parties before it has resulted in a considerable degree of deference being shown to them, and the Court has on occasion adjusted its collection and handling of evidence to accommodate the wishes of the parties, with the result that its ability to fulfill its fact-finding function has been undermined by the political or strategic decisions of the litigating States. In others however, the Court has refused to hear experts when asked by the Parties, or has misinterpreted evidence, shown misplaced faith in unreliable sources, or shied away from deciding complicated or sensitive questions of fact, all at the expense of the quality of the Court’s judgments and the long-term value of its jurisprudence, which will be further discussed and demonstrated in the case studies below.10 There are also few explanations of how the Court has evaluated certain pieces of evidence or how it has reached its conclusions on disputed facts. In recent years, the factual bases for the disputes submitted to the ICJ have become increasingly complicated and more frequently contested, particularly where matters of technology and science are involved, and the litigating States have sought to use ever more sophisticated forms of evidence to substantiate their claims. There is a growing risk that the inefficiencies tolerated within the current evidentiary system will undermine the Court’s ability to administer international justice effectively. Academic discussion on this,11 and several recent cases in which issues of evidence have been at the fore,12 have prompted the Court to begin to consider its evidentiary procedures more carefully, for example, by issuing Practice Directions. Indeed, the Dissenting Opinion of Judges Al Khasawneh and Simma in the Pulp Mills case notes the growing dissatisfaction with the lack of attention being paid to the rigours of fact-finding in academic literature,13 and calls upon the Court to adopt a more rigorous approach.14 With other factually complex cases raising issues of science currently before the Court,15 now is the time for an examination of its approach to such matters. 9. John Merills International Dispute Settlement (2nd ed., Grotius Publications: Cambridge, 1991) at 133. 10. For example, Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States) ICJ Reports 1984, 321-323, paras 131-134 (Dissenting Opinion Judge Schwebel); Thomas M Franck ‘Fact-Finding in the ICJ’, in Richard B Lillich (ed.) Fact-Finding Before International Tribunals: Eleventh Sokol Colloquium (Transnational: Virginia, 1992) at 30-32. 11. See Anna Riddell and Brendan Plant Evidence Before the International Court of Justice (BIICL, 2009). 12. The Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) ICJ Reports (2007) and Case concerning armed activities on the territory of the Congo (Democratic Republic of the Congo v. Uganda) ICJ Reports (2005). 13. Pulp Mills case, supra note 3, (Dissenting Opinion Judges Simma and Al Khasawneh) at para. 3. 14. Ibid. paras 7-17. 15. For example, the Aerial Herbicide Spraying (Ecuador v. Colombia) case, among others.



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3. The Inherent Difficulties of Scientific Evidence The uncertainties inherent in bringing scientific matters into legal discourse exacerbate the ICJ’s pre-existing difficulties with the use and understanding of evidence. A clear problem is that an ‘expert’ can be found to support any scientific proposition, which could be made to sound plausible to Judges without special knowledge of the discipline, particularly given the tendency of scientific knowledge to develop at a rapid pace.16 As far back as 1923, the US courts recognised that scientific knowledge is capable of being applied to a scale of ‘acceptability’, ranging from highly experimental science in its nascent stages to well-established principles which cannot reasonably be doubted. The US Divisional Court said in Frye that: Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.17

However, later commentators have argued that general acceptance should not be the test for admissibility of such evidence, but that it should focus on whether it was developed by a scientific method and was thoroughly tested: “General scientific acceptance” is … not a criterion for the admissibility of scientific evidence. Any relevant conclusions which are supported by a qualified expert witness should be received unless there are other reasons for exclusion … If the courts used this approach, instead of repeating a supposed requirement of “general acceptance” not elsewhere imposed, they would arrive at a practical way of utilizing the results of scientific advances.18

Quite apart from the question of the credibility of the science, one must also ponder on the level of judicial understanding of such evidence. Brewer argues that ‘intellectual due process’ demands that ‘whether it is a scientifically trained judge or juror or agency administrator, the same person who has legal authority must also have epistemic competence in relevant scientific disciplines’.19 On the 16. ‘Through questioning, testing, refuting and expanding upon the stream of emerging scientific claims, scientists constantly redefine the outer boundaries of scientific knowledge’ Chan, ‘The “Brave New World” of Daubert’ supra note 1, at 100. 17. Frye v United States, 293F. 1013, (DC Cir 1923), 1014. 18. Professor McCormick, an early critic of Frye: Edward Cleary (ed.) McCormick’s Handbook on the Law of Evidence (2nd Ed, West Publishing Company: Minnesota, 1972) at section 203. 19. Scott Brewer ‘Scientific Expert Testimony and Intellectual Due Process’, 107 Yale Law Journal (1998) 1535-1681 at 1681.

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other hand, Posner suggests that one does not have to understand a position to be justified in believing it; hence the judges need only be able, by examining the fulfilment of certain criteria such as neutrality and expertise, to repose a justified trust in the truthfulness and expertise of the person who assures them of the truth of a proposition.20 However, the diplomatic or academic background of many of the judges in international judicial bodies renders it difficult for them to make a finding that an expert was not objective or qualified as a professional in the field, or holding that a documentary piece of evidence, such as a graph or a map was not accurate or authentic.21 Related to the question of comprehension is the issue of how judges can be expected to weigh scientific evidence. Special considerations arise when examining issues of science, whether submitted in documentary or oral form. Whilst all the general principles of weighing evidence apply - such as the conditions in which the report was prepared or opinion given; the qualifications of the expert and whether it is corroborated by other evidence - expert evidence imports some other considerations. As noted by Lalive: Bien que la Cour, de meme qu’un tribunal national, ne soit jamais liée par les conclusions des experts, celles-ci, comme en droit interne, exaceront d’habitude une influence relativement grande sur les décisions à prendre.22

The Court must rely on evidence prepared by experts with caution. It is evidence of opinion, rather than fact, and as such, it must be borne in mind that even highly qualified experts may be wrong. Judge Fitzmaurice hinted at this risk in his Separate Opinion in The Temple of Preah Vihear case, where Thailand made a point of their lack of geographical expertise in the period when the Treaty and map under discussion in the case were made: One may sympathise with Siam’s lack of topographical and cartographical expertise at this time, but … the legal effect of reliance on the skill of an expert is that one must abide by the results – in short a principle akin to that of caveat emptor is relevant. … [T]he law as a general rule affords no remedy against errors made in good faith and without negligence by qualified experts. The dangers of giving expert advice could not otherwise be accepted.23 20. Richard Posner ‘The Law and Economics of Expert Witness’, 13(2) Journal of Economic Perspectives (1999), 91-99, at 96.. 21. Shabtai Rosenne ‘Fact-Finding before the International Court of Justice’ in Wybo Heere, International Law and the Hague’s 75th Anniversary (Cambridge University Press: Cambridge 1999) at 57. 22. Jean-Flavien Lalive, ‘Quelques remarques sur la preuve devant la Cour Permanente et la Cour Internationale de Justice’ 7 Annuaire Suisse de Droit International (1950), at 101. Author’s translation: ‘Although the Court, like a national court, is never bound by the conclusions of experts, these conclusions, as in municipal law, usually exert a relatively large influence upon the decisions taken.’ 23. Case concerning the Temple of Preah Vihear (Cambodia v. Thailand) ICJ Reports 1962, (Separate Opinion Judge Fitzmaurice) at 58-9.



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The Gabčíkovo-Nagymaros case between Hungary and Slovakia provides some insight as to the types of consideration which arise when dealing with scientific evidence. Slovakia in its Counter-Memorial generally characterised evidence submitted by Hungary as an ‘amalgam of scientifically superficial and politically oriented assertion’.24 It also noted the contradictions in scientific data presented by Hungary on environmental risk evaluations of the Project before and after its suspension.25 Another argument against the submissions of Hungary concerned the latter’s failure to present the Court and its opponent with all the evidence referred to in its Memorial.26 Furthermore, referring explicitly to the Ecologia reports of March and May 1989 and the Hardi report of September 1989, Slovakia stated that they ‘share a common fundamental flaw: they are not scientific reports prepared by experts – at least in so far as expertise in the consideration of environmental aspects is concerned’.27 It gave three reasons for this analysis. First, the contents of each report did not include scientific data, but mere assertions. Second, Ecologia was seemingly an unknown organization and its personnel responsible for the reports had not demonstrated appropriate expertise. Equally, the Hardi report was also prepared by individuals lacking expertise in the fields of environmental or earth sciences, being instead a policy group. Third, their stated aim was to complete a quantitative economic evaluation and to carry out a legal analysis, not to evaluate or review scientific data on environmental issues. Finally, at this stage of the proceedings Slovakia also accused Hungary of having drawn the wrong conclusions from the scientific reports annexed to its briefs.28 Hungary, on the other hand, in the second round of its written pleadings focused on advancing its own scientific data and conclusions, by integrating an extensive scientific evaluation of the project in the body of its submissions.29 With regard to Slovakia’s evidence submissions, it accused the latter of not having presented the Court with all the evidence referred to in its Memorial, namely a series of environmental impact studies preceding the 1977 Treaty,30 and further noted the failure of Slovakia to give the independent scientific reports it invoked their proper meaning and effect.31 Hungary also noted the role of scientific uncertainty in the dispute, especially in view of the complex set of interrelated processes involved in the project, which were at the ‘leading edge of research’ at 24. Case concerning the Gabčikovo-Nagymaros project (Hungary v. Slovakia) Counter-Memorial by the Slovak Republic of 5 December 1994, in Part III, Chapter VII, Section 1. 25. Ibid. Part II, paras 4.14–4.21. 26. Ibid. Part III, paras 7.14–7.16. 27. Ibid. 28. Ibid. Part IV, para. 9.74. 29. Case concerning the Gabčikovo-Nagymaros project (Hungary v. Slovakia) Counter-Memorial of Hungary of 5 December 1994, Vol. II followed by two volumes of Annexes (Vol.IV) as well as maps, photos and graphs to be examined in conjunction with the Scientific Evaluation. 30. Ibid. Vol. I, Part I, para. 1.26. 31. Ibid. paras 1.30–1.32.

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the time; and prescribed ‘simulation models based on extensive field data’ as the only way to come up with conclusive evidence of risks and damages.32 It is clear that in this case the Parties examined each other’s evidence in great detail, however the Court did not choose to base its decision on any of the scientific evidence proffered, and made no comment on these arguments of the parties.

4. The Use of Experts and Expert Evidence Cases involving scientific evidence inevitably entail the use of experts, either as part of a party’s legal team or through testimonial or documentary evidence. It is therefore necessary to examine the Court’s relationship with experts and some of the difficulties which arise, as well as the implications of this relationship for cases involving scientific subject matter.

4.1. The Role of Experts The court has sometimes relied heavily on experts to illuminate the facts of a case before it, for example in the Corfu Channel case,33 but these cases are the exceptions, rather than the rule. Indeed in the Application for Revision of the Tunisia/ Libya Continental Shelf case,34 the Court refused to hear expert evidence when the parties requested it. The ICJ is also unused to,35 and unsuitable for, hearing live testimony.36 There is also a blurring of the boundaries between witness and expert. Although there is a distinction between the oath taken by witnesses and experts,37 there is little by way of guidance on what testimony they can give, and indeed, a hybrid category of ‘witness-expert’ has been created, which appears to concern persons who can testify both as to their knowledge of facts and also as to their opinion on matters upon which they have expertise.38

32. Ibid. para. 1.44. 33. In which the Court made a detailed Order outlining the task of the technical experts – The Corfu Channel Case (UK v Albania) Order of 17 December [1948] ICJ Reports, at 244. 34. Application for Revision of the Tunisia/Libya Continental Shelf Case (Tunisia v Libyan Arab Jamahiriya) ICJ Reports (1984), at 227-8, para. 65. 35. By July 2008, only ten of the 111 contentious cases heard before the ICJ involved the examination of witnesses or experts. 36. For discussion on live testimony at the Court, see Chapter 8 of Riddel and Plant, ‘Evidence’, supra note 11. 37. Under Article 64(a) of the Rules of Court a witness must take a solemn declaration to speak the truth, but under Article 64(b) an expert makes a declaration as to his solemn belief. 38. However, some commentators have argued that this third category denotes experts called by the parties as opposed to by the Court. For a discussion of this debate, see Riddell and Plant, ‘Evidence’, supra note 11, at 321.



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4.2. The Qualification of Experts In line with the ICJ’s general lack of rules relating to evidence and procedure, no mention is made of the matter of qualification of experts, though some guidance has appeared in the case law. For example, during the South West Africa oral proceedings, President Spender said: Experts may qualify in other fields than that which is their normal qualification, if they reveal a special knowledge which is far in excess of that which is normally held by a lay person and, where a witness so qualifies, it is a question of the weight to be accorded to his opinion, not a question of the admissibility of the expert view which is expressed.39

It is thus clear that experts may also testify on matters which are not their primary expertise, but in which they hold some higher level of skill than normal. To this end, experts state their education, background and special knowledge at the beginning of their testimony, in order to add weight to their evidence.

4.3. The Court’s Powers Regarding Experts The Statute of the Court does contain a power to appoint experts in Article 50,40 and to question them,41 as well as a provision in the Rules of the Court allowing for it to arrange for an enquiry or expert opinion.42 The Court has made little use of these powers, and has only appointed experts to furnish it with additional information in two cases to date, Corfu Channel and the Gulf of Maine. In the Gulf of Maine case a highly technical report was presented to the Chamber to assist it in determining the maritime boundary. The Gulf of Maine case was unusual in that the Chamber was required to appoint an expert to assist it with technical matters related to the demarcation of a maritime boundary because a specific stipulation was made by the parties in their Special Agreement. In other circumstances where parties have requested the Court to appoint experts, it has 39. ICJ Reports, South West Africa, Vol. X, at 525 (President Percy Spender). 40. Article 50 of the Statute: The Court may, at any time, entrust any individual, body, bureau, commission, or other organization that it may select, with the task of carrying out an enquiry or giving an expert opinion. 41. Article 51 of the Statute: During the hearing any relevant questions are to be put to the witnesses and experts under the conditions laid down by the Court in the Rules of Procedure referred to in Article 30. 42. Article 67 of the Rules: 1. If the Court considers it necessary to arrange for an enquiry or an expert opinion, it shall, after hearing the parties, issue an order to this effect, defining the subject of the enquiry or expert opinion, stating the number and mode of appointment of the persons to hold the enquiry or of the experts, and laying down the procedure to be followed. Where appropriate, the Court shall require persons appointed to carry out an enquiry, or to give an expert opinion, to make a solemn declaration. 2. Every report or record of an enquiry and every expert opinion shall be communicated to the parties, which shall be given the opportunity of commenting upon it.

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not appeared very willing to do so. However, in this case Article II, Paragraph 3 of the Special Agreement required the Chamber to appoint the technical expert who had been jointly nominated by the Parties, Mr Peter Bryan Beazley, a retired Commander of the British Navy.43 Doubtless the parties’ shared insistence on this approach was referable to another unusual aspect of the case: namely, that the Chamber was not simply requested to indicate the principles and rules of international law applicable to the boundary delimitation while leaving the task of demarcating the precise boundary line to the parties themselves, rather it was requested to undertake the entire task itself.44 In this context, the parties’ resolve to use technical experts is understandable, especially seeing that the ICJ had not traditionally been required to carry out the demarcation of a boundary in dispute. The manner of the expert’s involvement in the Gulf of Maine proceedings differed somewhat from the usual procedure: in order to assist the Chamber directly in its preparation of a technical map of maritime demarcation, the expert submitted a technical report45 but was also available for consultation by the Chamber throughout the proceedings.46 The Court’s reluctance to appoint experts has long attracted criticism from both academics and its own judges, the Dissenting Opinion in the Pulp Mills case is simply the latest example. For example, Judge Wellington Koo in a Dissenting Opinion in The Temple of Preah Vihear case said: All the foregoing questions [which the Court actually should have been asking to determine the dispute] are of a technical character and call for an independent expert or experts to supply reliable answers. I am of the opinion that the Court would have been well advised, under Articles 44 and 50 of the Statute, to send its own expert or experts to investigate on the spot and make a report of their observations and recommendations, as was done in the Corfu Channel case (ICJ Reports 1949). Such a report would have been of great assistance to the Court in deciding the case by law on the basis of all the relevant facts of a technical as well as other character.47

The Kasikili/Sedudu case further demonstrates the existence of the power of the Court to obtain evidence, but declining to use it. Judge Shigeru Oda in his Separate Opinion notes the parties attempted to solve the matter using the expertise of two technical experts in presenting their pleadings, although the 43. Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America) ICJ Reports (1981), Appointment of Expert, Order of 30 March 1984 ICJ Reports (1984), at 165; see Gulf of Maine, at 256, para. 8 and 265, para. 18. 44. Ibid. at 267, para. 25. 45. ‘Technical Report’ annexed to the Judgment, Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America) supra note 42, at 347-52. 46. Ibid. 253, para. 3 (Art II, para. 3 of the Special Agreement). 47. Case concerning the Temple of Preah Vihear (Cambodia v. Thailand) supra note 23, (Dissenting Opinion Judge Wellington Koo) at 100.



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Court ruled only on: ‘the information given in the written and oral pleadings by the respective Parties, but without the benefit of objective scientific knowledge, which it could have obtained itself but chose not to’.48 Several of the Judges in the Pulp Mills case also discuss the importance of Article 50 and question why better use is not made of it. Judges Simma and Al Khasawneh note that Article 50 is flexible and can be used at any stage of the proceedings. They comment: The Court, when handling a dispute with complex scientific or technical aspects (which will become all the more common as the world will be faced with more environmental or other challenges), should more readily avail itself of the tools available to it under its constitutive instrument in order to properly assess the evidence placed before it.49

Judges Yusuf 50 and Cançado Trindade 51 also mention that the Court should have made use of their powers under Article 50, and Judge Vinuesa is particularly critical, stating that: Article 50 of the Statute was conceived precisely for cases like the current one. … Whatever delay might have been caused by the additional investigation would have been outweighed by the Court’s increased competence to render an effective Judgment. The Court does itself a disservice by not ensuring that its ruling is based on factual certainty.52

It is encouraging that several Judges are recommending better use of Article 50, but the failure to do so has long attracted judicial criticism, which thus far has not had an appreciable impact on practice. Perhaps the reluctance is based on the fact that the Court views its own powers to seek evidence as secondary; its primary function with respect to evidence being the supervision of the Parties submission of evidence. This is logical, and perhaps consistent with Sovereign equality to leave this decision to the Parties, and it reflects the logistical demands of dealing with States as litigants. A further factor could be the time involved in seeking expert advice. Judge ad hoc Vinuesa’s dissenting opinion suggests that the Court may have decided not to appoint its own expert to evaluate the scientific and technical evidence because of the delay that would have been involved.53 Nevertheless, in cases of increasing factual complexity, the need for experts is becoming ever more apparent as the criticisms in the Pulp Mills

48. Kasikili/Sedudu Island (Botswana/Namibia) ICJ Reports (1996) (Separate Opinion Judge Oda) at para. 6. 49. Pulp Mills case, supra note 3, (Dissenting Opinion Judges Simma and Al Khasawneh) para. 9. 50. Ibid. (Declaration of Judge Yusuf ), at para. 5. 51. Ibid. (Separate Opinion of Judge Cançado Trindade), at 151. 52. Ibid. (Dissenting Opinion of Judge Vinuesa), at para 95. 53. Ibid.

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case demonstrate, and it is hoped that the Court will work on revitalizing this aspect of its powers in future cases. However, there is evidence that the Court makes use of experts in a more private fashion. It is often suggested that the Court does in fact frequently have recourse to expert advice, but does not make this known to the parties or the public. Jennings states that: the Court has not infrequently employed cartographers, hydrographers, geographers, linguists, and even very specialized legal experts to assist in the understanding of the issues in a case before it; and has not on the whole felt any need to make this public knowledge or even to apprise the parties.54

The current Registrar of the ICJ, Philippe Couvreur, has confirmed that experts are used in such a manner. He defines the role of such experts retained by the Court as being for purely internal consultation as temporary Registry staff members entrusted with the giving of internal scientific opinions under the oath of confidentiality demanded of full-time Registry staff, and states that their conclusions would never be made public.55 There are two provisions in the Rules which would allow for such use, Article 21(2) on assessors, 56 and Article 62 which allows the Court to see other evidence or explanations as it requires. However, as Judges Simma and Al Khasawneh note in their Dissenting Opinion in the Pulp Mills case, the phenomenon of ‘expert fantômes’ is a practice which is inherently contrary to the principles of transparency and procedural fairness: while such consultation of invisible experts may be pardonable if the input they provide relates to the scientific margins of a case, the situation is quite different in complex scientific disputes, as is the case here. Under the circumstances of the present case, adopting such a practice would deprive the Court of the abovementioned advantages of transparency, openness, procedural fairness, and the ability for the Parties to comment upon or otherwise assist the Court in understanding the evidence before it.57

54. Robert Jennings, ‘International Lawyers and the Progressive Development of International Law’, in Jerzy Makarczyk (ed.), Theory of International Law at the Threshold of the 21st Century: Essays in Honour of Krzystof Skubiszewski (Martinus Nijhoff: Leiden, 1996) at 416. 55. Philippe Couvreur, ‘Le Règlement Juridictionnel’, in Société Française Pour le Droit International (ed.) Le Processus de Délimitation Maritime : Étude d’un cas Fictif – Colloque International Du Monaco du 27 au 29 Mars 2003 (Paris : 2004) 349, at 384. 56. For a discussion on the potential use of assessors, a role which could be developed to allow expert involvement at the Judgment stage, but with procedures which would ensure fairness and transparency, yet allowing the Court to reach a solid scientific conclusion in cases where this is necessary, see Riddell and Plant, ‘Evidence’, supra note 11, at 335. 57. Pulp Mills case, supra note 3, (Dissenting Opinion Judges Simma and Al Khasawneh) at para. 14.



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It is the opinion of this author that the practice of secret recourse to experts is not one which should be encouraged, given the lack of procedural fairness and possibility for Parties to comment, especially as the powers under Article 50 could be used equally for this purpose, given they may be used ‘at any time’. However, the use of experts by the Court is of course encouraged, provided it is in an open and transparent manner, giving the Parties the opportunity to comment on that expert’s opinion, as occurred in the Gulf of Maine case. At present, it is probable that some parties are hesitant to rely on too much technical evidence because they perceive the Court is unable to deal with it, given some of the results in past cases where technical evidence has been presented. If the Court were routinely to consult with experts in its deliberations, it might enhance the confidence of parties in the Court’s ability to deal with such complex matters.

4.4. The Parties’ Use of Experts The parties invariably seek expert advice when preparing their memorials and their cases for the oral proceedings in order to ensure that they present their arguments in the best way. This procedure was described by counsel for the US in the Gulf of Maine case: An early decision was taken in the fall of 1982 to involve legal experts from outside the Government to provide an independent source of comment and guidance. … We wanted to obtain the widest and most sophisticated insight into practice before the Court … [and] to ensure that the preparations were compatible with the different legal traditions reflected by members of the Chamber. In addition, many other distinguished US lawyers, historians, geographers, biologists, geologists, marine scientist, economists and persons from other disciplines rendered assistance to us on a regular basis throughout the case. In all, nearly a hundred professionals contributed to the US case.58

However, in certain cases, the assistance of the expert in preparing the case may not be enough, and the Parties want their expert to present actual evidence to the Court. This can take the form of an expert report, which is presented in the same way as other documentary evidence, or an expert may appear in person in the Court. The latter may happen in two ways; an expert may give testimony, or act as part of the delegation. Article 43(5) of the Statute entitles the parties to include experts and technical advisers in their delegations, the latter also being permitted to make explanations to the Court. These persons do not give testimony as such, but use their expertise to express the party’s contentions as pleadings

58. Davis R Robinson, David A Colson, and Bruce C Rashkow, ‘Some Perspectives on Adjudicating Before the World Court: The Gulf of Maine Case’ 79 American Journal of International Law (1985) 578-597 at 595–6.

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and address the Court in the same manner as counsel, and therefore they must be distinguished from experts who testify before the Court under Article 64(b). This latter practice was relatively unremarked upon in the past, but it appears to have been particularly problematic in the Pulp Mills case, and was strongly criticised by several judges in the Separate and Dissenting Opinions. Judge Greenwood said that giving evidence should be distinguished from advocacy, saying that not having done so in this case was ‘unfair and unhelpful’.59 He continued: For a person who is going to speak of facts within his own knowledge or to offer his expert opinion on scientific data to address the Court as counsel is to circumvent these provisions of the Rules and, in the words of the late Sir Arthur Watts, unacceptably to blur the distinction between evidence and advocacy.60

The Judgment itself also disapproves of this practice: Regarding those experts who appeared before it as counsel at the hearings, the Court would have found it more useful had they been presented by the Parties as expert witnesses under Articles 57 and 64 of the Rules of Court, instead of being included as counsel in their respective delegations. The Court indeed considers those persons who provide evidence before the Court based on their scientific or technical knowledge and on their personal experience should testify before the Court as experts, witnesses, or in some cases in both capacities, rather than counsel, so that they may be submitted to questioning by the other party as well as the Court.61

Judge Greenwood gives his approval that the Court has indicated this practice will not be repeated in future cases, but it is not clear that the Judgment actually goes that far. Indeed, the undesirability of this practice was noted as long ago as the ELSI case in 1987, when counsel was held to be giving evidence, which President Ruda deemed to be unacceptable,62 and yet which has continued since. However, a Practice Direction could easily remedy this, and it is hoped that one will be forthcoming. It is thus clear that the Parties are more comfortable with the use of experts than the Court at all stages of the proceedings – from the contemplation of a case, to its preparation, presentation and even in some cases implementation of the Judgment, although following the warning in Pulp Mills, in future they must distinguish carefully between experts and counsel. It can be seen from the case studies below that the ICJ too would benefit considerably from an increased use of experts. 59. Pulp Mills case, supra note 3, (Separate Opinion Judge Greenwood) para. 27. 60. Ibid. (citing Arthur Watts, ‘Enhancing the Effectiveness of Procedures of International Dispute Settlement’ in Jochen A Frowein and Rudiger Wolfrum (eds), 5 Max Planck Yearbook of United Nations Law (2001), at 29-30. 61. Ibid., Judgment, para. 167. 62. ICJ Pleadings, Elettronica Sicula S.p.A. ‘ELSI ‘ , Vol. III ICJ Reports 301-313.



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5. Case Studies Of Scientific and Technical Evidence In The International Court of Justice Turning to specific analysis of the ICJ’s appreciation of scientific and technical evidence, the best method of illustration is to study the issues which have arisen in some of the cases where such evidence has been submitted.

5.1 Qatar v Bahrain Case 1994 In the Qatar v Bahrain case the problem presented by the scientific evidence was that it was not determinative of the issue it was adduced to establish. The parties were in dispute over whether the smaller neighbouring landmass Fasht Al Azm was joined to Sitrah Island, the significance of which would be the extension of the territorial waters around both, rather than being solely around Sitrah. Qatar alleged Fasht Al Azm had always been separated by a navigable channel until this was filled by Bahrain in 1982. Neither party could provide evidence of the situation prior to 1982, and the expert reports submitted by each party came to opposing conclusions as to the existence of a permanently navigable channel.63 The Court found this evidence difficult to evaluate, and the scientific evidence on this matter thus became more of an advisory discourse. In the end the Court chose to base its decision on other matters without coming to a conclusion as to the existence of the channel.64 Rather than failing to determine the matter because the expert evidence did not present one clear answer, the Court should have instead examined both reports and come to its own conclusion as to whether one of them was of greater merit, more accurately describing the situation, and if not, it could have sought its own impartial expert information in order to help it decide using its powers under Article 50. As a result of failing properly to appreciate all the technical evidence in the case, it seems that the Court’s judgment has a rather interesting effect. In drafting the maritime boundary, the Court has inadvertently crossed over dry land belonging to each of the parties,65 which would in all likelihood have been avoided if experts had been recruited to help with the task.

63. Maritime Delimitation and Territorial Questions Between Qatar and Bahrain (Qatar v Bahrain) ICJ Reports (1991), at 98, para. 189. 64. Ibid. 104, at para. 218. 65. Tim Daniel ‘Expert Evidence Before the ICJ’ Paper presented at the Third Bi-Annual Conference of ABLOS (2003) at 5.

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5.2 Gabčíkovo-Nagymaros Case 1997 The Gabčikovo-Nagymaros case was a dispute over a bilateral treaty between Hungary and Slovakia concerning the construction of a system of locks on the River Danube, between the towns of Gabčikovo in Czechoslovakia and Nagymaros in Hungary. The dams were designed to eliminate regular flooding and supply a clean source of electric power. In 1989 Hungary decided to suspend the project, but the Czechoslovakian government decided merely to switch to a smaller scale plan known as ‘Variant C’. In 1993 both parties brought the dispute over whether the project should continue before the ICJ. The questions submitted to the Court involved elements of treaty law and environmental law, the latter requiring extensive scientific evidence to be submitted to the Court and examined in detail by the parties throughout the three rounds66 of written pleadings and the oral proceedings. A wide range of technical and scientific fields of expertise were involved, namely seismology, hydrology, hydrobiology, water chemistry, sediment transport, river morphology, soil sciences, forestry, biology, ecology and EIA methodology. The information was presented to the Court by means of scientific studies and expert reports, as well as independent scientific appraisals by multinational construction companies involved in the project67 and by environmental NGOs,68 as well as four reports by three groups of experts established by the European Communities.69 Some national scientific authorities also gave appraisals of the project which were referred to by the parties.70 However, despite the volume and complexity of the factual information submitted to the Court on the scientific aspects of the dispute, the ICJ expressly 66. A third round was requested by the Parties and authorised by the Court under Art 45 (2 ) of the Rules. 67. See e.g., ICJ Pleadings, Gabčikovo-Nagymaros project, Memorial of the Slovak Republic, Vol. I, at 57, para. 2.28; ICJ Pleadings; Gabčikovo-Nagymaros project, Counter-Memorial of the Republic of Hungary Vol. I, at paras 1.30-1.32, referring to the Bechtel corporation appraisal of the project. 68. See Counter-Memorial of the Republic of Hungary, supra note 66, at para. 1.33 referring to different statements by WWF and an expert study by INFORT. 69. Initially the EC was invited by the parties to offer its good offices for the settlement of the dispute, and produced the following reports: EC Working Group of Independent Experts on Variant “C” of the Gabčíkovo-Nagymaros Project, working group report of 23 November 1992; EC Working Group of Monitoring and Water Management Experts for the GabčíkovoNagymaros System of Locks, Data Report of 2 November 1993; EC Fact-Finding Mission Report on Variant “C” of the Gabčíkovo-Nagymaros Project, Mission report of 31 October 1992; EC Working Group of Monitoring and Water Management Experts for the GabčíkovoNagymaros System of Locks, Report of 1 December 1993 on Temporary Water Management. ICJ Pleadings, Gabčíkovo-Nagymaros Project, Memorial of the Slovak Republic, Vol. II, Annexes 12, 19, 22 and Vol. III, Annex 33. 70. For example, by the Hungarian Academy of Science, in ‘The Majrai letter’ annexed to the pleadings of Slovakia and the references to the Environmental Impact Assessments conducted by Hungary in 1983 and 1985.



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declined to consider the value or validity of any of this evidence. The judgment did note that there was ‘abundant evidence’ that the environmental implications of the Project were ‘considerable’,71 and acknowledged the importance of ‘new scientific insights’ for the determination of the risks for mankind caused by the human interference with the environment when ‘unconsidered and unabated’.72 However, whilst noting that there was a potential environmental impact, the Court decided to base its decision on the legal obligations of the parties arising out of treaty law, and not upon any appraisal of the scientific evidence. The Hungarian argument on the state of necessity could not convince the Court unless it was at least proven that a real, ‘grave’ and ‘imminent’ ‘peril’ existed in 1989 and that the measures taken by Hungary were the only possible response to it. Both Parties have placed on record an impressive amount of scientific material aimed at reinforcing their respective arguments. The Court has given most careful attention to this material, in which the Parties have developed their opposing views as to the ecological consequences of the Project. It concludes, however that, as will be shown below, it is not necessary in order to respond to the questions put to it in the Special Agreement for it to determine which of those points of view is scientifically better founded.73 As submitted by Hungary in the case, and academically noted,74 it was strange that the Court was able to make a decision on the immediacy and gravity of the environmental peril without taking into account the scientific data submitted by the parties intended to prove just that. Judge Hercezgh is critical of this approach in his Dissenting Opinion: As a judicial organ, the Court was admittedly not empowered to decide scientific questions touching on biology, hydrology, and so on, or questions of a technical type which arose out of the G/N Project; but it could – and even should – have ruled on the legal consequences of certain facts alleged by one Party and either admitted or not addressed by the other, in order to assess their respective conduct in this case75.

However, he further notes that: The G/N Project had other consequences for the environment, the details of which were discussed at length by the Parties, which presented them in diametrically 71. 72. 73. 74.

Case concerning the Gabčikovo-Nagymaros project (Hungary v. Slovakia), supra note 2, at para. 140. Ibid. Ibid. at para. 54. See Lee Thomson, ‘The ICJ and the case concerning the Gabčíkovo-Nagymaros Project: The Implications for International Watercourses Law and International Environmental Law’ 3 Centre for Energy, Petroleum, Mineral Law and Policy, Annual Review (1999) Article 8, available at: . 75. Case concerning the Gabčikovo-Nagymaros project, supra note 2, (Dissenting Opinion Herczegh) at 177.

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opposed ways. That detailed and conflicting presentation did not ease the Court’s task and made it harder for it to determine the facts not denied or challenge by one or other of the Parties.76

This is perhaps further indication of the Court’s unsuitability to deal with such evidence. It is not necessary for Judges to be experts themselves, but it is part of the judicial task to examine the evidence presented to it and come to a conclusion based upon an assumed understanding of that evidence. It is clear that a re-examination of the task of judging upon such evidence is required.

5.3 Cameroon v Nigeria Case 2002 Perhaps the clearest example of the potential adverse impact of the Court’s difficulties in appreciating technical evidence is the Cameroon v Nigeria case, in which the Court managed to draw a land and maritime boundary that cannot be applied because of errors made by the Court in its delimitation. Problems arose regarding both the land and maritime boundary, because of the Court’s apparent failure to understand that latitudes and longitudes cannot be applied without defining the geodetic datum on which they are based. Because of the irregular shape of the earth, a datum is used to define the shape of a mathematical body which represents the earth’s surface and on which a grid of latitude and longitude can be plotted. Without one, it is not possible to accurately determine the point to which coordinates refer and as a result a point may be plotted a considerable distance from the intended site. From a comparison of the Court’s sketch maps appearing in the Judgment with the maps submitted in the case it is possible to deduce that the former are derived from the 1:50 000 maps submitted by Nigeria. Since those are on Minna Datum, it is reasonable to infer that the quoted latitudes and longitudes in the Judgment are also on Minna Datum. 5.3.1 The Land Boundary Even with the assumption that the Minna Datum is applicable, the boundary line as described by the Court is still difficult to demarcate because of further errors made on the coordinates. An example of this is the location of the source of the River Kohom. It was crucial to determine the source because paragraph 19 of the Thomson–Marchand Declaration specified that the boundary should pass along the River Kohom. The Judgment says the Court agreed with Cameroon on the location of the River, but goes on to describe the source as being at 13º 44’ 24’ longitude east and 10º 59’09’ latitude north,77 which are the coordinates submitted for the source by Nigeria. A sketch map in the judgment showing the 76. Ibid. at188. 77. Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea Intervening) ICJ Reports (1994), at 303 para. 102.



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source erroneously locates this roughly 1.5km from where the coordinates in the Judgment describe it as being located. Paragraph 102 goes on to say the boundary then joins the Kohom to the River Bogaza, which rises on Mount Ngosi by a straight line ‘until it reaches the peak . . . of 861m. shown on the 1:50,000 map . . . in Nigeria’s Rejoinder’.78 There are two errors here. First, the height of 861m refers to a point on the River Bogaza itself and not to a ‘peak’. Secondly, the Court’s sketch map again does not correspond with the coordinates in the Judgment, which are given as 13º 45’ 45’ longitude east and 10º 59’45’ latitude north. This location is annotated on the sketch map roughly 3km away from the point the Court clearly intended to describe.79 It is concerning that the coordinates given in the judgment do not correspond to the sketch maps appended to it, and raises questions as to whether the maps were prepared by someone who could combine a sufficient knowledge of cartography with an ability to understand and comment on the geographical aspects of the judgment. As Carleton and Schofield observe: ‘While it can be creditably argued that the Judges at the ICJ are experts in international law and therefore cannot be expected also to have a comprehensive understanding of technical issues as well, basic technical errors of this nature are nevertheless very surprising.’80 The use of an expert cartographer in ensuring judgments draw the exact line they intend and describe would not be controversial, and indeed, would probably be welcomed by parties, who could rely on the coordinates given, rather than wondering whether the Court actually intended to use different ones, and whether the sketch map reflects their actual intention more accurately. If they do not wish to use experts in such a manner, it would be prudent at the very least for the Court to have its draft Judgments checked by experts for potential mistakes such as occurred in this case. 5.3.2 The Maritime Boundary With regard to the maritime boundary, the Court chose to base its delimitation of the boundaries on the largest scale chart available to it: Admiralty Chart 3433. The Court calculated the median line and basepoints from this chart, but given that the chart had no datum the geographical coordinates became impossible to demarcate on the ground with any precision.81 As a result the Court has not complied with Articles 16(1), 75(1), and 84(1) of the Law of the Sea Convention which explicitly require a geodetic datum to be specified where a list of 78. Ibid. 79. For an illustration of these errors, see the map insert in Riddell and Plant, ‘Evidence’, supra note 11. 80. Carleton M Schofield and Chris H Carleton ‘Technical Considerations in Law of the Sea Dispute Resolution’ in Alex G Oude Elferink and Donald R Rothwell (eds), Oceans Management in the 21st Century (Martinus Nijhoff: The Hague, 2004) at 251. 81. Ibid. at 241.

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geographic coordinates concerning the point of a boundary line is provided. Two hydrographic experts analysing the case have observed that: [I]t is clearly stated in the title block of British Admiralty Chart 3433 that the chart is referred to no known datum. Nevertheless, this chart, which was certainly submitted as evidence to the Court (being annexed to both the Yaoundé II and Maroua Declarations on which they depend) was explicitly referred to by the Court in its ruling with no mention being made of the problems associated with the lack of datum to accompany the coordinates drawn off the chart. This suggests that either the Chart was not examined properly by the Court or that none of the Judges at the ICJ was aware that coordinates need to be referred to a datum to be meaningful.82

The Court made a further error with respect to the positioning of Point X, which it decided should be equidistant between the two specified basepoints, West Point and East Point, at 8º 21’ 20’ longitude east and 4º 17’ 00’ latitude north.83 However, this point is not equidistant between the coordinates given for the two basepoints at paragraph 292 of the Judgment, but is located 300 metres to the west of the true equidistant point.84 Carleton and Schofield consider that this is a typographical error in the coordinates, and if: ‘the longitude coordinate [were] 8º 21’ 30’ east rather than 8º 21’ 20’ east, Point X would accord very closely with the correct midpoint’.85 Errors in the Court’s appreciation of the technical material before them are understandable to some extent, but simple typographical errors which prevent the boundary being properly demarcated are far less excusable. The matter was further complicated by the fact that the chart had been drawn many years before the Court prepared its judgment, and in the interim period coastal shift and erosion meant that the coastline had in fact moved considerably. Recent satellite imagery demonstrates that the low water line in the vicinity of the East Point, for example, has receded by approximately 700 metres since Chart 3433 was prepared.86 Therefore the point drawn by the Court on what it thought was the coastline as shown by Admiralty Chart 3433 ended up being located in the sea some way off the present coastline. The combination of these errors meant the lines drawn by the Court in practice were not the lines it thought it was drawing. The judgment drew ‘a line straight through a Nigerian-operated oil field which is not, it is thought, the result that the Court intended’,87 and several Nigerian oil concessions now fall 82. Ibid. at 251. 83. Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea Intervening), supra note 76, at para. 307. 84. Schofield and Carleton,‘Technical Considerations’, supra note 79, at 245. 85. Ibid. (emphasis added). 86. Ibid. at 247. 87. Daniel, ‘Expert Evidence’, supra note 64, at 7.



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on the ‘wrong’ side of the line.88 Such accidental results as this are to be avoided. It is essential that resources such as oil are properly taken into consideration in judgments, ‘given that a major focus in most maritime boundary cases is the existence (suspected or real) of natural resources’.89 5.3.3 Demarcation of the Boundaries – Ongoing Difficulties In the aftermath of the decision, the Nigerian and Cameroonian presidents established a Commission to undertake the implementation of the ICJ’s decision. It has not been a straightforward task because of the difficulty in identifying the points referred to by the Court. In demarcating the land boundary the Mixed Commission has had to identify the pillar sites described in the judgment, and in relation to the maritime boundary up-to-date geodetic data needed to be collected and then used to create a geo-referenced map containing the boundary line as defined by the ICJ. This process is still ongoing. The uncontroversial parts of the boundary lines have been demarcated, but with regard to those where the meaning of the Court’s judgment is in dispute between the parties the Commission does not appear to be close to resolving the issue. The fact that such a lengthy and detailed procedure has to be carried out in order to render the judgment of the ICJ of any practical effect is rather telling of the suitability of the Court at present to deal with such technically complex cases. The outcome of this case may very well act as a deterrent to other states seeking boundary delimitations in future, as the failure of the Court to grasp the fundamental importance of geodetic data for such an activity is a grave one. Furthermore, simple typographical errors such as the erroneous positioning of Point X or the source of the River Kohom, are clearly not the consequence of lack of evidence available to the Court, but the result of mistakes in the comprehension or application of technical aspects and a lack of expertise in drafting the judgment. As pointed out by Rushworth: Judgments are usually addressed mainly to lawyers (to justify the legal decisions that have been taken), whereas the most important recipients of the judgment are the diplomats and geographers who have to demarcate and administer the boundary. The latter need the clear, geographically-based delimitation of a unique, practical, workable boundary, which does not always seem to be the top priority of tribunals.90

88. Schofield and Carleton, ‘Technical Considerations’, supra note 79, at 247. 89. Adaeze Ifesi ‘Maritime Boundary Delimitation and Trans-Boundary resource deposits: The International Court of Justice Decision in Cameroon v Nigeria Lending Clarity or Compromise?’ 1 Transnational Dispute Management 7 (2004). 90. Dennis Rushworth, ‘Mapping in Support of Frontier Arbitration’ (1996) 4.2 Boundary and Security Bulletin 61.

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If the Court cannot produce such judgments, it loses its utility as a boundary dispute resolution forum, even if on the law, the solution appears to be a well-considered one.

5.4 Pulp Mills Case 2010 The Pulp Mills case arose from an allegation by Argentina that Uruguay had violated its obligations under the 1975 Statute of the River Uruguay, the latter being the border between the two countries. Uruguay unilaterally authorized the construction of two cellulose pulp mills on the river, which Argentina said violated the Treaty procedurally and substantively. On the substantive claim, the Court had to determine whether the concentrations of pollutants discharged by the mill were within regulatory limits established by the Parties and whether their impact on the river’s water quality was harmful. The Parties both introduced a vast amount of technical and scientific material on this point, and it is the Court’s consideration of this material which elicited the strong criticism from the Judges in the case discussed above. The Court undertook a compound by compound examination of the impact of discharges from the mills on the levels of dissolved oxygen, total phosphorus, phenolic substances, nonylphenols and nonylphenolethoxylates, dioxins and furans in the river. It took it upon itself to weigh and evaluate the data, rather than relying on what it referred to as: ‘the conflicting interpretations given to it by the Parties or their experts and consultants’.91 It is perhaps this which, as noted above,92 prompted several Judges to remark that the Court ought to have appointed its own expert under the power given to it in Article 50 of the Statute to assist in evaluating the competing claims of the parties. Judges Simma and Al-Khasawneh in their Dissenting Opinion were particularly critical of the fact-finding aspects of the case, noting that the Court approached the evidence in a way: ‘that will increase doubts in the international legal community whether it, as an institution, is well-placed to tackle complex scientific questions’.93 They continue: The adjudication of disputes in which the assessment of scientific questions by experts is indispensable, as is the case here, requires an interweaving of legal process with knowledge and expertise that can only be drawn from experts properly trained to evaluate the increasingly complex nature of the facts put before the Court.94

They conclude that the ICJ has much to learn from other tribunals in this respect, as they have accepted the reality of the challenges posed by scientific 91. 92. 93. 94.

Pulp Mills case, supra note 3, Judgment, at para. 236. At Section 4.3. Pulp Mills case, supra note 3, (Dissenting Opinion Judges Simma and Al Khasawneh), at para. 3. Ibid.



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uncertainty in the judicial process, noting particularly the suitability of the approach adopted by the Annex VII Arbitral Tribunal in the Guyana v Suriname arbitration. The study of the procedure in this case appearing in the chapter upon which this article is based is quoted with approval by the Judges.95 Judge Yusuf in a Declaration also expresses similar concerns about the Court’s approach to expert and scientific evidence, and the unfortunate reluctance to make use of the fact-finding powers available to it, stating that: errors in the appreciation or determination of facts can substantially undermine the credibility of the Court, and discourage parties to disputes involving scientific and technological issues from turning to the Court. … It would therefore serve the Court well in the future to make better use of the powers granted to it by its Statute to deal with fact-intensive and scientifically complex cases and to develop, for that purpose, a clear strategy which would enable it to assess the need for an expert opinion at an early stage of its deliberations on a case.96

Judges Vinuesa, Cançado Trindade and Keith also discuss the Court’s approach to fact-finding in their Opinions, which demonstrates a new-found level of attention to such matters in the ICJ. Previous mention of questions of evidence in Judgments and even by individual Judges has rarely been as marked as in this case, a trend which the author hopes is indicative of a new-found willingness to properly engage with the fact-finding process possibly prompted by recent academic focus on this issue.

6. Considerations for the Future Significant technological and scientific advances in recent years have meant such knowledge has been playing an increasing role in the administration of law, and the ICJ must evolve to meet these new challenges. The Court itself expressly acknowledged such technical advancements in the Gabčíkovo-Nagymaros case, stating: Throughout the ages, mankind has for economic and other reasons, constantly interfered with nature. In the past, this was often done without consideration of the effects upon the environment. Owing to new scientific insights and to a growing awareness of the risks for mankind – for present and future generations – of pursuit of such interventions at an unconsidered and unabated pace, new norms and standards have been developed, set forth in a great number of instruments during the last two decades. Such new norms have to be taken into consideration, and

95. Ibid., at para. 15. 96. Ibid., (Declaration Judge Yusuf ) at paras 13-4.

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such new standards given proper weight, not only when States contemplate new activities but also when continuing with activities begun in the past.97

Despite its appreciation of the changing nature of the world, the Court appears unable to realize fully how this impacts upon its function and to develop its procedures to encompass these changes. The challenge lies in viewing scientific evidence in conjunction with existing social and legal settings with which the Court is already familiar, rather than viewing science as having separate isolated sets of norms. Judge Weeramantry acknowledges in his Dissenting Opinion in the Nuclear Weapons Advisory Opinion that scientific analysis is necessary to produce the facts upon which to decide the law: The following more detailed analysis is based on materials presented to the Court, which have not been contradicted at the hearings, even by the States contending that the use of nuclear weapons is not illegal. They constitute the essential factual foundation on which the legal arguments rest, and without which the legal argument is in danger of being reduced to mere academic disputation.98

It is crucial for the Court to address properly this law-science discourse in order to give meaningful and considered judgments.99 If the ICJ wishes to preserve its inter-state dispute resolution role for the future, it will have to turn its attention to these complex matters which are increasingly the subject of such disputes. States will not bring cases involving scientific or technological aspects before the Court if they are not confident that their case will be fully appreciated by the Judges, and adjudicated upon accordingly. At present the Court appears to be reluctant to take on this task, but given that other courts and tribunals have managed to develop strategies to deal with this, and the Court itself has demonstrated expertise in dealing with certain difficult matters (such as, for example, in the ELSI case100), it is submitted that the time is ripe for the Court to review its procedures in this area.

97. Case concerning the Gabčikovo-Nagymaros project (Hungary v. Slovakia), supra note 2, at 140. 98. Legality of the Threat or Use of Nuclear Weapons Advisory Opinion ICJ Reports (1995), (Dissenting Opinion Weeramantry) at 454. 99. See Gary Edmond, ‘The Next Step or Moonwalking? Expert Evidence, the Public Understanding of Science and the Case against Imwinkelried’s Didactic Trial Procedures’ 2 International Journal of Evidence and Proof (1998), 13-31. 100. In the ELSI case, the initial diplomatic claim preceded the actual litigation by some 15 years. As such, the affidavits used in that case were produced many years after the events which they described. Nevertheless, in the absence of other suitable evidence, the Court attached to them a certain probative weight.



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6.1 Improving the Use of Expert Evidence A simple yet significant change would be to make better use of the powers of retaining experts already granted to the Court by the Statute, particularly Article 50, or consider developing a panel of advisors on particular technical matters which arise repeatedly, such as maritime delimitation. Perhaps the role of assessors under Article 21(2) of the Statute, left undefined by the drafters of the Statute, could be developed to provide assistance to the Court in its deliberations, and in giving form to its judgments, in order to avoid some of the problems which have arisen, particularly in boundary cases. For example, a court-engaged expert could review the draft Judgments to ensure that technical terms are correctly used, references are properly cited, and judicial conclusions do not fly in the face of fact or theory, avoiding complications of the kind created by the Cameroon v Nigeria Judgment.

6.2 A Comparative Study – Guyana v Suriname Some lessons could also be learnt from other tribunals that have heard very similar cases but through the extensive use of experts, have avoided some of the problems encountered by the Court. An excellent example of this is the Guyana v Suriname Annex VII Tribunal Arbitration. In 2004, Guyana submitted its dispute with Suriname over the delimitation of their maritime boundary to the Permanent Court of Arbitration, requesting a special arbitral tribunal to be constituted under Annex VII of United Nations Convention on the Law of the Sea. Two independent experts were consulted by the resulting Tribunal under Article 11 (3) of the Rules of Procedure for the Arbitration, which provided that: After having obtained the views of the Parties, the Arbitral Tribunal may upon notice to the Parties appoint one or more experts to report to it, in writing, on specific issues to be determined by the Tribunal. A copy of the expert’s terms of reference, established by the Tribunal, shall be communicated to the Parties.101

The Tribunal issued an order requiring an expert to review proposals by the parties to remove or redact parts of a document produced as evidence, and resolve a dispute over a failure to disclose part of a document.102 Following this order the parties had the opportunity to submit observations and comments on the role of that expert. The Tribunal subsequently issued another Order an101. Art 11(3), Rules of Procedure for the Arbitral Tribunal Constituted Under Annex VII to the United Nations Convention on the Law of the Sea, Pursuant to the Notification of Guyana, dated 24 Feb 2004, . 102. Procedural Order No 1 of the Arbitral Tribunal Constituted Under Annex VII to the United Nations Convention on the Law of the Sea, 18 July 2005, entitled ‘Access to Documents’, .

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nouncing the appointment of an international law professor as the independent expert and setting out the ‘Independent Expert’s Terms of Reference’.103 The expert was clearly directed as to the specific points of fact he was to examine.104 Following consultations and correspondence with the parties, the expert issued his report and the parties were given the opportunity to comment on it before it was adopted by the Tribunal.105 The expert also issued recommendations on proposals for redaction by Suriname which were also adopted by the Tribunal and complied with by the Parties. The tasks assigned to the independent expert were successfully resolved, and the Tribunal’s decision on this issue was greatly facilitated by the resolution of these procedural questions, within a short time and with the approval of both parties. The second expert was a hydrographer required to clarify the technical and scientific details of the maritime dispute.106 The Order gave the hydrographer’s terms of reference: 3.1. The Expert shall assist the Arbitral Tribunal, should it determine that it has jurisdiction to do so, in the drawing and explanation of the maritime boundary line or lines in a technically precise manner. 3.2. The Expert will make himself available to assist the Arbitral Tribunal as required by it in the preparation of the Award. 3.3. The Expert shall perform his duties according to international hydrographic and geodetic standards.

The hydrographer’s first act was to request further information from the parties on: ‘the position of Marker ‘B’, and other points in this 1960 survey within the geographic area of the mouth of the Corentyne River, their geodetic datum, and the WGS-84 datum position of these points if they have been determined by recomputation of the 1960 survey’.107 On the basis of the conflicting information 103. Procedural Order No 3 of the Arbitral Tribunal Constituted Under Annex VII to the United Nations Convention on the Law of the Sea , 12 Oct 2005, . 104. Procedural Order No 4 of the Arbitral Tribunal Constituted Under Annex VII to the United Nations Convention on the Law of the Sea , 12 Oct 2005, . 105. Procedural Order No 5 of the Arbitral Tribunal Constituted Under Annex VII to the United Nations Convention on the Law of the Sea, 16 Feb 2006, . 106. Procedural Order No 6 of the Arbitral Tribunal Constituted Under Annex VII to the United Nations Convention on the Law of the Sea, 27 Nov 2007, . 107. Award of the Arbitral Tribunal Constituted Under Annex VII to the United Nations Convention on the Law of the Sea of 17 September 2007 in the Matter of an Arbitration between Guyana and Suriname, at para. 110, .



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given in reply, the Tribunal gave clear orders to the hydrographer to conduct a site visit in Guyana to resolve the controversy on the accurate position of Markers ‘A’ and ‘B’.108 The Tribunal was subsequently able to reach a decision on this matter with ease, basing its decision on the written report of the hydrographer.109 As well as relying heavily on the independent experts’ advice and reports, the Tribunal also took into account and cited expert evidence submitted by the parties in their pleadings, which is not common in the decisions of the ICJ. The Award it rendered was based on a sound understanding and acknowledgement of the relevant technical points in the dispute,110 demonstrated in an Appendix to the award analysing the data provided by both the parties. As a result, the Award fully resolves the dispute in a scientifically sound way, and no further negotiations between the parties have been required. The difference between the result of this case and, for example, the Cameroon v Nigeria case is stark, but the only significant difference in method is the use of suitably qualified experts on matters which are outside the knowledge of the Tribunal. The lesson on the virtue of using independent experts is particularly strong when considering cases of such scientific complexity that the weighing of evidence does not depend solely on legal rules, but also on some technical considerations the judges are not in a position to appreciate fully. Whilst the ICJ has used experts to educate the judges on some basic notions of cartography and geology, it does not make full use of such experts in the same way as Arbitral Tribunals, and as a result the judgments given cannot benefit from the same detailed scientific consideration.

6.3 An alternative viewpoint – recognizing the limitations of the ICJ However desirable it may seem for the Court to reassess its procedure in cases involving technical or scientific matters, perhaps there is another solution. Other tribunals which can deal effectively with these matters exist, as demonstrated in the Guyana v Suriname case, and it might be that the ICJ should simply surrender such cases to other tribunals which have been set up with such disputes in mind, and therefore have the appropriate mechanisms in place. Certainly the deterrent effect of the Court’s reluctance to use experts has been often noted, for example, by Schofield and Carleton.111 108. Procedural Order No 7 of 12 March 2007, and the Terms of Reference for the visit were given in Order No 8 of 21 May 2007, . 109. Arbitral Award, supra note 107, at para. 309. 110. This point is quoted by Judges Simma and Al Khasawneh at para. 15 of the Dissenting Opinion in the Pulp Mills case, who applaud the Annex VII tribunal’s assessment of evidence. 111. Schofield and Carleton, ‘Technical Considerations’, supra note 79, at 252. ‘The lack of understanding of the basic requirements of defining position evidence in the Cameroon v Nigeria judgment and the Court’s apparent reluctance to seek technical expertise to assist the

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President Higgins, writing extra-judicially, has recognized the new challenges presented by globalisation and their consequences for the Court: We . . . today have a certain decentralisation of some of the topics with which the ICJ can in principle deal to new, highly specialized bodies, whose members are experts in a subject matter which becomes ever more complex, which are more open to non-State actors, and which can respond rapidly. I think this is an inevitable consequence of the busy and complex world in which we live and is not a cause of regret. How should the International Court respond to these consequences of the new international system, and particularly of globalisation? Not, I think, by seeking to become all things to all men, or by following every current fashion. . . .112

Whilst some consider that it would be better for certain disputes to be heard in other tribunals which are more adept at dealing with complex scientific or technical matters, it is true that some cases combine such elements with other matters of law upon which the ICJ is ideally placed to adjudicate. As Thomson notes: ‘it is extremely rare that any dispute will involve one single issue and thus the forum for solving international disputes must be as all embracing as possible. To limit the scope of any international dispute resolution forum is to limit its effectiveness.’113 Therefore to suggest that the ICJ should relinquish all such cases would be unwise, and to state that recent cases will deter States from bringing all future claims involving scientific or technical matters is to put the point too strongly. Higgins agrees, and notes the continuing importance of the ICJ internationally: The International Court, while de facto shedding some of the more specialized subject matter over which it has competence in principle, nonetheless retains a central importance . . . it is striking that even as new judicial bodies spring up, the Court is busier than at any time in its history, with cases of great weight and importance from every corner of the world. Even as this judicial decentralisation occurs, the Court’s docket gets larger and larger. The important task is not for the Court to re-invent itself – even if it were able to – in the image of more recent tribunals, but rather to ensure that it can respond as efficaciously as possible to its clientele.114

Whilst there is a likelihood that any cases which are based purely on scientific and technical matters may be brought before other tribunals more suited to hearing judges in their deliberations has led to the ICJ diminishing its reputation by, for example, omitting to state the datum on which its coordinates defining boundary turning points are based.’ 112. Rosalyn Higgins ‘Respecting Sovereign States and Running a Tight Courtroom’ 50 International and Comparative Law Quarterly (2001) 121- 132 at 122–3. 113. See Thomson, ‘The ICJ’, supra note 73. 114. Higgins, ‘Respecting Sovereign States’, supra note 112, at 123.



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them, as Higgins suggests, there will always be room for the ICJ in international dispute resolution, regardless of its perceived deficiencies in this area.

7. Conclusion As illustrated in the case studies above, the ICJ is at present ill-equipped to deal with cases involving technical or scientific evidence, and consequently risks developing a reputation as an unsuitable forum for such disputes. If it wishes to retain its central importance as a dispute resolution forum, it must adapt its procedures in order to be able to give cases with technical issues comprehensive and suitable treatment. The Statute and Rules of the Court as they stand in fact allow for many improvements such as increasing the use of experts or employing assessors to assist with the preparation of judgments, it is simply up to the Court to begin making full use of the powers already available to it. It is hoped that the Court will continue the task, recently invigorated by President Higgins, of examining and revising evidentiary procedures during the Presidency of Hishashi Owada, whose past attentions in Separate and Dissenting Opinions to issues of evidence suggest he attaches a similar importance to them. It is clear that procedural reform, or more full use of the available procedural tools, is necessary, but it is also obvious that a conceptual reform is also required – the ICJ cannot continue to think of itself as an arena for legal disputes in which facts are of secondary importance. Judge Cançado Trindade remarked that the Court’s role was ‘to dwell to a greater extent on legal principles than on chemical substances’,115 but it is not possible to make sound legal Judgments if they are not based upon a proper appreciation of the facts. Judge Trindade’s approach is reflective of the Court’s long reluctance to acknowledge its fact-finding role, perhaps born from a difference of focus between lawyers from a civil and common law tradition on matters of evidence. However, the Pulp Mills case is a clear example of the importance of a rigorous fact-finding procedure in an international court, particularly when seized of matters of complex science and technology, and the case was an opportunity for the Court to approach the subject in a fresh manner. As Judges Simma and Al Khasawneh noted, the case was: an opportunity of combining the rigour of the scientific community with the requirements of the Courtroom – a blend which is indispensable for the application of the international rules for the protection of the environment and for other disputes concerning scientific evidence. 116

The Court however chose not to take this chance to engage fully with the 115. Pulp Mills case, supra note 3, (Separate Opinion Judge Cançado Trindade) para. 3. 116. Ibid. (Dissenting Opinion Judges Simma and Al Khasawneh) para. 13.

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scientific discourse, but the volume of criticism from its own Judges in their Opinions and Declarations will hopefully caution the Court as a whole that it must begin to pay better attention to these issues. Cases with complex issues of science and fact will continue to present themselves, and the Court must rise to this challenge. As one US Supreme Court Justice has aptly noted: the law itself increasingly requires access to sound science … society is becoming more dependent for its well-being on scientifically complex technology, so, to an increasing degree, this technology underlies legal issues of importance to all of us.117

117. Stephen Breyer, The Interdependence of Science and Law, Science and Technology Policy Yearbook (1999), at 1.

Science in the Hands of International Investment Tribunals: a Case for ‘Scientific Due Process’ Céline Lévesque* Abstract: This article examines the role of science in the adjudication of disputes under international investment treaties. It focuses on cases where investors challenge science-based health, safety and environmental measures adopted by states. It highlights the issues that arbitration tribunals face when the validity of the science underlying a product ban, for example, is questioned by investors. The article explores the concept of ‘scientific due process’ in order to suggest criteria that tribunals might usefully consider when applying investment treaty standards. In particular, it seeks guidance from the norms of science (Merton, 1942) and from the emerging practice of states in matters of health, safety and the environment that reflects such norms. Keywords: International investment law, investment arbitration, arbitration tribunals, scientific evidence, scientific due process, norms of science.

1. Introduction The interaction of science and international investment law poses important challenges as exemplified by the following arguments of the United States in an investor-state arbitration. “NAFTA investment chapter tribunals do not sit as a super-regulatory body, with authority to second-guess the policy judgments of the NAFTA Parties on regulatory or scientific matters. The question is not whether the scientific conclusions were right or whether they were wrong. Instead, the question before this Tribunal is whether the scientific conclusions were so wrong that they could only be viewed as a pretext.”1 *

Céline Lévesque is Associate Professor, Faculty of Law, Civil Law Section, at the University of Ottawa, Canada. In 2008-2009, she was Scholar-in-Residence at the Trade Law Bureau of the Department of Foreign Affairs and International Trade Canada. The views expressed are the author’s and not necessarily those of the government of Canada. The author would like to acknowledge the support of the Social Sciences and Humanities Research Council of Canada. 1. Methanex Corp. v. United States, ‘Rejoinder of the Respondent United States of America’ (23 April 2004) at para. 79 (hereinafter US Rejoinder). See also United States’ arguments in

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The statement made in the defence of a North American Free Trade Agreement (NAFTA)2 investor claim raises many questions. How should an arbitration tribunal proceed to determine whether the scientific conclusions reached by a regulatory or other decision-making body were ‘so wrong’ as to reveal a pretext to discriminate or expropriate? What if the assault on regulatory science is more direct, through a fair and equitable treatment violation claim? For example, an investor might challenge as ‘arbitrary’ the scientific process or methods used by government to reach a regulatory decision because they represent ‘junk science’. How should the tribunal address opposing claims of ‘junk science’ and ‘sound science’ in order to decide on a treaty breach? The interactions of law and science have long been an issue in domestic as well as international proceedings. The role of science in the resolution of international trade disputes has notably been the object of debates at the World Trade Organisation (WTO). In the context of international investment law, less debate has occurred on the role of science thus far, but the issues are no less pressing. In fact, the outcome of arbitrations involving challenges to health, safety and environmental measures may turn on the treatment given to science and scientific evidence by tribunals. In this context, the question of how much deference should be shown to the science-based decision-making of states is key. This article argues that tribunals asked to rule on the breach of investment treaty obligations involving science-based decision-making should do so without deciding the ‘correctness’ of the science underlying the challenged measure. Rather, tribunals should focus on objective, due-process based criteria.3 If the government’s science meets such criteria, then it should be taken as an indication that the challenged measure was not ‘arbitrary’ or ‘excessive’ depending on the applicable treaty standard. In order to identify proper criteria, guidance could be found in Robert K. Merton’s norms of science. Regarded by some as the father of the sociology of science, Merton identified in 1942 the norms of science as: universalism, communalism, disinterestedness and organized scepticism.4 While the norms represent Glamis Gold, Ltd. v. United States, Award, UNCITRAL (8 June 2009) (hereinafter Glamis) at paras 594, 617 and 779. 2. North American Free Trade Agreement Between the Government of Canada, the Government of Mexico and the Government of the United States, 17 December 1992, 32 ILM 289 (1993) (entered into force 1 January 1994)(hereinafter NAFTA). 3. The same argument is made by Marcos Orellana, ‘The Role of Science in Investment Arbitrations Concerning Public Health and the Environment’, 17 Yearbook of International Environmental Law (2006) at 48-72. His analysis draws inter alia on sustainable development and the margin of appreciation doctrine. Also calling for deference, but using an approach based on ‘minimal attributes of scientific inquiry’ (including legitimate scientific methods and procedures) see J. Martin Wagner, ‘International Investment, Expropriation and Environmental Protection’ 29 Golden Gate University Law Review (1999) 465-527 at 520-523. 4. Robert K. Merton, ‘The Normative Structure of Science - 1942‘ in Robert K. Merton, The Sociology of Science: Theoretical and Empirical Investigations (University of Chicago Press, 1973) at 267-278.



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ideals, and are not rules as such, one can derive from them useful criteria as relates to what this article refers to as ‘scientific due process’. The use of the term ‘scientific due process’ was prompted by a loose analogy to principles of ‘procedural due process’ in judicial proceedings.5 For example, in ruling on a denial of justice claim, a tribunal may consider the right of the party to be informed and to be heard, the right to an impartial decision-maker, the right to be provided reasons for the decision, etc.6 In a similar fashion, in order to determine whether a state has breached the fair and equitable treatment clause of a bilateral investment treaty (BIT), because the government science-based decision-making was tainted by arbitrariness, a tribunal could usefully consider a number of due process criteria including whether the government decisionmaker was informed by international practices, norms or standards, whether the regulatory process was inclusive and open, whether the process or findings were tainted by bias or conflicts of interest, and whether the findings were reviewed by scientific peers. Such criteria were considered in the Methanex case, where a Canadian investor challenged a California ban on a gasoline additive that was found to contaminate water and present significant risk to the environment.7 In defining and refining appropriate ‘scientific due process’ criteria, tribunals could also usefully consider the emerging practice of states in matters related to health, safety and the environment. While it may be too early to talk about such criteria in terms of customary international law or general principles of law,8 evidence is emerging of a practice of states that reflects the Mertonian norms of science. This evidence is found in states’ treaty-making practices, in the adjudication of obligations under treaties and in domestic norms of regulatory science, science advice and risk analysis that reflect international commitments. This article focuses on cases where science-based health, safety or environmental regulatory measures are the subject of investor claims under BITs.9 An 5. On general principles of law in judicial proceedings, see Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals (Burlington Press Ltd, Cambridge, 1987) at 257-258 and in particular at 279-298 (nemo debet esse judex in propria sua causa) and at 290298 (audiatur et altera pars). 6. See Jan Paulsson, Denial of Justice in International Law (Cambridge University Press, 2005) at 180 and ff. on fundamental breaches of due process. 7. Methanex Corp. v. United States, Final Award of the Tribunal on Jurisdiction and the Merits, UNCITRAL (3 August 2005) (hereinafter Methanex). 8. For a discussion of the formation of customary international and general principles in the context of environmental law, see Pierre-Marie Dupuy, Chapter 19, in particular at 461-462 in Daniel Bodansky, Jutta Brunnée and Ellen Hey (eds), International Environmental Law (Oxford University Press, 2007). See also Philippe Sands, Principles of International Environmental Law (2nd edn., Cambridge University Press, 2003) at 143-152 and 231-234. 9. Free Trade Agreements (‘FTA’s) containing investment chapters may raise questions related to the interaction between SPS (sanitary and phytosanitary measures) and investment chapters. See e.g. Todd Weiler, ‘The treatment of SPS measures under NAFTA Chapter 11: Preliminary

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analysis involving such regulatory decision-making cannot ignore concepts of risk assessment and management.10 And scientific evidence is only part of the process. Even the more ‘purely’ scientific tasks are not exempt from value judgments or policy choices.11 That being said, this article will focus primarily on the scientific evidence portion of the regulatory process, as the scientific findings or evidence base are more likely to be challenged by investors than, for instance, a society’s chosen level of protection. The concept of precaution is also omnipresent in the realm of science-based regulatory decision-making.12 While acknowledging this reality, this article does not focus on the precautionary principle as a solution to the issues it raises. Indeed, investment tribunals are not likely to accept that the precautionary principle offers a self-judging defence to a claim of discrimination, violation of fair and equitable treatment or expropriation underpinned by an attack on the scientific findings that led to the measure.13 In other words, whether the science is certain or uncertain, tribunals may have to ascertain for themselves whether the government’s scientific evidence was ‘so faulty’ as to indicate a pretext or an excuse to a treaty violation. Part 2 of the article studies the interactions of international investment law and science. In section 2.1, scenarios are presented where an investor might try

10.

11.

12. 13.

answers to an open-ended question’ 26 Boston College International & Comparative Law Review (2003) 229-262. Unless a specific concept is used, reference will be made in general to ‘risk analysis’ to encompass all variants. The extent to which ‘risk assessment’ can include aspects of ‘risk management’ is treaty specific. For an example of this debate under the WTO/SPS Agreement, see United States – Continued Suspension of Obligations in the EC – Hormones Dispute (2008), WTO Doc. WT/DS320/AB/R (Appellate Body Report) (hereinafter ‘Hormones – Continued Suspension’). See Vern R. Walker, ‘Keeping the WTO from Becoming the “World Trans-science Organization”: Scientific Uncertainty, Science Policy, and Fact Finding in the Growth Hormones Dispute’, 31 Cornell International Law Journal (1998) 251-320 at 259 and ff.; David Wirth, ‘The Role of Science in the Uruguay Round and NAFTA Trade Disciplines’, 27 Cornell International Law Journal (1994) 817-859 at 833 and ff.; David Winickoff, Sheila Jasanoff, Lawrence Busch, Robin Grove-White and Brian Wynne, ‘Adjudicating the GM Food Wars: Science, Risk, and Democracy in World Trade Law’ 30 The Yale Journal of International Law (2005) 81-123 at 93-99 and 106. For a discussion in the context of the WTO, see e.g. Marie-Claire Cordonier Segger and Markus W. Gehring, ‘Precaution, Health and the World Trade Organization: Moving Toward Sustainable Development’, 29 Queen’s Law Journal (2003) at 133-174. The status of the precautionary principle in international law would also come into play. In the context of the WTO/SPS Hormones dispute, the EC argued that the precautionary approach was part of customary international law or a general principle of law, while Canada and the United States have stated the contrary. Canada did acknowledge that the ‘precautionary principle’ was an ‘emerging’ general principle of international law. See EC Measures concerning Meat and Meat Products (Hormones) (1998), WTO Doc. WT/DS26/AB/R, WT/DS48/AB/R (Appellate Body Report) (hereinafter EC- Hormones) para. 60. On the role the precautionary principle could play in the resolution of investment disputes, see Orellana, ‘The Role of Science’, supra note 3, at 65-66.



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to undermine the science used by a government to make a claim of breach of national treatment, fair and equitable treatment and expropriation obligations. In section 2.2, the norms of science as introduced by Merton are summarised. In section 2.3, the decision in Methanex is described and the norms applied against it. Part 3 explores the emerging practice of states reflecting the norms of science and aspects of scientific due process. In section 3.1, a survey is done of recent treaties that have made operational the Mertonian norms. In section 3.2, the adjudication of science under the WTO’s SPS Agreement is considered, focusing on the recent Hormones - Continued Suspension case. Finally, in part 4, domestic ‘sound science’ guidelines are presented, using Canada as an example.

2. International Investment Law and Science Whether in the context of international trade or investment law, subjective intentions of governments are hard to grapple with. In order to avoid such difficulties, treaty negotiators as well as tribunals look for objective proxies. In the context of the WTO, the SPS Agreement goes the furthest in making scientific evidence an objective proxy for the absence of protectionist intent.14 Many have questioned whether ‘science’ was up to the task,15 while others have argued that the SPS provisions should be understood ‘as enhancing the quality of rational democratic deliberation about risk and its control’.16 In the investment law context tribunals also look for objective proxies, as it has been generally held that investors cannot be asked to prove the subjective intentions of governments in breaching BIT provisions. When science-based regulatory measures are challenged, science and the conduct of science become objects of assessment. 14. See Agreement on the Application of Sanitary and Phytosanitary Measures, 15 April 1994, Marrakesh Agreement Establishing the World Trade Organization, World Trade Organization, The Legal Texts: The Results of the Uruguay Round of Multilateral Trade Negotiations (Cambridge University Press, 1999) (hereinafter ‘SPS Agreement’). See also Mitsuo Matsushita, Thomas J. Schoenbaum and Petros C. Mavroidis, The World Trade Organization – Law, Practice, and Policy (2nd edn., Oxford University Press, 2006) at 480. 15. See e.g. Wirth, ‘The Role of Science’, supra note 11, and Jeffery Atik, ‘Science and International Regulatory Convergence’, 17 Northwestern Journal of International Law & Business (19961997) 736-758. 16. Robert Howse, ‘Democracy, Science, and Free Trade: Risk Regulation on Trial at the World Trade Organization’, 98 Michigan Law Review (1999-2000) 2329-2357 at 2330. See also Michael Trebilcock and Julie Soloway, ‘International trade policy and domestic food safety regulation: The case for substantial deference by the WTO Dispute Settlement Body under the SPS Agreement’, in Daniel L.M. Kennedy and James D. Southwick (eds) The Political Economy of International Trade Law – Essays in Honor of Robert E. Hudec, (Cambridge University Press, 2002) 537-582 at 553; David G. Victor, ‘The Sanitary and Phytosanitary Agreement of the World Trade Organization: An Assessment After Five Years’, 32 New York University Journal of International Law and Politics (1999-2000) 865-937 in particular at 923-926.

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2.1. Arbitration of Science Investors are likely to allege a breach of three key investment law obligations when challenging a product ban, for example, imposed for health and safety reasons. The ‘attack’ on the science underlying the ban might be less frontal in the case of allegations of breach of the national treatment and expropriation provisions; and more frontal in the case of the fair and equitable treatment clause. 2.1.1. Indirect Attack: National Treatment and Expropriation The investor might try to undermine the science underlying the ban in order to demonstrate that the measure is really a pretext. The real motive of the product ban, then, is revealed by a demonstration that the government used questionable science (or ‘junk science’) in order to camouflage discrimination or an expropriation. 2.1.1.1. National Treatment and the “Like Circumstances” Analysis At the heart of national treatment provisions is a comparison which aims to ensure that foreign investors and their investments are not receiving less favourable treatment than their domestic counterparts. NAFTA Chapter 11 refers to treatment ‘in like circumstances’,17 while other national treatment articles do not contain such a qualifier.18 In the case of NAFTA, the interpretation of ‘like circumstances’ has been the subject of heated debates. Once tribunals have recognized that investors are not required to provide proof positive of discriminatory intent (which, short of a smoking gun, may be impossible to provide),19 this expression provided the objective basis to make a determination as to discrimination. NAFTA tribunals, which have reached the conclusion that an investor received less favourable treatment, have all considered whether there was a reason for the measure that was not discriminatory. In evaluating the reasons provided for the difference in treatment, tribunals have looked for a reasonable, rational, or plau17. NAFTA, supra note 2, Article 1102. Canada has also included the “like circumstances” language in all its Foreign Investment Promotion and Protection Agreements (FIPAs) concluded since the entry into force of NAFTA. See FIPAs online: (visited 1 September 2010). For another example, see Japan-Vietnam BIT (2003), online: (visited 1 September 2010). 18. See e.g. the China-Germany BIT (2003) online: (visited 1 September 2010). 19. Marvin Roy Feldman Karpa v. Mexico, ICSID No. ARB (AF)/99/1 (ICSID Add. Fac.) (16 December 2002) at paras 181-183 (hereinafter Feldman); Pope & Talbot, Inc. v. Canada, Award on the Merits Phase II, UNCITRAL (10 April 2001) at para. 79 (hereinafter Pope & Talbot, ph. 2). See also International Thunderbird Gaming Corporation v. Mexico, UNCITRAL (26 January 2006) at para. 177 (hereinafter Thunderbird).



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sible connection between the measure and a rational or legitimate government policy.20 The tribunals have also verified whether the measures were applied in a discriminatory fashion. When the reasons met the test, tribunals concluded that the investors (or investments) were not ‘in like circumstances’ and found no breach of national treatment.21 In the case of a product ban adopted for health and safety reasons, the investor might argue that it is discriminated against because product A, it produces, is banned while product B, produced by a domestic competitor, is not. To support its claim, the investor would adduce scientific evidence that shows that product A is as safe as product B (or, alternatively, that shows product B to be unsafe). The investors are ‘in like circumstances’ by virtue of the fact that they compete in the market and that there is no valid scientific reason to treat one product less favourably than the other. Thus, the investor would argue that the less favourable treatment cannot be objectively justified, and must be taken as evidence of discrimination. The government would then need to defend its measure, and the science behind it, in order to demonstrate a lack of ‘like circumstances’ and, as a result, a lack of discrimination. To rule on the breach, the tribunal would try to ascertain whether the measure was a pretext (to protect the domestic industry, for example). If it followed NAFTA jurisprudence, it would consider whether a reasonable, rational, or plausible connection existed between the measure (the ban of product A) and a rational or legitimate government policy (the protection of public health and safety). If the investor has proven that the government used ‘junk science’ to justify its adoption of the ban, it might just prevail. To the contrary, if the government proves it has used ‘sound science’ it might prevail. Thus, the question arises of how tribunals should address opposing claims of ‘junk’ and ‘sound’ science. The Methanex case, described below, provides one example. 2.1.1.2. Expropriation and police powers A tribunal will make a finding of expropriation if it concludes that a government measure has resulted in a substantial deprivation of an investment in the host state’s territory.22 Typically under BITs, compensation equal to the 20. See e.g. the formulations used by tribunals in Pope & Talbot, ph. 2, supra note 19, at para. 78: ‘a reasonable nexus to rational government policies’; S. D. Myers v. Canada, First Partial Award, UNCITRAL (13 November 2000) para. 246 (hereinafter SD Myers): ‘legitimate public policy measures that are pursued in a reasonable manner’; Feldman, supra note 19, at paras 170 and 182: ‘a rational justification’ or reasonable distinctions; GAMI Investments, Inc. v. Mexico, UNCITRAL (15 November 2004) at para. 114: a plausible connection with a legitimate goal of policy (hereinafter GAMI). 21. See e.g. Pope & Talbot, ph. 2, supra note 19, at paras. 87-88, 93-95, 102-103; GAMI, supra note 20 at para. 114. 22. See e.g. Pope & Talbot, Inc. v. Canada, Interim Award, UNCITRAL (26 June 2000) at para.

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fair market value of the investment will be awarded to the investor. However, international law has long recognized the existence of a category of measures which do not give rise to a duty of compensation, even though they result in a substantial deprivation of an investment. The police powers doctrine covers, inter alia, measures taken to protect public health and safety, public moral and order.23 This doctrine is not without limits. It would indeed be too easy for a government to seek the cover of the police power doctrine to hide an expropriation. A number of factors exist to help tribunals differentiate between cases of legitimate exercises of the doctrine and cases where the doctrine is used as a pretext to expropriate – without the payment of compensation. These factors include whether the measure is discriminatory (on the basis of nationality), arbitrary, excessive or taken in bad faith.24 In the case of a product ban adopted for health and safety reasons, the investor might argue that it was expropriated, because it can no longer produce product A, which amounts to a substantial deprivation of its investment. The government, in defence, might argue that the ban was a legitimate exercise of police powers and as such the investor is not entitled to compensation. The investor might counter that the ban was discriminatory, because product B, produced by a domestic competitor, is not targeted. Further, the investor might argue that the ban is arbitrary since it can provide scientific evidence that shows that product A is as safe as product B. It might also use the science to argue that the ban was excessive, since it has no common measure with the dangers allegedly presented by product A. Such evidence might be used to buttress the investor’s case that 102 relying on the Harvard Draft and the US Restatement (hereinafter Pope & Talbot – Interim Award). 23. Recent investment arbitration tribunals have acknowledged the applicability of the police power doctrine under BITs. For example see Saluka Investments BV (The Netherlands) v. Czech Republic, Partial Award, UNCITRAL (17 March 2006) (hereinafter Saluka) at para. 262; in the NAFTA context, see Fireman’s Fund Insurance Company v. Mexico, ICSID No. ARB(AF)02/1 (ICSID Add. Fac.) (17 July 2006) (hereinafter Fireman’s Fund) at para. 176(j). In other cases, the principles of the doctrine are applied without the tribunal putting the doctrine’s label on it. See e.g. Feldman, supra note 19, at para. 103; Methanex, supra note 7 in Part IV, Chapter D, at para. 4. On the topic of ‘Science, Expropriation and the Police Powers’, see Orellana, ‘The Role of Science’, supra note 3 at 58-62. 24. On the police power doctrine, see G.C. Christie, ‘What constitutes a Taking of Property in International Law’, 38 British Yearbook of International Law (1962) 307-338 at 331-332 and 338; John H. Herz, ‘Expropriation of Foreign Property’, 35 American Journal of International Law (1941) 243-262 at 251-252; Rudolf L. Bindschedler, ‘La protection de la propriété privée en droit international public’ 90 Recueil Des Cours (1956) 173-306, at 213-214; B.A. Wortley, Expropriation in Public International Law (Arno Press: New York, 1977) at 46 and 110; Gérard Fouilloux, La nationalisation et le droit international public (Librairie générale de droit et de jurisprudence: Paris, 1962) at 173-174 and 264; Jean-Pierre Laviec, Protection et Promotion des investissements : Étude de droit international économique (Presses Universitaires de France, Paris, 1985) at 165 and 169.



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the measure was really taken in bad faith, as a pretext to an expropriation (which ultimately benefits the domestic industry). The government would have to put forward its own scientific evidence to counter this case. Again, if the investor has proven that the government used ‘junk science’ to justify its adoption of the ban, it might just prevail. To the contrary, if the government proves it has used ‘sound science’ it might prevail. 2.1.2. Direct Attack: Fair and Equitable Treatment The breach of the obligation to provide fair and equitable treatment (FET) to investment of investors under BITs has been one of the most alleged by investors. They have seized on the (apparent) indeterminacy of the standard to argue a most varied set of claims. A significant number of FET clauses contained in BITs do not refer to international law.25 A number of BITs refer to the customary international minimum standard of treatment of aliens as the proper standard of fair and equitable treatment (MST).26 NAFTA Chapter 11 has also been interpreted as containing an MST type clause.27 While some tribunals have questioned whether ‘stand-alone’ FET clauses and MST clauses are really different,28 they do present differences in terms of threshold for violation and as it relates to the customary international law content of the standard.29 25. UNCTAD, Bilateral Investment Treaties 1995-2006: Trends in Investment Rulemaking, UNCTAD/ ITE/IIT/2006/5 (United Nations, 2007) at 30 (hereinafter UNCTAD – BIT Trends). 26. See e.g. Canada-Peru FIPA (2006) (visited 1 September 2010); USUruguay BIT (2005), (visited 1 September 2010). 27. NAFTA Free Trade Commission, Notes of Interpretation of Certain Chapter Eleven Provisions, 31 July 2001, (visited 1 September 2010). 28. See for example Duke Energy Electroquil Partners and Electroquil S.A. v. Republic of Ecuador, ICSID Case No. ARB/04/19 (18 August 2008) at paras 335-337 (hereinafter Duke Energy), referring to Azurix v. Argentina Republic, ICSID No. ARB/01/12 (23 June 2006) (hereinafter Azurix) and CMS Gas Transmission Company v. The Argentina Republic, ICSID No. ARB/01/8 (25 April 2005) (hereinafter CMS Gas); Rumeli Telekom A.S. and Telsim Mobil Telekomunikasyon Hizmetleri A.S. v. Republic of Kazakhstan, ICSID Case No. ARB/05/16 (29 July 2008), at paras 609-611 (hereinafter Rumeli). 29. In the case of a BIT which includes an MST clause, the threshold for breach may be higher than in the case of an FET clause. In other words, other things being equal, the arbitrariness of the government decision making may have to be more gross or flagrant to constitute a violation of an MST obligation. See UNCTAD, supra note 24 where exploring the differences between the standards, the report states at 29: ‘It is argued that under customary international law, for a country to violate the minimum standard of treatment of aliens requires a conduct by the Government amounting to gross misconduct, manifest injustice, an outrage, bad faith or wilful neglect of duty. Consequently, a breach of this obligation will probably be found in fewer cases than if fair and equitable treatment is associated with higher standards.’ (notes omitted).

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In the case of a product ban adopted for health and safety reasons, the investor might argue that the ban, and the process that led to it, was unfair and inequitable. It might argue that the government acted arbitrarily when it used “junk science” to exclude its product from the market, and by not banning product B, produced by a domestic competitor (that is no safer). The regulatory process might come under attack for a lack of transparency, lack of administrative due process, lack of proper scientific evaluation or risk analysis. Allegations of breach of legitimate expectations in the stability of the regulatory framework are likely to follow.30 In the case of the FET standard, as opposed to obligations relating to national treatment or expropriation, the attack on the science underlying the ban may therefore be frontal. It is no longer just a question of what the ban hides. The government’s conduct of regulatory science could be attacked as arbitrary and as such providing investments of investors unfair and inequitable treatment in breach of the BIT. In the end, the same fundamental question arises: how tribunals should respond to opposing claims of ‘junk’ and ‘sound’ science.

2.2. Norms of Science In 1942, Robert K. Merton published his seminal essay on the Normative Structure of Science.31 In this essay on the sociology of science, Merton identified ‘a set of cultural values and mores governing the activities termed scientific.’32 Thus, he was not considering the methods of science, but ‘the mores with which they

30. For a description of issues related to science arising under MST, see Orellana, ‘The Role of Science’, supra note 3, at 62-66. See also Weiler, ‘The Treatment of SPS Measures’, supra note 9, in particular at 252. The Glamis case, supra note 2, also deals with issues of science under Article 1105 (MST) of NAFTA. In this case, the Canadian claimant was arguing that the United States expropriated rights it held in a gold mine in California and denied it fair and equitable treatment, including by acting arbitrarily. To make its case, Glamis argued that the mandatory backfilling regulations that applied to its mine but not others were arbitrary. Glamis in particular pointed to the lack of scientific study to support the distinctions made in the regulations between metallic and non-metallic mines. As a result, Glamis argued that the standard ‘cannot withstand objective and careful scrutiny.’ It added that: ‘[i]n the end, it is obvious that the State Mining Board, … , provided a pre-determined and arbitrary justification for the complete mandatory backfilling regulation without any data or scientific evidence in support.’ (at para. 702). The claimant also argued that the processes and decisions related to the cultural review of the mining project, which included archaeological and ethnographic data, were arbitrary. The Tribunal rejected the latter claim, pointing out as a general matter that ‘[i]t is not the role of this Tribunal, or any international tribunal, to supplant its own judgment of underlying factual material and support for that of a qualified domestic agency.’ (at para. 779) For more details on the Tribunal’s reasoning, see at paras 780-783. 31. The original title for the piece was ‘Science and Technology in a Democratic Order’ (1942), but its content was published in 1973 under the current title ‘The Normative Structure of Science – 1942’ see Merton, ‘The Normative Structure of Science’, supra note 4. 32. Ibid. at 268.



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are hedged about’.33 They include: communalism, universalism, disinterestedness and organized scepticism.34 The value of the norms has been widely recognised but also subject to criticism.35 The norms represent ideals and not rules as such. While it may be that individual scientists, in their laboratories, are not dependent on those norms in the conduct of science, it is arguable that they still represent values that are inherent to the scientific enterprise. In any event, to the extent that the norms are reflected in domestic and international state practice (see Part 3) they are relevant to our analysis.36 Merton defines the ethos of science as follows: The ethos of science is that affectively toned complex of values and norms which is held to be binding on the man of science. The norms are expressed in the form of prescriptions, proscriptions, preferences, and permissions. They are legitimatized in terms of institutional values. These imperatives, transmitted by precept and example and reenforced [sic] by sanctions are in varying degrees internalized by the scientist, thus fashioning his scientific conscience or, if one prefers the latterday phrase, his super-ego.37

To Merton, the mores of science are moral as well as technical prescriptions. They are binding not only because of their efficiency but because they are believed to be ‘right and good’.38 Universalism: This norm reflects the idea of universal truths and the impersonal character of science. Whether scientific claims are accepted or rejected does not depend on attributes such as nationality, religion, class or personal qualities. In this sense, science is objective and precludes particularism.39 Raising issues of opposing scientific views in times of international conflicts, he states that scientists 33. Ibid. 34. Later, ‘originality’ was added and the set of norms has been referred to as ‘CUDOS’. For our purposes, we will limit ourselves to the four original ethos as ‘originality’ has less relevance to regulatory science. 35. See e.g. Sheila Jasanoff, The Fifth Branch: Science Advisors as Policymakers (Harvard University Press, 1990) at 63. 36. Trebilcock and Soloway, ‘International Trade Policy’, supra note 16, also have recourse to ‘ideal’ regulation as a benchmark in their proposed method of analysis under the SPS Agreement. They explain their reasoning as follows: ‘We recognize, of course, that even in a North American context the idealized regulatory process sketched above is far from being currently realized. … However, without some normative benchmark of a well-functioning domestic regulatory process, it is difficult, if not impossible, to conceptualize an ideal role for supranational quasijudicial review mechanisms of the kind entailed in WTO dispute settlement proceedings under the SPS Agreement.’ (at 549-550). While the context is different, a parallel can be made between the two approaches. 37. Merton, ‘The Normatice Structure of Science’, supra note 4, at 268-269 (footnotes omitted). 38. Ibid., at 270. 39. Ibid.

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of all nationalities still adhered to the universalism of science. He cites Professor E. Gley: ‘Il ne peut y avoir une vérité allemande, anglaise, italienne, ou japonaise pas plus qu’une française. Et parler de science allemande, anglaise ou française, c’est énoncer une proposition contradictoire à l’idée même de science.’40 Communalism:41 This norm reflects the idea of science as a common, public good. To Merton, scientific findings are assigned to the community because they result from social collaboration.42 Recognition and esteem are the sole ‘property right’ of the scientist in his discoveries, which explains the competitive drive to be first (i.e. priority). He makes a link between the ‘communalism’ imperative and the communication of scientific findings: ‘Secrecy is the antithesis of this norm; full and open communication its enactment.’43 The pursuit of the extension of knowledge and the recognition that comes from publication reinforces the pressure for diffusion.44 Communalism also reflects the fact the scientific discoveries are cumulative, in other words build on the common heritage developed by others.45 Disinterestedness: This norm reflects the reality that science allows limited room for spurious claims or fraud. Scientists do not self-elect because of their higher degree of moral integrity. Rather, science is subject to rigorous policing and exacting scrutiny by fellow experts. Thus, ‘[t]he demand for disinterestedness has a firm basis in the public and testable character of science and this circumstance, it may be supposed, has contributed to the integrity of men of science.’46 He does note however the dangers of abuse of expert authority vis-à-vis lay persons who might not be able to differentiate spurious claims from genuine claims of scientific authority.47 Organized Skepticism: This norm reflects the fact that science does not stop at the sacred or the ritual – it objectively analyses facts. For this reason, Merton notes that: ‘[t]he temporary suspension of judgment and the detached scrutiny of beliefs in terms of empirical and logical criteria have periodically involved science in conflict with other institutions.’48 More broadly, organized skepticism is interrelated with other elements of the ethos. As noted above, the scrutiny of the expert community (peers) also relates to organized skepticism. While the norms were first elaborated during the Second World War and reflect some of the issues of the time, and while some of its components may seem a bit 40. Cited in Merton Ibid., at 272. 41. The original text refers to ‘Communism’, but Merton was not referring to the Marxist notion. ‘Communalism’ has been generally used instead in reference to his work. 42. Merton, ‘The Normatice Structure of Science’, supra note 4, at 273. 43. Ibid. at 274. 44. Ibid. 45. Ibid. at 275. He discussed the issue related to patents as a conflict with communalism. 46. Ibid. at 276. 47. Ibid. at 277. 48. Ibid.



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dated (for example in relation to the non-proprietary nature of science), it may be argued that they still represent fundamentals ideals of the scientific enterprise.49

2.3. Scientific Evidence in Methanex Corporation v. United States The analysis and findings of the Tribunal on the scientific evidence in Methanex (as well as the parties’ arguments) can be said to reflect the norms of science. For present purposes, our description of Methanex will be focused on the basic legal context and the treatment of scientific evidence.50 2.3.1. Scientific Evidence in Context Methanex Corporation, a Canadian company that produces and markets methanol, made a claim under NAFTA Chapter 11 alleging that the Unites States had breached the national treatment, minimum standard of treatment and expropriation provisions of NAFTA.51 In particular, Methanex complained about measures related to the removal of methyl tertiary-butyl ether (MTBE) from gasoline, a component of which is methanol. As the claim advanced, it became focused on allegations of discrimination and whether Methanex could provide evidence that it was the target of discrimination.52 In 1997, California adopted a Bill that notably allocated funds ($500,000) to the University of California (UC) to conduct an assessment of the human health effects and environmental risks and benefits associated with the use of MTBE but also of ethanol.53 The UC report was completed in 1998. In 1999, the Governor issued an Executive Order holding that the use of MTBE in gasoline presented ‘significant risk to the environment’ and considering ethanol as a

49. On the limitations and imperfections of science as a social construct, see Orellana, ‘The Role of Science’, supra note 3 at 57. However, he concludes ‘that despite its limitations science stands as the only (somewhat) objective ground upon which the reality of facts involved in public health and environment cases can be ascertained.’ For a challenge to the “universalism” of science, see Atik, ‘Science and International Regulatory Convergence’, supra note 15, at 738-739 and 747-748. 50. See Orellana, Ibid. at 66-72. More generally on Methanex, see Howard Mann, ‘The Final Decision in Methanex v. United States: Some New Wine in Some New Bottles, August 2005’, (visited 1 September 2010). 51. The claim for damages was for approximately US$ 970 million, see Methanex, supra note 7 in Part II, Chapter D, at para. 32. 52. After the claim was heard on the merits, it was finally dismissed on jurisdictional grounds, since Methanex had been unable to meet the requirement found in Article 1101 which provide that Chapter 11 applies to measures adopted or maintained by a Party ‘relating to’ investors and investments of another Party. Ibid., in Part IV, Chapter E, at para. 22. 53. Methanex Corp. v. United States, Preliminary Award on Jurisdiction and Admissibility, UNCITRAL (7 August 2002) (hereinafter Methanex – Preliminary Award) at para. 26.

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possible replacement.54 In particular, the risks related to the contamination of ground water and drinking water.55 Methanex’ evidentiary case centered on allegations of political corruption as the Governor of California had received political campaign donations from the ethanol industry and had held a ‘secret meeting’ with a major industry player.56 In order to buttress its case, Methanex challenged the UC Report, and as a result the science, which underpinned the Order providing for the removal of MTBE from gasoline. In other words, it tried to portray the decision as a sham environmental regulation designed to protect and advantage the ethanol industry and disadvantage its ‘foreign’ competitor.57 In particular, Methanex alleged that the problem, if any, with water contamination resulted from the poor regulation of underground storage tanks that allowed many chemicals (not just MTBE) to leak into the environment.58 It argued that the cost of remedying the leaks was less than the cost of banning MTBE. As a result, ‘[t]he fact that California chose its irrational course of action demonstrates its intent to effectuate a discriminatory transfer of the oxygenate market from (a) methanol and MTBE producers to (b) ethanol producers.’59 The Tribunal assigned a specific chapter of its analysis to ‘The University of California Report, and the Scientific Evidence’.60 The description runs fifty pages and covers both the UC Report and the expert evidence presented by the parties in support of or to undermine the Report and the ban on MTBE.61 It is useful to quote in full the key paragraph from the Tribunal’s findings on the scientific evidence before analysing some of the evidence that it considered to reach its findings. The Tribunal stated: Having considered all the expert evidence adduced in these proceedings by both Disputing Parties, the Tribunal accepts the UC Report as reflecting a serious, objective and scientific approach to a complex problem in California. Whilst it is possible for other scientists and researchers to disagree in good faith with certain of its methodologies, analyses and conclusions, the fact of such disagreement, even if correct, does not warrant this Tribunal in treating the UC Report as part of a political sham by California. In particular, the UC Report was subjected at the time to public hearings, testimony and peer-review; and its emergence as a serious scientific work from such an open and informed debate is the best evidence 54. Ibid., at para. 29. 55. Methanex, supra note 7 in Part II, Chapter D, at para. 15. 56. These allegations were analysed and rejected by the Tribunal, Ibid. in Part III, Chapter B, at 9-22. 57. Methanex – Preliminary Award, supra note 53, at para. 46. 58. Methanex – Final Award, supra note 7 in Part II, Chapter D, para. 24. 59. Ibid. 60. Ibid. in Part III, Chapter A, at 1-52. 61. The description also includes a chronology of the California regulations, see Ibid. in Part III, Chapter A, at paras 20-36.



Science in the Hands of International Investment Tribunals 273 that it was not the product of a political sham engineered by California, leading subsequently to the two measures impugned by Methanex in these arbitration proceedings. Moreover, in all material respects, the Tribunal is not persuaded that the UC Report was scientifically incorrect: the Tribunal was much impressed by the scientific expert witnesses presented by the USA and tested under crossexamination by Methanex; and the Tribunal accepts without reservation these experts’ conclusions.62

On the role played by expert testimony, the Methanex Tribunal noted: ‘The resulting expert testimony contained in these many reports is extremely important in this arbitration, going to the heart of the question of whether the US measures, as alleged by Methanex, constitute a “sham environmental protection in order to cater to local political interests or in order to protect a domestic industry”.’63 Reflecting this position, the award contains a thirty page summary of the experts’ evidence. Methanex’ nine experts tried to undermine the UC Report in many ways, attacking inter alia inadequacies in the data and its interpretation, inadequate assessments of impacts and risks, improper cost-benefit analysis, and statistically flawed methodologies. The United States’ five experts defended the Report and countered Methanex’s witnesses.64 In terms of its evaluation of the scientific evidence, it would appear that the Tribunal applied a standard of ‘reasonableness’, corroborated by a finding of ‘correctness’. Then, the Tribunal turned to the standard of breach and held that only if the evidence was ‘so faulty’ as to reveal a pretext to discrimination could there be a finding of breach. Since it had judged the scientific evidence to be reasonable (even, correct), then, the ‘so faulty’ threshold was not met. First, then, the Tribunal applied a ‘reasonableness’ test with regard to the scientific evidence. Indeed, in its summary of the principal findings of fact made in regard to the scientific issues, the Tribunal noted: ‘[The MTBE ban] was motivated by the honest belief, held in good faith and on reasonable scientific grounds, that MTBE contaminated groundwater and was difficult and expensive to clean up’65 . At the same time, the Tribunal had also mentioned that ‘in all material respects, the Tribunal is not persuaded that the UC Report was scientifically incorrect’.66 In its ultimate decision on jurisdiction based on Article 1101, the Tribunal stated: To show intent, Methanex placed considerable emphasis on the alleged inadequacy of the scientific evidence supporting the MTBE ban and on the viability of other, less drastic remedial solutions. But the issue before this Tribunal under Article 1101 (on Methanex’s pleaded case) is whether the California ban of MTBE was, 62. Ibid. in Part III, Chapter A, at para. 101. 63. Ibid. at para. 41 (notes omitted). 64. See Ibid. at paras 37-100 on the disputing parties’ scientific witnesses. 65. Ibid. at para. 102 (emphasis added). 66. Ibid. at para. 101.

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in fact, intended to harm (or to address) producers and marketers of methanol. Thus, the question is whether the scientific conclusions which were presented to the Governor were so faulty that the Tribunal may reasonably infer that the science merely provided a convenient excuse for the hidden regulation of methanol producers. As we have seen from an examination of the UC Report and the whole of the scientific evidence presented in Chapter III, that proposition is simply not tenable on the evidential record adduced in these arbitration proceedings.67

The emphasised statement in the quote adopts language used by the United States’ in its pleadings.68 One worrisome aspect of this analysis is the need the Tribunal felt to pronounce itself on the ‘correctness’ of the scientific conclusions. Because of the ‘so faulty’ standard it ultimately applied, this finding was unnecessary.69 2.3.2. Norms of Science as Reflected in Methanex Considering the analysis and findings of the Tribunal on the scientific evidence in Methanex (as well as the parties’ arguments), one can make the case that the Tribunal reflected in its reasoning the ethos of science in the Mertonian sense. Universalism: The Tribunal’s award does not address this norm specifically, although it notes that Methanex argued the different treatment MTBE receives in the European Union (EU). In particular, Methanex had pointed to: ‘numerous studies which have been undertaken in the European Union with respect to USTs, LUSTs and MTBE, all of which have concluded that prevention of tank systems leaks, rather than a ban on MTBE as a gasoline oxygenate, is the primary method to prevent fuel releases into the environment.’70 The United States answered this claim of ‘universalism’ in the following way: Methanex also errs in its reliance on the European Union’s approach to MTBE regulation. Contrary to Methanex’s suggestion, the European Commission in fact did find that “there is a need for specific measures to limit the risks” of MTBE contamination of groundwater. That the EU took a different approach to the recognized threat of MTBE to drinking water based on that region’s topography, climate, population and other factors says nothing about the legality or the appropriateness of California’s action.71

67. Ibid. in Part IV, Chapter E, at para. 19 (emphasis added). 68. US Rejoinder, supra note 1, at para. 78. 69. See Andrew Newcombe, ‘The Boundaries of Regulatory Expropriation in International Law’ 20 ICSID Review—Foreign Investment Law Journal (2005) 1-57, at 35 where he notes that ‘While the Methanex Tribunal also held that the UC Report was not “scientifically incorrect,” the Tribunal did not suggest that “scientifically correct” would be the standard for assessing the legitimacy of an environmental measure’. 70. US Rejoinder, supra note 1, at para. 45 (notes omitted). 71. Ibid. para. 102.



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In a revealing manner, the United States proceeded to detail the different circumstances in California versus the EU. In any event, it concluded, nothing required California to follow EU decisions makers in setting the level of environmental risk tolerance.72 Thus, the first line of defence was to argue that the EU was also concerned with MTBE, but that different circumstances led to different regulatory decisions. In any event, the United States argued, it had a right to set its own level of protection. Communalism: The award emphasises the openness of the science-based regulatory process that led to the MTBE ban. It notes the public hearings and testimony on the UC Report. The Tribunal uses the openness and informed nature of the debate around the UC Report to reject allegations of ‘political sham’.73 Disinterestedness: The award notes the ‘serious, objective and scientific approach’ of the UC Report. Further, the Tribunal remarks that the Report’s ‘emergence as a serious scientific work from such an open and informed debate is the best evidence that it was not the product of a political sham.’74 The United States arguments also reflect the belief that science should be disinterested. It argued that ‘Methanex does not dispute that the UC Report’s seventeen papers, authored by a highly credentialed, multidisciplinary team of more than 60 tenured researchers from several top research institutions, were prepared independently and in good faith.’75 Conversely, calling some of Methanex’ evidence ‘dubious’ it adds in a footnote: ‘However, a long-time consultant to the MTBE industry is neither independent nor neutral and Methanex’s quoting his statement in a February 2004 industry newsletter does not even begin to overcome the overwhelming expert evidence in this case and extensive record that was before California decision-makers in 1999.’76 The United States made a similar argument related to some of the experts’ independence, on the ground that they had previously been retained by Methanex, a fact which was not disclosed to the Tribunal.77 Organized Skepticism: The award emphasises that the UC report was subjected to ‘public hearings, testimony and peer review.’ The United States also recognises the value of ‘organized scepticism’ when it argues that: ‘Finally, the good-faith nature of the UC Report is confirmed by the similar research results issuing contemporaneously from highly respected sources.’78 One might argue that the reason why the Tribunal referred to public hearings or peer review was because these requirements were mandated by California – 72. Ibid. at para. 105. 73. See supra note 62 and citation attached. 74. Ibid. 75. US Rejoinder, supra note 1, at para. 81. 76. Ibid. at footnote 109. 77. Ibid. at para. 97. 78. Ibid. at para. 87.

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and not because the Tribunal thought in the abstract that they were part of a scientific due process analysis. At the same time, the content of the Bill itself may reflect how the norms influence the conduct of regulatory science in the Unites States and elsewhere.

3. Emerging Practice of States Reflecting the Norms of Science and Aspects of Scientific Due Process This part of the article explores the emergence of a practice of states reflecting the Mertonian norms of science and seeks guidance in that practice to further define and refine appropriate criteria for scientific due process.

3.1. International Treaties, Science and Risks The focus of this section is on treaties or agreements that relate to health, safety and the environment. They have been chosen because they are all relatively recent and impose on governments certain obligations relating to science-based regulatory processes. Also, they share characteristics of recent treaties on those subject matters: (1) they include provisions that are complex and technical (2) they all include a form of risk analysis, based on scientific and non-scientific information (3) they attempt to balance competing values, such as the protection of the environment and trade liberalisation.79 The wide membership in those treaties provides some indication of the practice of states related to matters of health, safety and the environment. The goal of this exercise is not to be exhaustive, but rather to show patterns already recognizable amongst four recent agreements. They are the Stockholm Convention on Persistent Organic Pollutants;80 the Cartagena Protocol on Biosafety to the Convention on Biological Diversity;81 the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade;82 and the WTO/SPS Agreement.83 Universalism: At a fundamental level, all four agreements reflect the reality that the health, safety or environmental issues they address are universal and only 79. On the role of science in international environmental law, see Sands, ‘Principles of International Evironmental Law’, supra note 8 at 6-8. 80. Convention on Persistent Organic Pollutants (Stockholm), 22 May 2001, 40 ILM 532 (entered into force 17 May 2004) (hereinafter POPs Convention). 81. Cartagena Protocol on Biosafety to the Convention on Biological Diversity (Montreal), 29 January 2000, 39 ILM 1027(entered into force 11 September 2003) (hereinafter Biosafety Protocol). 82. Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (Rotterdam), 11 September 1998, 38 ILM 1 1999 (entered into force 24 February 2004) (hereinafter Chemicals Convention). 83. SPS Agreement, supra note 14.



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international action can hope to remedy or manage them. More specifically, the norm of universalism is made operational by the reliance in those agreements on international cooperation and international standards and norms. The WTO/SPS Agreement goes the furthest when urging the harmonization of standards.84 When a member adopts a measure that conforms to international standards, such a measure will be presumed to be consistent with the SPS Agreement and the GATT.85 The other agreements rely on international expertise and work in different ways. For example, under the Biosafety Protocol, at Article 2(5), ‘The Parties are encouraged to take into account, as appropriate, available expertise, instruments and work undertaken in international forums with competence in the area of risks to human health.’ The Protocol also provides that when performing risk assessments, expert advice and guidelines developed by relevant international organizations can be taken into account.86 The agreements further acknowledge the universalism of science when they recognize that Parties can rely on data from any relevant sources. For example, the POPs Convention provides that in developing a proposal for the listing of the chemical under the Convention, a ‘Party may be assisted by other Parties and/or by the Secretariat.’87 It should be noted, however, that the reliance on international standards or norms does not diminish the rights of states to adopt regulatory measures that are more protective than the international standards or norms. The agreements attach different conditions on the exercise of this sovereign right of the states. 88 Under the SPS Agreement, for example, a scientific justification allows a member to adopt a measure providing for a higher level of protection than what the case would be following the international standards. Communalism: The value attributed to the communication and sharing of scientific findings as well as the openness of science-based regulatory processes is evident in the four agreements. Parties are encouraged to share scientific and 84. See Ibid., Article 3. 85. Ibid., Article 3(2). 86. Biosafety Protocol, supra note 81, Article 2(5) and Annex 3. See also POPs Convention, supra note 80 at Annex E (Information requirements for the risk profile) which includes: f ) National and international risk evaluations, assessments or profiles and labelling information and hazard classifications, as available; and g) Status of the chemical under international conventions. See also Ibid., Article 6, Article 11(1)(g) and Article 16 (2)(a). See also Chemicals Convention, supra note 82, Article 13, Article 15 and Annex IV, Part II (d). 87. POPs Convention, supra note 80, Article 8(1). See also Chemicals Convention, supra note 82, Article 6(1) which provides that under certain circumstances a developing country or a country with an economy in transition can, in developing a proposal for the listing of certain pesticides under the Convention, ‘draw upon technical expertise from any relevant source’. 88. See e.g. Biosafety Protocol, supra note 81, Article 2(4). See also Chemicals Convention, supra note 81, Article 15.

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other information in different ways. For example, the Biosafety Protocol provides for the establishment of a ‘Clearing-House’. This mechanism aims to facilitate the exchange of information and experience with living modified organisms. Parties are required to make available to it laws and regulations adopted to implement the Protocol as well as summaries of risk assessments or environmental reviews of living modified organisms they performed.89 For its part, the SPS Agreement’s Annex on transparency provides for the publications of SPS regulations, but also for enquiry points which can answer questions and provide documents.90 The agreements also provide for the provision of information to the public – a reflection of the public good nature of science.91 In terms of public participation in the regulatory process itself, the Biosafety Convention goes the furthest at Article 23(2) which states that: ‘The Parties shall, in accordance with their respective laws and regulations, consult the public in the decision-making process regarding living modified organisms and shall make the results of such decisions available to the public, while respecting confidential information in accordance with Article 21.’92 Disinterestedness: The integrity of science is pursued in the agreements by requiring Parties to provide reasons for their regulatory actions based on science and some form of risk analysis. Under the SPS Agreement, for example, Article 5(2) provides that: In the assessment of risks, Members shall take into account available scientific evidence; relevant processes and production methods; relevant inspection, sampling and testing methods; prevalence of specific diseases or pests; existence of pest – or disease – free areas; relevant ecological and environmental conditions; and quarantine or other treatment.93

The Biosafety Protocol similarly provides at Article 15 that: Risks assessments undertaken pursuant to this Protocol shall be carried out in a scientifically sound manner, in accordance with Annex III and taking into account recognized risk assessment techniques. Such risk assessments shall be based, at a minimum, on information provided in accordance with Article 8 and other available scientific evidence…94

89. Biosafety Protocol, Ibid., Article 20. 90. See SPS Agreement, supra note 14 at Annex B. See also Chemicals Convention, supra note 82, Article 14; POPs Convention, supra note 80, Article 9. 91. See Chemicals Convention, supra note 82, Article 15(2); POPs Convention, supra note 80, Article 11(2)e). 92. Biosafety Protocol, supra note 81, Article 23(2). See also POPs Convention, supra note 80, Article 10 (public information, awareness and education). 93. SPS Agreement, supra note 14, Article 5 (emphasis added). 94. Biosafety Protocol, supra note 81, Article 15 (emphasis added). See also Chemicals Convention, supra note 82 at Annex I (Information requirements for notifications made pursuant to article



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The requirement to consider other ‘available scientific evidence’ in the agreements echoes the idea that the scientific enterprise is subjected to constant scrutiny and policing.95 Organized Skepticism: Since organized skepticism is interrelated with the other norms of science, many of the examples already provided are relevant here as well. In terms of peer review, the Chemicals Convention comes the closest to recognizing the role that ‘reviews’ play in ensuring ‘sound’ science. Annexe II, which includes criteria for listing banned or severely restricted chemicals, provides that the Chemical Review Committee shall: (a) Confirm that the final regulatory action has been taken in order to protect human health or the environment; (b) Establish that the final regulatory action has been taken as a consequence of a risk evaluation. This evaluation shall be based on a review of scientific data in the context of the conditions prevailing in the Party in question. For this purpose, the documentation provided shall demonstrate that: (i) Data have been generated according to scientifically recognized methods; (ii) Data reviews have been performed and documented according to generally recognized scientific principles and procedures; (iii) The final regulatory action was based on a risk evaluation involving prevailing conditions within the Party taking the action; …96

The descriptions just provided do not do justice to these agreements. They share other important principles such as precaution which was not emphasized. As mentioned in the introduction, this does not mean that precaution would not be a factor that a tribunal might take into consideration when assessing the soundness of the government’s scientific evidence.

3.2. Adjudication of Science: the Case of the WTO International judges and arbitrators are regularly faced with scientific evidence. The nature of the disputes and the relevant applicable law has shaped the adjudicators’ approach to scientific evidence.97 In the realm of international economic law, the WTO Appellate Body has had the most experience handling issues of

5); POPs Convention, supra note 80, Article 8(3) and Annex D (Information requirements and screening criteria). 95. See also POPs Convention, supra note 80, Article 8(6). 96. Chemicals Convention, supra note 82, Annex II (emphasis added). 97. For a brief discussion of cases, see Orellana, ‘The Role of Science’, supra note 3 at 52-53.

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law and science, under the SPS Agreement but also under GATT Article XX.98 The latest chapter of the long-standing hormones dispute opposing the United States and Canada to the European Communities (EC) will be the focus of our analysis.99 The decision rendered in October 2008 in United States – Continued Suspension of obligations in the EC – Hormones Dispute100 contains the latest statements from the Appellate Body of relevance to our topic. The purpose of our analysis is narrow.101 In the previous section, provisions of the SPS Agreement were provided as examples of the norms of science being made operational or translated in an international agreement. The adjudication under the agreement reveals a similar pattern which gets extended or elaborated through the interpretation of the rules. Two aspects of the Appellate Body’s decision are useful for our purposes: the treatment of expert scientific evidence and the treatment of the scientific evidence presented by the EC in support of its import ban. Regarding expert advice, the Panel adopted in 2005 Working Procedures for Consultations with Scientific and/or Technical Experts (Experts Working Procedures).102 The nomination of experts proved difficult as the Parties to the disputes objected to many of the possible candidates. In the end, the Panel appointed amongst others two experts that had been involved in the review of relevant hormones for the Joint FAO/WHO Expert Committee on Food Additives (JEFCA). The EC contested this choice on appeal since it was critical of JEFCA’s evaluations in making its case in the WTO. The Appellate Body found that the Panel infringed the EC’s due process rights when it consulted with these two experts. In particular, it found that their participation in JEFCA’s evaluations 98. See e.g. Australia – Measures Affecting Importation of Salmon (1998), WTO Doc. WT/ DS18/AB/R (Appellate Body Report) (hereinafter Australia-Salmon); Japan – Measures Affecting Agricultural Products (1999), WTO Doc. WT/DS76/AB/R (Appellate Body Report) (hereinafter Japan-Agricultural Products II); Japan – Measures Affecting the Importation of Apples (2003), WTO Doc. WT/DS245/AB/R (Appellate Body Report) (hereinafter Japan-Apples); under GATT Article XX, see also European Communities – Measures Affecting Asbestos and Asbestos-Containing Products (2001), WT/DS135/AB/R (Appellate Body Report) (hereinafter EC-Asbestos). For a discussion of the SPS cases, see Trebilcock and Soloway, ‘International Trade Policy’, supra note 16 at 557-574; Matsushita, Schoenbaum and Mavroidis, supra note 14 at 502-545. 99. EC Hormones, supra note 13. Also, it should be noted that the content of the SPS agreement itself was strongly influenced by the hormones disputes which had already been raging for years between the United States and the EC. See Wirth, ‘The Role of Science’, supra note 11 at 824. 100. Hormones – Continued Suspension, supra note 10. 101. Some authors have suggested procedural or process oriented approaches to the interpretation of the SPS Agreement. While some interesting parallels (but also differences) exist between such approaches and the present one, they will not be detailed here. See Winickoff et al., ‘’Adjucating the GM Food Wars, supra note 11 in particular at 107-109 and Trebilcock and Soloway, ‘International Trade Policy’, supra note 16. 102. Hormones – Continued suspension, supra note 10 at para. 416.



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of the relevant hormones ‘was likely to affect or give rise to justifiable doubts as to their independence or impartiality.’103 As a result, the Panel’s adjudicative independence and impartiality had also been compromised.104 Despite this conclusion, the Appellate Body proceeded to examine the other EC claims regarding the consistency of its import ban with the SPS Agreement. On the standard of review, the Appellate Body reiterated the standard laid out ten years earlier in its original hormones decision: ‘so far as fact-finding by panels is concerned, the applicable standard is “neither de novo review as such, nor ‘total deference’, but rather the ‘objective assessment of facts’”.’105 The Appellate Body ruled that the panel had erred in its interpretation of Article 5.1 and it reversed the Panel’s findings that the relevant EC Directive was not based on a risk assessment within the meaning of Article 5.1.106 The Appellate Body also found that the Panel had erred in its interpretation of Article 5.7, related to precaution. In particular, it noted that a ‘paradigmatic shift’ in the scientific knowledge was not required in order to render the scientific evidence relied on by JEFCA ‘insufficient’ within the meaning of Article 5.7.107 In both cases, however, the Appellate Body declined to complete the analysis itself.108 Universalism: The Appellate Body reiterated its view that an SPS measure ‘can be based on a risk assessment performed by a relevant international organization or by another WTO Member.’109 It also recalled the prominent role played by international standards in the SPS Agreement.110 Regarding the right of states to adopt higher levels of protection, the Appellate Body notes that: ‘the chosen level of protection must not affect the rigour or objective nature of the risk assessment, which must remain, in its essence, a process in which possible adverse effects are evaluated using scientific methods.’111 Communalism: The Appellate Body acknowledged that risk assessments need not rely on the views of the majority of the scientific community. It added: While recognizing that, in most cases, WTO Members “tend to base their legislative and administrative measures on ‘mainstream’ scientific opinion”, the Appellate Body has observed that, “[i]n other cases, equally responsible and representative governments may act in good faith on the basis of what, at a given time, may be a divergent opinion coming from qualified and respected sources.” The Appellate 103. Ibid., at para. 481. 104. See Ibid. (on this issue more generally see also at 172-202). 105. Ibid. at para. 589. 106. Ibid. at para. 619. 107. Ibid. at para. 725. 108. Ibid. at para. 620. 109. Ibid. at para. 530. 110. Ibid. at para. 532. 111. Ibid. at para. 534. In the footnote, the Appellate Body recalled its previous holding that the scientific process must not be understood narrowly. It goes beyond the physical sciences and what can be analysed in a lab.

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Body added that an approach based on a divergent opinion from a qualified and respected source, “does not necessarily signal the absence of a reasonable relationship between the SPS measure and the risk assessment, especially where the risk involved is life-threatening in character and is perceived to constitute a clear and imminent threat to public health and safety.”112

Arguably, this statement does not undermine the universality of science but rather reflects the openness and inclusiveness inherent to the scientific enterprise and the evolutive nature of science. The espousal by the Appellate Body of ‘divergent’ views, however, is not unconditional since it refers to ‘qualified and respected sources’ (more on this below under Organized Skepticism). Disinterestedness: The Appellate Body discussion related to experts is most revealing in terms of disinterestedness. The EC had raised objections relating to the qualifications as well as impartiality of the experts retained by the Panel. In terms of qualifications, the Appellate Body held that membership in JEFCA, an international expert committee administered jointly by the FAO and the WHO, ‘reflects international recognition of the expertise of a particular scientist.’113However, it held that such qualifications did not guarantee independence nor impartiality. The panel had further emphasized in its reasoning that the experts could be relied upon for an objective assessment of the facts, since science was always evolving and scientific work involved the assessment and reassessment of ideas under the peer review process. As such, the experts could show the necessary detachment from their own work.114 The EC contested this finding inter alia because the principle of peer review was not found in any of the WTO agreements and that, in any case, an expert would not be asked to peer review work that explicitly criticises its own research.115 In ruling on this issue, the Appellate Body noted: ‘We recognize that scientists will often be asked to review studies performed by other scientists and that the scientific community must constantly reassess theories in the light of scientific progress.’116 However, it held that the EC’s concerns were not addressed by references to peer review or the evolutive nature of science. The direct involvement of the experts in risk assessments criticised by the EC in this case was nonetheless improper.117 Organized Skepticism: The Appellate Body’s treatment of the standard of review is most instructive in terms of the value of organized scepticism. In elaborating the standard, the Appellate Body noted that panels should not determine whether the risk assessment performed by the member was ‘correct.’ De novo review exceeds the mandate of panels; they should not substitute their own scientific judgement 112. Ibid. at para. 529 (notes omitted). 113. Ibid. at para. 459. 114. Ibid. at paras 474-475. 115. Ibid. at para. 476. 116. Ibid. at para. 477. 117. Ibid.



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for that of the risk assessors. Rather, panels should determine ‘whether the risk assessment is supported by coherent reasoning and respectable scientific evidence and is, in this sense, objectively justified.’118 It recalled its finding regarding divergent views and ‘qualified and respected sources’, to which it added: Although the scientific basis need not represent the majority view within the scientific community, it must nevertheless have the necessary scientific and methodological rigour to be considered reputable science. In other words, while the correctness of the views need not have been accepted by the broader scientific community, the views must be considered to be legitimate science according to the standards of the relevant scientific community.119

The Appellate Body does not elaborate on the concepts of ‘qualified and respected sources,’ ‘reputable science’ nor ‘legitimate science’. However, the underlying objective is consonant with the idea of organized scepticism (and of disinterestedness).

4. Domestic Norms of Regulatory Science As described in the previous sections, many countries adhere to international agreements which require, amongst others, a certain line of conduct related to regulatory science.120 In the case of the WTO, members found to have violated the SPS Agreement, for example, may have to cure deficiencies in how they proceed to conduct risk assessments. More broadly, an author has found that ‘the requirement for risk assessment may lead to a convergence in procedures that countries follow when setting SPS policies but not necessarily convergence in particular regulatory outcomes.’121 A number of countries have also adopted domestic norms of regulatory science, science advice and related to risk analysis that reflects international commitments.122 This section uses as an illustration the case of Canada. Canada’s practice is described in reference to three main government documents: ‘A Framework for Science and Technology Advice: Principles and Guide118. Ibid. at para. 590. 119. Ibid. at para. 591. 120. See e.g. Chemicals Convention, supra note 82, Article 15(1); POPs Convention, supra note 80, Article 3 (3), (4), Article 5, Article 7 and Article 15; Biosafety Protocol, supra note 81, Article 2. 121. Victor, ‘The Sanitary and Phytosanitary Agreement’, supra note 16 at 872 and 923-926. See also Weiler, ‘The Treatment of SPS Measures’, supra note 9 at 252 who argues that: ‘To the extent that such a convergence can be considered state practice, this SPS principle should become even more firmly ensconced in the applicable international law which will be available whenever a NAFTA tribunal interprets Article 1105.’ See also, Atik, ‘Science and International Regulatory Convergence’, supra note 15 in particular at 745 and 752-755. 122. See e.g. Sir Robert May, The Use of Scientific Advice in Policy Making (London: UK Office of Science and Technology, 1997).

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lines for the Effective Use of Science and Technology Advice in Government Decision Making’;123 ‘A Framework for the Application of Precaution in ScienceBased Decision Making About Risk’124 and ‘Cabinet Directive on Streamlining Regulation’.125 All three documents integrate or make operational the Mertonian norms of science. The description that follows provides a few examples and highlights the link made between international commitments and prescriptions for domestic science-based decision making. The Framework for S&T Advice seeks ‘to ensure that government policy, regulatory and management decisions are informed by sound science and technology advice.’126 It recognizes that ‘sound science’ has become a key input to national and international policy making. The Framework for S&T Advice includes six principles, a number of guidelines and an implementation strategy. It reflects most closely the norms of science. For example, under the principle of inclusiveness, major elements of the norms are covered: Inclusiveness enhances the debate by getting conflicting viewpoints on the table, generating a full and open discussion, and drawing in scientific findings that may not otherwise be considered. The market for science advice is global, and the growing body of science knowledge available internationally must be brought to bear on policy issues. In addition to improving the early identification of issues, inclusiveness aids in achieving sound science advice by reducing the impact of conflicts of interest or biases that may exist.127

Under the principle entitled ‘Sound Science and Science Advice’, the role of ‘due diligence procedures’ is highlighted, including peer review procedures, in order to ensure quality and reliability of science advice.128 The importance of publication is also underlined and government scientists are encouraged, through the guidelines, to publish their research findings in external peer reviewed

123. A framework for Science and Technology Advice: Principles and Guidelines for the Effective Use of Science and Technology Advice in Government Decision Making (2000), Government of Canada, (hereinafter Framework for S&T Advice) (visited 1 September 2010). 124. A Framework for the Application of Precaution in Science-Based Decision Making About Risk (2003), Government of Canada, on-line: (hereinafter Framework for the application of precaution)(last visited 1 September 2010). 125. Cabinet Directive on Streamlining Regulation (2007), Government of Canada, on-line: (hereinafter Cabinet Directive) (last visited 1 September 2010). 126. Framework for S&T Advice, supra note 123, at 1. 127. Ibid. at 5. 128. Ibid. at 6.



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publications.129 Under this principle, science advisors are also asked to clearly distinguish scientific facts and judgments from personal views in their advice.130 While uncertainty, risk and precaution are covered by the Framework for S&T Advice, a more detailed treatment has since been provided in the Framework for the application of precaution. The latter provides guidance for federal regulatory activity for the protection of health and safety and the environment as well as the conservation of natural resources. It recognised that Canada has a long standing history of applying precaution in areas of federal regulatory authority but seeks to strengthen and describe current practices.131 It notes, however, that Canada does not yet consider the precautionary principle / approach to be a rule of customary international law.132 Again, the values of openness, transparency, public involvement, peer review of science, independent advice, etc. are exhibited in the Framework for the application of precaution. To give one example, when follow-up activities to the application of precaution are considered, it notes: In order to capture the full diversity of scientific thought and opinion, the basis for decision making should be drawn from a variety of scientific sources and experts from many disciplines. Decision makers should give particular weight, however, to peer-reviewed science and reasonableness in their judgments. Moreover, the science function can be further supplemented by formal, structured and, where warranted, independent advisory processes that include widely recognized and credible individuals.133

Among the five general principles of application of precaution provided in this Framework, two are of particular relevance. The first states that it is legitimate for decisions to be guided by society’s chosen level of protection. The Framework specifies however, that: ‘While societal values and public willingness to accept risk are key in determining the level of protection, in all cases sound scientific evidence is a fundamental prerequisite to applying the precautionary approach.’134 Another principle details what is a sufficiently sound or credible scientific basis to apply precaution. According to the Framework, in order to establish that a risk of serious or irreversible harm exists, the emphasis should be placed on a ‘body of scientific information – whether empirical or theoretical – that can establish reasonable evidence of a theory’s validity, including its uncertainties and that indicates the potential for such a risk.’135 The recourse to peer review is integral 129. Ibid. at 6-7. 130. Ibid. at 8. 131. Framework for the application of precaution, supra note 124 at 2. 132. Ibid. at 6. 133. Ibid. at 5. 134. Ibid. at 7. 135. Ibid. at 4 and 7.

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to this process. The Framework states: ‘Peer review represents a concrete test for the practical application of precaution to decision making. A peer-review process can assess the soundness of the scientific evidence and its inherent credibility within the scientific community.’136 This Framework also recognises that domestic applications of precaution should be consistent with Canada’s international obligations.137 The Cabinet Directive on Streamlining Regulation, however, is the most explicit in making the link between Canada’s international commitments and its regulation. In the Cabinet Directive, the government commits to protecting and advancing the public interest by regulating with the greatest overall benefit to current and future generations of Canadians in mind. This includes a commitment to ‘make decisions based on evidence and the best available knowledge and science in Canada and worldwide, while recognizing that the application of precaution may be necessary when there is an absence of full scientific certainty and a risk of serious or irreversible harm’.138 While the Cabinet Directive also covers inclusiveness, transparency and public scrutiny, amongst others, two elements draw our attention: the emphasis on international cooperation and standards and compliance with international obligations. In identifying and assessing public policy issues, the Cabinet Directive directs federal departments and agencies to review evidence-based assessments, analyses, standards and classifications not only produced in Canada but also by other countries and international organizations. In terms of ‘best practices,’ it recommends for significant proposals independent review of risk assessments, for example using science advisory boards.139 In the selection, design and assessment of regulatory responses, the Cabinet Directive provides that departments and agencies should ‘make use of all or parts of relevant national or international standards, guidelines, and recommendations as a basis for technical regulations and for conformity assessment procedures when they fulfil intended policy objectives.’140 In terms of compliance with international obligations, the Cabinet Directive clearly states that: ‘Departments and agencies are to respect Canada’s international obligations in such areas as human rights, health, safety, security, international trade, and the environment. They must also implement provisions related to these obligations in all stages of regulatory activity.’141 The Cabinet Directive also 136. Ibid. at 8. 137. Ibid. at 11. The Framework for the application of precaution also encourages the choice, when available, of ‘least trade-restrictive’ measures. 138. Cabinet Directive, supra note 125 at 1 (emphasis in original). 139. Ibid. at 5. 140. Ibid. at 6. 141. Ibid.



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lists services available to them in order to ensure the compliance of regulatory proposals with Canada’s international obligations. Appendix B to the Cabinet Directive is focused on Canada’s international trade obligations as they relate to technical regulations, conformity assessments and SPS measures under the WTO and NAFTA.142 In terms of international cooperation, the Cabinet Directive provides that departments and agencies are to take advantage of opportunities for such cooperation through bilateral or mutilateral fora. They should do so by: reviewing and influencing international best practices, sharing knowledge, adopting or contributing to the development and updating of international standards and conformity assessment procedures, and developing and pursuing compatible approaches with international counterparts; limiting the number of specific Canadian regulatory requirements or approaches to instances when they are warranted by specific Canadian circumstances and when they result over time in the greatest overall benefit to Canadians; and identifying the rationale for their approach, particularly when specific Canadian requirements are proposed.143

The call to limit Canadian specific regulatory requirements is probably the most noteworthy as it could be said to go quite far in making operational the norm of universalism of science.

5. Conclusion The due process based approach explored in this article allows a tribunal to rule on an investor claim that encompasses an attack – more or less direct – on regulatory science without deciding whether the scientific conclusions or results themselves were ‘right’ or ‘wrong’. Rather, the tribunal would apply ‘scientific due process’ criteria to the science-based regulatory measure or process under challenge. If the government’s science meets such criteria, then it should be taken as an indication that the challenged measure was not ‘arbitrary’ or ‘excessive’ depending on the applicable treaty standard.144 This approach is generally consistent with the one adopted in Methanex. This article has sought guidance from the norms of science as revealed by Merton and from the emerging practice of states consistent with these norms 142. Ibid. at 14. 143. Ibid. at 8. 144. See Orellana, ‘The Role of Science’, supra note 3 at 72 who concludes his article as follows: ‘Science provides a (somewhat) objective basis to recognize reality and screen out arbitrariness, which is of consequence to the application of the general standard and of expropriation disciplines. A focus on due process, including whether scientific evidence meets the basic features of the scientific method and has been produced in an environment of scientific freedom, would relieve a tribunal from becoming ensnared in deciding the truth of scientific claims.’

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and evidenced in international treaty-making, international adjudication under such treaties and domestic norms of regulatory science and domestic implementation of international commitments through policy and regulation. This analysis reveals a number of criteria related to scientific due process that a tribunal might usefully consider when confronted with a challenge to sciencebased regulatory measures. First, a tribunal might consider whether the government’s actions and measures are based on or consistent with relevant international practices, norms or standards. Consistency with such practices, norms or standards should provide an indication of lack of pretext, excuse or arbitrariness (depending on the applicable treaty standard). The fact that a state’s measures do not match international practice or the lack of international norms or standards, however, should not be determinative. As we have seen, countries have the sovereign right to set their own level of protection. Second, a tribunal might consider whether the process that led to the measure was inclusive and open. Were different scientific viewpoints taken into account? Were the scientific findings made public? Were public consultations held? The fact that the government relies on the view of the majority of scientific opinions should weigh in favour of the state. However, reliance on divergent views should not automatically discredit the state’s measure. Concepts such as ‘reputable science’ and ‘legitimate science’ might come into play. Third, a tribunal might consider whether the government was conscious of potential conflicts of interest and attempted to diminish their impact. It might test the ‘objectivity’ of the regulatory science by reference to the work of other scientists. Fourth, a tribunal might consider whether the regulatory science was peer reviewed. Review does not have to match the ‘gold standard’ upheld in academic journals. However, review by peers in a government context could take the form of internal government review or review by external experts or advisory panels. Tribunals should be cognisant that peer review might not always be possible, however.145 In the science and law literature relating to the WTO/SPS Agreement, the Appellate Body has been criticised for failing to provide guidance as to what is ‘science.’146 Authors have remarked that ‘beyond banal statement, we are still unclear as to what distinguishes science from non-science.’147 Consistent with 145. On the value of peer review in the investment law context, see Orellana, Ibid. at 65. In the SPS context, Wirth, ‘The Role of Science’, supra note 11, at 855 has argued that: ‘any domestic scientific determination that has withstood scientific peer review should be categorically presumed to satisfy the science-based disciplines in either the Uruguay Round or the NAFTA.’ For a critique of peer review, see Jasanoff, The Fifth Branch, supra note 35, at 61-83. 146. Trebilcock and Soloway, ‘International Trade Policy’, supra note 16 at 537-574; Matsushita, Schoenbaum and Mavroidis, ‘The World Trade Organization’, supra note 14, at 514-515 and 542-543. See also Atik, ‘Science and International Regulatory Convergence’, supra note 15, at 749-751. 147. Matsushita, Schoenbaum and Mavroidis, Ibid. at 112.



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Merton’s approach this article did not attempt to define science in terms of scientific methods as such (broadly including methods of investigation and of testing scientific hypotheses) rather it focuses on scientific due process.148 Still, the approach presents issues for international investment law adjudication that would require further study. One risk with the proposed approach is that ‘science’ overshadows other aspects of the decision-making process. By artificially disembodying the decision making process it could be argued that the approach disserves rather than serves the cause of protection of the regulatory autonomy of states in matters of health, safety and the environment. In other words, by ‘isolating’ science, the approach might make regulatory decisions more – not less – prone to challenge by the ‘junk science’ industry. One particular issue is whether the adoption of this approach improperly imposes a duty on governments to perform risk analysis, taking into account scientific evidence, when making science-based regulatory decisions. This is an important question since all international agreements reviewed in this article contained references to risk analysis while BITs contain none. Put a different way could a state violate an FET treaty obligation, for example, because it adopted a health or safety regulation based on no scientific evidence at all? Is ‘no science’ the same as ‘junk science’ from an investment law perspective due to the approach suggested? A variation on this theme lies with the principle of ‘systemic integration’ taken to an extreme. For example, an investor might argue that a breach by the state of the WTO/SPS agreement’s obligation to perform a risk assessment is automatically a breach of the FET obligation under a BIT. An author has made an argument along these lines in the context of NAFTA interpretation, stating that: ‘it is only logical to consider the SPS principles, which can be derived from the texts and jurisprudence of the NAFTA and the WTO texts, as being “relevant rules of international law applicable in the relations between the parties” under Article 31(3)(c) and as “applicable rules of international law” under NAFTA Article 1131(1). The alternative – to interpret the provisions in a vacuum, as if these principles did not exist—is simply unacceptable.’149 Another issue is that there may be a conflict between the use of ‘scientific due process’ based on a set of ideals in science and the minimum standard of treatment

148. This approach would hopefully avoid some of the pitfalls noted in the US domestic context and related to the application by judges of the ‘Daubert test’ to decide on the admissibility of scientific evidence. For a critical assessment of the Daubert case law, see David Micheals, Doubt Is Their Product – How Industry’s Assault on Science Threatens Your Health (Oxford University Press, 2007) at 161-175. Reference to ‘peer review’ as a potential criteria does overlap with the Daubert test and it should be considered with care. 149. Weiler, ‘The Treatment of SPS Measures’, supra note 9, at 239. Contra Newcombe, ‘The Boundaries’, supra note 69, at 35.

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obligations found in certain treaties (i.e. MST standard). The risk is that the minimum standard gets transformed into the maximum standard of treatment. A somewhat related issue relates to developing countries and their limited regulatory resources. Is ‘scientific due process’ beyond the means of most developing countries? Notably, all the agreements surveyed in this article recognize the specific difficulties that developing countries may encounter in complying with the agreements and provide different means to alleviate such difficulties.150 Could investment law take into account regulatory capacity without diluting the standards it seeks to enforce? There is no doubt that claims involving scientific evidence pose challenges to law – and international investment law is no exception. This article attempted to identify a bridge between science and law that would be respectful of the limits of both disciplines by focusing on process. It would respect the reality that absolute certainty is antinomical to science (for example, by recognising that scientists can legitimately disagree without one side practicing ‘junk science’).151 And it would respect the limits of law, by not asking investment tribunals to answer scientific questions they are ill-equipped to answer.

150. See Orellana, ‘The Role of Science’, supra note 3, at 56 and 64. On the principle of common but differentiated responsibility, see Sands, ‘Principles of International Environmental Law’, supra note 8, at 285-290. For a discussion in the context of the WTO, Cordonier Segger and Gehring, ‘Precaution, Health anf the World Trade Organization’, supra note 12, at 158-159 and Atik, ‘Science and International Regulatory Convergence’, supra note 15 at 749-750. But see Trebilcock and Soloway, ‘International Trade Policy’, supra note 16 at 554 who argue that the approach to interpretation they propose for the SPS Agreement with an emphasis on ‘form and process review’ (as opposed to substantive review) is within the reach of developing countries. 151. See Michaels, Doubt is Their Product, supra note 148 at 165; Walker, ‘Keeping the WTO’, supra note 11, at 258-259; Wirth, ‘The Role of Science’, supra note 11, at 841-842.

Policy Choice versus Science in Regulating Animal Cloning under the WTO Law Maria Weimer* Abstract: After genetically modified organisms and nanotechnology, EU food regulators are currently facing the challenge of choosing an appropriate policy approach towards animal cloning for food supply. While different regulatory options are being discussed, the ultimate choice of the EU is likely to have ramifications for EU’s compliance with the international legal trade order of the WTO. In this paper I take the EU policy debate as a starting point to outline the main legal issues that future EU regulation on animal cloning could raise with regard to the most pertinent WTO Agreements: the GATT, the SPS Agreement, and the TBT Agreement. I argue that any future legal assessment of EU policy in this area should pay particular attention to the thorough delineation between the scopes of application of these agreements, since the choice of the applicable WTO regime will directly impact on the extent to which the EU enjoys regulatory autonomy to pursue its policy choice. In the light of the Panel report in EC-Biotech the applicability of the SPS Agreement also to future EU measures on animal cloning appears likely thereby resulting in strong constraints on EU policy choice. This appears problematic seeing that strong criticism is voiced against the extensive interpretation of the concept of an SPS measure, as undertaken by the Panel in EC-Biotech; and that doubts persist as to whether potential risks related to animal cloning can, in fact, be characterized as sanitary and phytosanitary risks. Keywords: WTO law, risk regulation, EU food safety, animal cloning

1. Introduction The employment of new technologies is today an essential element of modern food production. Corporate science continually develops new technologically designed products making the promise of better, healthier, sustainable, and above all cheaper food while at the same time raising fears of unknown health and safety risks that could in the long term be the consequence of such food innovations. *

PhD Candidate, Department of Law, European University Institute.

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Whether progress or dangerous ‘playing with nature’, new technologies certainly have the potential to change the future of food consumption worldwide. The European Union (EU) currently faces a public debate on whether food products derived from the cloning of farm animals should be allowed to circulate on the common market. As with genetically modified food or nanotechnology also in the case of animal cloning the EU regulators are confronted with a controversial technology, the risks of which cannot be fully assessed at present, and which raises further ethical and socio-economic concerns. Inevitably, the EU regulatory debate also raises concerns of WTO law. In other countries, above all in the United States, animal cloning for mass food production is seen to be on the verge of commercialization within the next couple of years. Any trade restrictive EU regulations would, therefore, endanger future international imports of products derived from animal cloning outside the EU into the European market thus creating a potential for new international trade disputes in the World Trade Organisation (WTO). At the same time, WTO law presents an influential parameter in the current reflection on an appropriate European policy towards animal cloning. The Union along with its Member States is a signatory and party to the WTO, and the EU public authorities are legally bound by the obligations contained in the WTO agreements, for example, when drafting new legislation. What is more, the drafting of new EU legislation in the area of food safety, public health and consumer protection has become very WTO sensitive especially since the experience the EU had in the last two prominent WTO disputes, in which the Union tried and failed to successfully defend its public health policies towards the employment of new technologies in food before a WTO dispute settlement body – the EC-Meat Hormones and the EC-Biotech cases.1 The reasoning of the dispute settlement bodies in these cases and their outcome has already shown to have considerable influence on internal EU decision-making in other regulatory areas.2 It is likely that this WTO

1. See Battacharya, Appellate Body report, EC – Measures Concerning Meat and Meat Products, WT/DS26/AB/R and WT/DS48/AB/R adopted 16 January 1998 (hereinafter EC-Meat Hormones); Panel Report, EC – Measures Affecting the Approval and Marketing of Biotech Products, WT/DS291, WT/DS292, WT/DS293, adopted 26 September 2006 (hereinafter EC-Biotech). 2. For example in the drafting of an amendment to Council Directive 76/768/EEC of 27 July 1976 on the approximation of the laws of the Member States relating to cosmetic products, OJ 1976 No. L 262/169, see Grainne de Búrca and Joanne Scott, ‘The Impact of the WTO on EU Decision-making,’ in ibid (eds), The EU and the WTO, Legal and Constitutional Issues (Hart Publishing: Oxford; Portland Or., 2001) at 1; another example is the drafting of the Commission Communication on the Precautionary Principle, COM (2000) 1 final, see Elizabeth Fisher, Risk Regulation and Administrative Constitutionalism (Hart Publishing: Oxford; Portland Or., 2007) at 224 where she describes the impact of the WTO panel’s reasoning in the EC-Meat Hormones case upon the drafting of the Communication.



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jurisprudence will also impact the EU authorities in their choice of a regulatory approach towards animal cloning for food supply. In this paper I endeavour to contribute to the current reflection process by outlining the main legal issues that future EU regulation of animal cloning for food supply could potentially raise with regard to the WTO agreements.3 As will be shown, the critical legal issues arising with regard to future EU regulation revolve around the relationship between the three main WTO agreements regulating the trade of goods: the General Agreement on Tariffs and Trade (GATT),4 the Sanitary and Phytosanitary Measures Agreement (SPS Agreement) and the Technical Barriers to Trade Agreement (TBT Agreement). Though the WTO Agreement establishing these treaties presents a ‘single undertaking,’ and all its provisions should be read in a way that gives meaning to all of them harmoniously,5 it seems that the balance in the application of the above agreements to domestic regulation has recently shifted towards a considerable extension of the scope of the SPS Agreement to the detriment of the other two agreements. Such a shift, criticised by Joanne Scott as SPS ‘imperialism,’6 can be illustrated by reference to the recent Panel report in the EC-Biotech case. The extension of the SPS Agreement entails that a considerable amount of domestic regulations in the area of food safety, public health and environmental protection are likely to fall under this agreement, with the consequence of Members being obliged to observe its science-based obligations. Arguably, these obligations represent a more rigorous ‘test’ to domestic regulation than the obligations established by the GATT or the TBT Agreement. All this raises the thorny question of how far the WTO legal order can go in challenging domestic regulation, and thus, in precluding public policy choice made by the Members’ democratic constituencies. Exploring the issue of the impact of WTO trade rules on internal regulation will, therefore, be the leitmotif of this paper’s discussion of the main aspects relevant for the legal status of future EU measures on animal cloning under WTO law. 3. Therefore, I will not be dealing with legal issues of EU law, which, of course, equally arise with regard to future EU regulation of animal cloning, such as, for example, the question of competence and legal basis for the EU to take action in this area. See Maria Weimer, ‘The Regulatory Challenge of Animal Cloning for Food – The Risks of Risk Regulation in the European Union’, 1 European Journal of Risk Regulation (2010), 31-39. 4. The text of the original GATT 1947 is now incorporated as General Agreement on Tariffs and Trade, 15 April 1994, in force 1 January 1995, 55 UNTS 194, 1867 UNTS 187 into the Agreement establishing the World Trade Organization, 15 April 1994, in force 1 January 1995, 1867 UNTS 154. 5. See Gabrielle Marceau & Joel P. Trachtman, ‘The Technical Barriers to Trade Agreement, the Sanitary and Phytosanitary Measures Agreement, and the General Agreement on Tariffs and Trade,’ 36 (5) Journal of World Trade, (2002) 811-881, at 866, with further references to WTO case-law. 6. Joanne Scott, The WTO Agreement on Sanitary and Phytosanitary Measures. A Commentary (Oxford University Press : Oxford, New York, 2007) at 17.

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In this paper I will proceed in three steps. Firstly, in section 1, I will provide for some contextual information about the technology of animal cloning as well as its commercialisation at global level, in order to show the pertinence of EU legal regulation in this area for international trade. Subsequently, in section 2, a presentation of the status of the current policy debate at EU level will offer some insight into what shape future EU regulation could take, in particular, whether and to what extent it can be expected to have an impact on international trade. I will show that while certain regulatory options are being discussed, or even already advanced, by EU’s public authorities, at present the precise outcome of the debate is still open. My aim, therefore, is not to accomplish a comprehensive legal analysis of the WTO compatibility of certain imaginable regulatory measures. Rather, in section 3, I will take the EU debate on animal cloning as a starting point to identify some parallels to previous trade disputes, in which the WTO compatibility of a Member’s regulation in the area of food safety and public health was at stake. Thus, issues arising with regard to animal cloning under the SPS Agreement, the GATT, and the TBT Agreement will be identified with the aim of comparing the different requirements stipulated by each agreement.

2. Animal Cloning on the Verge of Commercialization in the Global Food Market As often in legal regulation, the devil lies in the detail. Understanding current regulatory developments at EU level and their implications for international trade at first requires some contextual information about the technology of animal cloning as well as its commercialisation at global level. ‘Animal cloning’ in the sense this term is used in the present regulatory discussion is defined as the reproduction of genetically identical ‘copies’ of an animal through Somatic Cell Nuclear Transfer (SCNT). At present, SCNT is the most commonly used technique for animal cloning, and it allows scientists to create genetic replicas (clones) from adult animals that share the same nuclear gene set as another organism.7 The primary commercial use of this technology today and in the near future is in the breeding of farm animals for food production. The benefits of animals cloning as breeding technique lie in the possibility to produce elite animals to be used in breeding. Thus, the animals to be cloned would be those having traits of interest for farming, such as resistance to diseases, or characteristics of interest for food production, such as quantity of milk, quality of meat or others.8 The 7. See in more detail The European Group on Ethics in Science and New Technologies, Ethical aspects of animal cloning for food supply, opinion No 23 from 16 January 2008, at 6 (hereinafter EGE opinion). 8. See EGE opinion supra note 7, at 12-13.



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clones themselves have a low probability of entering the food chain. Rather, it is their progeny that shall be used for food production, such as for the production of milk or meat products.9 Progeny of a clone refers to offspring born from it by sexual reproduction, where at least one of the parents was a clone.10 The first animal clone to gain worldwide attention was the sheep Dolly, whose birth was announced in 1997.11 Since then the SCNT cloning technique has been considerably improved. As previously in the case of biotechnology, the US industry seems to be closest to the commercial use of animal cloning in the mass production of food,12 therefore also representing the strongest commercial interest in removing any potential obstacles to the free international trade of animal cloning products. An important step towards free trade at least in the US market was the release of a positive risk assessment of food from animal cloning by the US Food and Drug Administration (FDA) in January 2008. The FDA is an independent federal agency responsible for food safety, and it has found that food derived from healthy animal clones and their offspring does not give rise to more risks than food derived from conventionally bred animals.13 Despite this regulatory green-light from the FDA, food from cloned animals is until today still not made available to consumers in the US. This is due to the voluntary moratorium on the sale of such products, which has been agreed on between the US agriculture and food industry and the US Agriculture Department. The voluntary moratorium is upheld since 2001 and seems to be likely to continue even after the FDA’s approval.14 However, this moratorium seems to cover only food produced directly from animal clones. To conclude, the EU finds itself in a situation in which products derived from the offspring of cloned animals (e.g. milk and meat) will begin to be imported into the European market in the foreseeable future.15 Even now it is faced with imports of other products derived from animals cloned outside the EU, such as embryos or frozen semen from cloned cattle, bulls, and pigs, which are traded for 9. See European Food Safety Authority, ‘Food Safety, Animal Health and Welfare and Environmental Impact of Animals derived from Cloning by Somatic Cell Nucleus Transfer (SCNT) and their offspring and Products Obtained from those Animals,’ scientific opinion from 15 July 2008, The EFSA Journal (2008) 767, 1-49 at 10 (hereinafter EFSA opinion). 10. See EFSA opinion ibid., at 7. 11. See Elizabeth Weise, ‘Dolly was World’s Hello to Cloning’s Possibilities,’ USA Today, 4 July 2006, (visited 2 July 2010) References to online sources are accurate as of 2 July 2010. 12. USA is the country in which most of the companies have been established with the aim of using animal cloning for the food industry. See EGE opinion supra note 7, at 19. 13. See US Food and Drug Administration, Animal Cloning: A Risk Assessment, opinion from 1 August 2008, . 14. See Reuters, No end in site for animal cloning moratorium: USDA, 7 April 2008, . 15. For an indicative timeline for the commercialization of food from cloned animals see EGE opinion supra note 7, at 14 with further references.

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breeding purposes.16 Seeing that the biggest trade partner in this area will probably be the USA, any restrictive regulatory measures on the part of the EU will make animal cloning a likely candidate for yet another high-profile transatlantic dispute before the WTO dispute settlement bodies.

3. EU Debate on What Policy to Adopt Towards Animal Cloning17 Latest since the release of FDA’s draft risk assessment on food from cloned animals in December 2006 the EU public authorities, ahead of all the European Commission, have seen the necessity to develop their own policy approach towards animal cloning for food supply. In February 2007 Commission’s president Barroso turned to two different European expert bodies asking them to produce assessments of the new technology; the European Group on Ethics of science and new technologies (EGE) was asked to assess the ethical implications of cloning animals for food supply; at the same time the European Food Safety Authority (EFSA) was entrusted with the task of evaluating the impact of the technology on food safety, animal health and welfare and the environment. In 2008 the Commission’s General Directorate for Health and Consumers (DG Sanco) also launched a Eurobarometer survey on EU consumer attitudes to cloning for food production, the results of which were published in October 2008. One month earlier, in September 2008, the European Parliament contributed to the debate by issuing a resolution on animal cloning for food supply, in which it demanded a comprehensive ban of the technology. Furthermore, in the beginning of 2008, a legislative co-decision procedure has been initiated by the Commission with the aim of amending Regulation 258/97 (hereinafter the Novel Foods Regulation)18 by, inter alia, including food from animal cloning into the scope of this regulation. The outcome of all these processes deserves closer attention since it indicates the different issues and concerns at stake. Moreover, it offers some ideas about how future EU regulation of animal cloning for food supply could look like, in particular in view of its potential impact on international trade.

16. See EGE opinion supra note 7, at 14. 17. As this article was drafted in 2009 it takes into consideration the EU policy debate as of end of the year 2009. 18. Regulation (EC) 257/97 of the European Parliament and of the Council of 27 January 1997 concerning novel foods and novel food ingredients, OJ 1997 No. L 43/1.



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3.1. EFSA’s Scientific Opinion(s) On 15 July 2008 EFSA issued its scientific opinion on animal cloning for food supply.19 EFSA has limited its evaluation to cattle and pig clones and their progeny due to the lack of data for the cloning of other species. Overall, EFSA identified animal health and welfare as the main concern arising from animal cloning through SCNT due to the still often occurring malfunctioning of the technique. In contrast, no risks could be identified with regard to food safety and the environment. As regards risks to human health EFSA stated that based on current knowledge there is no indication that differences exist in terms of food safety between food products (e.g. meat and milk) from healthy cattle and pig clones and their progeny, compared with those from healthy conventionally-bred animals. However, EFSA has also highlighted that there is no sufficient data at present to evaluate whether SCNT has an impact on the immune functions of cloned animals, and therefore on their susceptibility to infections. This raises the question whether and to what extent the consumption of meat and milk from cloned animals or their progeny may also lead to an increased human exposure to transmissible agents. However, this question remains open and is referred back to further research on the immunological competence of clones. 20 Further, EFSA has found that there are significant animal health and welfare issues for surrogate mothers (dams) and clones that can be more frequent and severe than for conventionally bred animals. Surrogate dams suffer from increased pregnancy failure and increased recourse to Caesarean section. Further, the mortality and morbidity rate of clones in the early stage of their development is considerably higher than in sexually reproduced animals. However, clones that survive appear to be normal and healthy. As regards progeny EFSA found no indication of any abnormal effects. Finally, as regards implications of animal cloning for the environment EFSA concluded that there is no indication that clones or their progeny would pose any new or additional environmental risks compared to conventionally bred animals. However, EFSA also acknowledged that only limited data is available with regard to the environmental impact. To conclude, it is noteworthy that throughout its opinion EFSA has emphasized the uncertainties surrounding the scientific risk assessment of animal cloning at the present stage of technology development. The reasons stated for these uncertainties are the limited number of studies available, the small sizes investigated and the absence of a uniform approach to allow all the issues relevant

19. See EFSA opinion supra note 9. 20. See EFSA opinion supra note 9, at 33.

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to the opinion to be addressed.21 Thus, EFSA could not answer with certainty all the questions addressed to it by the Commission. Which is why in March 2009 the Commission went back to EFSA, requesting it to further develop its scientific advice especially with regard to animal health and welfare of clones. EFSA’s statement with further advice was published on 23 June 2009.22 Whilst including a number of new publications on SCNT, EFSA overall confirmed the findings and recommendations made in its first risk assessment; at the same time it still was not able to remove the uncertainties.

3.2. The European Group on Ethics (EGE) Opinion on the Ethical Aspects of Animal Cloning The EGE adopted its opinion on 16 January 2008. After having carried out expert hearings, a public consultation as well as organising a round table with representatives from academia, industry, NGOs, civil society, and international organisations, the EGE reached the conclusion that there are doubts about the ethical justification to clone animals for food supply. The Group stated that ‘considering the current level of suffering and health problems of surrogate dams and animal clones, the EGE has doubts as to whether cloning animals for food supply is ethically justified. Whether this applies also to progeny is open to further scientific research.’ As a consequence, at present the EGE did not see convincing arguments to justify the production of food from clones and their offspring.23

3.3. Public Perception – the Eurobarometer on Animal Cloning Following the recommendation of EGE the Commission’s DG Sanco has launched a Eurobarometer survey to find out more about EU citizens’ attitudes towards animal cloning for food production. The results of the survey were published in October 200824 showing that the majority of citizens hold negative views of animal cloning. 84 % believe that the long-term effects of animal cloning on nature were unknown; 77 % believe that animal cloning might lead to human cloning; 61 % think that animal cloning was morally wrong. A majority of interviewees (58 %) said that cloning for food production purposes should never be justified. 63 % of citizens stated that it was unlikely they would buy meat or milk from cloned animals, even if a trusted source stated that such products were safe to eat. Finally, special labelling for food products from the offspring of clones was favoured by 83 % of the interviewees. 21. See EFSA opinion supra note 9, at 2. 22. See EFSA statement, ‘Further advice on the implications of Animal Cloning (SCNT)’ from 23 July 2009, The EFSA Journal (2009) RN 319, 4-15. 23. See EGE opinion supra note 7. 24. See Eurobarometer, European’s attitudes towards animal cloning, October 2008, .



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Overall, it seems that the issues perceived as most problematic by the public are the uncertainty of the long-term effects of the technology on nature and the moral justification for using animals for cloning for the purpose of food production. Two moral objections seem particularly pressing: the ‘slippery slope’ argument against the cloning of animals against the background of immorality of the cloning of humans; and the fear that animals would run the risk of being treated like commodities rather than creatures with feelings.

3.4. The European Parliament’s Resolution on Animal Cloning The EP’s resolution25 added a weighty democratic element to the EU orientation debate on the use of animal cloning. Its call to ban every form of commercialisation of the technology including imports of related products in the EU was supported by a vast majority of the MEPs. There were 622 votes in favour, 32 against and 25 abstentions. The resolution calls in a very clear and concise way on the Commission ‘to submit proposals prohibiting for food supply purposes (i) the cloning of animals, (ii) the farming of cloned animals and their offspring, (iii) the placing on the market of meat or dairy products derived from cloned animals or their offspring and (iv) the importing of cloned animals, their offspring, semen and embryos from cloned animals or their offspring, and meat or dairy products derived from cloned animals or their offspring, taking into account the recommendations of EFSA and the EGE.’

3.5. The Commission’s Orientation Debate on Animal Cloning In January 2009 the College of Commissioners held an orientation debate in order to see if in the light of the above-described consultations the EU’s current regulatory framework was sufficient or whether additional measures designed specifically for animal cloning were required.26 The Commissioners discussed different possible policy options, focussing mainly on three courses of action: (1) not taking any action at present while further debating at EU level and internationally the use of cloning for food supply, (2) using the existing EU legal instruments to regulate products derived from animal cloning, and (3) proposing an outright ban of animal cloning for food supply. The outcome of this orientation debate in the College was that no definitive decisions on a policy approach were taken yet. In order to avoid potential trade issues with third countries, the Commission seems not to be ready to propose 25. See European Parliament resolution of 3 September 2008 on the cloning of animals for food supply, . 26. See USDA Foreign Agricultural Service, EC Orientation Debate on Animal Cloning, GAIN Report Number E41010 from 30 January 2009, .

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new legislation banning or allowing animal cloning and is holding the existing status quo for now. Thus, the Commission seems to want to gain more time for reflection and to carry on the debate between the Commission, the Parliament and the Council. Also, the fact that following the debate in the College, namely in March 2009, DG Sanco requested an additional scientific opinion from EFSA (see above) indicates that the Commission considers the current factual evidence as not yet sufficient to provide the basis for legislative action. 27

3.6. Legislative Developments – A New Amendment of the Novel Foods Regulation It is worth noting that, in parallel to the ongoing debate described above, and half a year before the issue of the EFSA first scientific opinion on animal cloning, the Commission already initiated a legislative process, the outcome of which could directly affect the way that food from cloned animals will be regulated in the EU in the near future. In January 2008 the Commission presented a legislative proposal28 to revise the Novel Foods Regulation,29 thereby using an existing legislative instrument to regulate food derived from cloned animals. This Commission proposal is currently at the stage of the second reading by the European Parliament30 within the ordinary legislative procedure under Article 294 of the TFEU. Before explaining the content of the Commission proposal as relevant for food from cloned animals, the current legal situation shall be briefly described. The Novel Foods Regulation requires a prior authorisation for foods, which fall under the definition of ‘novel foods:’ they may only be placed on the European market after having undergone a centralised safety assessment by the EFSA. Based on the EU competence to ensure the functioning of the internal market (Article 114 TFEU) this EU Regulation has been enacted to harmonize national regulations aiming at the protection of human health. Therefore, the Regulation itself serves the purpose of protecting public health from risks related to novel 27. Note that after the drafting of this article, namely in October 2010 the Commission presented a report suggesting to ban animal cloning for food in the EU as a temporary measure. This proposal did not cover the banning of imports of food from the offspring of clones; see Commission Press Release of 19 October 2010, IP/10/1349, “Commission favours temporary suspension of animal cloning for food production in the EU.” However, no new legislation on this issue has formally been proposed yet (stand March 2011). 28. Commission Proposal for a Regulation of the European Parliament and of the Council on novel foods, COM (2007) 872 final, 14 January 2008, . 29. Regulation (EC) 258/97 of the European Parliament and of the Council of 27 January 1997 concerning novel foods and novel foods ingredients, OJ 1997 No. L 43/1 (hereinafter Regulation 258/97). 30. See Legislative Observatory of the European Parliament, .



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foods by establishing a common EU safety assessment for such products.31 With regard to imported food from cloned animals two different situations should be distinguished. Food products derived from the progeny of cloned animals, and not directly from clones, do not fall under the definition of ‘novel foods’ under the current Novel Foods Regulation. As a consequence they do not require priorauthorisation, and can legally be placed on the European market being subject only to the general food safety requirements of the Regulation 178/2002.32 However, food derived directly from an animal clone does fall under the scope of the Novel Foods Regulation as currently in force with the consequence that it is submitted to the prior authorisation requirement. According to present Article 1, para. 2), indent (e) of the Novel Foods Regulation, all food isolated from animals which has not been obtained by traditional breeding and does not have a history of safe food use is considered to be ‘novel food’ and so requires an additional safety assessment. The new Commission proposal does not change the status of food obtained directly from cloned animals under this provision, but merely clarifies it by stating that all foods from animals to which has been applied ‘a non-traditional breeding technique not used before May 1997,’33 such as animal cloning, should fall under the definitions of novel foods. Therefore, when presenting its amendment proposal the Commission aimed at clarifying the legislative status quo rather than changing it. In particular, the Commission proposal does not also include products from progeny in the future definition of ‘novel foods’. As noted above, the status of such food on the European market seems economically much more significant, especially for international trade, since foods from progeny are likely to present the majority of foods traded or imported into the EU. However, because there is no difference any more between the progeny of clones (created through sexual reproduction with non-clones) and animals obtained through conventional breeding, the former would not be considered as animals to which has been applied ‘a non-traditional breeding technique.’34 Consequently, under the Commission’s proposal, products from progeny could still freely circulate on the European market (under the requirements of Regulation 178/2002). However, the Commission’s proposal has been substantially modified by the other institutions during the course of the legislative procedure. The European Parliament, in its legislative resolution from the first reading held in March 2009, suggested that foods from cloned animals (both from clones and their progeny) 31. See recital (2) of the preamble of Regulation 258/97. 32. Regulation (EC) 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety, OJ 2002 No. L 31/1 (hereinafter Regulation 178/2002). 33. See Commission proposal, supra note 28, at 16. 34. See Commission proposal, supra note 31, at 16.

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should be totally excluded from the scope of application of the Novel Foods Regulation. Instead the EP prompted the Commission to submit a legislative proposal effectively banning animal cloning for the food supply chain.35 The Council adopted its first reading position on the Commission proposal in March 2010.36 Therein, it took a mediating position between the Commission and the Parliament by proposing the inclusion of not only food produced directly from cloned animals but also that produced from their progeny under the scope of the Novel Foods regulation, thereby extending the prior-authorisation requirement to the latter type of products. While acknowledging that the Novel Foods Regulation cannot adequately manage all aspects of cloning and mandating a Commission report on all aspects of animal cloning for food production followed, if appropriate, by a legislative proposal, the Council agreed to use this instrument to regulate food from clones and progeny in order to avoid a legal vacuum until more specific legislation is adopted. It follows that we are currently facing three different options for treating food products from animal clones and their progeny on the Union market. The Commission presents the least trade restrictive proposal by submitting only direct food products from clones to the prior authorisation requirement. The Council goes further by including also the products from progeny despite the lack of difference of such products with food produced from conventionally bred animals. Finally, the EP defends the most radical approach requesting an outright ban of all kinds of animal cloning products. The outcome of this process cannot be predicted at present. It should be mentioned that from the viewpoint of international trade law, the Council and the EP proposals would have most far-reaching consequences, since they would strongly affect the free circulation of products, which are most likely to be imported in the EU in the future, namely food products from clone progeny.37

35. See European Parliament resolution of 25 March 2009 on the proposal for a regulation of the European Parliament and of the Council on novel foods, . 36. Position of the Council at first reading with a view to the adoption of a Regulation of the European Parliament and of the Council on novel foods, amending Regulation (EC) No 1331/2008 and repealing Regulation (EC) No 258/97 and Commission Regulation (EC) No 1852/2001, Interinstitutionl file 2008/0002 (COD) from 5 March 2010. 37. The legislative procedure to amend the Novel Foods Regulation has still been ongoing in March 2011 with Council, Commission and Parliament failing to reach an agreement on how to treat animal cloning in the EU. See EurActiv, Novel Foods Review stumbles over cloning, from 1 April 2011, .



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4. Animal Cloning in the Light of WTO Law As we have seen above, the precise contours of future EU legislative measures regulating animal cloning for food supply are not clear at the moment. This applies to their content, stringency, legal basis and legislative purpose as well as to the intensity of their impact on international trade. Nevertheless, the possible measures discussed in the previous section offer some indications for the future evolution of a EU policy on animal cloning. In the following analysis, therefore, I will take the current state of the EU debate as a starting point to identify some parallels of the present case to previous trade disputes, in which the WTO compatibility of a Member’s regulation in the area of food safety and public health was contested. When assessing future EU measures on animal cloning against the background of WTO law, I will, in particular, refer to the planned amendment of the Novel Foods Regulation as the most concrete regulatory measure in the short term. Whenever possible I will also include into the analysis other possible regulatory measures, which would, as opposed to the Novel Foods Regulation, also aim at protecting public interests other than human health, and which were discussed as relevant concerns in the EU regulatory debate so far (eg animal health and welfare, environment and ethical concerns). Since the entry into force of the Uruguay Round trade agreements domestic regulations pursuing public policy objectives, such as public health or environment, have been under increased scrutiny by the WTO Dispute Settlement Bodies, because of the growing importance of non-tariff barriers to trade, which these regulations often present. Despite of the origin-neutrality of such regulatory schemes,38 they may serve to disguise protective de-facto discrimination hidden or structurally embedded in them, thus undermining the fundamental principle of National Treatment39 laid down in the GATT. Another crucial test for domestic regulation, especially in the area of public health and food safety, is since recently the compliance with the WTO’s SPS Agreement. The extent to which the rules of this agreement constrain the Member’s regulatory autonomy has been the ‘bone of contention’ in recent high profile transatlantic trade disputes, such as the EC-Hormones Meat case and the EC-Biotech case.40 38. Such regulations do not on the face discriminate between national and imported products, because they apply equally to domestically produced products as well as to imports of the same products from other countries. However, they can present de-facto discrimination, for example, by favouring regulatory schemes to which domestic producers are better adjusted due to pre-existent structural conditions. On costs of regulatory schemes on exporters see Jacqueline Peel, ‘A GMO by Any Other Name … Might Be an SPS Risk!: Implications of Expanding the Scope of the WTO Sanitary and Phytosanitary Measures Agreement,’ 17 European Journal of International Law (2006) 1009-1031, at 1013. 39. Art. III GATT. See Robert E. Hudec, ‘GATT Constraints on National Regulation: Requiem for an ‘Aims and Effects’ Test,’ 32 The International Lawyer (1998), 619-645 at 623. 40. EC-Meat Hormones and EC-Biotech supra note 1.

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The WTO jurisprudence on domestic origin-neutral regulation has provoked a lively academic discussion on the impact of WTO trade rules on internal public decision-making and regulation.41 At the core of this discussion lies the thorny question of how far the WTO legal trade order can go in challenging domestic regulation, and thus, in precluding public policy choice made by the Members’ democratic constituencies. This question refers not only to WTO constraints established through Dispute Settlement case law on already existing regulation. What is more, the WTO rules and their interpretation adopted in this case law may already preclude policy choice in the domestic pre-legislative decision-making phase, such as is currently the case with regard to decision-making on animal cloning in the EU. Legal scholars dealing with the clash between WTO law and domestic regulation have aptly noted, … the WTO rules may already be having a chilling effect on the strengthening or development of such domestic regulatory schemes in other WTO members, thereby constraining or impeding democratic choices. If the WTO is to regain citizens’ confidence, it has to prove its ability to balance the freedom of governments to pursue legitimate domestic objectives with the need to secure the benefits of trade liberalisation.42

Against the background of this discussion, I will in the following examine what, in my view, are the most pertinent questions arising with regard to the EU’s approach towards animal cloning, and in particular, the amendment of the Novel Foods Regulation as currently discussed. These questions revolve around the relationship between the three main WTO agreements regulating the trade of goods: the GATT, the SPS agreement and the TBT Agreement.43 By reference to the recent WTO case law, in particular to the EC-Biotech, case I will show that the balance in the application of these agreements to internal regulation has recently shifted towards a considerable extension of the scope of application of the SPS Agreement to the detriment of the other two agreements raising concerns over SPS ‘imperialism,’ as Joanne Scott has aptly put it.44 Whilst under the GATT the main test for internal regulation is the question of whether it leads to a de-facto 41. See Robert Howse and Elisabeth Tuerk, ‘The WTO Impact on Internal Regulations – A Case Study of the Canada-EC Asbestos Dispute’, in Grainne de Búrca and Joanne Scott (eds) The EU and the WTO. Legal and Constitutional Issues (Hart Publishing: Oxford, Portland Or., 2001) at 283; Grainne de Búrca and Joanne Scott, ‘The Impact of the WTO on EU Decisionmaking’, in ibid., at 1; Robert Howse and Donald Regan, ‘The Product/Process Distinction – An Illusory Basis for Disciplining ‘Unilateralism’ in Trade Policy’, 11 (2) European Journal of International Law (2000) 249-289; see also Hudec, ‘Requiem’ supra note 39. 42. Howse and Tuerk, ‘WTO Impact’ ibid., at 284. 43. About this relationship see Scott, The WTO Agreement on Sanitary and Phytosanitary Measures, supra note 6, at 27; and Marceau & Trachtman, ‘The Technical Barriers to Trade Agreement,’ supra note 5, at 863. 44. Scott, The WTO Agreement on Sanitary and Phytosanitary Measures, supra note 6, at 17.



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discrimination against imports,45 and the Members can be exempted from the National Treatment obligation where their regulation aims at protecting certain fundamental public goods,46 under the SPS Agreement domestic laws and regulations are submitted to a considerably more rigorous test of their ‘rationality’ in the sense of them being scientifically ‘sound’.47 As a consequence, the application of the SPS Agreement necessarily leads to less deference to internal decision-making, and thereby a stronger impact of WTO rules upon it.48 I will discuss the problems arising from the broad interpretation of the concept of an SPS measure adopted by the WTO panel in its EC-Biotech report, as well as the consequences of this for the compatibility with WTO law of potential future EU regulation of animal cloning. Subsequently, I will turn to the quandaries of applying the GATT and the TBT Agreement to origin-neutral domestic regulations, also here focusing on the question of how much regulatory autonomy is left to the Members seeing the requirements of these two agreements as applied in previous dispute settlement case law. In particular, with respect to the GATT the controversial debate on the legal status of processes and production methods (hereinafter PPMs) under Art. III.4 of the agreement will be of crucial importance. This is so because any potential future regulation that treats food products derived from animal cloning and their progeny differently than those derived from conventional animals would be based on the fact that the former products were produced using the technique of SCNT, and therefore on a production method.

4.1. Animal Cloning and the SPS Agreement – in the Shadow of EC-Biotech In their current contemplation on the appropriate (WTO compliant) policy on animal cloning the EU authorities will hardly be able to ignore the outcome of the last transatlantic dispute in matters of food safety, public health and environmental protection – the EC-Biotech dispute. The Genetically Modified Organisms (GMO) dispute casts a long shadow over the EU’s current reflection since there are significant parallels between the problems involved in EU regulation of both 45. See Art. III of the GATT. 46. See Art. XX of the GATT. 47. Regulatory measures shall be based on a scientific ‘risk assessment’, see Art. 5.1 of the Agreement on the Application of Sanitary and Phytosanitary Measures, 15 April 1994, in force 1 January 1995, 1867 UNTS 493 (hereinafter SPS Agreement). Note that in all SPS-related cases to date, WTO tribunals considered the requirements of Article 5.1 in each case finding that they are not fulfilled, see Nathalie Bernasconi-Osterwalder, Daniel Magraw, Maria J. Oliva, Marcos Orellana & Elisabeth Tuerk, Environment and Trade. A Guide to WTO Jurisprudence, (Earthscan: London, 2006) at 261. 48. See Mark A. Pollack & Gregory C Shaffer, When Cooperation fails. The International Law and Politics of Genetically Modified Organisms (Oxford University Press: Oxford, New York, 2009) at 188.

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technologies. Both offer new ways of producing food that would not occur naturally, provoking the negative association of ‘playing with nature.’ Both seem to promise improvement of worldwide food production, at the same time bearing the potential of creating risks to public health and the environment, but which are yet scientifically uncertain. And both have a broader ethical and socio-economic dimension, which goes beyond the issues of free trade. Seeing the strong public opposition to and political contestation surrounding animal cloning at present, the scenario of a de-facto moratorium of the same kind as occurred in the EU authorisations of biotech products49 can also be imagined for future authorisations of foods from cloned animals under the amended Novel Foods Regulation. The parallels are obvious: a stringent prior-authorisation procedure with individual case-by-case assessments, in which the scientific experts would not identify the existence of risks to food safety and public health,50 while the Member States – fuelled by strong public opposition from their countries – would be reluctant to approve the entry on the market of the contested products.51 It can, therefore, be assumed that in their choice of a policy towards animal cloning today the EU public authorities will exert themselves in order to avoid arriving at a similarly standoff political situation as is currently the case with GMO products.52 This is likely to increase the influence of WTO law, and in particular, of the Panel report in EC-Biotech, on the current EU pre-legislative reflection. In the EC-Biotech case the EU legislation on GMOs was scrutinised mainly under the SPS Agreement. But before turning to the Panel’s reasoning, let us first have a closer look on the concept of an SPS measure as defined by the SPS Agreement. This will serve the purpose of providing an idea of whether future EU measures on food from animal cloning could potentially qualify as SPS measures.

49. Namely between 1998 and 2004, see Pollack and Shaffer, When Cooperation fails, supra note 48, at 68. 50. In the case of animal cloning this is likely seeing the results of the EFSA opinion with regard to food safety. See EFSA opinion supra note 9. 51. In fact, the Novel Foods Regulation in the form in force at the time of the alleged GMO moratorium, was one of the measures examined by the panel in EC-Biotech, because at that time it also included the authorization of genetically modified food. On the history and circumstance of the de-facto moratorium see Gregory Shaffer and Mark Pollack, ‘Agricultural Biotechnology Policy in the EU: Between National Fears and Global Disciplines’, in Helene Wallace, William Wallace and Mark Pollack (eds), Policy-Making in the European Union (Oxford University Press: Oxford, New York, 2005) 5th Edition. 52. See for an account of the EU’s inter-institutional as well as international conflicts following the EC-Biotech report, Sara Poli, ‘The Impact of the “Biotech Dispute” on WTO Law and its Challenges for the European Community’, 26 Yearbook of European Law (2007), 317-353; see also Maria Weimer, ‘Applying Precaution in EU Authorisation of Genetically Modified Products – Challenges and Suggestions for Reform’, 16 (5) European Law Journal (2010) (forthcoming September 2010).



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4.1.1. The Definition of an SPS Measure under the SPS Agreement According to Article 1.1 of the SPS Agreement it applies to all ‘sanitary and phytosanitary measures’ which may, directly or indirectly, affect international trade. The definition of SPS measures can be found in Annex A.1 of the agreement. It states that an SPS measure is any measure applied (a) to protect animal or plant life or health within the territory of the Member from risks arising from the entry, establishment or spread of pests, diseases, diseasecarrying organisms or disease-causing organisms; (b) to protect human or animal life or health within the territory of the Member from risks arising from additives, contaminants, toxins or disease-causing organisms in foods, beverages or feedstuffs; (c) to protect human life or health within the territory of the Member from risks arising from diseases carried by animals, plants or products thereof, or from the entry, establishment or spread of pests; or (d) to prevent or limit other damage within the territory of the Member from the entry, establishment or spread of pests.

From this definition it is apparent that the concept of an SPS measure is functionally determined in that, with one exception,53 it must be applied to protect one of the mentioned public interests: human life or health, animal life or health, and plant life or health. Moreover, the purpose of the measure must be such as to guard these interests against specified risk factors. Therefore, not all measures taken in pursuit of the listed interests will automatically qualify as SPS measures.54 This specific focus of the SPS agreement can be explained when considering the agreement in its relationship to the other two WTO agreements, the GATT and the TBT Agreement, and their negotiating history. Jacqueline Peel has dealt with this issue extensively stating that the SPS Agreement has been conventionally regarded as the one with the narrowest scope of operation among the three agreements. It has been developed and negotiated by the WTO Members as an agreement that would cover only those trade-restrictive regulatory measures introduced to deal with issues of traditional ‘sanitary and phytosanitary’ concern, such as quarantine risks associated with the entry and spread of pests and diseases via traded agricultural products, or risks posed by toxins, additives or contaminants in imported human foods or animal feed.55

53. Annex A.1 (d) of the SPS Agreement. 54. See Scott, The WTO Agreement of Sanitary and Phytosanitary Measures, supra note 6, at 12. 55. Peel, ‘A GMO,’ supra note 38, at 1014.

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Possible EU measures towards animal cloning do not, at least not at first glance, appear to be ‘traditional’ SPS measures in this sense. However, as far as the protected interests listed in Annex A.1 are concerned, some of the interests for the protection of which future EU measures, in particular the Novel Foods Regulation, are likely to be designed, do fall under the scope of the SPS Agreement, notably, human health or animal health. In its new legislative proposal for the Novel Foods Regulation, which includes food from cloned animals, the Commission states that the Regulation would serve the purpose of ensuring ‘a high level of human health and consumer protection.’ In addition, the European Parliament in its amendments to the Commission’s proposal further to human health would like to include animal health and welfare, environment and consumer interests as the protected goods of the new Novel Foods Regulation. While the inclusion of environment and consumer interests (as far as they go beyond human and animal health) would theoretically be possible only under the provision of Annex A.1 (d)56 of the SPS Agreement, human and animal health undoubtedly fall under the scope of protected interests included in the definition of an SPS measure. In light of the EFSA opinion risks to animal health posed by the use of SCNT as a cloning technique appear to be most pertinent. Nonetheless, in case future EU measures, such as the Novel Foods Regulation or a potential future ban on food products from cloned animals, would be designed to protect animal health, they would most likely fall outside the scope of the SPS Agreement. This is so because the definition of Annex A.1 cited above requires that SPS measures be applied in order to protect animal health within the territory of the regulating WTO Member. In case of imports of food derived from animal cloning (or even of the clones themselves) into the Union, however, the cloning process will already have taken place in the exporting country. Such a EU measure would, therefore, be applied in order to prevent the suffering of animals outside of the EU territory. Such extraterritorial effects with the object of protection being outside the territory of the importing Member are not covered by the SPS Agreement.57 Also with regard to the objective of protecting human health difficulties, albeit of a different kind, do arise. An extraterritorial effect of the measure would not occur in this case, because the aim would be to protect the health of EU citizens from potential adverse effects arising from the imported food products. However, if we look at the text of Annex A.1, a further condition for applying this definition to measures regulating food from cloned animals would be that, in the case of human health, they are applied to protect against 56. The extent and interpretation of this provision is, however, a disputed matter. See critical comments by Peel, ‘A GMO’ supra note 38 and Denise Prévost, ‘Opening Pandora’s Box: The Panel’s Findings in the EU-Biotech Products Dispute’ 34 (1) Legal Issues of Economic Integration, (2007) 67-101. 57. See Scott, The WTO Agreement on Sanitary and Phytosanitary Measures, supra note 6, at 11.



Policy Choice Versus Science in Regulating Animal Cloning 309 - risks arising from additives, contaminants, toxins or disease-carrying organisms in foods, beverages or feedstuffs; or - risks arising from diseases carried by animals, plants or products thereof, or from the entry, establishment or spread of pests.

There seem to be two kinds of difficulties with applying this definition to food from cloned animals and their progeny. Firstly, such food products would need to be considered as containing additives, contaminants, toxins or disease-carrying organisms; or animal clones from which these products derive would have to be considered as carrying diseases; or, finally, animal clones or their products would have to qualify as pests. As shown above, EFSA has found in its risk assessment that there are no significant differences as regards the composition and nutritional value of meat and milk between healthy clones or clone progeny and their healthy conventional counterparts. Further, toxicological and allergenic effects of such products were considered to be unlikely. This makes it difficult to argue that food from cloned animals as such contains any additives, contaminants etc. Since adult clones were considered to be healthy, disease related risks are also difficult to establish. Here, at the most, the possibly weak immune function of clones and, thereby, their susceptibility to infections may be considered. However, this issue is still scientifically uncertain, as the EFSA opinion indicates. Finally, the term pest is not defined by the SPS Agreement. There is only an indication in a qualifying footnote, which states that ‘pests’ include ‘weeds.’58 Also, the definition used by the International Plant Protection Convention (‘pest’ is ‘any species, strain or biotype of plant, animal or pathogenic agent injurious to plants or plant products’),59 which could represent a relevant international standard,60 does not seem to apply to cloned animals or their products. The second difficulty relates to the term ‘arising from’ and, thus, to the causal relationship between risks to human health and the causes specified in Annex A.1 definition. As already stated, due to the lack of data and experience with food consumption from cloned animals, the consequences of it to human health are not entirely clear. Although EFSA has concluded that food safety risks are unlikely, it has also indicated the scientific uncertainties of this finding at present. The question, therefore, arises of whether the concept of an SPS measure also encompasses such regulatory measures that are applied to protect from yet unclear, long-term risks related to the employment of a new technology,61 the 58. See Annex A.1 footnote 4 of the SPS Agreement. 59. Article II of the International Plant Protection Convention, 6 December 1951, in force 3 April 1952, 150 UNTS 67 (hereinafter Plant Protection Convention). 60. The SPS Agreement refers to the necessity to base SPS measures on such international standards in Art. 3.1; and the Plant Protection Convention is referenced in Annex A.3 of the SPS Agreement. 61. Though the EGE in its opinion on animal cloning states that cloning is not a new technology,

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causality of which cannot be established at present. Doubts on such an interpretation seem appropriate especially seeing the very specific wording of Annex A.1, which indicates that the negotiators of the SPS Agreement had well-defined risks in mind when they agreed to its rigorous disciplines.62 In spite of these considerations, the findings with regard to the scope of SPS measures made by the WTO panel in EC-Biotech could significantly increase the chances of future EU measures on animal cloning being qualified as SPS measures. The panel has expanded the scope of the SPS Agreement to apply to the kind of long-term and uncertain risks associated with new technologies, and its reasoning will be explored in the following. 4.1.2. The Definition of an SPS Measure in the EC-Biotech Case The circumstances and legal issues of the EC-Biotech case have been widely discussed in legal commentary.63 In September 2006 the Panel issued its longawaited report in EC-Biotech Products.64 The dispute between the United States, Canada and Argentina as complainants and the EU as the responding party revolved around the compatibility of certain measures,65 adopted in the context of the EU approval system for the placing on the market of GMOs, with WTO law. The main issues disputed by the parties were the existence of alleged ‘undue’ delays in the approval of GM products by the EU administration as well as the scientific justification of national safeguard measures of several EU Member States. The Panel, however, also made important findings with regard to the scope of application of the SPS Agreement, which have potentially far-reaching

62. 63.

64. 65.

because the first experiments with it date back to the 1950s (see EGE supra note 7, at 7). I nevertheless use this term, because in commercial food production the use of SCNT does present a new technology; For a description of the characteristics associated with new technological risks see Ulrich Beck, Risk Society: Towards a New Modernity (SAGE: London, Newbury Park, Calif., 1992). Critical on this Peel, ‘A GMO,’ supra note 38, at 1014. See Peel, ‘A GMO’ ibid; Scott, The WTO Agreement on Sanitary and Phytosanitary Measures, supra note 6, at 13-16; Pollack and Shaffer, When Cooperation fails, supra note 48, at 187; Ernst-Ulrich Petersmann, ‘The WTO Dispute Over Genetically Modified Organisms: Interface Problems of International Trade Law, Environmental Law and Biotechnology Law,’ in Francesco Francioni and Tullio Scovazzi (eds), Biotechnology and International Law (Hart Publishing: Oxford, Portland Or., 2006); Prévost, ‘Pandora’s Box,’ supra note 56; Poli, ‘Biotech Dispute,’ supra note 52. The Panel was established on 29 August 2003 following complaints by the US, Argentina and Canada. The Panel examined the three separate complaints in a single document, constituting three reports. Three types of measures were under scrutiny: (1) a general moratorium at EU level on authorizations of biotech products; (2) various product-specific measures at EU level affecting the approval of specific biotech products; and (3) various safeguard measures adopted by some EU Member States, see para. 7.97-7.102 of the EC-Biotech report supra note 1.



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consequences for future dispute settlement in the area of GMOs and beyond.66 As Christiane Conrad notes, it was the first time that the qualification of measures as SPS measures and applicability of the SPS agreement have actually been contested in a WTO dispute.67 The Panel made its interpretation on the wide scope of an SPS measure when examining whether or not the SPS Agreement applied to EU’s GMO legislation68 in force at the time of the alleged breaches of WTO rules. Among the legislative measures under scrutiny was the Novel Foods Regulation, because in its older version it also included GM food, which could accordingly only be placed on the market after undergoing a centralised EU prior-authorisation procedure.69 The EU measures in question pursued a multiple set of objections (such as human health, environment and consumer protection), which went beyond the scope of protected interests mentioned in Annex A.1 of the SPS Agreement. It, therefore, was controversial whether they could be viewed as SPS measures. The Panel first found that a single legislative measure could be divided in different parts according to different purposes pursued, and thus falling at the same time under different WTO Agreements.70 In a second step, however, it rejected the EU’s argument that not all of the objectives pursued by its legislation would fall under the scope of the SPS Agreement, referring, in particular, to environmental protection being outside that scope. Rather, the Panel turned to the definition of an SPS measure in Annex A.1 of the SPS Agreement, and after meticulously examining almost every word of it arrived at the conclusion that all purposes contained in EU’s GMO legislation fell within the scope of the SPS Agreement.71 66. See Peel, ‘A GMO,’ supra note 38; Scott, The WTO Agreement on Sanitary and Phytosanitary Measures, supra note 6, at 13-16; Pollack and Shaffer, When Cooperation fails, supra note 49, at 188-191; Poli, ‘Biotech Dispute,’ supra note 52; Prévost, ‘Pandora’s Box,’ supra note 56. 67. See Christiane R. Conrad, PPMs, the EC-Biotech Dispute and Applicability of the SPS Agreement: Are the Panel’s Findings Built on Shaky Ground?, Hebrew University of Jerusalem Research Paper No. 8-06, . Other disputes concerning the SPS Agreement are EC-Meat Hormones, supra note 1; Panel report, Australia-Measures Affecting Importation of Salmon, WT/DS18/R, adopted 12 June 1998 (hereinafter Panel report Australia-Salmon); Panel report, Japan-Measures Affecting Agricultural Products, WT/DS76/R, adopted 27 October 1998; Panel report ,Japan-Measures Affecting the Importation of Apples, WT/DS245/R, adopted 15 July 2003 (hereinafter Japan-Apples). 68. Namely, Directive 90/220/EEC of 23 April 1990 on the deliberate release into the environment of genetically modified organisms, OJ 1990 No. L 117/15, Directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the deliberate release into the environment of genetically modified organisms, OJ 2001 No. L 106/1, and Regulation 258/97 supra note 29. 69. Since the entry into force of the reformed regulatory framework for GMOs, GM food and feed is regulated under Regulation (EC) 1829/2003 of 22 September 2003 on genetically modified food and feed, OJ 2003 No. L 268/1. 70. See EC-Biotech, supra note 1, para. 7.162-7.170. 71. Ibid para. 8.4.

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On the one hand the Panel had to examine whether the risks specified in Annex A.1 also include the risks associated with GM products. As in the case of animal cloning, the possible long-term effects of genetic engineering are not fully explored at the moment. It was, therefore, not obvious that GMO risks as invoked by the EU could be subsumed under the very specific sanitary and phytosanitary risks enumerated in the Annex. Nevertheless, the Panel by means of a particular broad interpretation of the coverage of terms such as ‘animal,’ ‘plant,’ ‘pest,’ ‘additive,’ ‘contaminant,’ and ‘arising from,’ arrived at the conclusion that GMO risks fell within the scope of the SPS measure definition.72 On the other hand, the Panel also had to qualify all the protected interests pursued by EU’s legislation as falling under the scope of Annex A.1. This was problematic with regard to environmental protection, since it is not included in the above provision. However, the Panel interpreted environmental protection as being ‘other damage’ in the sense of Annex A.1 (d), the protection of which from ‘pests’ can exceptionally be captured by the SPS Agreement. Since the Panel by drawing parallels between weeds and GMOs, ie by comparing the potential effects of GMOs on other plants and the environment to those caused by weeds, also found that GMOs can be regarded as ‘pests’ in certain situations, it had no difficulties including environmental protection (and some other interests) into the scope of application of the agreement in this case.73 The consequence of such extension of the applicability of the SPS Agreement was that other WTO agreements were not considered to assess the EU legislation on GMOs. This was the case, because the TBT Agreement is not applicable to measures qualified as SPS measures.74 Although the applicability of the SPS Agreement to a measure does not also exclude the application of the GATT,75 in practice the latter is not of much relevance for the outcome of a dispute, in which the SPS Agreement was found to be applicable. In the past, once a measure was found to be incompatible with the SPS Agreement, panels, relying on the principle of judicial economy, did not continue the examination under GATT.76 From that it follows that EU legislation on GMOs had to stand the rigorous test of scientific rationality established by the SPS Agreement. This could be considered as a problematic situation especially with regard to domestic measures regulating new technological risks, where the capability of scientific experts to fully identify and assess such risks is arguably rather limited. Furthermore, as the 72. For a thorough analysis of the Panel’ reasoning see Peel, ‘A GMO,’ supra note 38 and Conrad, Biotech Dispute, supra note 67. 73. EC-Biotech, supra note 1, paras. 7.373-7.378. 74. See Article 1.5 of the Agreement on Technical Barriers to Trade, 15 April 1994, in force 1 January 1995, 1868 UNTS 120 (hereinafter TBT Agreement). 75. See EC-Hormones, supra note 1, para 8.38; Panel report Australia-Salmon, supra note 67, para 8.38. 76. See Lukasz Gruszczynski, Regulating Health and Environmental Risks under WTO Law (Oxford University Press: Oxford; New York, 2010) at 69.



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case of GMO regulation within the EU demonstrates, the scientific evaluation of novel risks, even where it can be carried out, is likely to face conflicting scientific opinions creating a situation of scientific uncertainty. The analysis in the next section of the scientific requirements under the SPS Agreement will show that the possibility for domestic authorities to adopt precautionary measures under that Agreement as a reaction to situations of scientific uncertainty is rather limited. Against this background the wide interpretation of the scope of application of the SPS Agreement appears as a considerable constraint on domestic policy choices towards the regulation of new technological risks. At the same time, it will also be shown further below that the requirements of the GATT and the TBT Agreement would arguably have shown more deference to the EU measures giving them stronger grounds to be upheld. The question of whether also a future EU prior-authorisation procedure under the new Novel Foods Regulation or other eventually more stringent regulatory measures on animal cloning would fall under this extended definition of an SPS measure is subject to interpretation in future dispute settlement, in which the notions of the WTO agreements are applied on a case-by-case basis. Yet, in the light of EC-Biotech, and seeing that the Panel report was not appealed by the parties, the application of the SPS Agreement to such future measures seems likely. 4.1.3. Requirement of a ‘Proper’ Risk Assessment and the Role of Science under the SPS Agreement Should future EU measures on animal cloning fall under the SPS Agreement, the biggest challenge for them is likely to become their compliance with the sciencebased obligations77 of that agreement. The basic right of the WTO Members to take SPS measures necessary for the protection of human, animal or plant life or health, as stated in Article 2.1 of the SPS Agreement, is limited by the requirement that such measures be consistent with the agreement’s provisions. Among those provisions is the obligation established by Article 2.2 to base SPS measures on scientific principles and, generally,78 not to maintain them without sufficient scientific evidence. Article 2.2 should be read together with Article 5.1 of the SPS Agreement, since in WTO jurisprudence the latter has been viewed as a ‘specific application’ of the basic obligation set out in Article 2.2.79 Article 5.1 requires SPS measures be based on a risk assessment as appropriate to the circumstances. This requirement, and thereby the question of what constitutes a sufficient risk assessment under the SPS Agreement, has become the central issue, and crucial threshold to take, for domestic regulatory measures. As Joanne Scott notes, ‘(t)he use of science as a benchmark in this agreement marks a radical departure from 77. See Scott, The WTO Agreement on Sanitary and Phytosanitary Measures, supra note 6, at 81. 78. With the exception of Article 5.7 of the SPS Agreement. 79. See EC-Meat Hormones, supra note 1, para. 180.

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the predominantly discrimination based approach of the GATT.’80 This ‘turn to science’ in the application of WTO law has provoked much critical discussion among legal scholars who questioned the legitimacy of the WTO to impose an allegedly objective common version of scientific rationality and, in this way, to threaten the regulatory diversity among WTO members. While some condemned the SPS Agreement as such, others rather focused their criticism on the excessively rigid approach to science-based obligations of the agreement adopted in the WTO jurisprudence.81 I will briefly set out the main elements of the obligations established by Article 5.1 as interpreted in the jurisprudence in order to grasp their significance for the case of EU measures regulating animal cloning.82 The concept of risk assessment is laid down in Annex A.4 of the SPS Agreement, which defines it as: (t)he evaluation of the likelihood of entry, establishment or spread of a pest or disease within the territory of an importing Member according to the sanitary or phytosanitary measures which might be applied, and of the associated potential biological and economic consequences; or the evaluation of the potential for adverse effects on human or animal health arising from the presence of additives, contaminants, toxins or disease-causing organisms in food, beverages or feedstuffs.

This definition distinguishes between two categories of risk assessment: assessments of food-borne risks to human or animal health, and assessments of disease or pest risks. At the same time it establishes two different standards for risk assessment depending on which risk is to be considered. Whilst in case of food-borne risks to human or animal health described in the second part of the definition it is the potential effects on human or animal life that must be assessed, in case of pest and diseases the likelihood of entry, establishment or spread needs to be evaluated according to the SPS measure which may be applied.83 With regard to the latter, the Appellate Body in the Australia-Salmon case has held that a risk assessment that ‘conclude(s) that there is a possibility’ of a risk is insufficient. Instead, a risk assessment under Article 5.1 must evaluate the likelihood, i.e. the

80. See Scott, The WTO Agreement on Sanitary and Phytosanitary Measures, supra note 6, at 77. 81. For an overview of the discussion and arguments see Scott ibid.; see also Elizabeth Fisher, ‘Beyond the Science/Democracy Dichotomy: The World Trade Organisation Sanitary and Phytosanitary Agreement and Administrative Constitutionalism,’ in Christian Joerges & Ernst-Ulrich Petersmann (eds), Constitutionalism, Multilevel Trade Governance and Social Regulation (Hart Publishing: Oxford, Portland Or., 2006) at 327 who argues in favour of a different approach to discussing the SPS Agreement. 82. For more extensive discussion see Scott, The WTO Agreement on Sanitary and Phytosanitary Measures, supra note 6; Alberto Alemanno, Trade in Food. Regulatory and Judicial Approaches in the EC and the WTO (Cameron May: London, 2008) at 247. 83. See Mitsuo Matsushita, Thomas J. Schoenbaum & Petros C. Mavroidis, The World Trade Organization, 2nd edition (Oxford University Press: Oxford, New York, 2006) at 512-513.



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probability of the risk.84 However, the Appellate Body has nuanced this position by stating, both in Australia-Salmon and later in EC-Meat Hormones that the risk assessment may be expressed in quantitative or qualitative terms.85 In EC-Meat Hormones, the Appellate Body also held that the term ‘based on’ a risk assessment in Article 5.1. requires a rational relationship between the measure and the risk assessment, and that the results of the risk assessment had to sufficiently warrant the SPS measure.86 Furthermore, the type of risk taken into account in a risk assessment should be above the threshold of a theoretical risk. Nonetheless, according to the Appellate Body, the risks taken into account may include not only those risks ascertainable in a science laboratory, but also ‘risks in human societies as they actually exist, in other words, the actual potential for adverse effects on human health in the real world where people live and work and die.’87 It is noteworthy that in the EC-Biotech case the Panel adopted a rather narrow interpretation of risk assessment when scrutinizing the compliance with Article 5.1 of national safeguard measures against biotech products. It held that national scientific studies presented as evidence of the performance of a risk assessment were found not to meet the threshold of a ‘proper’ risk assessment, because they lacked an evaluation of the likelihood of the risks.88 It, therefore, seems to have favored a quantitative understanding of risk assessment.89 The interpretation of the science-based requirements of the SPS Agreement, and in particular, of Article 5.1 is a complex issue and not always did the WTO jurisprudence adopt a consistent approach to it.90 With regard to the case of animal cloning it can, however, already be deduced from the above (by far not exhaustive) account of the relevant requirements that it would be rather difficult to defend EU measures on animal cloning, once they are designed as SPS measures aiming at protection of human health,91 under Article 5.1 of the SPS Agreement. The EFSA opinion did not identify risks in relation to food safety of 84. Appellate Body Report, Australia – Measures Affecting Importation of Salmon, WT/DS18/ AB/R, adopted 6 November 1998, para. 123 (hereinafter AB report Australia-Salmon). 85. See EC-Meat Hormones, supra note 1, paras. 184 and 186 and AB report Australia-Salmon, supra note 84, para. 124. 86. EC-Meat Hormones, supra note 1, para. 193. 87. EC-Meat Hormones, supra note 1, paras. 186-187; see also AB report Australia-Salmon, supra note 84, para. 125. 88. See EC-Biotech, supra note 1, para. 7.3046; see further account in Poli, ‘Biotech Dispute,’ supra n. 52. 89. On the inconsistency of WTO case-law with regard to the requirement of a quantitative risk assessment see Scott, The WTO Agreement on Sanitary and Phytosanitary Measures, supra note 6, at 93-94. 90. See Scott, ibid. 91. With regard to animal health, it was already stated above, that such measures would fall outside the scope of the SPS Agreement because of their extraterritoriality.

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food from cloned animals, which means that any future measure based on this risk assessment would lack the type of rational relationship between scientific evidence and measure required in the jurisprudence. Yet, EFSA has indicated that there are scientific uncertainties surrounding its findings, especially due to the lack of relevant data. This makes it necessary to consider the possible application of Article 5.7 of the SPS Agreement to potential EU measures. Article 5.7 states that in cases of insufficient scientific evidence, a Member may adopt provisional SPS measures until more complete information on risks is obtained. This provision is commonly viewed as an expression of the precautionary principle in WTO law.92 The crux in the possible application of Article 5.7 to future EU measures, such as the amended Novel Foods Regulation, is the question of whether or not the scientific information provided by EFSA at this stage can be regarded as insufficient scientific evidence making it impossible to perform a risk assessment as required by Article 5.1. The Panel in EC-Biotech, following previous Appellate Body jurisprudence, has held that Article 5.7 is to be seen as a ‘qualified exemption’ to Article 2.2 of the SPS Agreement.93 Therefore, Members who comply with the requirements of Article 5.7 will escape scrutiny under (certain parts of) Article 2.2.94 Because, following the jurisprudence, Article 2.2 and Article 5.1 have to be read together, the latter being a specific manifestation of the former, the Panel in EC-Biotech concluded that Article 5.7 operates as a qualified exemption also from the obligation under Article 5.1 to base SPS measures on a risk assessment.95 As a consequence, the condition of insufficient scientific evidence with regard to the risks of animal cloning would depend on whether or not the EFSA opinion can be regarded as ‘proper risk assessment’ in the sense of Article 5.1. In EC-Biotech the Panel has stated that relevant scientific evidence is insufficient when there is a situation in which ‘the body of available scientific evidence does not allow, in quantitative or qualitative terms, the performance of an adequate assessment of risks as required under Art. 5.1 and as defined in Annex A to the SPS Agreement.’96 Whether the EFSA opinion on animal cloning can be regarded as an adequate assessment of risks, seeing the lack of data and scientific uncertainties, is debatable. Article 5.7 might, therefore, be pertinent. It is noteworthy, though, that the EC-Biotech Panel put the threshold to the application of Article 5.7 very high by holding that the existence of a situation of scientific uncertainty as such is not enough to enact an SPS measure under Article 5.7, because it can not be considered as equivalent to 92. See Joanne Scott, ‘European Regulation of GMOs and the WTO,’ 9 Columbia Journal of European Law (2003), 213-240, at 229. 93. EC-Biotech, supra note 1, para. 7.2997. 94. Scott, The WTO Agreement on Sanitary and Phytosanitary Measures, supra note 6, at 113. 95. See EC-Biotech, supra note 1, para. 7.2997; also Scott ibid; on the difficult relationship between the Articles 2.2, 5.1 and 5.7 of the SPS Agreement and a critical comment on the Panel’s reasoning in EC-Biotech, see Poli, ‘Biotech Dispute,’ supra note 52, at 561. 96. EC-Biotech, supra note 1, para. 7.3233.



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the situation of insufficient scientific evidence. This would imply that whenever a risk assessment in the sense of Article 5.1. has been carried out, even if this risk assessment is contested by other scientific authorities indicating scientific uncertainty, the scientific evidence would nevertheless be considered as sufficient ruling out the application of Article 5.7.97 Rather, the national authorities would have to prove that the available scientific evidence does not allow the performance of an adequate risk assessment.98 As Sara Poli critically comments on the Panel’s report, proving the existence of a situation of insufficient scientific evidence is very difficult. Although Art. 5.7 confers on WTO members a right to adopt temporary SPS measures in a situation in which this would not normally be permitted, the burden of proof for the national authorities wishing to rely on Art. 5.7 is excessively high…99

Arguably, even if these hurdles could be overcome in the case of animal cloning, a further difficulty would be the fulfillment of the next requirement of Article 5.7, namely that also provisional SPS measures, whilst escaping the obligation of Article 5.1, would still need to be based on ‘available pertinent information.’ Once again, seeing that EFSA did not identify any risks to the consumption of food from cloned animals by humans, it would be difficult to argue that the information provided by EFSA would be pertinent for the enactment of trade restrictive measures for the protection of human health.100 To conclude, the above (non-exhaustive) account shows that once future trade restrictive EU measures regulating animal cloning are designed as measures to protect public health, as currently proposed under the ongoing co-decision procedure concerning the amendment of the Novel Foods Regulation, they will encounter considerable difficulties of being defended under the SPS Agreement. However, they only would fall under the scope of this agreement and its rigorous science-based obligations, if they can actually be qualified as SPS measures. In the light of the extensive interpretation of the concept of an SPS measure by the Panel in the EC-Biotech case, such outcome seems probable. The widening of the scope of application of the SPS Agreement, however, is subject to strong criticism.101 In the following, I will discuss other possibly applicable WTO rules, 97. See a critical account with further references in Poli, ‘Biotech Dispute’ supra note 52, at 574.; see also a different interpretation of Article 5.7 of the SPS Agreement in the light of the precautionary principle Scott, ‘GMOs and the WTO,’ supra note 92, at 229. 98. See the test applied in Appelate Body Report, Japan – Measures Affecting the Importation of Apples, WT/DS245/AB/R, adopted 10 December 2003, para 184 (hereinafter AB report Japan-Apples). 99. See Poli, ‘Biotech Dispute’ supra note 52, at 574. 100. Unless one would use EFSA’s (weak) indications with regard to the possibly decreased immune functions of clones and their possible transmissibility to humans, see EFSA report supra note 9. 101. See Peel, ‘A GMO,’ supra note 38; Prévost, ‘Pandora’s Box,’ supra note 56; Conrad, Biotech Dispute, supra note 67.

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and how they might change the legal assessment of how future EU measures on animal cloning for food supply should be construed in order to comply with international trade law.

4.2. Animal Cloning and the GATT – the Debate on Processes and Productions Methods Assumed that future EU measures regulating animal cloning would fall outside the scope of the SPS Agreement, or that in addition to SPS purposes they would also pursue further objectives not covered by the SPS Agreement,102 such as an ethical objective, they would have to comply with the general requirements of the GATT.103 In particular, if designed as origin-neutral internal regulatory measures,104 they would have to observe the National Treatment principle expressed in Article III of the GATT. Being one of the fundamental market access principles of the GATT/WTO system National Treatment imposes the obligation of equal treatment and non-discrimination between domestic and imported goods.105 For internal measures, such as laws, regulations and requirements, the National Treatment is manifested in Article III.4, which runs as follows: The products of the territory of any contracting party imported into the territory of any other contracting party shall be accorded treatment no less favourable than that accorded to like products of national origin in respect of all laws, regulations and requirements affecting their internal sale, offering for sale, purchase transportation, distribution or use… (emphasis added)

According to Robert Howse and Donald Regan, Article III.4 represents a cornerstone of the multilateral trading system, defining the GATT’s approach to trade restrictive domestic regulation, and establishing discrimination as the key concept in distinguishing legitimate and illegitimate domestic measures.106 Should future EU measures on animal cloning be designed as origin-neutral internal regulations, that is, regulations, which regulate (or ban) the placing on the Union market of food from animal clones in general without distinguishing between domestic (EU) and imported products,107 they would, in principle, fall 102. EC-Biotech supra note 1. 103. Note that according to Article 2.4 of the SPS Agreement measures that are found compatible with the SPS Agreement are assumed to be compatible with the GATT; see also See Scott, ‘GMOs and the WTO,’ supra note 92, at 229; For detailed discussion on the relationship between the GATT, SPS and TBT Agreements see Marceau & Trachtman, ‘ The Technical Barriers to Trade Agreement,’ supra note 5, at 863. 104. And not as border measures, such as an import ban, to which Article XI of the GATT applies; at this stage I shall ignore this option, but see below. 105. Matsushita et al., WTO, supra note 83, at 234. 106. Howse and Regan, ‘Product/Process Distinction,’ supra note 41, at 253. 107. Such measures seem most likely, seeing the co-decision procedure on the Novel Foods Regulation or the inter-institutional discussion of a general ban, which would also include



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under the scope of application of Article III.4. Nonetheless, their assessment in the light of WTO obligations could be complicated, if they would qualify as regulating PPMs, as opposed to products as such. The treatment of PPM-based measures under WTO law is highly disputed. Since the Panel reports in the US-Tuna cases,108 it is the prevailing view that measures distinguishing between physically different products are legal, while measures which distinguish between products based on the production process alone violate non-discrimination obligations.109 Moreover, PPM-based measures are held not to fall under the scope of Article III.4, but rather to be treated as border measures, thereby, as quantitative restrictions under Article XI of the GATT.110 Seeing that there seem to be no significant differences in the composition of food products derived from cloned animals as compared to products produced from conventionally bred animals, the difference in treatment between the two categories would, in fact, be based on the different process and production methods used; in particular on the use of SCNT for the production of animal clones. Following from this, the PPM debate might become relevant for the assessment of future EU measures, which is why I will present its main aspects in the following. 4.2.1. The PPM Debate under GATT Christiane Conrad draws our attention to the links between the PPM debate under GATT and the questions raised in WTO disputes dealing with compatibility of domestic regulations in the area of public health and the environment with the SPS Agreement, such as in the Biotech dispute. Both discussions raise important questions regarding the scope of WTO agreements vis-à-vis national and social regulation, the relevance of non-economic values, jurisdiction, and competence and legitimacy of the WTO adjudicatory bodies.111 When using PPMs as a basis for domestic regulation, WTO members usually pursue noneconomic policy goals, mostly in the field of environment and public health. This is so because many PPMs can negatively affect these public interests. For example, production methods can pollute the air or water, or cause other harm through the way a product is produced.112 At the same time, PPM-based measures can have considerable effects on international trade distorting the competition imported products. I shall ignore possible border measures, such as an isolated import ban on food from cloned animals. 108. Unadopted Panel reports United States – Restrictions on Imports of Tuna, 3 September 1991, DS21/R-39S/155 and United States – Restrictions on Imports of Tuna, 16 June 1994, DS29R (hereinafter US-Tuna I and II). 109. See Conrad, Biotech Dispute, supra note 67, 6-7 with further references to the prevailing view in footnote 6. 110. See US-Tuna I and II, supra note 108. 111. Conrad, Biotech Dispute, supra note 67, at 6. 112. See for more examples Bernasconi-Osterwalder et al., Environment and Trade, supra note 47, at 203.

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between domestic and imported products, if, for example, they covertly favour PPMs used by domestic producers. Another issue, which makes the PPM-based measures so controversial, is their extra-territorial effect. Critics claim that by basing their regulation on PPMs importing members are imposing their values or ethical and cultural preferences on the exporting members, thus impinging upon the sovereignty of the latter.113 It should be noted that different types of PPM-based measures can be distinguished, namely product-related and nonproduct-related as well as country based and origin-neutral PPM-based measures. In the following I am referring to origin-neutral non-product-related PPMbased measures, since this is the category that applies to regulation of food from animal cloning. Such measures aim to avoid or minimize harm caused by the way in which a product is produced, not by the product itself, and they do not distinguish between exporting countries but rather focus solely on the manner in which a product is produced.114 The prominent US-Shrimp/Turtle115 case has served to somewhat clarify the status of PPMs under the GATT. In this case the GATT compatibility of a US legislative measure prohibiting the importation of shrimp harvested in a way that might harm sea turtles was assessed. Although this measure presented a non-product-related PPM-based measure, the Appellate Body in US-Shrimp/ Turtle did not explicitly address the PPM problematique. Nevertheless, this ruling was of crucial importance for PPMs, because it changed the prevailing view at that time that PPM-based measures could never be permitted under the GATT. Whilst the Panel has held that the disputed measure violated Article XI of the GATT, and that it could not be justified under Article XX, the Appellate Body rejected the latter point. It found that measures that condition access to domestic markets on whether the exporting state complies with or adopts a policy or policies unilaterally prescribed by the importing state can, in principle, be justified under the general exceptions of Article XX of the GATT.116 In so doing, it implicitly allowed the use of non-product-related PPM-based measures under 113. For an account on the controversy surrounding PPMs see ibid., at 204; see also Howse and Regan, ‘Product/Process Distinction,’ supra note 41, at 251. 114. See overview of all the categories in Bernasconi-Osterwalder et al., Environment and Trade, supra note 47, at 204-205. Product-related PPM-based measures are not controversial and are treated as measures regulating products as such. 115. Appellate Body report United States – Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R, adopted 12 October 1998 (hereinafter US-Shrimp/Turtle). 116. Ibid., para. 121. Note that in this case the measure was found not to fulfill the requirements of Article XX(g). However in the later Appellate Body report United States – Import Prohibition of Certain Shrimp and Shrimp Products, 21.5, WT/DS58/AB/RW, adopted 22 October 2001 the application of the same measure was found to be justified under Article XX(g), thus constituting the first case, in which a non-product-related PPM-based measure was found as GATT consistent. See Bernasconi-Osterwalder et al., Environment and Trade, supra n. 47, at 233-234.



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certain conditions. However, also in this case PPMs were considered to fall under the scope of Article XI, instead of Article III.4 of the GATT. Applied to potential EU measures on animal cloning, the interpretation adopted in US-Shrimp/Turtle would mean that they would be treated as violations of Article XI with the possibility of being justified under one of the exceptions listed in Article XX. Against the background of the collected expert advice at EU level, defences under Article XX (a) public morals, (b) protection of human or animal health or life, and maybe even under (g) conservation of exhaustible natural resources, if the argument of a threat to biodiversity through animal cloning could be substantiated, are imaginable. A requirement for upholding these defences would be that the measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on trade. Arguably, also the issue of proportionality would be of major importance, since it is required that the measures are necessary to protect the public interests invoked.117 It should be noted, however, that the stance on PPM-based measures taken in US-Shrimp/Turtle has received strong criticism. Several legal scholars have questioned the reasonableness of the product-process distinction as such, claiming that non-product-related PPM-based measures should be dealt with under Article III.4 of the GATT, thus being measured by their compliance with the National Treatment principle.118 It is worth briefly outlining the arguments these authors invoke, since their approach to PPM-based measures considerably changes the lines legal assessment of future EU measure on animal cloning would follow. Robert Howse and Donald Regan offer a compelling, critical analysis of the PPM debate.119 Their arguments can be divided in two kinds: a textual/jurisprudence argument and a policy argument. On the one hand, after meticulously analysing the wording of Article III.4 as well as the relevant WTO jurisprudence, they arrive at the conclusion that nothing in the text of this Article supports the product/process distinction as adopted by the Panel reports in US-Tuna/Dolphin. In particular, the formulation of Article III.4 that it applies to ‘internal laws, regulations and requirements affecting the internal sale … of products’ (emphasis added) is scrutinised. In a nutshell, the authors argue that process-based measures do affect the sale of products by, for example, affecting the price and quantity of the product sold; that examples in jurisprudence of the interpretation of the term ‘affecting the … sale’ in Article III show that this term should be interpreted 117. On the necessity test in the GATT see Marceau & Trachtman, ‘The Technical Barriers to Trade Agreement,’ supra note 5, at 825-830. 118. E.g. Howse and Regan, ‘Product/Process Distinction,’ supra n. 41; Steve Charnovitz, ‘The Law of Environmental “PPMs” in the WTO: Debunking the Myth of Illegality,’ 27 Yale Journal of International Law, (2000), 59. 119. Howse and Regan, ‘Product/Process Distinction,’ supra note 41.

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broadly; and that a narrow reading adopted in US-Tuna/Dolphin is inconsistent with the basic structure of GATT because it lets non-product-related PPM-based measures, which are internally enforced and which do not constitute quantitative restrictions in the sense of Article XI of the GATT, totally escape review under GATT despite their potential to be protectionist. Finally, the authors rebut the assumption that the Appellate Body in US-Shrimp/Turtle had confirmed the interpretation of the Panels in US-Tuna/Dolphin. They show that rather the Appellate Body did not address the issue of whether process-based measures are to be reviewed under Article XI, not Article III, because it was not contested on appeal; and that they there were other reasons in that particular case, namely the fact that the contested measure was an import ban, for qualifying the US legislation as a quantitative restriction in the sense of Article XI. 120 On the other hand, Howse and Regan analyse a range of policy arguments invoked against the legality of process-based measures, such as them being ‘unilateral,’ ‘extraterritorial’ or ‘coercive’ in nature. Drawing on the economic theory of externalities, the authors arrive at the conclusion that the rationales and effects of process-based measures do not systematically differ from those for product-based regulations. Whilst it would go beyond the scope of this paper to present their analysis in detail, I shall, however, mention the authors’ comment on the ‘extraterritoriality’ criticism of PPM-based measures, since this is commonly invoked as one of the main reasons for disapproving such measures. In a nutshell, the authors argue that the adoption of non-discriminatory process-based measures with the legitimate aim of, for example, protecting the environment, is an expression of the sovereignty of the enacting WTO member. Therefore, forbidding such measures per se would simply be a way of ‘preferring the “unilateralism” of the producing state to that of the importing state.’121 4.2.2. Article III.4 of the GATT: National Treatment The consequence of the approach defended by the critics of the product/process distinction as such is that process-based measures need, as any product related regulatory measure, to undergo the non-discrimination test of Article III.4. It is argued that instead of focusing on the product/process distinction, it should be assessed, against the background of the National Treatment principle, whether products may be considered ‘unlike’ due to process-based differences. The analysis of process-based measures, therefore, would shift from the discussion of such measures under Article XI and their justifiability under Article XX of the GATT, to the question as to whether they amount to violations of the National Treatment principle under Article III.4 in the first place.122 120. See ibid., at 253-257. 121. See ibid., at 251 and 275. 122. This could have considerable consequences for the outcome of the legal assessment. It should



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If we consider potential EU measures on animal cloning, such an approach to PPMs might eventually grant the EU authorities a broader leeway in taking action on animal cloning for food supply, provided the measures to be adopted do not discriminate between products of EU origin and imported products. To restate the wording of Article III.4, it requires that imported products receive treatment no less favourable than like products of national origin. Consequently, when assessing measures on animal cloning it would first have to be established that food products from cloned animals are like products in relation to food products from conventionally bred animals. The importance of the concept of ‘like products’ in WTO law corresponds to the uncertainty surrounding its meaning. In an oft-cited statement the Appellate Body has expressed the difficulties of defining ‘like products’ in the following metaphoric terms: The concept of “likeness” is a relative one that evokes the image of an accordion. The accordion of “likeness” stretches and squeezes in different places as different provisions of the WTO Agreement are applied. The width of the accordion in any one of those places must be determined by the particular provision in which the term “like” is encountered as well as by the context and the circumstances that prevail in any given case to which that provision may apply.123

Despite the abundant WTO jurisprudence on the concept of ‘likeness,’ the exact meaning and parameters of the concept as its variations remain uncertain. This paper is not the appropriate place for addressing this difficult topic in detail.124 The main ‘likeness’ criteria as used in the jurisprudence so far, should, nevertheless, be mentioned. Mainly, four criteria have established themselves in the jurisprudence as a reference to assessing the ‘likeness’ of products: the product’s end-uses in a given market; consumers’ tastes and habits, which change from country to country; the product’s properties, nature and quality; and, the products’ tariff classifications.125 The Appellate Body report in EC-Asbestos126 presents an important ruling with regard to the concept of ‘likeness.’ Maintaining the four be noted that the list of exceptions in Article XX of the GATT is considered to be a closed one, and it does not include many public interests deemed important at domestic level, such as consumer protection. For a discussion of this issue with regard to GMOs see Scott, ‘GMOs and the WTO,’ supra note 92, at 230. 123. Appellate Body Report, Japan-Taxes on Alcoholic Beverages, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, adopted 4 October 1996, section H.1.a (hereinafter Japan-Alcohol). 124. See Howse and Tuerk, ‘WTO Impact,’ supra note 41; an overview of the case law in BernasconiOsterwalder et al., Environment and Trade, supra note 47, at 18. 125. See Report of the Working Party, Border Tax Adjustments, L/3463, 2 February 1970 for the first three criteria and Panel Report, Japan – Customs Duties, Taxes and Labelling Practices on Imported Wines and Alcoholic Beverages, L/6216 - 34S/83, adopted 10 November 1987 for adding the fourth one. 126. Appellate Body Report, EC-Measures Affecting Asbestos and Products Containing Asbestos, WT/ DS135/AB/R, adopted 12 March 2001 (hereinafter EC-Asbestos).

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common criteria mentioned above, the Appellate Body sophisticated the ‘likeness’ test by holding that all evidence relevant to a ‘likeness’ determination should be taken into account.127 Moreover, the Appellate Body considered the health effects of a product (namely Asbestos) as being relevant for finding its ‘unlikeness’ with another product that does not produce similar effects. Although the analysis of the health effects was subsumed within the analysis of the existing four criteria, thereby, not creating an additional one, the Appellate Body did state that the list was not exhaustive. This statement is of particular importance for the question as to whether non-economic considerations, such as health, environmental or other policy concerns, might play a role in distinguishing between products. Yet, this is an unresolved issue, and economic considerations, in particular, the competitive relationship between and among domestic and imported products128 still remains the dominant focus of the ‘likeness’ test. Against the background of the cited criteria, it appears that an arguable way to consider food products from cloned animals as ‘unlike’ to food products from conventional animals would be by means of invoking the negative approach of EU citizens towards the former products, thus using the consumer’s tastes and habits criteria. However, such an assessment would have to encompass all the evidence, i.e. also that related to the other three criteria, and to weigh all the information. The outcome of this is uncertain, especially seeing that both categories of products (for example milk from clones and milk from conventional animals) would most likely be in a direct competitive relationship once they are being placed on the EU market. Seeing the physical similarity between the two types of food products, the EU would have to provide convincing arguments, in particular stressing the non-protectionist purpose of its legislation, in order to defend that the PPM of animal cloning does considerably change the nature of the products, which are the result of the use of this new technology.129 Nevertheless, one should not forget the second step necessary for the examination as to whether a regulation violates the National Treatment principle under Article III.4 of the GATT, namely the assessment of the presence of a ‘less favourable’ treatment of imported products. This corresponds to the core idea of Article 127. Ibid., paras. 101-103. 128. Ibid., para. 99. 129. For arguments in favor of such a defense see Howse and Regan, ‘Product/Process Distinction,’ supra n. 41, at 261 who argue that the term ‘like’ has to be viewed in the context of the regulatory policy pursued by the WTO member. To domestic regulators, such as in the EU, the use of a PPM, such an animal cloning, might well be a reason to consider a product as unlike despite of the physical similarities with other products (for example because of the moral and ethical concerns associated with it). ‘Likeness’ should therefore be viewed in the context of ‘not differing in any respect relevant to an actual non-protectionist regulatory policy.’ See also Donald Regan, ‘Regulatory Purpose and “Like Products” in Article III.4 of the GATT (with Additional Remarks on Article III.2) in: Petros Mavroidis and George Bermann (eds), Trade and Human Health and Safety, (Cambridge University Press: Cambridge, New York, 2006).



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III.4 read in the light of the general principles expressed in Article III.1130 that only those regulatory measures violate the GATT, which discriminate against imported ‘like’ products, thus in reality being protectionist in nature. Interestingly, the Panel in the recent EC-Biotech report has, en passant, made some relevant statements in this regard. It responded to claims made by Argentina that EU biotech measures violated Article III.4, because they treated biotech products less favourably than non-biotech products, although both were ‘like products.’131 The Panel found that even if the EU treated biotech products less favourably than conventional products, this would not suffice to demonstrate that less favourable treatment was accorded ‘to the group of like imported products than to the group of like domestic products.’ In so doing, the Panel expressed that a violation of the National Treatment principle requires that the difference in treatment had to be due to foreign origin of the products. In circumstances where this is not the case ‘it is not self-evident that the alleged less favourable treatment of imported biotech products is explained by the foreign origin of these products rather than, for instance, a perceived difference between biotech products and non-biotech products in terms of their safety, etc.’132 The same line of argument could conceivably be adopted with regard to measures distinguishing between food products from cloned animals and those from conventionally bred animals: if the less favourable treatment of the first category is not related to the foreign origin of such products, then there is no discrimination, hence no violation of the National Treatment obligation. To sum up, the application of the GATT to possible future EU measures on animal cloning would present as complex an exercise as the application of the SPS Agreement to such measures. This is due to their nature as non-product related PPM-based measures, as well as the difficulties related to determining the ‘likeness’ concept under Article III.4 of the GATT. Nevertheless, the above account has showed that a defence of the EU measures under the general obligations of the GATT might offer the EU authorities more leeway than a defence under the SPS Agreement. Firstly, following the US-Shrimp/Turtle ruling, the EU would have the possibility to justify its measures under Article XX of the GATT. Secondly, if with the critics of the product/process distinction, one would consider the EU measures fall under the scope of Article III.4 of the GATT, further paths of reasoning would be open to the EU authorities in defending that their measures do not violate National Treatment in the first place. In particular, in the light of the findings in the EC-Biotech case, if EU regulation distinguishing between food from animal clones and food from conventional animals would not be based on 130. Article III.1, containing general principles, informs and provides context for the rest of Article III; see Japan-Alcohol, supra note 123, para. 96. 131. EC-Biotech, supra note 1, para. 7.2493. 132. Ibid.

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foreign origin of the former category of products, but rather on their perceived difference in terms of their safety or ethical implications, it is likely not to be found to violate Article III.4 of the GATT.

4.3. Animal Cloning and the TBT Agreement Finally, also the requirements of the TBT Agreement could be applicable to future EU measures on animal cloning. As regards the relationship between this and the other WTO agreements,133 it should be noted that the TBT Agreement would not be applicable if the EU measures would be found to qualify as SPS measures in their entirety.134 In case of a multi-purpose measure, for example aiming at the protection of not only food safety, but also animal welfare, environment or consumer preferences, the measure could be divided according to the purposes pursued, and be assessed under both the SPS and the TBT Agreement.135 In contrast, the relationship between the TBT Agreement and the GATT is not entirely clear; in particular, there is no provision in the former that relates it to the latter. The jurisprudence did not apply the TBT Agreement as lex specialis to GATT. In particular, on the basis of the Asbestos ruling of the Appellate Body it seems that the provisions of GATT and the TBT Agreement are concurrently applicable, the TBT Agreement imposing obligations which are different from, and additional to, the GATT.136 The TBT Agreement applies both to voluntary standards and to mandatory technical regulations relating to all products, including industrial and agricultural products.137 As a consequence, for future EU measures to be covered by the TBT Agreement, they must constitute ‘technical regulations’ as defined in Annex A of the agreement. Annex A.1 (1) defines a technical regulation as a ‘document which lays down product characteristics or their related processes and production methods, including the applicable administrative provisions, with which compliance is mandatory.’ In its Asbestos ruling the Appellate Body further clarified the notion of a technical regulation by setting out three criteria, which a document must meet to fall under the definition of Annex A. First, the document must apply to an identifiable product or group of products. Second, the document must lay down one or more characteristics of the product. These product characteristics may be intrinsic or they may be related to the product. Third, compliance with the product characteristics must be mandatory.138 133. See Marceau & Trachtman, ‘The Technical Barriers to Trade Agreement,’ supra note 5. 134. See Article 1.5 of the TBT Agreement. 135. See EC-Biotech, supra note 1, para. 7.162-7.170. See on multi-purpose measures Gruszczynski, Health and Environmental Risks, supra note 76, at 66. 136. See Scott, ‘GMOs and the WTO,’ supra note 92, at 229-230 and Howse and Tuerk, ‘WTO Impact,’ supra note 41. 137. Article 1.3 of the TBT Agreement. 138. See EC-Asbestos, supra note 126, para 67-70; See also a summary in Appellate Body report,



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Would future EU measures foresee a labelling scheme for food products derived from animal cloning, such measures would undoubtedly qualify as technical regulations, and therefore fall under the scope of application of the TBT Agreement.139 In contrast, whether also EU legislation foreseeing a priorauthorisation procedure, such as currently envisaged in the Novel Foods amendment procedure, would constitute technical regulations is less clear.140 To begin with, the eventual approval procedure for food derived from animal cloning, if established by the new Novel Foods Regulation, would be based on administrative provisions which refer to process and production methods related to the product141 (food from clones and/or from clone progeny). As can be seen from the definition of Annex A above, in contrast to the GATT, the TBT Agreement undoubtedly applies to PPM-based measures. Moreover, the approval procedure would be compulsory for the marketing of food products from animal cloning in the EC. Doubts could arise with regard to the requirement of a technical regulation to apply to a group of products, which is identifiable. Since there are no physical differences between food from cloned animals and their progeny on the one hand, and food from conventional animals on the other, one could wonder whether the group of products (food from animal cloning) the future Novel Foods Regulation would regulate is, de facto, identifiable as novel foods; for example, whether milk derived from an animal clone would be identifiable as such. The requirement of the ‘identifiable group of products’ is related to the possibility of enforcement of a technical regulation.142 However, this difficulty would be removed if a future approval procedure would be combined with provisions of traceability and labelling, which would make sure that food from cloned animals and/or their progeny is identifiable, thereby, making the Novel Foods Regulation enforceable in this respect. It should be noted that following the Asbestos ruling of the Appellate Body also an isolated EU measure banning the placing on the market of food from animal cloning is likely to be qualified as a technical regulation.143 Seeing that the applicability of the TBT Agreement to possible future EU measures on animal cloning is arguable, I shall briefly outline the most relevant obligations EC-Trade Description of Sardines, WT/DS231/AB/R, adopted 26 September 2002, para 176. 139. See Conrad, Biotech Dispute, supra. note 67, at 26 140. See a comparable analysis, but in relation to GMOs, Conrad ibid at 21; see also Scott, ‘GMOs and the WTO,’ supra note 92. 141. Here, with respect to technical regulations, the term ‘related to the product’ is understood wider than in the definition of ‘product-related PPM-based’ measures, where the PPM is directly detectable in the end product. See Bernasconi-Osterwalder et al., Environment and Trade, supra note 47, at 204. 142. See EC-Asbestos, supra note 126, para. 70. 143. See Howse and Tuerk, ‘WTO Impact,’ supra note 41, at 306, who discuss the AB reasoning in rejecting the argument invoked by the respondent EC, and upheld by the Panel, namely that a ban of a product cannot be equated with a measure that specifies the product’s characteristics.

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such measures would have to observe. This will help to compare the stringency of the ‘test’ they would have to stand under the TBT Agreement as compared to that under the agreements discussed in the previous parts of this paper; and, therefore, the scope left for regulatory autonomy under each of these agreements.144 At the outset it should be noted that the TBT Agreement, as compared to the GATT and the SPS Agreement, is recognised for being more generous in recognising values the importance of which overrides the importance of negative effects on trade.145 The TBT Agreement places emphasis on the obligation of the Members to ensure that their technical regulations do not create unnecessary obstacles to international trade, while recognising a broader range of policies that can legitimately be pursued through domestic technical regulations.146 Thus, Article 2.2, 2nd sentence of the TBT Agreement states that in order to avoid unnecessary obstacles to international trade ‘technical regulations shall not be more trade-restrictive than necessary to fulfil a legitimate objective, taking account of the risks non-fulfilment would create.’ This provision does not establish a closed list of permissible policies. Rather, any ‘legitimate’ policy may be the basis for a TBT regulation. Furthermore, the TBT Agreement does not regulate risk assessments or require regulations to be based on science. As Gabrielle Marceau and Joel Trachtman correctly note, ‘(w)hile necessity or proportionality or other standards applicable under the TBT Agreement or GATT may implicitly require some scientific basis, this implicit requirement can be expected to be significantly less rigorous than the explicit requirements of the SPS Agreement.’147 As compared to the SPS Agreement, the TBT Agreement would, therefore, pose less rigorous requirements on future EU measures on animal cloning. The basic ‘test’ for the EU authorities would be to show that their non-discriminatory measures are necessary to fulfil a legitimate policy. As such legitimate objectives in the case of animal cloning are conceivable consumer protection, ethical concerns, public health or the environment.

5. Concluding Remarks This paper had the aim of outlining the main legal issues future EU regulation of animal cloning for food supply, as currently reflected upon, could possibly raise with regard to international trade law. In the first part of the paper, I have shown that there is an intense political and public debate at EU level about the 144. See such comparison with regard to the regulation of GMOs in Conrad, Biotech Dispute, supra note 67, at 25-27. 145. Conrad ibid., at 26. 146. See Preamble, 5th recital, of TBT Agreement; also Marceau and Trachtman, ‘The Technical Barriers to Trade Agreement,’ supra note 5, at 832. 147. Marceau and Trachtman ibid., at 836.



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appropriate policy approach towards this new way of producing food. Seeing that food products from cloned animals are likely to be placed on the market in the near future, and that the main producers will probably be those outside of the EU (above all in the US), the imports of such products into the European market may soon become a reality. Since there is currently no EU legislation specifically regulating food from animal clones, the enactment of such legal instruments is contemplated. The main concerns identified with regard to the use of animal cloning in food production are animal health and welfare (due to suffering of the clones and surrogate mothers) and ethical concerns (related to the suffering of animals, but also to dangers of a ‘slippery slope’ toward the cloning of humans, or fear of treating animals like commodities). Risks to human health and the environment can currently not be identified, but scientific research is insufficient and surrounded by uncertainties at the present stage. While the European Parliament is demanding a total ban on the use of animal cloning in food supply, which would also extend to the import of related products, the most probable short-term legislative measure seems to be the establishment of a prior-authorisation procedure for food derived from animal clones and/or from their progeny under the Novel Foods Regulation. The developments at EU level indicate that future regulatory measures are likely to have a restrictive effect on the imports of food from animal cloning from third countries, thereby affecting international trade. The following presentation of legal issues of WTO law has revealed the importance of delimiting the scopes of application of the three WTO agreements, the GATT, the SPS Agreement, and the TBT Agreement. The results of a future WTO ‘test’ EU regulation on animal cloning would have to withstand will vary significantly depending on which of these agreements will be considered to be applicable. With regard to the SPS Agreement the main legal query relates to the notion of an SPS measure, which is decisive to declare this agreement applicable. Because of the factual and legal similarities between the discussion on animal cloning and the recent transatlantic dispute in the EC-Biotech case, the findings of the Panel in the latter case are deemed to be of crucial importance for the currently ongoing EU policy process. The Panel has considerably extended the definition of an SPS measure laid down in Annex A.1 of the SPS Agreement declaring it to apply to regulatory measures seeking to protect public, animal and plant health not only against traditional sanitary and phytosanitary risks, but also against long-term and uncertain risks as commonly associated with the use of new technologies. In the light of this Panel report, future EU measures on animal cloning, such as an amended Novel Foods Regulation, are likely to fall under the scope of the SPS Agreement, and as a result, are submitted to its rigorous discipline of science-based rationality. This seems especially problematic seeing that the scientific evaluation of risks related to food from cloned animals is surrounded by scientific

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uncertainty. At the same time the possibility for the EU to adopt precautionary measures as a reaction to this situation under Article 5.7 of the Agreement is rather limited because of the strict interpretation of the requirement of insufficient scientific evidence under that provision in the WTO jurisprudence. It seems, therefore, that future EU measures on animal cloning would have little chance of being defended under the discipline of the SPS Agreement. The scope of this paper does not leave much space to appropriately comment on the EC-Biotech report. I shall content with noting that the broad interpretation of an SPS measure adopted by the Panel is prone to criticism from several perspectives (history of the negotiation of the SPS Agreement, its purpose, the intrusiveness of its broad interpretation on internal decision-making).148 The applicability of the SPS Agreement to domestic measures regulating newly emerging technologies, such as GMOs, nanotechnology, or animal cloning, raises particular concerns. To state with Christiane Conrad, ‘(o)ne main concern with the SPS Agreement is that the emphasis on scientific justification might curtail the ability of WTO members to protect their citizens in case of scientific uncertainty.’149 Because of scientific uncertainty typically surrounding new technologies as well as the relevance of ethical and socio-economic concerns associated with them, the Panel’s extensive interpretation does, in fact, appear as problematic. Finally, I have shown that the requirements with which future EU measures on animal cloning would have to comply under the GATT and the TBT Agreement would show a less intrusive effect on EU’s policy choice. Under the GATT difficult issues would arise seeing the PPM nature of animal cloning. However, with regard to the PPM discussion several lines of argument would be open to EU authorities to defend their measures in the light of WTO law. In particular, there are convincing arguments presented in the relevant legal literature, which speak in favour of treating PPM-based measures under Article III.4 of the GATT with the consequence that as long as internal regulations are origin-neutral and applied in a non-discriminatory way they are not violating the National Treatment principle of Article III of the GATT. Also the TBT Agreement shows more deference to internal regulation in the area of food safety and public health, since it is seen as more generous in recognising different legitimate domestic policies, and does not require domestic measures be based on risk assessment. However, the applicability of the GATT or the TBT Agreement to EU measures on animal cloning strongly depends on the definition of the scope of application of the SPS Agreement adopted in future dispute settlement. It should be stressed that once future EU measures would be considered as SPS measures, ie as measures aiming at the protection of human or animal health against the 148. For extensive discussion of these issues see Conrad, Biotech Dispute, supra note 67. 149. Conrad ibid.



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specific risks enumerated in Annex A.1. of the SPS Agreement, they would have to comply with the strict scientific requirements of that Agreement. As a consequence, the applicability of the TBT Agreement would be precluded. Although the applicability of the SPS Agreement would not also exclude the application of the GATT to EU measures on animal cloning, in practice the GATT regime would not be of much relevance for the outcome of the dispute. In the past, once a measure was found to be incompatible with the SPS Agreement, panels, relying on the principle of judicial economy, did not continue the examination under GATT. This stresses the importance of a clear delineation between the scopes of applicability of the three WTO Agreements. Once the SPS Agreement is found to be applicable to a disputed measure, it also constitutes the decisive WTO ‘test.’ To conclude, this paper has shown that several complex legal problems of international trade law could arise in the future with regard to EU’s regulation of animal cloning for food supply. It did not aim at discussing these problems in detail, but rather at presenting an outlook of what could be the relevant legal aspects in the future. The main conclusion following from the above examination is that any legal assessment of domestic regulations, which pursue legitimate objectives of public health, consumer, or environmental protection, against the background of WTO law has to pay particular attention to the delineation between the scopes of application of different trade agreements. As has been shown, the extent to which internal regulators enjoy autonomy in pursuing their policy choices depends considerably on the decision on which of the WTO trade agreements applies to the regulatory activity in question. In the case of animal cloning, the application of the SPS Agreement to future EU regulation in this area would show the least deference to the EU’s regulatory choice. This appears problematic seeing that strong criticism is voiced against the extensive interpretation of the concept of an SPS measure, as undertaken by the Panel in EC-Biotech; and that doubts persist as to whether potential risks related to animal cloning can, in fact, be characterised as sanitary and phytosanitary risks.

A.S. v. Hungary: A Case-Study in Adjudicating Reproductive Health Claims and the Challenges posed by Interpreting Existent Human Rights Treaties Dhrubajyoti Bhattacharya* Abstract: Health-related disputes, albeit few in number, reveal the challenges in utilizing human rights treaties to promote global health generally, and women’s health in particular. This article attempts to illustrate some of those challenges by examining foundational questions concerning the nature and scope of such health-related instruments, and recent decisions before international treatymonitoring bodies purporting to advance population health. Keywords: health, human rights, women, and global health.

1. Introduction The emergence of global health-related treaties has responded to a myriad of transnational health threats and events, including highly infectious diseases, bioterrorism, and general trends in morbidity and mortality. From seminal to contemporary human rights instruments, health has been always been a subject of international interest. Provisions on health can be found, for example, implicitly or explicitly in the International Convention on Economic, Social, and Cultural Rights (ICESCR),1 the International Convention on Civil and Political Rights (ICCPR),2 the Convention on the Elimination of All Forms of Discrimination *

Assistant Professor, Loyola University Chicago Stritch School of Medicine; Visiting Professor of Law, Loyola University Chicago School of Law; LL.M., Georgetown University law Center; M.P.H., Johns Hopkins Bloomberg School of Public Health. 1. International Covenant on Economic, Social, and Cultural Rights, Article 12 (recognizing the right of everyone to the enjoyment of the highest attainable standard of physical and mental health), adopted by General Assembly Resolution 2200A (XXI) of December 16, 1966, entered into force January 3, 1976 [hereinafter “ICESCR”]. 2. International Covenant on Civil and Political Rights, Article 19(3)(b) (allowing for derogation of rights for the protection of public health), adopted by General Assembly Resolution 2200A (XXI) of December 16, 1966, entered into force March 23, 1976 [hereinafter “ICCPR”].

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Against Women (CEDAW),3 and, more recently, the Framework Convention on Tobacco Control (FCTC).4 These treaties constitute the (ever-expanding) core of global health laws and, to be sure, serve as valuable landmarks for the normative development of health-related provisions. Treaty monitoring bodies also cite relevant articles in their assessment of state efforts, vis-à-vis reporting mechanisms, to curb disease threats and promote population health. The absence of any remedies, however, begs the question of whether these treaties are meaningful for the populations that they purportedly serve. The common thread that unites these instruments is their adherence to the object theory of international law, whereby citizens are essentially passive recipients of state-directed acts or omissions.5 In contrast, Optional Protocols empowers citizens to individually challenge states for their alleged failure to implement treaty obligations, consistent with a subject theory of international law.6 By creating an adjudicative forum for individual claims, these ancillary treaties introduce novel possibilities for the burgeoning field of international health law. The absence of an international jurisprudence has resulted in more questions than answers: what is the precise nature and scope of the various health-related provisions, amidst a patchwork of international treaties and related instruments? How ought treaty monitoring bodies interpret such provisions, and what implications would their decisions have for future claims? Finally, how can scientific developments influence, and become influenced by, developments in international law? This article addresses these foundational questions in the context of recent women’s health claims brought before the CEDAW Committee. I argue that the case of A.S. v. Hungary is illustrative of the challenges in applying global health laws to resolve individual claims at the interface of science and law. While the decision is imperfect in its treatment of issues, its flaws speak more to the complexity of the emergent legal landscape rather than the competency of the interpretive body. To be sure, I have argued elsewhere that the CEDAW Committee ought to engage in more robust legal analyses when considering decisions brought under its Optional Protocol.7 My critique, however, only reiterates the need to identify opportunities to enhance the evaluation 3. See Convention on the Elimination of All Forms of Discrimination Against Women, Article 12, opened for signature March 1, 1980, 1249 U.N.T.S. 13 [hereinafter “CEDAW”]. 4. See generally Framework Convention on Tobacco Control, adopted on May 21, 2003 by the Fifty-sixth World Health Assembly, in Resolution WHA 56.1, entered into force on February 27, 2005. 5. George Manner, The Object Theory of the Individual in International Law, 46(3) The American Journal of International Law, 428-49 (Jul., 1952). 6. Ibid. 7. Dhrubajyoti Bhattacharya, The Perils of Simultaneous Adjudication and Consultation: Using the Optional Protocol to CEDAW to Secure Women’s Health, Women’s Rights Law Reporter (forthcoming).



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of such claims. This particular case is exemplary insofar as it demonstrates an attempt—however inadequate—to utilize the unique normative and procedural aspects of the Optional Protocol to secure the health interests of the aggrieved party. These revelations demonstrate the pressing challenges in making sense of the seemingly disjointed health-related instruments. Rigorously scrutinizing the deliberations at the national and international levels will only enhance our collective understanding of the precise nature and scope of the individual rights. Part II provides a general overview of the proposed field of global health law, identifies formal sources and subjects of international law affecting (women’s) health. I review the concept of “global health law” proposed by Profs. Lawrence Gostin and Allyn Taylor and challenge their identification of four “grand challenges” in promoting global health. In Part III, I examine the case of A.S. v. Hungary to illustrate the complexity of adopting a transnational approach to generally promote population health, and the substantive and procedural legal hurdles in utilizing Optional Protocols to remedy individual claims.

2. Global Health Law and its Application to Women’s Health The term ‘global health’ is quite elusive, for it simultaneously embraces and rejects affiliation with a myriad of health-related terms. Generally, the term addresses health issues that may transcend national borders and require international collaboration to mitigate the threat. Yet, such threats may range from direct threats (e.g., air-borne infectious disease outbreak) to social determinants of health (e.g., poverty, trade). The term is distinct from “international health,” which has historically focused on the threats facing low-income and developing countries and distinguishable from, but certainly encompasses, “public health,” which concerns preventive measures to secure subnational population health. It is also distinct from, but embraces, “medical care,” which is preoccupied with the delivery of particular health services for the benefit of individual patients. If global health embraces environmental and ecological risk factors that potentially affect health, transnational determinants such as climate change and urbanization would also fall within its reach. As such, the term is quite vague on its face, and adjoining it with “law” only amplifies its ambiguity. Notwithstanding the scientific complexity underlying the global dimensions of health, the theoretical challenge arguably stems from a long-standing debate on the nature of the term “health” itself, and the concomitant duties that attach to states to promote public health. The Preamble to the Constitution of the World Health Organization, for example, defines health as a state of complete physical, mental, and social well-being, and posits that everyone has a right to

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the enjoyment of the highest attainable standard of health.8 A notably different definition is found in the ICESCR, which recognizes an individual right to the enjoyment of the highest attainable standard of physical and mental health, without adopting the social aspects indicated within the WHO definition.9 To be sure, the Committee on the ICESCR clarified the treaty’s qualification of health in its General Comment 14, which recognized that the required provision of preventive measures already encompassed the social aspect of health. Specifically, the Committee noted that “the express wording of article 12.2 [of the ICESCR] acknowledged that the right to health embraces a wide range of socio-economic factors that promote conditions in which people can lead a healthy life, and extends to the underlying determinants of health, such as food and nutrition, housing, access to safe and potable water and adequate sanitation, safe and healthy working conditions, and a healthy environment.10 This explanation is not terribly persuasive for a number of reasons. First, Art. 12.2. is not a catch-all for social determinants of health. It provides, in relevant part, that steps be taken to include: (a) the provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child; (b) the improvement of all aspects of environmental and industrial hygiene; (c) the prevention, treatment and control of epidemic, endemic, occupational and other diseases; (d) the creation of conditions which would assure to all medical service and medical attention in the event of sickness.

These obligations do not automatically encompass the underlying social determinants of health. To be sure, a few narrow measures are specified, including attempts to reduce the stillbirth and infant mortality rates, and some programs (e.g., insurance) to ensure access to medical care in the event of sickness. Juxtaposed with broad support rendered for promoting environmental, industrial, and occupational health, they are not explicitly tied to social determinants as understood in the context of existent health disparities. Such measures, for example, would address disparities in social status (e.g., wealth, class), sex, geographical residence (i.e. urban vs. rural), and access to resources that are associated with health outcomes. 8. Preamble to the Constitution of the World Health Organization, signed on 22 July 1946 by the representatives of 61 States (Off. Rec. Wld Hlth Org., 2, 100), and entered into force on 7 April 1948. 9. ICESCR, Art. 12. 10. General Comment No. 14, Section 4, adopted by the Committee on Economic, Social and Cultural Rights on May 11, 2000, U.N. document E/C.12/2000/4, August 11, 2000.



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Furthermore, the Committee’s expansive treatment of the term “social” within General Comment 14 is not fully supported within the cited text. The Committee identifies food, nutrition, and housing among the determinants of health. Notably, there are no provisions within Art. 12.2 to substantiate these claims; and the suggestion that they are perhaps subsumed within a general provision to secure physical and mental health under Art. 12.1 would be tenuous, at best. These questionable inferences would raise legitimate concerns about the Committee’s credibility in explaining the precise nature and scope of Art. 12.2 as it relates to social aspects of health. The non-binding nature of General Comment 14 is therefore welcome given its erroneous characterization of the health provision. Notwithstanding the supposed limitations of the ICESCR’s health provision, the task of elucidating the appropriate scope of health-related measures is a concededly daunting task. Services unique to women, for example, may encompass pregnancy care, family planning, pregnancy termination, breast and cervical cancer screenings, and reduction of occupational and environmental hazards that may affect current and future (e.g. fetal) development. While the particular availability of services may vary based on ideological or resource-driven considerations, the breadth of potential services merits explicit prioritization to address unmet needs. Despite the growing volume of health-related instruments, here are some basic legal principles that pervade international health law. Examples include nondiscrimination and equality, and the rights to life and privacy. Non-discrimination in opportunities for education and employment, for example, would reduce heightened risks of maternal morbidity and mortality stemming from multiple births, promote economic security, and improve access to care. Equality of rights often relate to broader determinants of health. Consider, for example, property rights at the dissolution of marriages in Sub-Saharan Africa where women are often left with nothing, become impoverished, and may take to work (transactional sex) that heightens risks for health problems, including physical and mental abuse, infectious, and disease. In that same vein, rights to life and physical integrity can be found in laws serving to reduce trends in domestic violence, and provide access to medical attention in the event of an emergency. The right to privacy in health affairs is often invoked in relation to family planning and control of health information, and also includes utilization of health services. These foundational principles, and particular measures intended to promote women’s health, are present in a number of treaties. The ICCPR explicitly provides rights to life and non-discrimination on the basis of sex, as well as a right to privacy.11 The ICESCR provides for pregnancy care,12 and CEDAW requires the provision of access to family planning services, as well as services in connection 11. ICCPR Arts. 6, 17, 24. 12. ICESCR, Art. 12(2).

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with pregnancy, and the post-natal period.13 And the relatively recent Oviedo Convention on Human Rights and Biomedicine adopted by member States of the Council of Europe provides for access to infertility treatment and antenatal care. This latter convention is particularly noteworthy because it addresses the concurrent ethical issues in utilizing particular technologies. The convention states, for example, that predictive genetic tests serving to “identify the subject as a carrier of a gene responsible for a disease… may be performed only for health purposes or for scientific research,” and that “the use of medically assisted procreation shall not be allowed for the purpose of choosing a future child’s sex, except where serious hereditary sex-related disease is to be avoided.”14 Here, the convention explicitly rejects an absolute right of an individual to choose the sex of a child. This raises the issue of whether such qualifications can be reconciled with a CEDAW provision that empowers women to “decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights.”15 The juxtaposition of the terms “freely” and “responsibly” appears oxymoronic as the latter unequivocally qualifies the free will of a woman to choose the number and spacing of her children. To be sure, this provision does not expressly grant a woman the right to choose the sex of a child. Nonetheless, there is nothing in CEDAW precluding sex-determination to play a role in her decision concerning when she will have a child. This is an example where the adjudicative bodies will have to enunciate their value judgments and establish some precedent in prioritizing rights and the utilization of particular services. Though such decisions are often fraught with controversy, in the absence of (or even notwithstanding) legislative action, they may very well dictate health policy for decades to come (e.g., the U.S. Supreme Court decision in Roe v. Wade).16 Until recently, however, there has been limited scope of judicial action in shaping the development of international health law. National case-law is the result of a process driven by the availability of individual recourse, which neither the ICESCR nor CEDAW provided in the initial decades following their passage. Optional Protocols to both treaties (CEDAW in 1999, and the ICESCR in 2009) may alter the legal landscape in unforeseen ways by compelling treaty monitoring bodies to engage in legal analyses that scrutinize the nature of particular rights, and make sense of them against a backdrop of numerous health-related instruments that may or may not be mutually enforcing. This presumption of 13. CEDAW, Art. 12. 14. Oviedo Convention on Human Rights and Biomedicine, Art. 14, adopted by the Council of Europe on April 4, 1997, entered into force December 1, 1999 [hereinafter “Oviedo Convention”]. 15. CEDAW, Art. 16(1)(e). 16. Roe v. Wade, 410 U.S. 113 (1973) (finding an implicit right to privacy in the U.S. Constitution, and guaranteeing access to abortions up until the moment when the fetus is deemed viable).



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international law may, as the prior example concerning sex-selection illustrated, be untenable in resolving actual disputes. The nascent body of decisions provided by the CEDAW Committee (no decisions have been issued by the Committee on the ICESCR to date), which have conveniently included a few health-related claims, may yield important insights into the substantive and procedural hurdles that face advocates of global health. A particular challenge of securing global health through adjudicative forums flows from our growing appreciation of the relationship between health and society. The risk factors for health outcomes include a myriad of individual and social forces: (i) individual biology (e.g., genetic predispositions, male and female physiological differences) and behavior, (e.g., diet, nutrition, lifestyle), and (ii) social factors including laws, policies, and programs that affect health outcomes by providing particular services, or shaping behavior among individuals (including the regulation of healthcare providers). Addressing these risk factors entails a nuanced tailoring of interventions, encompassing prevention, treatment, and broader social reform. How, then, should transnational entities (WHO, treaty monitoring bodies), already charged with oversight and issuing directives to further population health, prioritize interventions in the wake of scarce resources, and social and individual determinants? The capacity of international law to promote global health has been recently captured in the introduction of “global health law,” which was coined by Professors Gostin and Taylor and defined as: a field that encompasses the legal norms, processes, and institutions needed to create the conditions for people throughout the world to attain the highest possible level of physical and mental health. The field seeks to facilitate health-promoting behavior among the key actors that significantly influence the public’s health, including international organizations, governments, businesses, foundations, the media, and civil society. The mechanisms of global health law should stimulate investment in research and development, mobilize resources, set priorities, coordinate activities, monitor progress, create incentives, and enforce standards.17

This expansive description retains five distinctive features: (1) mission, i.e. ensure condition for public’s health (2) key participants, e.g., state/IOs, (3) sources, i.e. public international law, (4) structure (methods for global health governance), and (5) moral foundation, i.e. social justice.18 With this in mind, Gostin and Taylor identify four “grand challenges,” including: state-centricity in the international legal system, skewed priority setting, flawed implementation and compliance, and fragmentation, duplication, and lack of coordination.19 State-centricity is faulted 17. Lawrence Gostin and Allyn Taylor, Global Health Law: A Definition and Grand Challenges, 1(1) Public Health Ethics (2008), 53-63. 18. Ibid., at 55. 19. Ibid., at 57.

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with an inability to incorporate non-state actors into governance, and presumably weak treaty commitments. A limited legal framework for national action, coupled with little international cooperation and poverty, has also contributed to skewed priority setting. Flawed implementation is attributed to an absence of a dispute settlement body and incentives to encourage State compliance. And finally, the proliferation of actors and institutions with health agendas has caused redundancy in efforts, and inefficiency in utilization of resources. Gostin and Taylor recommend that the WHO take a stronger leadership role to foster greater cooperation. I do not concur with the four challenges for numerous reasons. First, state-centricity is still necessary to address the nature and context of health problems and the political realities of international relations. Health problems may be described in the aggregate; but often have relative causality depending on numerous determinants of health. While poverty is an obstacle, it does not absolutely absolve States or individuals of: the contribution of individual behaviors on societal outcomes, and laws restricting educational and economic opportunities (particularly those allowing structural violence to sustain). For women, the combination of these behaviors, laws, and practices have been associated with enhanced risk for physical and mental abuse, sexual violence, and attendant health risks, including sexually transmissible infections and diseases and chronic reproductive health problems. Simply put, state-centricity ought not be a scapegoat for the threats posed by complacency as relates to these social and individual factors. Additionally, state-centricity is the reality of international relations, and health rarely trumps other equally (if not more) pressing prerogatives, such as trade and national security. Ironically, we find such concessions even within the body of prominent health-related conventions. Consider the revised International Health Regulations of 2005, whose explicit purpose is to prevent international disease spread and “avoid unnecessary interference with international traffic or trade”—not for members to ameliorate, and help others ameliorate, subnational disease threats that preclude everyone’s enjoyment of the highest attainable standard of health.20 We find similar concessions within the realm of national security, though creative efforts have been made to the contrary. In 1996, for example, the World Health Organization requested an advisory opinion from the International Court of Justice (ICJ) to determine whether “in view of health and environmental effects, the use of nuclear weapons by a State in war or other armed conflict [would] be a breach of its obligations under international

20. Fifty-eighth World Health Assembly resolution WHA58.3: Revision of the International Health Regulations. Geneva: World Health Organization; 2005. Available at .



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law including the WHO Constitution.”21 The ICJ found the request to arise outside the scope of the WHO’s activities, and tantamount to disregarding the principle of specialty. To be sure, there is the obvious association between the use of nuclear weapons and the short- and long-term health effects (mortality and cancer, respectively) that would ensue. The ICJ, however, quashed any attempt to use such causal relationships to empower the WHO with a voice to chime in on issues of national security and the decisions affecting the deployment of weapons of mass destruction. My second point in rebuttal of the grand challenges is that consultative and (quasi) adjudicative bodies exist, but have not been adequately scrutinized. Treaty monitoring bodies provide consultative services by reviewing country reports. Optional Protocols also create an avenue to adjudicate actual claims; inevitably shape the development of norms, practices, and international jurisprudence; and, upon taking steps based on the Committee’s recommendations, affect national legislation. Incentives already exist but they may take different forms, which affect the degree of cooperation: political, economic, and social. Some States may find being a Party an end in itself; to craft future bi- and multi-lateral agreements; to formulate national policy; or perhaps advocate for reform extraterritorially. Incentives will invariably be determined by the sovereign State and suggesting otherwise begins with a claim that sovereignty is an obstacle to promoting global health. As explained above, there are good reasons to cautiously meddle with state sovereignty and the foreseeable consequences for health at the national and subnational levels. While there is no consensus on what global health is, it is clear that international law can affect health outcomes by providing normative standards (treaties) for specific State Party measures to reduce the perceived burden of health threats. International law provides oversight and review of efforts to promote population health vis-à-vis the reporting mechanisms, and has, more recently, accommodated the role of non-traditional subjects, including individual victims and quasi-adjudicative bodies (treaty-monitoring Committees) vis-à-vis the Optional Protocols to evaluate State laws, policies, and interventions. Scrutinizing these novel avenues is imperative, and is the subject of Part III (below), which uses a particular case to illustrate the grand challenges in advocating global health and women’s health in particular.

21. International Court of Justice, Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion. (July 8, 1996).

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3. A.S. v. Hungary and the Grand Challenge of Adjudcating Health Related Claims Elsewhere, I have argued that while CEDAW and its Optional Protocol afford theoretically more robust safeguards to secure women’s health, the CEDAW Committee’s has generally failed to engage in sound legal analyses.22 Here, I do not proffer the case-study of A.S. v. Hungary as an exception to my general observations. Rather, the Committee’s decision only reiterates my recommendation to apply a more thorough, and consistent, interpretive framework in resolving like claims. Before delving into the particular facts of the claim, two distinctive features are worth noting. First, the decision marks the first attempt by the CEDAW Committee to standardize duties as relates to other science- and health-related instruments. Specifically, it is the only decision that made a cross-reference to another legally binding instrument for the party under investigation, with respect to women’s health (i.e. Oviedo Convention). (Two other decisions referenced the ICCPR for purposes of emphasizing the importance of exhausting domestic remedies). Also, it was the only decision to cite an expert opinion, i.e. avail itself of competency beyond its own to enhance its deliberations, consistent with its authority under the treaty and the Protocol. Unlike many other decisions, it explicitly cites the language of the text under scrutiny, but unfortunately gives inadequate treatment to the key themes and principles. A couple aspects of the claim itself are also noteworthy. It speaks, albeit subtly, to the impact of technology on judicial treatment of services as relates to patient and provider rights and duties. Also, an important theme is the role of professional judgment in utilizing technology, implicating a discussion of provider rights and duties that are notably absent in most health-related treaties. The facts of the case were relatively straightforward. A.S. was a Hungarian woman, over 8 months pregnant, when her amniotic fluid broke. She was rushed to the hospital and the fetus died en route. Upon arrival, she was dizzy, bleeding heavily, and in shock. She was then placed on an operating table, and asked by the physician to sign a form requesting to perform a caesarean section and sterilization. The term for sterilization was in Latin, which the author did not know, but she signed the note. Seventeen minutes later, the c-section was complete, and the woman’s Fallopian tubes were tied. Upon recovery, the woman asked when she could have another baby. After being informed of her sterilization, she fell into depression, which required medical treatment. She was a devout Catholic and her religious beliefs prohibited contraception of any kind. A Hungarian domestic court ruled that the woman could still conceive through artificial insemination so her reproductive capacity was not eradicated. It specifi22. Infra, note 7 at 3.



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cally held that the physician had adequately informed the woman of the pertinent information, but was partially negligent in not telling her husband under applicable Hungarian law; and that the author had indicated her consent by signing the form provided by the physician. The appellate court found that (1) the physician had not adequately informed the woman of the methods/risks/alternatives, but (2) the woman could still conceive through artificial insemination, or plastic surgery to untie the Fallopian tubes. It dismissed the suit because her reproductive capacity had not been entirely eradicated. Notably, the Appellate Court relied on the potential of technology to evaluate the woman’s reproductive capacity and choice. Having exhausted all domestic remedies, the claim was eligible for review by the CEDAW Committee.23 The woman alleged that the State Party’s failure, acting through its physicians at the public hospital, to ensure access to educational information and advice on family planning, access to family planning services, and violating her right to freely decide on the number and spacing of her children.24 The issue before the CEDAW Committee was whether the alleged violations constituted a failure to receive informed consent for sterilization. The Committee’s analysis began by focusing on Article 10(h), which requires the State “to take all appropriate measures to eliminate discrimination against women in order to ensure to them equal rights with men in the field of education, [including] (h) access to specific educational information to help to ensure the health and well being of families, including information and advice on family planning.”25 The analysis began by referring to general comment #21 issued by the CEDAW Committee, which broadly covers equality in marriage and family relations, and repudiates non-disclosure of information that would inhibit informed decision-making. Here, the author failed to receive adequate information about sterilization, the risks involved, or alternative therapies. Moreover, stressful circumstances constituted an “inappropriate condition” to provide counseling. For these reasons, she was unable to make an informed choice and the State violated its duty under 10(h). The Committee could have strengthened its analysis by highlighting the role of a woman’s autonomy consistent with the object and purpose of the treaty. Recall that the domestic court first ruled that the physician was negligent by not informing the woman’s spouse; that is, Hungarian law recognized a shared decision-making capacity. The object and purpose of the text is to ensure equal access to specific educational information and advice on family planning. Is this information meant to foster shared decision-making among partners, or simply 23. See Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, adopted by resolution Oct. 15, 1999, 2131 U.N.T.S. 83 [hereinafter “Optional Protocol to CEDAW”]. 24. CEDAW, Arts. 10(h), 12(1), 16). 25. CEDAW, Art. 10(h).

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bolster separate (but equal) disclosure requirements? If an individual woman is granted decision-making status on part with her partner, the moral underpinnings are strengthened. The context of the provision supports this interpretation in favor of the individual victim. The prefatory language creates a distinct identity for her, excludes any reference to a partnership (marital or otherwise) and arguably envisioned a provider-patient rather than a provider-couple relationship. The legal imperative to disclosure may remain unaffected, but the moral imperative rooted in patient autonomy is strengthened. Additionally, the travaux supports this individual/woman/patient-centered approach. Notably, there was no consensus at first. When the treaty was being drafted, Sweden recognized a “shared responsibility” between men and women; and the International Federation of University Women (IFUW) insisted that information respect the “moral and personal attitudes of each married couple.”26 These suggestions were coined to strengthen the binary function of male and female partners, or per the IFUW’s recommendation, married couples. The final language, however, removed such qualifications. The Committee then turned to Article 12(2) and the scope of “appropriate services.” Article 12(2) provides, in relevant part, that “States Parties shall ensure to women appropriate services in connection with pregnancy, confinement and the post-natal period, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation.”27 The analysis began by claiming that it was “not plausible” for the woman to understand the information presented to her in the 17 minutes prior to surgery; and her subsequent unawareness of what happened validated this presumption. The Committee then turned to its General Comment #24 on ‘women and health,’ which defines “acceptable services” as “those that are delivered in a way that ensures that a woman gives her fully informed consent, respects her dignity… States parties should not permit forms of coercion, such as non-consensual sterilization…that violate women’s rights to informed consent and dignity.”28 For these reasons, she was unable to give her fully informed consent and the State violated its duty under 12(2). One problem with this approach is that what are deemed “appropriate” services are potentially distinguishable from what may be “acceptable” services. This distinction is critical for determining the relevant standard of care. Does the term “appropriate” inherently mandate informed consent, or simply allude to the general availability of services? Proponents may argue that whether a service 26. Lars A. Rehof, Guide to the travaux préparatoires of the United Nations Convention

on the Elimination of all Forms of Discrimination against Women (Martinus Nijhoff Publishers, 1993).

27. CEDAW, Art. 12(2). 28. CEDAW Committee, General Comment No. 24.



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is appropriate turns on whether a patient wants it; inevitably requiring consent and, a priori, disclosure on the part of the provider. Opponents may counter by focusing on the object and purpose of the provision, which is not to gauge patient compliance, but ensure the availability of specific services related to, e.g., pregnancy and postnatal care. The impetus for availability is strengthened by the context, which provides the need to make available services to those who cannot afford it, “granting free services where necessary.”29 Proponents may then counter that availability and informed consent are not mutually exclusive. Regardless, the terms “acceptable” and “appropriate” are not interchangeable. An acceptable service requires acceptance on the part of someone, that is, the patient. An appropriate service, however, may implicate the professional judgment of the physician, and not be deemed acceptable by a patient, physician, or both under certain circumstances. Here, the State argued that (1) the woman had undergone multiple c-sections, (2) her womb was in bad condition, (3) another pregnancy or abdominal operation would place her in mortal danger. Also, since she was provided medical care and services that were free of charge. Given the potential threat posed by a pregnancy to her life, would sterilization be an appropriate service under the circumstances? Possibly. Would the State’s grant of free care satisfy a standard of appropriateness for purposes of 12(2)? Yes. What was inappropriate here was the coercive nature of the surgery rather than the nature of the surgery itself. This begs the question of under what circumstances may a provider’s judgment override a patient’s desire to utilize services? The analysis was silent on this issue. Furthermore, the travaux does not support the Committee’s presumption that the availability of services necessarily entails consultative practices. Initial drafts distinguished between “advice” and “services,” in Art. 12, and all references to provide “information” and “counseling” as relates to services were ultimately excluded in the final text. States were reluctant to impose a consultative duty on members beyond what was required in 10(h). The decision concluded with the Committee’s recommendation that Hungarian laws be modified to incorporate informed consent standards in accordance with int’l human rights and medical standards as provided for in the Convention on the Council of Europe on Human Rights and Biomedicine (“the Oviedo Convention”) and the World Health Organizational guidelines. The cross-reference ought to have been provided for within the analysis, along with further elaboration. The Oviedo Convention provides a general rule for informed consent, exceptions in the event of an incompetent adult (i.e. surrogate decision-maker), and an emergency exception. While it does not appear that such exceptions were applicable, a more thorough analysis would have asserted 29. CEDAW, Art. 12(2).

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their relevance. Also, the presumption of mutual reinforcement of international treaties requires closer scrutiny. While Hungary may be a party to the Oviedo Convention, a general cross-reference in the conclusion may undermine aspects of its own analysis. Consider the scope of female autonomy. CEDAW does not qualify female decision-making and utilization of services as specifically as the Oviedo Convention. The latter, for example, prohibits the use of genetic services for the purposes of sex-selection of a fetus.30 Wouldn’t such proscriptions potentially undermine the standards of availability and acceptability of services, which was absolutely patient-directed under the Committee’s analysis? This meticulous dissection is not a mere legal wordplay, for distinguishing between available, appropriate, and acceptable services speaks to the role of science, providers, and patients, respectively. What is deemed available is a product of scientific research and development. What is considered appropriate may implicate professional judgment on the part of a healthcare provider. And what is acceptable may ultimately rest with the affected patient. How these different characterizations converge and influence delivery depends on how rights and duties are interpreted in the context of a given dispute. In this case, different courts and parties placed different values on the role of science, the provider, and the patient (and even third-party family members). The Hungarian town court emphasized the acceptability of the surgery by family members, namely, the woman’s spouse. The appellate court emphasized the availability of the surgery for the woman’s benefit (i.e. artificial insemination). And the State essentially argued before the CEDAW Committee that the physician’s decision to sterilize was appropriate because of the woman’s risk for future complications and death. In contrast, the CEDAW Committee emphasized the acceptability by the patient of undergoing medically invasive surgery (i.e. informed consent). Resolving these interpretative challenges is essential to determine the appropriate scope of rights and services. For example, will these factors qualify our determination of whether particular services, e.g., in vitro fertilization (IVF) and prenatal genetic testing ought to be limited under certain circumstances? Consider trends in population (in)fertility. In the U.S., for example, the number of childless women has doubled from 1976-2006 (10% to 20%), but the number of women giving birth above age 40 has also doubled because of the increased usage of IVF.31 Should age be a factor in determining access to IVF? Given the association of increased age of motherhood with birth defects, should a mother’s age qualify the availability and appropriateness of IVF to willing participants? Consider a Spanish woman who gave birth at the age of 66 to twin boys in 2006 via IVF, but died in July 2009; or an Indian woman who gave birth to triplets at the age of 30. Oviedo Convention, Art. 14. 31. U.S. Census Bureau, Fertility of American Women 2006, at 1 (2006) available at http://www. census.gov/prod/2008pubs/p20-558.pdf.



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70 in 2008, and is now dying just 18 months after giving birth.32 With respect to the number of children and spacing of births, how many children would be considered too many? Consider an American woman who gave birth at the age of 30 to 8 children via IVF in 2009.33 And how should social determinants be addressed, if at all? Ought socioeconomic status be a legitimate basis for denial? And if so, who ought to make the determination, e.g., physician? State? Finally, should guidelines be enacted that qualify the availability of a service to a woman based on her underlying intent, as envisaged in the Oviedo Convention, which prohibits using prenatal genetic testing for sex-selection? These types of questions illustrate the emerging challenges in using international law to secure health.

4. Conclusion The burgeoning field of global health law, coupled with the advent of Optional Protocols, poses numerous challenges for adjudicating health-related claims. There are also reasonable differences of opinions concerning the nature and scope of rights, roles, and responsibilities of public and private actors. These differences, however, do not explain the failure of international adjudicative bodies to engage in robust legal analyses. Scientific advancements, and the emergence of novel technologies and medical services, are also changing the legal landscape of rights and the correlative duties of women and states, respectively. Against a backdrop of pressing women’s health issues worldwide, it is imperative for the international community to develop a common language of concepts (e.g., bias, consent) and related legal doctrines (e.g., discrimination, informed consent) to parse the different ethical, legal, and social challenges that inevitably arise. International treaties and the bodies charged with their interpretation occupy a vital position to shape the development of reproductive rights. The 30th Anniversary of CEDAW, however, should give pause to global health advocates. The existent interpretive framework, as indicated by the decisions issued thus far by international tribunals, has been woefully inadequate in their breadth and depth on the legal merits of a claim. Global health advocates must (1) scrutinize the shortcomings of the existent international adjudicative framework for addressing claims involving women’s reproductive rights, (2) encourage 32. Giles Tremlett and Peter Walker, Spanish woman who gave birth through IVF at 66 dies. Available at http://www.guardian.co.uk/world/2009/jul/15/spanish-woman-ivf-dies; see also Mail Foreign Service, World’s oldest mother, 70, lies dying with baby at her side after risking her life to beat stigma of being barren, available at . 33. Stephanie Saul, Birth of octuplets puts focus on fertility clinics, February 11, 2009. Available at .

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tribunals to employ robust interpretive frameworks for reviewing the legal merits of a claim, and (3) enhance collaboration among States governments, non-governmental organizations, and community partners to deliberate on the substantive nature and scope of these unresolved issues. Together, these steps will enhance the development of global health law as a normative framework to secure population health worldwide.

Global Health Public-Private Partnerships: Better Protecting Against Disease but Creating a Gap in Responsibility under International Law Lisa Clarke* Abstract: Promising developments are being made in science to prevent and/ or treat infectious diseases such as AIDS, tuberculosis and malaria yet global health law does not necessarily protect people in an analogous fashion. This is especially so in developing states. Public-private partnerships are forming in response by bringing together resources of the public and private sectors to better protect against disease. Science is now contributing through a new medium – public-private partnerships – to the governance of global health by influencing health policy. There is a shift taking place which moves (at least partly) public power over global health from the hands of states into the hands of public-private partnerships. The public-private nature of partnerships means, however, that partnerships are falling outside the classical, inter-state framework of international law and, in turn, outside the purview of responsibility under international law. This gap between exercises of public power over global health by public-private partnerships and responsibility under international law is problematic given the growing impact of such partnerships on the health of the public. This article investigates how the relationship between science and global health law has wavered over the years and how public-private partnerships are, in response, forming and using scientific resources to influence the development of health policy and the exercise of public power over global health. To close the resulting gap in the responsibility of global health public-private partnerships, this article suggests attributing the acts of these partnerships to the integral partners in such partnerships – states. Keywords: experts, evidence, courts, tribunals, health, environment, adjudication

* Ph.D. Candidate, Amsterdam Center for International Law, University of Amsterdam and working on the VICI Project on The emerging international constitutional order - The implications of hierarchy in international law for the coherence and legitimacy of international decision-making. Many thanks to Jean d’Aspremont, Erika de Wet, Yvonne Donders, David Fidler, Jure Vidmar and anonymous reviewers for comments on earlier drafts of this text. References to online sources are accurate as of 16 April 2010.

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1. Introduction Science has long been making contributions to the development of global health law but this relationship has wavered with the result that global health law has, at times, lagged behind the progressions of science.1 This incongruency between science and global health law has meant that despite promising developments in science, law does not necessarily protect people in an analogous fashion. Nowhere is this more visible than in developing states where infectious diseases such as AIDS, tuberculosis and malaria persist, despite existing preventative and/or treatment measures for these diseases. Recently, global initiatives have begun to spring up in an attempt to respond to infectious diseases persisting in developing states. Such initiatives include, among others, global health public-private partnerships. Public-private partnerships are defined, in general terms, as ‘voluntary and collaborative relationships between various parties, both State and non-State, in which all participants agree to work together to achieve a common purpose or undertake a specific task and to share risks and responsibilities, resources and benefits’.2 This open definition coupled with the growing popularity of partnerships means that full coverage of all global health public-private partnerships is unmanageable in a single article. This article therefore draws on the Global Alliance for Vaccines and Immunization (GAVI) and the Global Fund to Fight AIDS, Tuberculosis and Malaria (the Global Fund) as examples as they are both well-established public-private partnerships having a profound affect on global health.3 Public-private partnerships, such as GAVI and the Global Fund, often rely on the scientific contributions of partners, such as research institutions, research groups within companies and/or experts in the scientific community, to inform decision-making. As a result, science, through partnerships, is influencing the 1. ‘Global health law’ is generally defined as including the International Health Regulations, the WHO Framework Convention on Tobacco Control and also other binding international law related to health including that concerning the environment, human rights and trade. – Jennifer Prah Ruger, ‘Normative Foundations of Global Health Law’, 96 Georgetown Law Journal (2008) 423-443 at 424. The focus of this article, however, is the International Health Regulations as it is the global health law governing the control of the spread of infectious disease. 2. Enhanced cooperation between the United Nations and all relevant partners, in particular the private sector, Report of the Secretary-General, UN Doc. A/60/214 (10 August 2005) at para. 8. In global health terms, public-private partnerships are defined as ‘long-term collaborative mechanisms to address a specific public health problem, encompassing a diverse array of partners both private and public, with an agreed division of labour and contribution of resources’ – Gian Luca Burci, ‘Institutional Adaptation Without Reform’, International Organizations Law Review 2 (2005) 437-443 at 439. 3. GAVI homepage, and The Global Fund homepage, .



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development of health policy and the governance of global health. Science, through partnerships, is contributing to a shift in the exercise of public power over global health away from states and towards public-private partnerships. This shift is seen as partnerships are managing activities that are normally regarded as in the domain of the state such as providing access to preventative and treatment measures for certain diseases or improving health infrastructure within the state to better manage the growing risk of disease. As a result of this shift, partnerships are becoming increasingly capable of breaching rights under international law, such as, for example, the rights to health and life.4 Partnerships, by intermingling partners from the public and private sectors, are, however, developing outside the classical, inter-state framework of international law which, in turn, means they are locating outside the purview of responsibility under international law. A gap is thus created between exercises of public power over global health by publicprivate partnerships and responsibility under international law. One possible way to close this gap might be to hold states, as partners, responsible under international law for the acts of these public-private partnerships. Responsibility through other partners in partnerships, in particular international organisations, also deserves a place in the discussion on the responsibility of partnerships under international law however falls outside the scope of this article. Suffice it to say, at this moment, that the work of the International Law Commission on the responsibility of international organisations and other debates on the responsibility of non-state actors such as transnational companies and nongovernmental organisations (NGOs) form pieces of the puzzle in the discussion on the responsibility of partnerships under international law and merit further exploration.5 This article, however, focuses on the responsibility of partnerships through the lens of state responsibility because state responsibility is the ‘paradigm form of responsibility on the international plane’.6 Further, states are integral partners in partnerships. Specifically, at least in the cases of GAVI and the Global Fund, states provide the lion’s share of the funding of the partnership; further a certain degree of state approval is needed before a decision of the partnership is made. States are thereby enabling these partnerships to manage activities which 4. Article 12, International Covenant on Economic, Social and Cultural Rights, 16 December 1966, in force 3 January 1976, 993 UNTS 3 and Article 6, International Covenant on Civil and Political Rights, 16 December 1966, in force 23 March 1976, 999 UNTS 171 and 1057 UNTS 407. 5. See Report of the International Law Commission on the Work of Its Sixty-first Session, UN Doc. A/64/10 (2009) at Chapter IV, Responsibility of International Organizations, 13-178; Philip Alston (ed.), Non-State Actors and Human Rights (Oxford University Press, 2005); and Anna-Karin Lindblom, Non-Governmental Organisations in International Law (Cambridge University Press, 2005). 6. James Crawford and Simon Olleson, ‘The Nature and Forms of International Responsibility’, in Malcolm D. Evans (ed.), International Law (Oxford University Press, 2006) 451-477 at 452.

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normally fall within the realm of states. If something were to go wrong in these partnerships, could the states involved justifiably disassociate themselves from responsibility under international law? This article begins by looking back on scientific contributions to global health law in relation to the control of the spread of infectious disease. It explores early scientific contributions to global health law and then examines more recent scientific contributions to global health law, specifically in the wake of severe acute respiratory syndrome (SARS). This look back exposes the unsteady relationship between science and global health law but also how this relationship is becoming more integrated through the increasingly important role played by non-state actors, as highlighted in the response to SARS. Subsequently, this article focuses on the formation of public-private partnerships, in response to the unsteady relationship between science and global health law, as a means to reap the benefits of scientific progress. It looks at the scientific resources of public-private partnerships which inform their decision-making and the influence public-private partnerships, in turn, have on the development of health policy. It further discusses how the fallout of this influence on health policy is that public-private partnerships are increasingly exercising public power over global health, traditionally the prerogative of states. Setting out how public-private partnerships, relying on scientific resources, are influencing the development of health policy and, as a result, increasingly exercising public power over global health, brings us to the final section of this article which focuses on the gap in responsibility of global health public-private partnerships. Partnerships, as a result of their public-private composition, reside outside the classical, inter-state framework of international law which means they also reside outside any framework of responsibility under international law. This creates a gap between exercises of public power over global health by public-private partnerships and responsibility under international law. To close this gap, this article suggests looking through the lens of state responsibility, with specific reference to the Articles on the Responsibility of States for Internationally Wrongful Acts (Articles on State Responsibility).7 More specifically, it considers the attribution of acts of public-private partnerships to the integral partners in such partnerships – states – through application of Article 5 – ‘[c]onduct of persons or entities exercising elements of governmental authority’ and Article 8 – ‘[c]onduct directed or controlled by a State’.8 7. Articles on the Responsibility of States for Internationally Wrongful Acts, Annex of GA Res. 56/83, 28 January 2002. 8. Articles 5 and 8, ibid. Other possible approaches to regulating the activities of public-private partnerships include global administrative law focusing on accountability through meeting ‘adequate standards of transparency, participation, reasoned decision, and legality, and by providing effective review of the rules and decisions’ (see Benedict Kingsbury, Nico Krisch and Richard B. Stewart, ‘The Emergence of Global Administrative Law’, Law and Contemporary



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2. A Look Back on the Relationship between Science and Global Health Law As with other areas of international law, global health law was, at its outset, seen through a positivist lens with global legal rules for health focusing solely on relations between states. Global health law, in the form of inter-state conventions, made its debut in the mid-19th century when states began to recognise the need for collaboration to tackle the spread of infectious diseases. Out of a series of international sanitary conferences arose a set of international sanitary conventions focusing on the spread of cholera, plague and yellow fever. In the beginning, these conferences and conventions were impeded by a lack of scientific knowledge however over time advancements in science did much to solidify agreement among states.9 As scientists acquired a better understanding of cholera, plague and yellow fever, respectively, agreement among states transpired incorporating these scientific discoveries into the conventions and, as a result, better reacting to the spread of these infectious diseases. The goal of collaboration in the international sanitary conferences and conventions was quarantine harmonisation. Quarantine measures applied differently by states were said to result in ‘onerous delays and expenditure occasioned by the immobilization of ships, the incarceration of their crews and passengers in lazarets, and the destruction or spoilage of cargoes’ and therefore harmonised quarantine measures were desired.10 As scientists gained a better understanding of how germs worked, however, a corresponding shift in legal strategy took place on how to deal with infectious disease. The changing perception was that ‘the “quarantine concept” was an obsolete scientific superstition. All efforts should be directed at the elimination of foci of infection at their points of origin, and this could be accomplished only by well-organized health services in all countries’.11 Science suggested the usefulness of other strategies and law reacted accordingly. The international sanitary conventions were eventually collated into a single set of rules in 1951 under the name the International Sanitary Regulations.12

9. 10. 11. 12.

Problems (2005) Vol. 68, 15-61 at 17) and the public law approach based on a combination of constitutional, administrative and international institutional law approaches to global governance (see Armin von Bogdandy, Philipp Dann and Matthias Goldmann, ‘Developing the Publicness of Public International Law: Towards a Legal Framework for Global Governance Activities’, German Law Journal (2008) Vol. 09, No. 11, 1375-1400 at 1390). This article does not however delve into either of these approaches as they are both still lex ferenda whereas state responsibility is lex lata. Norman Howard-Jones, The scientific background of the International Sanitary Conferences 1851-1938 (World Health Organization: Geneva, 1975) at preface, 12. Ibid., at 11. Ibid., at 93. International Sanitary Regulations – World Health Organization Regulations No.2, 25 May 1951, in force 1 October 1952, 175 UNTS 215.

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And after a series of amendments, these regulations were renamed, in 1969, the International Health Regulations.13 Although science and global health law seemed to be on track for a complementary relationship, global health law in the form of inter-state conventions began to lag behind science in the mid to late-20th century with the regression of the International Health Regulations and the lack of any other international treaties or regulations in relation to health.14 A general lack of legal progress at the instigation of the World Health Organization (WHO), in particular, may be seen as a result of the scientific nature, rather than legal nature, of the WHO itself. The officials of the WHO largely consisted of individuals with a scientific background, such as physicians, scientists, researchers and other public health specialists.15 Science was bestowing such confidence in people, through its ability to address pressing global health issues such as the spread of infectious disease, that its methods were being applied directly and law was treated as an unnecessary aside. Science was thus influencing global health absent any legal framework. States correlatively began to lose interest in legally controlling the spread of infectious disease as a result of the perceived success and positive future outlook of scientific control over such diseases.16 This downturn in the relationship between science and global health law would not, however, sustain as strong forces of globalisation in all aspects of life would force global health issues again to the forefront of both scientific and legal discussions. As the movement of people and goods to all corners of the world began to increase in the late-20th and early-21st century, the spread of infectious disease was expedited. Further, new infectious diseases were emerging and resistance to drugs that had previously prevented and/or treated existing infectious diseases was developing. Also, the challenges in addressing infectious diseases were not merely scientific in nature; the challenges were also economic, political and social.17 Science operating autonomously would thus not suffice to address the myriad of health issues which were arising globally. A clear governance structure was needed in order to cope with the globalised spread of infectious disease. The outbreak of SARS in 2003 provides a clear illustration of a re-kindling of the relationship between science and global health law. SARS, like other previous infectious diseases, did not recognise state borders and spread quickly. It correspondingly required fast and effective reaction. Reactions came from states 13. International Health Regulations, 25 July 1969, in force 1 January 1971, 764 UNTS 3. 14. David P. Fidler, ‘The Future of the World Health Organization: What Role for International Law?’, Vanderbilt Journal of Transnational Law (1998) Vol. 31, No. 5, 1079-1126 at 1090-1091. 15. Allyn Lise Taylor, ‘Making the World Health Organization Work: A Legal Framework for Universal Access to the Conditions for Health’, American Journal of Law & Medicine (1992) Vol. XVIII, No. 4, 301-346 at 336. 16. Fidler, ‘The Future of the World Health Organization’, supra note 14 at 1100-1102. 17. Ibid.



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and international organisations but also from non-state actors. A strong reliance was placed on non-state actors such as the Global Outbreak Alert and Response Network (GOARN) and also the scientific community in the response to SARS.18 GOARN is a collaboration of institutions and networks that pool resources for the rapid identification, confirmation and response to outbreaks.19 It was established before the onset of SARS and contributed greatly to identifying, confirming and responding to the spread of SARS. The scientific community also played a vitally important role in combating SARS. As the virus was one not previously identified in humans, scientists struggled with diagnostics, treatments and a vaccine. Knowledge from the scientific community rapidly flowed in an attempt to develop diagnostics, design treatments and discover a vaccine.20 States, through the WHO, depended on GOARN and the scientific community as part of the global response to the spread of SARS. Relying directly on the information provided by non-state actors such as GOARN and the scientific community, the WHO then proceeded to post recommendations and guidelines on its website in relation to SARS. These recommendations and guidelines gained strong normative force as they were seen as both technically sound and credible. Among these recommendations and guidelines were travel advisories which urged against travel to certain affected states and, in the end, caused serious economic damage to these affected states. The WHO issued these travel advisories, however, absent an express authority granted to it by states to do so. It thus coordinated a response absent a clear legal framework. And, all the while, it directly relied on the information provided by non-state actors such as GOARN and the scientific community. States’ control over the spread of this infectious disease was, as a result, partially diminished with the WHO and non-state actors such as GOARN and the scientific community playing such a leading role. Although the issuance of these travel advisories by the WHO demonstrated a lack of deference to the sovereignty of the affected states, these affected states generally complied with the travel advisories and were acquiescent in the travel advisories after the fact. A new precedent for the governance of global health was thus established.21 A further outcome of the reaction to SARS was the contribution which it made to the revision of the International Health Regulations.22 Years before SARS, the 18. David P. Fidler, ‘Constitutional Outlines of Public Health’s “New World Order”’, Temple Law Review (2004) 247-289 at 266. 19. GOARN homepage, . 20. David P. Fidler, ‘SARS: Political Pathology of the First Post-Westphalian Pathogen’, Journal of Law, Medicine and Ethics (2003) 485-499 at 485, 496. 21. Gian Luca Burci, ‘Shifting Norms in International Health Law’, American Society of International Law Proceedings (2004) 13-25 at 17-18; Fidler, ‘Constitutional Outlines’, supra note 18 at 268; and Fidler, ‘SARS: Political Pathology’, supra note 20 at 495. 22. International Health Regulations (2005), 23 May 2005, in force 15 June 2007, Registration

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WHO suggested, in the revision process, to expand the surveillance procedure to include epidemiological information provided by non-state actors.23 The International Health Regulations were not yet fully revised when SARS broke out however the proactive steps taken by the WHO to deal with SARS, described above, did much to affirm the need for non-state actors to provide epidemiological information as part of the surveillance procedure. The International Health Regulations adopted in 2005 thus reflected changes in governance already accepted by the international community through its reaction to SARS. The WHO is now formally authorised under the International Health Regulations to take into consideration ‘reports from sources other than notifications or consultations’ in relation to public health events.24 ‘Notifications’ and ‘consultations’ are to be initiated by states whereas ‘reports from sources other than notifications or consultations’ may be initiated by non-state actors.25 The WHO must assess these reports according to established epidemiological principles and then consult with and attempt to obtain verification of such reports from the state in whose territory the event is allegedly occurring.26 Non-state actors are thus authorised to participate in the surveillance procedure thereby formally taking part in the governance of global health. SARS is only one example of a health issue grabbing global attention. Other such global health issues include the spread of AIDS, tuberculosis and malaria which disproportionately affect developing states. As global health law is not effectively dealing with this disproportionality, other responses outside the classical, inter-state framework of international law are cropping up. One such response is public-private partnerships and it is to these partnerships which we now turn.

3. Global Health Public-Private Partnerships and Their Scientific Resources Although promising scientific developments have taken place in relation to the infectious diseases tormenting developing states, developing states have not fully reaped the benefits of such scientific progress. Science, however, perseveres through public-private partnerships. States and international organisations (representing the public sector) and companies, research institutions, NGOs and philanthropic foundations (representing the private sector), recognising the insufficiency of the public or private sectors alone in addressing these growing health concerns, are joining forces in public-private partnerships. This section briefly describes global 23. 24. 25. 26.

Number I-44861, . Fidler, ‘Constitutional Outlines’, supra note 18 at 266. Article 9, International Health Regulations, supra note 22. Articles 6, 8, and 9, ibid. Article 9, ibid.



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health public-private partnerships and the scientific resources which inform their decision-making and then proceeds in the subsequent section to discuss the influence these partnerships, in turn, have on the development of health policy. Partnerships between the public and private sectors, in relation to global health, initially existed as simple donation agreements between the recipient state and the donating entities. Partnerships have, however, gradually developed into highly integrated relationships among states, international organisations, companies, research institutions, NGOs and/or philanthropic foundations. It is difficult to specify the exact moment when partnerships moved from simple donation agreements to the highly integrated relationships we see today; it was a gradual process from the 1970s onwards. It can be said, though, that partnerships in global health truly flourished in the late 1990s and early 2000s. Among those partnerships that thrived at that time and that continue to have a significant impact on global health today are GAVI and the Global Fund. One of the key features of public-private partnerships such as GAVI and the Global Fund is the ability to pool together scientific knowledge and expertise from both the public and private sectors. Such scientific contributions come mainly from research institutions, research teams within companies and/or experts in the scientific community; each partnership, GAVI and the Global Fund included, however, organises its scientific resources differently.

3.1. GAVI GAVI was established in 2000 under the auspices of the United Nations Children’s Fund (UNICEF). After being hosted by UNICEF for almost a decade, it became, on 23 June 2009, an independent international institution with privileges and immunities in Switzerland in accordance with the Host State Act.27 GAVI’s aims are to improve access to already existing vaccines, strengthen health systems within states and introduce new immunisation technology.28 It pursues these aims through innovative mechanisms such as an Advance Market Commitment, the International Finance Facility for Immunisation and Accelerated Development and Introduction Plans.29 The partners of GAVI contribute 27. ‘GAVI recognised as international institution’, GAVI Press releases, 23 June 2009, ; ‘Host State Bill’, Federal Department of Foreign Affairs of Switzerland, ; and the Federal Act on the Privileges, Immunities and Facilities and the Financial Subsidies granted by Switzerland as a Host State, 22 June 2007, Unofficial Translation, 192.12 (Host State Act), . 28. ‘Innovative Partnership’, . 29. ‘Innovative Funding’, and ‘Accelerated Development and Introduction Plans (ADIPs)’, .

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by participating in strategy and policy setting, advocating, fundraising, providing support to states and developing, procuring and delivering vaccines.30 GAVI’s partners include developing country governments, donor governments, research and technical health institutes, the industrialised country vaccine industry, the developing country vaccine industry, civil society organisations, the Bill & Melinda Gates Foundation, the WHO, UNICEF and the World Bank.31 The research and technical health institutes, the industralised country vaccine industry and the developing country vaccine industry, as partners, all make scientific contributions to the work of GAVI. The research and technical health institutes of GAVI represent the knowledge and experience of the research community on the GAVI Board, keep the research community informed of policies assumed by GAVI, provide technical staff and contribute to research and development.32 Scientific contributions are also made through industry, both industrialised and developing. The industrialised country vaccine industry has a representative on the GAVI Board who is a member of the International Federation of Pharmaceutical Manufacturers Associations (IFPMA) which represents more than 55 state industry associations. These associations of IFPMA are major global research-based pharmaceutical and vaccine companies and work towards accelerating the development and introduction of new vaccines needed by developing states.33 The developing country vaccine industry also has a representative on the GAVI Board who is, often, a member of the Developing Country Vaccine Manufacturers Network (DCVMN) which is a voluntary, public health network of companies from developing and middle-income states. The DCVMN, among its other goals, strives to encourage research and development to meet the needs of developing states.34 All these scientific contributions, in turn, inform the decisionmaking of GAVI as the research and technical health institutes, the industralised country vaccine industry and the developing country vaccine industry each have a representative serving as a voting member on the GAVI Board.35

30. ‘Innovative partnership’, supra note 28. 31. ‘Representative Board members’, . 32. ‘Research and technical health institutes’, . 33. ‘Industrialized country vaccine industry’, . 34. ‘Developing country vaccine industry’, . 35. Article 9, GAVI Alliance Statutes, 29-30 October 2008, .



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3.2. The Global Fund The Global Fund was established in 2002 as a foundation under Swiss law and signed an Administrative Services Agreement with the WHO whereby the WHO provided the Secretariat for the Global Fund. It gained status as an international institution with privileges and immunities in Switzerland on 13 December 2004 and in the United States on 13 January 2006. And on 1 January 2009, it became administratively autonomous by terminating its Administrative Services Agreement with the WHO.36 The Global Fund is focused on international health financing to support programmes in the prevention and treatment of AIDS, tuberculosis and malaria in states with a low income and a high disease burden. It does not implement programmes directly but instead relies on other organisations on the ground for local knowledge and technical assistance.37 The partners of the Global Fund with representative membership and voting rights on the Board include NGOs representative of the communities living with the diseases, a developed country NGO, a developing country NGO, developed countries, developing countries, private foundations, and the private sector. Ex officio Board members without voting rights include the Global Fund, Partners, the Joint United Nations Programme on HIV/AIDS (UNAIDS), the WHO, the World Bank and a Board designated Swiss member.38 As one of its core structures, the Global Fund has a Technical Review Panel which makes scientific contributions to the work of the Global Fund. It is an independent group of international experts on AIDS, tuberculosis and malaria and other cross-cutting issues. It reviews proposals for grants based on technical criteria (soundness of approach, feasibility and potential for sustainability) and then provides funding recommendations to the Board of the Global Fund. The 36. Article 1, The Global Fund to Fight AIDS, Tuberculosis & Malaria By-Laws, As Amended, 5 May 2009, ; Report of the Second Meeting of the Board, Global Fund to Fight AIDS, Tuberculosis and Malaria, 14 May 2002, at 38-39; Agreement between the Swiss Federal Council and the Global Fund to Fight AIDS, Tuberculosis and Malaria in view of determining the legal status of the Global Fund in Switzerland, ; ‘Global Fund Gains Privileges and Immunities Similar to International Organizations’, the Global Fund Press Release, 13 December 2004, ; Executive Order 13395 of January 13, 2006 Designating the Global Fund To Fight AIDS, Tuberculosis and Malaria as a Public International Organization Entitled To Enjoy Certain Privileges, Exemptions, and Immunities, ; and ‘The Global Fund Becomes an Administratively Autonomous Institution as of 2009’, the Global Fund Press Release, 19 December 2008, . 37. ‘How the Global Fund Works’, . 38. ‘Board Members’, .

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Board of the Global Fund then relies on these recommendations of the Technical Review Panel in deciding whether or not to provide funding.39 GAVI and the Global Fund both rely on the above-described scientific resources in the decisions they make in relation to global health. Representative membership with voting rights on the GAVI Board and being one of the core structures making recommendations to the Global Fund Board ensures that these scientific voices are heard in the decision-making processes of these partnerships. For example, a decision might be made to fund the development of a vaccine benefiting a developing state, in the case of GAVI, or to fund a programme in a developing state relating to the prevention and treatment of AIDS, tuberculosis or malaria, in the case of the Global Fund. Such decisions lengthen the reach of scientific discoveries and development to developing states and enable these developing states to reap the benefits of scientific progress. The interplay between science and public-private partnerships dealing with global health issues is apparent. This interplay then has an influence on the development of health policy.

4. Public-Private Partnerships and Health Policy Public-private partnerships, relying on scientific resources, are making decisions regarding global health issues and, in turn, influencing the development of health policy. That public-private partnerships are influencing the development of health policy is, however, not a revelation.40 The revelation is the fallout. As is subsequently illustrated, public-private partnerships are influencing health policy to such an extent that, increasingly, public-private partnerships are exercising public power over global health. GAVI, for example, decided to help fund a clinical trial of the rotavirus vaccine. The clinical trial found that the rotavirus vaccine greatly reduced severe diarrhoea episodes due to rotavirus. Based on these findings, the WHO, in June 2009, recommended that the rotavirus vaccine be included in all state immunisation programmes. The fact that the rotavirus vaccine is part of the portfolio of vaccines for which GAVI provides funding and that its inclusion in all state immunisation programmes was recommended by the WHO helped developing states get access to the rotavirus vaccine only three years later than developed 39. ‘Technical Review Panel’, . 40. See Eeva Ollila, ‘Health-Related Public-Private Partnerships and the United Nations’, in Bob Deacon, Eeva Ollila, Meri Koivusalo and Paul Stubbs, Global Social Governance – Themes and Prospects (Globalism and Social Policy Programme: Helsinki and Sheffield, 2003) 36-76 at 56-68; Allyn L. Taylor, ‘Shifting Norms in International Health Law’, American Society of International Law Proceedings (2004) 13-25 at 23; and Lawrence O. Gostin, ‘A Proposal for a Framework Convention on Global Health’, Journal of International Economic Law (2007) Vol. 10, No. 4, 989-1008 at 990.



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states (as opposed to the usual fifteen to twenty years’ lag).41 Another example of the influence of GAVI’s decision-making on the development of health policy is GAVI’s Injection Safety Support programme, striving to protect against needleinduced infection. GAVI’s funding decisions, in this regard, have encouraged several developing states to incorporate policies of this programme into their own programmes.42 Further, another example of the influence of GAVI’s decisionmaking on the development of health policy relates to the Global Immunization Vision and Strategy (GIVS) which is a ten-year (2006-2015) strategy to fight vaccine-preventable diseases through immunisation. Resolutions of the World Health Assembly applauded the involvement of GAVI in GIVS and specifically requested the Director-General of the WHO ‘to work with … GAVI … to build on existing international efforts and partnerships and facilitate the development of a consensus among developing and developed countries for meeting the financial gaps and other requirements for the attainment of the health-related Millennium Development Goals through immunization’.43 The Global Fund’s decision-making may also be said to be having an influence on the development of health policy. As the Global Fund is a financing body and does not implement programmes directly but instead outsources to local organisations, this influence may be more difficult to see than with GAVI. The Global Fund is regularly involved in policy discussions on global health. In June 2009, the Executive Director of the Global Fund addressed the United Nations Secretary-General’s Forum on Advancing Global Health in the Face of Crisis in New York. This forum was convened to engage decision-makers from around the world in debate about global health and to stimulate progress. The focus of the forum was on protecting vulnerable populations (particularly in relation to diseases that disproportionately affect developing states); building resilient health systems and enhancing coordination and coherence, through, for example, partnerships.44 The Global Fund has also been actively involved in other policy discussions on global health including the HIV/AIDS Implementer’s Meeting in June 2009 in Namibia, the International AIDS Conference in August 2008 in Mexico and the Eastern Europe and Central Asia AIDS Conference in May 2008 in Russia.45 41. ‘WHO recommends global use of Rotavirus vaccines’, GAVI Press releases, 5 June 2009, . 42. ‘GAVI support for injection safety is paying off’, GAVI features, 13 May 2009, . 43. Global Immunization Vision and Strategy homepage, and Global immunization strategy, WHA Res. 61.15, 24 May 2008. 44. ‘Secretary-General’s Forum on Advancing Global Health in the Face of Crisis’, , , and . 45. ‘2009 HIV/AIDS Implementers’ Meeting Opens in Namibia’, the Global Fund Press Release, 11 June 2009, ; ‘Dr. Kazatchkine’s Closing Speech at the International AIDS Conference in Mexico’, the Global Fund Press

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In addition to these specific examples, the significant funding that both GAVI and the Global Fund decide to give to deal with global health issues also reveals the influence the decisions made by these public-private partnerships have on the development of health policy. As of August 2008, GAVI had approved granting a total of US$3.7 billion to states for the period from 2000 to 2015.46 As of November 2009, the Global Fund had approved granting a total of US$19.3 billion for 572 programmes in 144 states. As the world’s largest funder of programmes fighting AIDS, tuberculosis and malaria, the Global Fund funds one-quarter of all global spending on AIDS, two-thirds of all global spending on tuberculosis and three-quarters of all global spending on malaria.47 The amount of funding provided by GAVI to deal with vaccines and immunisations and by the Global Fund to deal with AIDS, tuberculosis and malaria is a further signifier of the influence the decisions made by GAVI and the Global Fund are having on the development of health policy. Given GAVI’s role in dealing with vaccines and immunisations and the Global Fund’s role in dealing with AIDS, tuberculosis and malaria and also given the billions of dollars they each collect and distribute to deal with these global health issues, it would be difficult to argue that the decisions they make do not influence the development of health policy. Further, the partly public nature of these public-private partnerships places them in an optimal position – a connection to states and the ability to work with and through states gives these public-private partnerships leverage in influencing the development of health policy. The fallout of this influence on the development of health policy is that publicprivate partnerships are increasingly exercising public power over global health. Partnerships are managing activities that are normally regarded as in the domain of the state such as providing access to preventative and treatment measures for certain diseases or improving health infrastructure within the state to better manage the growing risk of disease. GAVI, for example, seeks to improve access to already existing vaccines, strengthen health systems within states and introduce new immunisation technology.48 The Global Fund, for example, strives to support programmes in the prevention and treatment of AIDS, tuberculosis and malaria in states with a low income and a high disease burden through international health financing.49 Both GAVI and the Global Fund are stepping in, recognising

46. 47. 48. 49.

Release, 11 August 2008, ; and ‘Largest Ever Regional AIDS Conference to Review Epidemic Status and Changing Challenges in the Response’, the Global Fund Press Release, 30 April 2008, . ‘Approved Support’, . ‘About the Global Fund’, and ‘Portfolio and Grant Performance’, . Supra section 3.1. Supra section 3.2.



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the insufficiency of the public or private sector alone in addressing these growing health concerns, and are filling, or partially filling, the shoes of states thereby usurping the public power to deal with global health issues. Such a move comes, however, not without its legal implications, one major legal implication being a gap in responsibility under international law.

5. The Gap in the Responsibility of Global Health PublicPrivate Partnerships Partnerships, due to their public-private composition, are growing outside the classical, inter-state framework of international law. Such growth has its advantages. One major advantage is flexibility. Flexibility is realised through a partnership’s ability to initiate, amend or terminate projects more simply and quickly than states or international organisations.50 Partnerships often circumvent complaints of bureaucratic slow-down which regularly recur when states or international organisations take (or do not take) action. Growing outside the classical, inter-state framework of international law is, thus, often purposively done.51 Such growth, however, also has its disadvantages. One major disadvantage is being located outside the purview of responsibility under international law. Responsibility under international law arises as an issue due to the shift taking place which moves (at least partly) public power over global health from the hands of states into the hands of public-private partnerships. Public-private partnerships are increasingly exercising public power over global health, as traditionally exercised by states, and, as a result, are becoming increasingly capable of breaching rights under international law. A breach of a right under international law by a global health public-private partnership has not yet been recorded however the possibility of such a breach is real. It is useful here to draw an analogy to the rise of international organisations in the mid-20th century. International organisations in their beginning years were seen as having ‘a great role to play in the salvation of mankind’ and incapable of doing harm.52 Capability to do harm was, however, eventually foreseen. In 1950, Eagleton wrote on the responsibility of the United Nations under international law even though no breach of a right under international law by the United Nations had been recorded necessitating recourse to responsibility under international law. 50. Craig Wheeler & Seth Berkley, ‘Initial lessons from public-private partnership in drug and vaccine development’, Bulletin of the World Health Organization (2001) 79(8) 728-734 at 731. See also Eyal Benvenisti, ‘“Coalitions of the Willing” and the Evolution of Informal International Law’, Tel Aviv University Law Faculty Papers (2006) Paper 31, 1-28 at 16. 51. See generally Benvenisti, ‘Coalitions of the Willing’, ibid. 52. Nagendra Singh, Termination of Membership of International Organisations (Stevens & Sons Limited: London, 1958) at vii.

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His idea was that as powers were being readily transferred to the United Nations, the United Nations was becoming increasingly capable of doing harm and therefore responsibility under international law needed to be addressed. In the absence of recorded breaches of rights under international law, he suggested scenarios where the United Nations might be found in breach of a right under international law and then proceeded to address responsibility under international law.53 The same reasoning may be applied, admittedly to a different degree, to global health publicprivate partnerships. Partnerships are changing the face of global health and the lives of millions, particularly in developing states. But as partnerships exercise power over global health, they become increasingly capable of doing harm and therefore responsibility under international law needs to be addressed. A couple of scenarios may help in illustrating how breaches of rights under international law might arise at the hands of global health public-private partnerships. GAVI announced in March 2010 that agreements have been made with two major pharmaceutical companies to supply new vaccines against pneumococcal disease to infants and young children in developing states. These companies committed to supply 30 million doses each year for a ten year period and at a fraction of the price charged to developed states.54 The Global Fund approved in November 2009 the roll-out of a pilot programme to provide access to certain treatments for malaria. It is set to take place in nine African states and Cambodia.55 Notwithstanding precautionary measures, a possibility exists that these pneumococcal vaccines provided through GAVI funding or these treatments for malaria provided through the Global Fund funding are unsafe and, as a result, damaging to the health and life of a population thereby infringing on the rights to health and life. If such scenarios, or similar scenarios, were realised, they would 53. Clyde Eagleton, ‘International Organization and the Law of Responsibility’, Recueil des Cours (1950) I, 319-423 at 385-404. See also E. Paasivirta and P.J. Kuijper, ‘Does One Size Fit All?: The European Community and the Responsibility of International Organizations’, Netherlands Yearbook of International Law (2005) Volume XXXVI, 169-226 at 173 transposing Eagleton’s ‘[p]ower breeds responsibility’ from Clyde Eagleton, The Responsibility of States in International Law (New York University Press, 1928) at 206 to international organisations. 54. ‘World’s poorest children among first to receive new life-saving pneumococcal vaccines’, GAVI Press releases, 23 March 2010, . 55. ‘Global Fund Approves US$2.4 Billion in New Grants’, the Global Fund Press Release, 12 November 2009, . See also Davinia Abdul Aziz, ‘Privileges and Immunities of Global Public-Private Partnerships: A Case Study of the Global Fund to Fight AIDS, Tuberculosis and Malaria’, IILJ Emerging Scholars Paper 14 (2009), at 2 referring to an allegation by The Lancet that the Global Fund funds ineffective malaria treatments (see Amir Attaran et al, ‘WHO, the Global Fund, and medical malpractice in malaria treatment’, The Lancet (17 January 2004) Vol. 363 and Vinand M Nantulya and Jon Lidén, ‘Response to accusations of medical malpractice by WHO and the Global Fund’, The Lancet (31 January 2004) Vol. 363).



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be realised absent a framework of responsibility under international law. A gap is thus created between exercises of public power over global health by publicprivate partnerships and responsibility under international law. As suggested and reasoned at the outset of this article, one possible way to close this gap might be to hold states, as partners, responsible under international law for the acts of global health public-private partnerships. The focus here is therefore through the lens of state responsibility. The sources on the law of state responsibility include customary international law and certain specialised treaties but the leading source on the law of state responsibility is the Articles on State Responsibility. It is then with specific reference to the Articles on State Responsibility that this article considers the responsibility of global health public-private partnerships. Article 1 of the Articles on State Responsibility sets out the general principle that ‘[e]very internationally wrongful act of a State entails the international responsibility of that State’.56 Article 2 then sets out the elements of an internationally wrongful act of a state which are attributability to the state and a breach of an international obligation of the state.57 A breach of an international obligation is a real possibility, as demonstrated above. Such a breach might arise, for example, where a public-private partnership, relying on its scientific resources, decides to provide vaccines or treatments to a population that are damaging to the health and life of that population thereby infringing on the rights to health and life. The discussion then moves to attributability to the state. Although the acts of non-state actors are generally not attributable to states under international law, there are exceptions.58 The exceptions which might apply in the instance of global health public-private partnerships, resulting in attribution of the acts of these partnerships to states, are found in Article 5 – ‘[c] onduct of persons or entities exercising elements of governmental authority’ and Article 8 – ‘[c]onduct directed or controlled by a State’.59

5.1. Article 5 – Conduct of persons or entities exercising elements of governmental authority Article 5 states that ‘[t]he conduct of a person or entity which is not an organ of the State under article 4 but which is empowered by the law of that State to exercise elements of the governmental authority shall be considered an act of the State under 56. Article 1, Articles on State Responsibility, supra note 7. 57. Article 2, ibid. 58. James Crawford, The International Law Commission’s Articles on State Responsibility – Introduction, Text and Commentaries (Cambridge University Press, 2002) at 110 and Rüdiger Wolfrum, ‘State Responsibility for Private Actors: An Old Problem of Renewed Relevance’, in Maurizio Ragazzi (ed.), International Responsibility Today Essays in Memory of Oscar Schachter (Martinus Nijhoff Publishers: Leiden, 2005) 423-434 at 424. 59. Articles 5 and 8, Articles on State Responsibility, supra note 7.

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international law, provided the person or entity is acting in that capacity in the particular instance’.60 It might be argued that states have empowered public-private partnerships such as GAVI and the Global Fund to deal with pressing global health issues that normally fall within the governmental authority of states such as the governmental authority to provide access to preventative and treatment measures for certain diseases or to improve health infrastructure within the state to better manage the growing risk of disease. Crawford interprets the term ‘entity’ in Article 5 as including ‘public corporations, semi-public entities, public agencies of various kinds and even, in special cases, private companies’.61 This interpretation would seem to leave space for entities such as public-private partnerships however according to Crawford, Article 5 is ‘intended to take account of … para-statal entities, which exercise elements of governmental authority in place of State organs, as well as situations where former State corporations have been privatized but retain certain public or regulatory functions’.62 Examples often given to illustrate the term ‘entity’ in Article 5 include ‘private security firms authorised to act as prison guards or … private or state-owned airlines exercis[ing] certain immigration controls or … railway compan[ies] to which certain police powers have been granted’.63 At present, hybrid entities such as public-private partnerships do not seem to be accommodated within the scope of the term ‘entity’ in Article 5. Perhaps, however, the scope of this term should be broadened to include a hybrid entity such as a public-private partnership. Such a broadening is not precluded on a plain reading of Article 5. Or should responsibility only be attributed to states under Article 5 where ‘para-statal entities’ or ‘former State corporations [that] have been privatized but retain certain public or regulatory functions’ are involved? Or are these types of entities regularly cited as examples simply because at the time of drafting the Articles on State Responsibility these were the types of entities reasonably foreseen to be covered by Article 5? Perhaps consideration should be had to extending Article 5 to reflect the changing nature of the relationships in which states participate, including public-private partnerships. Article 5 is further limited in its application to public-private partnerships by the requirement that only exercises of governmental authority empowered by the law of the state shall be attributed to the state. As Crawford states, ‘it is not enough that [the law of the state] permits activity as part of the general regulation of the affairs of the community’.64 Therefore, whether or not an act 60. Article 5, ibid., [emphasis added]. 61. Crawford, Introduction, Text and Commentaries, supra note 58 at 100. 62. Ibid. 63. Malcolm N. Shaw, International Law (6th edn, Cambridge University Press, 2008) at 787. 64. Crawford, Introduction, Text and Commentaries, supra note 58 at 102.



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of a public-private partnership falls within the parameters of Article 5 depends on whether or not the law of the state specifically authorised the act of the partnership. Specific authorisation by the law of the state is, however, likely difficult to locate in the acts of public-private partnerships. The acts of partnerships are specifically authorised through the decision-making processes of the partnerships, to be described in more detail in the subsequent section, rather than specifically authorised by the law of the state.

5.2. Article 8 – Conduct directed or controlled by a State Article 8 states that ‘[t]he conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct’.65 The phrase ‘person or group of persons’, on a plain reading, appears to be allencompassing. The general consensus is that it includes all persons or groups of persons, even if lacking legal personality, although ‘acting on a de facto basis’.66 As stated by Crawford, ‘while a State may authorize conduct by a legal entity such as a corporation, it may also deal with aggregates of individuals or groups that do not have legal personality but are nonetheless acting as a collective’.67 Publicprivate partnerships such as GAVI and the Global Fund seem to fall within the category of ‘person or group of persons’ without much debate. The phrase ‘acting on the instructions of, or under the direction or control of ’ is, however, more controversial. The phrase ‘acting on the instructions of ’ has not faced much scrutiny perhaps because once it is determined that a person or group of persons acted on the instructions of a state, a direct link between the person or group of persons and the state is established and attribution to the state follows. The phrase ‘under the direction or control of ’ has, however, been more heavily scrutinised. Much debate has taken place on the degree of direction or control required to invoke attribution to states. Although decided before the completion of the Articles on State Responsibility, a couple of cases shed light on the degree of direction or control necessary to trigger attribution to states. The leading case is Nicaragua, coming from the International Court of Justice (ICJ) and concerning the alleged responsibility of the United States for the conduct of the contras (rebel military forces opposing the Frente Sandinista de Liberación Nacional).68 At first glance, extrapolation of Nicaragua, dealing with a state directing or controlling military forces, to the situation here of states 65. Article 8, Articles on State Responsibility, supra note 7, [emphasis added]. 66. Crawford, Introduction, Text and Commentaries, supra note 58 at 113. 67. Ibid. 68. Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits), ICJ Reports (1986), at paras 18-20.

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directing or controlling a global health public-private partnership might seem far-fetched but a second glance reveals otherwise. Nicaragua is famously known for setting out the ‘effective control’ test. It held that ‘[f ]or … conduct to give rise to legal responsibility of the United States, it would in principle have to be proved that that State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed’.69 Possible ways states could establish effective control over global health public-private partnerships might be through financing and/or decision-making. States provide the lion’s share of the funding of public-private partnerships such as GAVI and the Global Fund. GAVI has been promised approximately US$9.44 billion from states (in comparison to US$1.21 billion from other donors) while the Global Fund has been promised approximately US$21.06 billion from states (in comparison to US$842.38 million from other donors).70 These partnerships rely on states’ funding for their operation. Financing alone may not, however, be enough for states to establish effective control over a partnership. Decisionmaking by states, as partners in a partnership, may also need to be looked to in order to establish effective control. States serve as board members with voting rights on both the GAVI Board and the Global Fund Board. The GAVI Board has 18 representative members that comprise two-thirds of the voting members. Of these 18 representative members, ten seats are filled by states (five for representatives of developing country governments and five for representatives of donor country governments).71 A quorum of the Board is a majority of all voting members. The Board strives for consensus in its decision-making but if consensus cannot be reached, a decision of the Board requires two-thirds majority of the members present and voting.72 The Global Fund Board has 20 voting members. Of these 20 voting members, 15 seats are filled by states (seven for representatives of developing countries and eight for representatives of donors).73 A quorum of the Board is a majority of members of each of the following two voting groups: (a) the group encompassing the eight donor seats and the two private sector seats and (b) the group encompassing the seven developing country seats, the two NGO seats and the seat of a representative of an NGO who is a person living with HIV/AIDS or from a community living with tuberculosis or malaria. The Board strives for consensus in decision-making but if consensus cannot be reached, any voting member may call for a vote. In order for a motion to pass, two-thirds majority of those present of the two voting groups, described above, 69. Ibid., at para. 115. 70. ‘Donor contributions and commitments’, and ‘Pledges & Contributions’, . 71. Article 9, GAVI Alliance Statutes, supra note 35. 72. Article 15, ibid. 73. Article 7.1, The Global Fund to Fight Aids, Tuberculosis & Malaria By-Laws, supra note 36.



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is required.74 Both the GAVI Board and the Global Fund Board thus require a certain degree of state approval before a decision of the partnership is made. But is this, combined with financing, sufficient for states to be said to have effective control over these partnerships? According to Nicaragua, ‘participation, even if preponderant or decisive, in the financing, organizing, training, supplying and equipping … and even [ ] general control … would not in themselves mean, without further evidence, that the [state] directed or enforced the perpetration of the acts’.75 ‘Effective control’ was thus interpreted in Nicaragua to mean a high degree of control including not only overall control but further specific instructions. Financing and participating in the general decision-making of these partnerships, absent specific instructions, would likely fall short of meeting the ‘effective control’ test, as set down by Nicaragua. Another case which gives a perspective on the meaning of ‘direction or control’ is a case of the International Criminal Tribunal for the former Yugoslavia (ICTY). In Tadić, the Appeals Chamber of the ICTY was dealing with the question of whether the conflict in Bosnia and Herzegovina was still an international conflict or instead had become an internal conflict. The answer to this depended on whether the Bosnian Serb Forces were considered under the control of the Federal Republic of Yugoslavia.76 Although this case dealt with individual criminal responsibility, the Appeals Chamber held that recourse to general international rules on state responsibility was necessary.77 The Appeals Chamber held that the requisite degree of control varies in accordance with the factual situation and it ‘fail[ed] to see why in each and every circumstance international law should require a high threshold for the test of control’.78 It then proceeded to distinguish between two types of groups – individuals or groups that are not militarily organised and organised military groups. To the former, i.e. individuals or groups that are not militarily organised, the Appeals Chamber kept consistent with the high degree of control required by Nicaragua. It stated that for individuals or groups that are not militarily organised, it is necessary to determine not only that the state exercised authority over the individual or group but further ‘whether specific instructions concerning the commission of that particular act had been issued by that State to the individual or group in question; alternatively, it must be established whether the unlawful act had been publicly endorsed or approved ex post facto by the State at issue’.79 To the latter, i.e. organised military groups, however, the Appeals Chamber required a lesser 74. Articles 7.6 and 7.7, ibid. 75. Nicaragua, supra note 68 at para. 115. 76. Prosecutor v. Duško Tadić, Case no. IT-94-1-A, ICTY Appeals Chamber, Judgment (15 July 1999), at paras 83-87. 77. Ibid., at paras 98, 103-104. 78. Ibid., at para. 117. 79. Ibid., at para. 137.

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degree of control. It stated that ‘[b]y contrast, control by a State over subordinate armed forces or militias or paramilitary units may be of an overall character (and must comprise more than the mere provision of financial assistance or military equipment or training)’.80 It continued stating that ‘[t]his requirement, however, does not go so far as to include the issuing of specific orders by the State, or its direction of each individual operation’.81 The Appeals Chamber highlighted the differences between the two groups as follows: ‘an organised group differs from an individual in that the former normally has a structure, a chain of command and a set of rules as well as the outward symbols of authority. Normally a member of the group does not act on his own but conforms to the standards prevailing in the group and is subject to the authority of the head of the group’.82 The level of organisation and hierarchical structure of the group is, according to Tadić, decisive in lessening the degree of control necessary to attribute acts to states. Applying Tadić in the context of public-private partnerships such as GAVI and the Global Fund leaves these partnerships in essentially the same position as applying Nicaragua. Although Tadić downgrades the high degree of control necessary to attribute acts to states, it does so only in the context of organised military groups. By focusing on organised military groups, however, it is not clear whether a group that, although not military, is organised and hierarchically structured could also be subject to this lesser degree of control. Could publicprivate partnerships be subject to this lesser degree of control if organised and hierarchically structured? Or should partnerships be treated akin to individuals or groups that are not militarily organised whereby a high degree of control, including specific instructions, is required to attribute acts to states? As with Nicaragua, Tadić leaves public-private partnerships in a dubious position in terms of attributing the acts of partnerships to states. A few years after Tadić, the Articles on State Responsibility were completed and consensus grew on interpreting Article 8 consonant with Nicaragua, rather than Tadić.83 A more recent case of the ICJ – the Bosnian Genocide case – considered Nicaragua, Tadić and the meaning of Article 8.84 The ICJ in the Bosnian Genocide case held that effective control must be ‘in respect of each operation in which the alleged violations occurred, not generally in respect of the overall actions taken by the persons or groups of persons having committed the violations’.85 The ICJ further noted that:

80. 81. 82. 83. 84.

Ibid. Ibid. Ibid., at para. 120. Crawford and Olleson, ‘Nature and Forms of International Responsibility’, supra note 6 at 462-463. Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) (Judgment), ICJ Reports (2007). 85. Ibid., at para. 400.



Global Health Public-Private Partnerships 371 the “overall control” test [suggested by Tadić] has the major drawback of broadening the scope of State responsibility well beyond the fundamental principle governing the law of international responsibility … the “overall control” test is unsuitable, for it stretches too far, almost to breaking point, the connection which must exist between the conduct of a State’s organs and its international responsibility.86

Any door opened by Tadić seems to have been closed by the Bosnian Genocide case. The repercussions for global health public-private partnerships of this recent decision of the ICJ is that acts of partnership will likely only be attributed to a state where effective control by state over the partnership, in the form of specific instructions from the state to the partnership, is found. This is assuming, of course, that the attribution rules of state responsibility are interpreted to cover not only military forces but also other entities, such as global health public-private partnerships. There appears to be a reluctance to stretch the scope of state responsibility and this may very well include any possible extension of the attribution rules to global health public-private partnerships. But should responsibility only be attributed to states under Article 8 where military forces are involved? Or are these types of entities regularly cited as examples simply because at the time of drafting the Articles on State Responsibility these were the types of entities reasonably foreseen to be covered by Article 8? Perhaps consideration should be had to extending Article 8 to reflect the changing nature of the relationships in which states participate, including public-private partnerships.

6. Conclusion The relationship between science and global health law has wavered over the years with the result that global health law has not always developed in step with science. This is particularly visible in developing states. These states often face diseases such as AIDS, tuberculosis and malaria yet do not fully reap the benefits of scientific progress in relation to the prevention and/or treatment of these diseases. Publicprivate partnerships, such as GAVI and the Global Fund, are forming, in response, in order to deal with these pressing global health issues. These partnerships bring together resources of the public and private sectors, including scientific resources, and rely on these resources when making decisions. The decisions of public-private partnerships are, in turn, influencing the development of health policy and the governance of global health. The fallout of this influence is that public-private partnerships are increasingly exercising public power over global health. The work of public-private partnerships such as GAVI and the Global Fund is generally seen as invaluable. But before applauding and leaving the concert with a 86. Ibid., at para. 406.

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smile it is important to reflect on these partnerships and to see how they fit within the classical, inter-state framework of international law, particularly in terms of responsibility. The issue of responsibility stems from the shift taking place which moves (at least partly) public power over global health from the hands of states into the hands of public-private partnerships. These partnerships, due to their public-private nature, reside, however, outside the classical, inter-state framework of international law which means they also reside outside any framework of responsibility under international law. As a result, a gap exists between exercises of public power over global health by public-private partnerships and responsibility under international law. To close this gap, this article suggested attributing the acts of global health public-private partnerships to the integral partners in such partnerships – states. The specific articles of the Articles on State Responsibility which might allow for the attribution of the acts of these partnerships to states are Article 5, dealing with exercises of governmental authority, and Article 8, dealing with a person or group of persons directed or controlled by a state. Applying Article 5 and Article 8 to global health public-private partnerships is, however, not routine. It would require these articles to be applied in ways not foreshadowed. But, in order to close the gap in the responsibility of global health public-private partnerships, such application must be given thoughtful consideration.

The role of scientific committees within Regional Fishing Commissions Sophie Gambardella* Abstract: The omnipresence of science in environmental protection has led law-makers to consult experts. In terms of management and conservation of fisheries, this interaction between science and law has been institutionalized within Regional Fishing Commissions through the creation of permanent scientific committees. These committees are made up of experts and give advice to Commissions, who use it to set up the rules which regulate management decisions. Although at first sight the scopes of respective roles seem strictly defined, one can note, particularly through the case of the International Commission for the Conservation of Atlantic Tuna, that more than an interaction we are maybe witnessing a mix-up between science and law. Keywords: expert, ICCAT, decision-making process, science, regional fishing commissions.

1. Introduction It is a traditional assumption that international law deals with relations; it regulates social facts in order to ease tensions which could arise from states over-exercising their sovereignty. From this point of view, international law is thus constructed inductively; it comprehends social needs and offers the sought-after norm, which is, by nature, a social norm. In 1972, during the Stockholm summit, this approach of the creation of international law was shaken at two levels. International law, which was almost exclusively seen as a law of relationships, also became a law of phenomena – these phenomena being originally rooted in natural causes but then modified or even turned upside down by human activities. In such a situation, the development of international rules requires not only that their makers understand a given natural phenomenon but also the impacts human activities have on this phenomenon. *

Teaching Assistant, Centre d’Etudes et de Recherches Internationales et Communautaires (CERIC – CNRS UMR 6201), Faculty of law and political science, University Paul Cézanne Aix-Marseille III.

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Law-makers have to turn to competent people who are able to provide the knowledge needed to make a decision on the appropriate legal rule. In other words, law-makers turn to experts, defined ‘in legal terms (...) as persons mandated in the framework of an expertise, that is to say a procedure aiming to enlighten an authority which has to make a decision’.1 The need to seek expert advice is all the more unavoidable as Principle 2 of the Stockholm Declaration2, leads to complement the inductive rule creation method with a prospective method, which will give the rule two additional dimensions, one preventive and one curative. Thus, in the field of international law, besides rules of a purely social nature, other rules appear which aim at meeting social needs but are grounded in scientific knowledge. These hybrid rules are often described as ‘socio-technical’3 when they contain specific technical requirements. More generally, they could be described as ‘socio-scientific’ rules when they are based on scientific expertise, but do not necessarily contain any technical data. Socio-scientific rules today run throughout the whole of the fields covered by international environmental law: climate change, biodiversity protection, biotech products etc., and their drafting is grounded in the recourse to experts. The issue of the role experts had in the making of the law which aims at regulating the management of these phenomena has been the object of extensive literature with regard to climate change4 and biotechnological products.5 Yet, as regards biodiversity, studies on this topic are scarcer. Still, numerous decisions on the rules which are necessary to enhance biodiversity conservation cannot be made without scientific data. Concerning the conservation of fisheries for example, it 1. ‘au sens juridique (…) comme la personne désignée dans le cadre d’une expertise, c’est-à-dire d’une procédure destinée à éclairer une autorité chargée de prendre une décision’: Raphaël Encinas de Munagorri, ‘Quel statut pour l’expert?’ 103, Revue française d’administration publique (2002) 379-389, at 379. All translations are the author’s. This definition of expertise is commonly accepted by all the authors who deal with the issue, whether they are legal experts or sociologists. 2. Declaration of the United Nations on the Human Environment, adopted 16 June 1972, 11 ILM 1416 (1972). ‘The natural resources of the earth, including the air, water, land, flora and fauna and especially representative samples of natural ecosystems, must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate’. 3. Michel Callon & Arie Rip, ‘Humains, non-humains: morale d’une coexistence’, in Jacques Theys & Bernard Kalaora, La Terre outragée: les experts sont formels ! (Paris, Editions Autrement, 1992), 140-156. 4. For a full study of this question, see Raphaël Encinas de Munagorri, Expertise et gouvernance du changement climatique (Paris, LGDJ, 2009), 1-239. 5. In the WTO special group’s report in the European Communities –Measures affecting the approval and Marketing of biotech products case, an incredible number of experts were involved and the question of the role of experts arose from this very complex dispute. For a comment, see the special issue of the Revue européenne de droit de l’environnement, ‘Dossier spécial: le différend Communautés européennes-produits biotechnologiques tranchés à l’OMC’ edited by Marie-Pierre Lanfranchi, 2, REDE, (2008), 127-170.



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would be unthinkable to set fishing quotas for certain species randomly. Science, in this domain, will be the foundation of law-making. In view of this observation, numerous Regional Fishing Commissions have established scientific committees, which were integrated into their structure. Amongst these numerous commissions, one of them deserves special attention because of its particular ratione materiae competence, the conservation of tunas. In 2008, the editorial of an issue of the ‘Courrier de la Planète’ dedicated to biodiversity drew attention with its alarming title: ‘Red Alert on Tuna!’ The increasing difficulties of replenishing this stock, which is overfished due to its high market value were once again emphasized. In its conclusion, the editorial pointed an accusing finger at the international management of this resource, describing it as ‘a real textbook case of environmental governance mess’.6 However, since the 1970s, efforts have been made to manage this stock and the fears of seeing it disappear played a large part in the 1966 creation of the International Commission for the Conservation of Atlantic Tunas (ICCAT).7 The first tuna organization, the Inter American Tropical Tuna Commission (IATTC) created in 1949, only covered the Asia-Pacific region, and the Atlantic region had no particular structure to manage this stock until the ICCAT was created. The ICCAT covers not only the whole of the Atlantic Ocean but also adjacent seas. The ICCAT quickly stood out from all other tuna organizations because it wasn’t in competition with any other regional fishing organization8 and because it focused on red tuna, an emblematic species. When the ICCAT was created, the writers of the Convention were already aware of some of the challenges of tuna management; everyone knew that without the relevant scientific data, lawmaking and decision-making would be at best inefficient, and at worst counterproductive. The creation of the Commission then came with the creation of a Standing Committee on Research and Statistics (SCRS) to scientifically support the Commission. Before the ICCAT was created, some data on Atlantic tuna had been gathered by a specialized working group from the International Council for the Exploration of the Sea. Yet this group merely gathered data, which means that no global assessment of the stock had been carried out. The SCRS was intended to compensate for this lack of scientific data by carrying out stock assessments 6. ‘Un véritable cas d’école en matière d’imbroglio de gouvernance environnementale’: 86, Courrier de la planète, (April-June 2008), at 1: This issue was based on a conference organised by IDDRI (Institute for Sustainable Development and International Relations) on the 20th and 21st of March 2008 in Monaco, entitled ‘Towards a new governance of biodiversity on the open sea’. 7. The Rio de Janeiro conventionom biological diversity, 5 June 1992, in force 29 December 1993, UNTS 30619. Founding agreement of the ICCAT, was adopted in May 1966. It was ratified by seven states and entered into force on the 21st of March 1969. 8. The ICCAT could have overlapped the scope of the General Fisheries Council for the Mediterranean (GFCM) but cooperation between the two organizations was set up, giving the ICCAT a quasi monopoly on tuna-related rules. See also Chapter 2.2. on GFCM.

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of different tunas in the Atlantic Ocean and adjacent seas, and by recommending measures the Commission should adopt in order to ensure the sustainable management of tuna fisheries stock. These two bodies are thus working in the same direction and within the same framework, in order to set up socio-technical rules which aim at reaching a balance between ecological stakes and economic needs. In temporal terms, one step should logically follow the other: science first, then law-making. However, the hybrid nature of the result of such process (the socio-technical rule) leads jurists to consider this linear approach with caution. By nature, the hybrid rule suggests an intersection between these two areas in which reciprocal influences between science and law can be anticipated. Questions deepen and answers become more confused when contemplating the respective parts of science, law and their interactions in the drafting of socio-technical rules. Another distinction comes fully into play when one attempts to measure the interactions between science and law. An individual, who is an expert in his/her field and is qualified with regard to a particular question, does not necessarily become an expert in the legal meaning of the term.9 This suggests that the expert, that is to say the person entitled to bring specific knowledge to law-makers, does not fulfil the same role. Indeed, a scientist, whose work consists in conducting research in order to elaborate scientific theories or statements, will find himself playing another role when mandated as an expert. The integration of SCRS scientists within the ICCAT structure could in this view change the nature of their work, due to the fact that science would be absorbed in the law-making process whirlpool. According to some, ‘the knowledge elaborated in these circumstances does not have the status of scientific knowledge’.10 Without adopting such a purist view of science,11 an observation of the functioning of the SCRS leads us to concede that scientific statements are somewhat transformed within the ICCAT. From another point of view, one could also point at the fact that without the experts’ scientific statements, decision-makers would lack arguments to justify the often unpopular legal obligations they impose in order to protect the environment. How could one convey to fishermen that they must reduce their yield and therefore their income without being backed up by scientific statements to explain that, in the long term, stocks will run out if the fishery efforts are not reduced? Similarly, at a higher level, how could one convince states to accept being bound by ICCAT recommendations imposing fishing quotas when not only will these quotas be detrimental to their economy in the short term, but also the implementation of these measures at a national level will create inevitable social 9. See the above definition. 10. ‘la connaissance élaborée n’a [alors] pas le statut de la connaissance scientifique’: Philippe Roqueplo, Entre savoir et décision, l’expertise scientifique (Paris, INRA, 1997), at 16. 11. It is, one must admit, easier not to have such a vision of a particular field when it is not one’s own.



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tension? When adopting international and domestic measures, emphasis put on the fact that socio-technical rules are justified on a scientific basis can help to abort all tensions and reluctances, which could be generated by environmental protection rules which reduce the primacy of economy over ecology.

2. Is scientific knowledge denatured by the law-making process? It is commonly accepted that science is ‘the systematic study of the structure and behaviour of the physical world, especially by watching, measuring and doing experiments and the development of theories to describe the results of these activities’.12 This definition reveals several characteristic features of scientific statements. Science results from an observation of facts and deductions derived from these observations. In addition, before any scientific statement is reached, experimental verifications must be carried out. What is the aim of this verification? It is to ensure that the scientific statement is objective, in the sense that what is expected of a scientific statement is a reflection of findings and not of what the scientist would have liked to find. Within the ICCAT, the SCRS should then produce objective scientific statements on the state of stocks, on the basis of which the Commission could base its decision to adopt appropriate rules. However, the observation of the SCRS structure leaves doubts as to the objectivity of their scientific statements. In addition, recourse to ‘exact’ science to produce socio-technical rules could, because of its name, be misleading. Obviously, this type of science is not ‘exact’ ad vitam eternam; it is called ‘exact’ at the precise moment it is produced, which is to say, based on the knowledge available at that time. What is more, the fact that some scientific statements are grounded in ‘exact’ sciences does not mean that they are without uncertainties, quite to the contrary, as uncertainty is inherent to science and is its very raison d’être. And yet, ‘in environmental law, we are witnessing an instrumentalisation of the law aiming at hiding scientific uncertainties’,13 and this hiding occurs within the ICCAT even before the diplomatic body negotiations come into play.

12. Definition from the Cambridge Advanced Learner’s Dictionary. 13. Michel Prieur, ‘Incertitude juridique, incertitude scientifique et protection de l’environnement’, in Incertitude juridique, Incertitude scientifique, Acts from the seminar of l’Institut Fédératif ‘Environnement and Water’ held in Limoges, France, on the 5th of April 2000 (Limoges, PULIM, 2001), 9-16, at 14.

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2.1. Framing the objectivity of scientific statements in jure Observing the structure of the SCRS to determine the degree of objectivity of the scientific statements it produces implies to adopt a global vision of its functioning with a special attention to its setting up, budget, and terms of office. Unsurprisingly, the SCRS is made up of distinguished scientists in their field, but more than their national positions, it is their status within the SCRS which is of prime importance in this analysis. The functioning of the SCRS allows for the intervention of two types of scientists: one type works as a representative of their state; another type work mostly as observers, individually or within the framework of an NGO.14 Experts appointed by member states work within the ICCAT on the basis of data supplied by their state. During the SCRS inter-sessions, scientists who do not belong to the ICCAT and observers can submit scientific reports on specific issues through the ICCAT Secretariat. For both categories of experts, scientific reports will be discussed during the plenary meetings of the Committee15 in order to determine the scientific statement which will be transmitted to the Commission. Seen in this light, the composition and functioning of the SCRS does raise questions as to the objectivity of the expertise it provides. Traditionally, experts are expected to be impartial and independent so as to be able to deliver objective scientific statements. Studies dealing with a possible international status for experts endeavour to find ways to guarantee such independence and impartiality.16 In terms of jurisdictional expertise,17 experts’ independence and impartiality are quite often only ‘guaranteed’ by the fact that experts take an oath in front of the tribunal, which sometimes leads to improbable situations. Such was the case in the Case concerning Land Reclamation by Singapore in and around the Straits of Johor18, brought before the International Tribunal for the Law of the Sea (ITLOS). The expert appointed by Malaysia worked first as the main technical advisor for Malaysia before taking an oath in order to allow the Tribunal to question him as ‘an expert’. His independence and impartiality were, in this case, more than questionable.19 14. The Commission adopted the criteria related to the observer status in its Decision [05-01] of the Commission, adopted at its 11th Special Meeting held St James of Compostela, Spain, 16-23 November 1998 and amended at its 19th Regular Meeting, Sevilla, Spain, 14-20 November 2005. 15. The SCRS holds annual meetings. Since 1987, the SCRS and the Commission meetings have been held separately, the SCRS meetings taking place one month before the Commission’s to give the Commission sufficient time to read the SCRS report. 16. Encinas de Munagorri, ‘Quel statut pour l’expert?’, supra note 1, 379-389. 17. On the relationship between judges and experts, see Olivier Leclerc, Le juge et l’expert: Contribution à l’étude des rapports entre le droit et la science (Paris, LGDJ, 2005), 1-471. 18. Case concerning Land Reclamation by Singapore in and around the Straits of Johor (Malasia v. Singapore) ITLOS Order (10 September 2003). 19. Case concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v. Singapore), ITLOS/PV.03/01, at 18.



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Some authors have gone so far as to wonder whether experts’ independence and impartiality in law-making or decision-making processes was, in the end, desirable on the international scene.20 In their view, ‘objective’ scientific statements may lessen the role of consensus between states in law-making. Furthermore, the regulation of environmental protection often consists in finding a fair yet fragile balance between nature preservation and economic development, which allows for the adoption of the socio-technical rules states can endorse. A purely scientific statement is not supposed to take economic aspects into account at all and there is thus a risk that this would make states wary, or even reluctant. According to this reasoning, recourse to experts appointed by states – who are necessarily influenced, at least unintentionally, by their national priorities and difficulties – seems, viewed from this angle, much more acceptable than the creation of a body of international independent experts in charge of delivering international ideally ‘objective’ science. The International Law Commission indeed noted in 1973 that its success was partly due to ‘the continuing interaction (...) between scientific expertise and the governments’ responsibilities, between independent thought and the realities of international life’.21 The SCRS, because of its composition, also constantly confronts observers’ independent thought with the reality of international life conveyed by the experts representing their states. During a first stage, scientific experts write their reports and give these to the SCRS plenary session. Then comes a second stage of debate and transparency or at least, of something near the democratization of expertise. Interestingly, this model comes close to the balance between the confidentiality and the publicity of expertise which Philippe Roqueplo recommended.22 The objectivity of scientific statements must thus be seen as a relative notion, for almost from the start scientific statements are tinged with political realism. The integration of science within the law-making process thus leads to move away from the idea of ‘pure’ science and to admit the existence of politically reasonable, or at least acceptable, scientific statements on which socio-technical rules can be built. The fact that scientific statements are distorted by the necessities of the law-making process is amplified in the framework of the ICCAT by the means given to the SCRS to fulfil its mission: the SCRS budget is indeed an integral part of the general budget of the Commission. If in 1998 it was not difficult to obtain a consensus among the 23 member states on the budget to be adopted, nowadays, the number of ICCAT member 20. Yves Daudet, ‘Les membres des commissions d’experts’, in French Society for International Law, Les agents internationaux, Acts from the Symposium of the FSIL held in Aix en Provence, 24-26 May 1984 (Paris, Pedone, 1985), 93-107, at 96-101. 21. Annual Report of the International Law Commission on its twenty-fifth session, UN Doc. A/9010/Rev.1 (1973) at para. 166. 22. Roqueplo, Entre savoir et décision, l’expertise scientifique, supra note 9, at 57-61.

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states has nearly doubled and the ranks were joined by small states which lack the means which would be necessary to increase the ICCAT general budget. Nevertheless, non-budgetary funds made up of voluntary contributions from some states were set up to allow scientists from developing countries not only to attend SCRS meetings but also to benefit from trainings in order to involve them efficiently in the expertise process. For the time being, as the SCRS budget depends on the political will of the states, these can choose what they want to finance, a situation which, without having a direct impact on the objectivity of expertise, is still another way of framing it politically. Thus, the diplomatic body keeps a permanent eye on what will constitute the basis of the socio-technical rules elaborated within the ICCAT. The functioning of the SCRS does have an influence on expertise, even before it is conducted. Nevertheless, the objectivity of its scientific statements is not completely annihilated, since the SCRS is free to choose the subject of its research. Experts whose work is intended to be used in a decision-making process are in a relationship in which the one who commissioned the expertise determines its object. The work carried out by the SCRS23 thus meets the requests of the Commission, issued in recommendations and/or resolutions, or even its own recommendations. These recommendations and/or resolutions are very generic and use wording like ‘[i]n the year 2009, and thereafter every three years, the SCRS shall conduct a stock assessment and provide advice relative to paragraphs 2 and 3’ or ‘[t]he Commission requests that SCRS carry out an evaluation of the fishing capacity of the different fleets/vessels that participate in this fishery with a view to establishing the corresponding fishing efforts’.24 The content is thus not conditioned by the requests from the Commission since it only requires from the Committee an obligation of results and the Committee’s scope for action is complete with regard to the means. Moreover, nothing, if not its budget, prevents the Committee from acting ultra petita, as it made the point of stating in its latest report: ‘that although the Commission does not systematically request assessments (or accepts when these have been proposed by the SCRS), the Com23. The SCRS includes: - Sub-Committees: Sub-Committee on Statistics and Sub-Committee on Ecosystems; - Species groups: tropical tunas, albacore, bluefin tuna, billfishes, swordfish, sharks, small tunas, southern bluefin tunas; - Other working groups: Stock assessment methods working group, ad hoc working group on coordination of tagging information; - Special research programs: Enhanced Billfish Research Program, bluefin Year Program (BYP). Emphasis in this contribution is put on the stock assessment group, the other groups mainly working on improving scientific research techniques, which does not lead to drawing up socio-technical rules. 24. ‘Recommendation by ICCAT concerning the limitation of fishing capacity on northern albacore’, Recommendation [98-08], entered into force on the 21th of June 1999, at para 7, (visited 24 November 2009).



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mittee considers that it is their responsibility to carry out a regular follow-up (as far as possible, annually) of the fisheries’ development and proceed, routinely, to carry out necessary analysis to formulate advice on the most recent state of the stocks that are under its mandate’.25 Without exceeding the Commission’s assigned objectives, the Committee can in this way carry out regular scientific work, far from sporadic political moods and the pressure they can create. Scientific statements issued by the SCRS will thus be relatively objective, but sufficiently so for allowing to consider them to be scientific statements. The legal framework surrounding the SCRS undoubtedly conditions the scientific statements produced. When expertise enters the realm of law and decisionmaking, it is immediately caught up in political stakes so that interaction and blurring exists between science and law ab initio in the drafting of socio-technical rules, and these rules can even end up getting drafted within the scientific body.

2.2. The de facto erasing of the plurality of truths In practice, the making of scientific statements happens in two stages: the first stage is confidential, the second one public. During the confidential stage, scientific documents which will be discussed during the second stage are drawn up. Some points that are of interest in the analysis of the interactions between science and law deserve to be developed further. The role of scientific data is undeniable in the carrying out of an expertise, even more so when the subject is as elusive as a state-of-the-stock assessment. The quality and quantity of the available data will determine the degree of uncertainty in the final scientific statement. Thus, extensive scientific data will allow reducing the number of initial assumptions and the number of hypotheses about the situation in conclusion. Data gathering represents the Achilles tendon of the system. When the SCRS started working, only Japan had a statistics system that enabled the gathering of reliable data on tuna catches; the other states had only partial information about their catch. Furthermore, the data often stayed at a national level which made it difficult for the scientists to collect and analyse it, thus forcing them to multiply initial assumptions to carry out their expertise.26 Even if, with time, many states established efficient statistic systems, the problem of data collection still remains at the heart of the debate. Today, states do have all the data needed by scientists but they often falsify the results to avoid being put 25. Report of the Standing Committee on Research and Statistics (SCRS), Madrid, Spain, 29 September-3 October, 2008, at 188, (visited 24 November 2009). 26. Alain Fonteneau, ‘Scientific and historical summary of ICCAT: Rio de Janeiro 1966-Dubrovnik 2006’, in ICCAT, Contributions to the Commemorative sessions of the 40th Anniversary of ICCAT held during the 2006 SCRS and Commission meetings, at 10, (visited 24 November 2009).

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in the dock. In fact, the quotas imposed on the states lead them not to declare excessive catches and the scientists then get underestimated figures. They must then speculate on the existing gap between state declarations and actual catches.27 This problem could be solved if the SCRS had the means to collect data with scientific vessels and if it were no longer obliged to rely on the states. In the current state of the system, the scientists working in the SCRS are forced to multiply their assumptions to cover all the uncertainties reinforced by the lack of accurate scientific data. In the end, the result cannot be one scientific statement but a range of scientific statements. And yet, these scientific statements will become the scientific basis for estimates of the impact of catches on future fish stocks elaborated by scientists specialized in population dynamics. Population dynamics can be defined as ‘the field which endeavours to explain and forecast the impact of fishing upon halieutic resources through modelization. Objectively and from its first studies, it aims at supporting decision-making in fishery management’.28 This field is a branch of quantitative biology which ‘has been, if not the sole source, then the most important source of expertise in fishing management’.29 On this point, the SCRS is not an exception to the rule, but it has encountered some difficulties in its implementation. Global models of stock dynamics representation use two types of data: fishing effort and rate of catch. The low degree of reliability of the data available to the SCRS can distort the modelization or force the scientists once again to multiply hypotheses. Moreover, the SCRS still uses Maximum Sustainable Yield (MSY) as a reference for numerous overexploited species, although the fishing mortality rate has been found a more relevant criterion – still insufficient – both within the ICCAT30 and by the doctrine.31 Diversified precautionary reference points depending on the state of the stock would best offer most the needed perspectives for stock management32; 27. This problem is particularly acute concerning the East Atlantic and Mediterranean bluefin tuna. The economic and social stakes surrounding this species have led states to provide underestimated catches figures – or no information at all. 28. ‘la discipline qui vise à expliquer et prédire l’effet des pêches sur les ressources halieutiques par la modélisation. Elle se situe sans ambiguïté, et dès les premiers travaux, comme une aide à la décision pour la gestion des pêches’: Gérard Biais, ‘Progrès scientifique et gestion des pêches’, in JeanPierre Beurier, Alexandre Kiss & Said Mahmoudi eds., New technologies and law of the marine environment (The Hague/London/Boston, Kluwer law international, 2000), 3-21, at 6. 29. ‘a été, et reste la source d’expertise majeure sinon souvent exclusive en gestion des pêches’: Ibid., at 10. 30. Report of the Independent Performance Review of ICCAT, Madrid, 2009, at 38, (visited 24 November 2009). 31. For an explanation of the stakes of population dynamics, please see Biais, ‘Progrès scientifique et gestion des pêches’, supra note 27, 3-21. 32. UN Agreement for the Implementation of the Provisions of the United Nations, Convention on the Law of the Seas relating Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 10 December 1982, in force 11 December 2001, UN Doc. A/ Conf. 164/37.



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this solution was indeed recommended by the 1995 United Nations Agreement on straddling stocks. Faced with these obstacles in the making of undisputable scientific statements, SCRS scientists have to resort to the production of plural truths, each one being accompanied by a vector of occurrence probability. Given the situation, this plurality of truths in scientific knowledge can be seen as the guarantor of the reliability of scientific statements, considering that ‘[t]he time of single truths, the pride and joy of the age of the Enlightenment, hopelessly devoted to the cult of the Goddess Reason, has been replaced by a time of doubting and uncertainty, a time of unverifiable hypotheses and plural truths, a more modest and more realistic attitude that hard and so-called “exact” sciences have had to accept’.33 The linear expertise system could then be brought back to the fore, with experts producing scientific statements which offer a plurality of truths and lawmakers would come to a decision among these scientific statements in order to draw up the needed socio-technical rule. This view of expertise, which confines everyone to his own sphere, isn’t however advisable in the field of biodiversity protection: ‘experience has largely shown that open advice, which puts forward assessment uncertainties, generally leads to the option that is politically most easy to get accepted, and thus the least restrictive for fishing in the short term’.34 Reading through the SCRS reports, one can see that the Commitee tried to avoid making this mistake. Indeed, in 2008, when the Committee states in its report, on the one hand, that the objectives of the Convention concerning yellowfin tuna have been achieved and, on the other hand, that there is still a 60% probability that the state of the stock do not meet the Convention’s objectives, it still recommends one single approach to the Commission: if the Commission wishes to increase long term sustainable production, it must not increase the fishing effort and must take efficient measures to reduce the baby yellowfin tunas mortality through fishing. The self-confessed uncertainty on the part of the SCRS with regard to its assessments is not echoed by its recommendations to the Commission.35 Why don’t they reflect the plural voices of scientific expertise? What could seem a trivial incident but was felt like an intrusion by the ICCAT scientists may provide a few answers. 33. ‘au temps des vérités uniques, fierté d’un siècle des Lumières, confit en dévotion devant la déesse Raison, a succédé le temps du doute et de l’incertitude, celui des hypothèses invérifiables et des vérités plurielles, attitude plus modeste et réaliste, que les sciences dures et dites exactes ont du admettre’, Jacqueline Morand-Deviller, ‘Le “système expert”: expertise scientifique et gestion de l’environnement’, in Etudes offertes à Jacques Dupichot (Bruxelles, Bruylant, 2004), 359-375, at 361. 34. ‘l’expérience a largement démontré qu’un avis ouvert, mettant en avant l’incertitude des évaluations, conduit généralement au choix de l’option politiquement la plus facile à faire accepter, et donc la moins restrictive pour la pêche à court term’: Biais, ‘Progrès scientifique et gestion des pêches’, supra note 27, at 15. 35. Report of the SCRS, Madrid, Spain, 29 September - 3 October 2008, 45-58, (visited 24 November 2009).

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Until 1981, the scientists were divided on the question of whether the bluefin tuna stock was split into two stocks or whether they were dealing with a single stock. This uncertainty made it compulsory to take into account the two hypotheses in their models. In 1981, the Commission adopted the hypothesis of two independent stocks and imposed this vision on the SCRS, which since then bases its assessments on this assumption. The Commission thus forced the SCRS to leave aside the plurality of truths and drove it to adopt a peremptory approach. The Commission’s behaviour can easily be explained from a political point of view. It is obvious that on such a delicate issue as bluefin tuna management, the Commission wanted to be able to rely on what appeared to be consistent scientific knowledge in which no doubt subsisted and which would give no ground to question its decisions. The edges of the scientific knowledge are thus smoothed by the law and decision-making system and its imperatives. ‘Experts then do not convey absolute rationality but rather a point of view relative to the state of knowledge in their field and the context’.36 Experts exceed their role as scientists in order to make judgements, which are admittedly derived from their knowledge but which come more within the role of decision-makers than that of a mere ‘bringer of knowledge’. They make decisions and therefore play an active role in the creation of the socio-technical rule. They no longer merely bring knowledge; they make this knowledge operational. ‘In fact, experts themselves assure that what they produce cannot be labelled as science in the ordinary sense of the word, but a hybrid activity which combines scientific elements with a dose of social and political judgement’.37 What consequences such a hybridization does at what is supposed to be the scientific stage have on the competence on law-makers?

3. The legitimization of law by scientific knowledge The linear system of assessment is not totally shaken up by the intrusion of science into law-making. Though it is clear that this linearity is not absolute, there are still two distinct stages following each other in time with an intervention by the law/decision-making body at the second stage. International law remains founded on state will, which means that the state still has the last word when it comes to drawing up its commitments. The implementation of socio-technical 36. ‘L’expert n’est donc pas porteur d’une rationalité absolue mais d’un point de vue relatif à l’état des connaissances dans sa discipline et au contexte’: Biais, ‘Progrès scientifique et gestion des pêches’, supra note 27, at 15. 37. ‘En fait, les experts eux-mêmes assurent que ce qu’ils produisent ne saurait être désigné comme de la science dans le sens ordinaire, mais une activité hybride qui combine les éléments scientifiques avec une certaine dose de jugement social et politique’: Eric Naim-Gesbert, Les dimensions scientifiques du droit de l’environnement (Bruxelles, Bruylant, 1999), at 642.



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rules did not reduce the principle of state sovereignty. Indeed, states decide on the object and extent of their commitments. However, the intervention of scientific expertise in the law-making process disrupted the classic pattern of creation of international law. Scientific knowledge brought to law-making bodies is altered to the point where scientists have already made choices among all the knowledge available and have already guided the decision. Even if their role ‘is preliminary and not decisional’,38 scientific expertise nevertheless seems to act as a first stage of negotiation in the drafting of socio-technical rules.

3.1. Knowledge-shopping and the diplomatic body The reading of the SCRS reports could lead to the idea that the role of the Commission is restricted to the approval of the recommendations set by the Committee. The SCRS has already chosen between different hypotheses and decided which ones seemed most reasonable. Socio-technical rules would thus be already drawn up and all that would be left would be to give them a legal form and nature. However, the Committee’s opinion is merely advisory, the Commission is not bound by its advice and keeps its freedom to adopt or reject the recommendations the Committee puts forward.39 Going into detail of the achievements of the ICCAT management of tuna fisheries, it is obvious that political choices come to paralyze or at least guide the protection of certain species amongst the target species.40 The 2009 Report of the Independent Performance Review of the ICCAT states that not only has the organization reached its targets for only four stocks (bigeye tuna, swordfish in the North Atlantic, swordfish in the South Atlantic and yellowfin tuna), but also that it is impossible to assess whether the ICCAT objectives were reached for three other stocks (albacore in the Mediterranean, sailfish and shikpjack tuna)41 due to a lack of data. For the remaining stocks,42 the SCRS recommendations advised the adoption of strict rules; the Commission did not follow those recommendations. For instance, although in its 2008 report the SCRS recommended that the Total Allowable Catches (TACs) of bluefin tuna

38. ‘est préparatoire et non décisionnel’: Yves Daudet, ‘Les membres des commissions d’experts’, supra note 19, at 99. 39. On the autonomy of decision-making authorities vis-à-vis scientific bodies, see Christine Noiville, Du bon gouvernement des risques (Paris, PUF, 2003), at 68-77. 40. The target species are the main species assessed by the SCRS: albacore, bigeye tuna, bluefin tuna, blue marlin, white marlin, sailfish tuna, skipjack tuna, yellowfin tuna and swordfish. 41. Report of the Independent Performance Review of ICCAT, Madrid, 2009, at 3, (visited 24 November 2009). 42. Albacore in the North Atlantic, albacore in the South Atlantic, bluefin tuna in the West Atlantic, bluefin tuna in the East Atlantic and Mediterranean, blue marlin, white marlin and swordfish in the Mediterranean.

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in the East Atlantic and the Mediterranean should not exceed 15.000 tons, the Commission set a TAC of 28.500 tons for the year 2008. The Commission thus makes a choice amongst the SCRS recommendations which seem, at first glance, all essential for biodiversity protection. Making such a choice thus marks the end of the scientific stage and the beginning of the political one; objectives shift and after the nature of the sought-after truth changes. The scientific truth (or truths) leads experts to recommend the most protective rule, the one which will allow achieving the scientific objective of stock restoration to sustainable levels, whatever the social and economic impact of the measures adopted to implement the rule. The ‘legal truth’ in international law does not lead decisionmakers along the same path as the scientists. It leads them to find the rule which will be accepted by the highest number of states. This rule will certainly not be the most ambitious one but its effectiveness potential will be higher.43 Thus, if scientific truth aims at maximum protection, the ‘legal truth’ rather looks toward optimum protection. The final decision will indeed be made with regard to the scientific knowledge the experts provided but it will also be modified once again depending on the social and economic interests of the actors involved. The decision-making body must balance the advantages and drawbacks of each measure put forward by the experts to work out what will be turned into a prescriptive rule and what is to remain a scientific statement.44 The diplomatic body thus operates ‘knowledgeshopping’ to draw up socio-technical rules. It takes what it whishes from the submitted scientific data, or what it can reasonably accept because implementation in the social sphere is feasible. This data extracted from the scientific sphere because it is transposable into the social sphere will be an integral part of the final sociotechnical rule. They will allow the decision-making organ to set the foundations for its decision and will also push the states to respect them. The diplomatic body thus becomes the judge of expertise since it arbitrates on whether the recommendations can be transferred into the social sphere. Interaction between science and law seems to reach its climax here: experts transform their scientific knowledge to prepare its translation into the decision43. This dichotomy between scientific truth and legal truth when using expertise has also been highlighted in the case of jurisdictional expertise. The expert will try to provide exact scientific evidence based on current knowledge, whereas the judge’s role is not to find the truth but to arbitrate a dispute, which does not automatically mean that one must know the scientific truth in order to arbitrate. Please see Cesare Romano, ‘L’expertise en matière environnementale: experts pour qui ?’, in French Society for International Law, Le droit international face aux enjeux environnementaux (Paris : Pedone, 2010), pp.181-187. 44. According to Robert Castel, ‘la législation se contente d’entériner, c’est-à-dire d’accepter en la traduisant sur un mode prescriptif, une production de savoir d’expertise’ (‘the law content itself with ratifying, that is with accepting while translating it according to a prescriptive mode, a production of expert knowledge’). See Robert Castel, ‘Savoir d’expertise et production de normes’, in François Chazel &Jacques Commaille eds, Normes juridiques et régulation sociale (Paris, LGDJ, 1991), 177-188, at 185.



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making sphere, and decision-makers perform a value judgement on the proposed scientific statements to determine which ones are actually transferable into the social sphere. Such transposition, if it does not run counter to an interaction between science and law, is a priori more incompatible with a possible interpenetration of the two fields while the socio-technical rule is really a hybrid rule. In fact, the use of the term ‘transposition’ only reflects the moving of scientific knowledge from one sphere to the other; it does not induce a possible transformation of the scientific knowledge which was produced. On the contrary, when the Commission adopts SCRS recommendations, it adopts them as is, which leads us to wonder if, to a certain extent, the scientific statement does not in itself hold some normative value.

3.2. The adoption of a ‘pre-law’ by the diplomatic body When the Commission adopts SCRS recommendation, it merely transforms words into action through a vote and grants the scientific statement a legal status. But even before this transformation, scientific statements are already operational. When the Committee recommends that ‘[u]ntil sufficiently more research has been conducted to reduce the high uncertainty in stock status evaluations for the southern Atlantic swordfish stock, the Committee recommends that annual catch should not exceed the provisionally estimated MSY (about 17,000 t)’,45 the socio-technical norm already exists. Experts already determined the threshold of risk which is acceptable to society, based on existing knowledge, and even included social components into their scientific statement. Depending on social and economic factors, experts defined some social needs and weighed them against environmental needs to produce what is a quasi socio-technical rule. This rule only lacks the legal force that will be granted through the vote of states. But when does the vote actually occur? Within the SCRS, numerous scientists work as state representatives, which means that scientific expertise is admittedly performed by experts, but experts mandated by states. The norm thus set up is the result of a negotiation within a hybrid forum in which states, prior to the intervention of the diplomatic body, have already the opportunity to accept the rule. Through this process, doesn’t the norm created then already have legal nature? Even if it seems difficult to consider that the SCRS reports contain rules with a legal weight equal to those that have been voted by the states through the diplomatic body, given the renegotiation taking place within this forum, it is all the same unreasonable to conceal the fact that states have already indirectly attributed a certain degree of legal value to this norm. ‘It would undoubtedly be more suitable to make use of the gradations of45. Report of the SCRS, Madrid, Spain, 29 September - 3 October 2008, at 140. Available at: (visited 24 november 2009).

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fered by international law (and the reports of expert commissions might be one) up to the compulsory stage resulting from state will’.46 If this thought lays itself open to criticism, particularly from a Manichean point of view on international law, according to which there is a strict dichotomy between law and non-law, it still offers rich perspectives for the protection of fish resources, particularly in the framework of the cooperation between the ICCAT and the General Fisheries Council for the Mediterranean (GFCM). The conservation and management of highly migratory fish (tuna and tuna-like species) in the Mediterranean come under the mandate of two organizations, the GFCM and the ICCAT. The ICCAT was created twenty years after the GFCM but from the onset, both organizations established spontaneous cooperation. The reasons for this are easy to understand. The overlapping of competences ineluctably led to dialogue in order to avoid reciprocal paralysis of the two systems and to ensure their efficiency. Yet, this cooperation was only informal. The ICCAT was created by the Rio de Janeiro Convention on the 14th of May 1966 and has the legal status of an international organization with the legal competences which go along this status.47 The GFCM is a “semi-autonomous” institution which belongs to the FAO family of regional fisheries commissions, and thus cannot have the same competences as the ICCAT.48 Cooperation between the ICCAT and the GFCM could hardly be achieved through a direct agreement between the two institutions.49 The ICCAT-GFCM cooperation operates on several levels, but what is of interest in the framework of the present study is that the ICCAT attends the GFCM annual general meetings as an observer and, as such, presents recom46. ‘Sans doute, conviendrait-il mieux, de la sorte, de profiter des gradations qu’offre le droit international (et les rapports des Commissions d’experts peuvent en être une) jusqu’à l’obligatoire résultant de la volonté des États’: Daudet, ‘Les membres des commissions d’experts’, supra note 19, at 107. 47. The ICJ has clarified doubts on the legal capacity of international organizations as early as 1949: ‘In the opinion of the Court, the Organization was intended to exercise and enjoy, and is in fact exercising and enjoying, functions and rights which can only be explained on the basis of the possession of a large measure of international personality and the capacity to operate upon an international plane. (…) It must be acknowledged that its Members, by entrusting certain functions to it, with the attendant duties and responsibilities, have clothed it with the competence required to enable those functions to be effectively discharged’. (Reparation for injuries suffered in the service of the United Nations, ICJ Reports (1949), at 179.). This reasoning is transferable to all international organizations that apply the principle of specialty. 48. The GFCM in its 22nd session in October 1997 and the FAO Council in its 113th session in November 1997 amended the agreement creating the General Comission for Fisheries in the Mediterranean to give it the status of an autonomous UN organization by allowing it to manage its own budget. This amendment entered into force on the 29th of April 2004 for the states which ratified it (only the United Kingdom, Egypt and Syria did not). 49. An agreement has been in force between the ICCAT and the FAO since 1973, which organizes the cooperation between these two organizations. If this agreement surely facilitated the cooperation between the ICCAT and the GFCM, it did not necessarily trigger it.



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mendations and attaches great importance to their adoption by the GFCM so as to harmonize their tuna management policies. The members of the ICCAT and of the GFCM are not the same. In adopting the recommendations the ICCAT submits, the meeting of states that are parties to the GFCM not only adopts a norm that it did not negotiate but also a norm that was firstly negotiated within the SCRS and then by other sovereign states within the ICCAT Commission. Thus, swordfish fishing in the Mediterranean Sea was banned from the 15th of October to the 15th of November 2008 by the 32nd session of the states party to the GFCM when this measure had been adopted in 2007 by the ICCAT50 and submitted in 2008 to the GFCM Commission. If this is not characteristic of an abandonment of the voluntarist logic, it still opens a very interesting door to international cooperation to protect biodiversity. Within the GFCM, states adopt socio-technical rules the negotiation process of which is entirely out of their control. The technical aspect of the rule was elaborated and then negotiated according to social needs identified within the scientific body of the ICCAT. This socio-technical norm was then renegotiated within the diplomatic body of the ICCAT which means that the GFCM, which automatically adopts these recommendations, did not take any part in the elaboration of the socio-technical rule and yet accepts its application within its sphere. In other words, the GFCM contents itself with giving a formal a legal nature to a pre-elaborated norm, in order to allow it to enter its scope too. This phenomenon reminds us of Peter Haas’ theory on the influence of the ‘epistemic community’ in decision-making.51 The consensus operating within the scientific committee will lead to the adoption of a realistic socio-technical rule which will reinforce the cooperation not only within the forum where the expertised was commissioned but also between ‘competing’ institutions. In this way, competition is left aside in favour of a harmonization of applicable rules. Diplomatic bodies are thus served socio-technical rules on a silver platter, and rules which were after all drafted by the ‘epistemic community’. More than a pre-law, expertise probably makes some law. This phenomenon reveals the weight of science in law but the weight not of some ‘pure’ science, but of a science adapted to decisional constraints. **** 50. ‘Recommendation by ICCAT on Mediterranean swordfish’, Recommendation [07-01], adopted during the 20th Regular Meeting of the Commission, Antalya, Turkey, November 9-18, 2007 and entered into force on the 5th of June 2008. 51. According to Peter Haas, an ‘epistemic community’ is defined as ‘a network of professionals with recognized expertise and competence in a particular domain and an authoritative claim to policy-relevant knowledge within that domain or issue area’. See Peter Haas, ‘Introduction: epistemic communities and international policy coordination’, 46 International Organization (winter 1992) 1-35.

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Finally, the interaction between science and law is constant in the making of socio-technical rules on fisheries conservation. The linear expertise system finds no illustration within the ICCAT because where science establishes facts, law intrudes, and where decision-makers make law, scientists already paved the way. The role of decision-makers is reduced to choosing and validating the norms created by experts, whereas experts exceed the limits of their role in order to draft scientific assessments which include a part of juridical normativity. It would be tempting to talk about the despotism of science but it seems that its hegemony, if it is not consciously instrumentalized by decision-makers, it is at least the driving force of a political consensus for a joint resources management. Scientific data lays the foundation for legal rules and gives states the illusion of a certain legal security... A security which is all in all paradoxical given the scientific uncertainties socio-technical rules were built on.

The Consultation of Independent Experts by International Courts and Tribunals in Health and Environment Cases Caroline E. Foster* Abstract: Consultation of independent scientific experts may provide an invaluable opportunity for international courts and tribunals thoroughly to explore the issues involved in many disputes concerning the protection of human health and the environment. However, concerns arise in relation to the respective roles of appointed adjudicators and the scientific experts they may consult. These concerns can be ameliorated by working to ensure transparent and fair reasoning and processes, but they cannot be set aside altogether. In the end the adjudication of scientific disputes by international courts and tribunals with assistance from independent experts is unlikely to involve a very pure form of adjudication and the expectation of a traditional strict separation between fact and law will have to be discarded. Keywords: expert evidence, courts, tribunals, health, environment, adjudication

1. Introduction The volume of disputes involving challenges to activities with an effect on human health or the environment is increasing significantly due to the phenomenal growth of applied science and the accelerated worldwide exploitation of natural resources. The practice of international courts and tribunals in this class of disputes must naturally come under scrutiny, and we must consider some of the issues arising in relation to how these cases are to be handled. In dealing with these disputes the international adjudicatory process has been calling for ever deeper enquiries into their scientific aspects. Among the array of available techniques for the receipt of scientific expert evidence, international courts and tribunals may find the appointment of independent experts offers particular promise. This article is primarily directed to issues that arise in connection with the use of this means for seeking expert input in disputes concerning human health or the environment. *

Dr., Senior Lecturer, University of Auckland, New Zealand. For further discussion see Caroline E. Foster, Science and the Precautionary Principle in International Courts and Tribunals: Export Evidence, Burden of Proof and Finality (Cambridge University Press, 2011).

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The appointment and consultation of independent experts provides an invaluable opportunity for international courts and tribunals to explore thoroughly the issues involved in a dispute. However, these processes raise concerns about the respective roles of adjudicators and experts. This article investigates these concerns, canvassing practice in the International Court of Justice (ICJ), the International Tribunal for the Law of the Sea (ITLOS), arbitral tribunals and the World Trade Organisation (WTO) dispute resolution system. On investigation it appears that such concerns may be ameliorated by working to ensure transparent and fair reasoning and processes, but they cannot be set aside altogether. Ultimately, we must accept that the adjudication of scientific disputes by international courts and tribunals with assistance from independent experts is unlikely to involve a very pure form of adjudication with a guaranteed strict separation between fact and law.

2. Consultation of Independent Experts by International Adjudicatory Bodies An international adjudicatory body must ensure that it is in a position to appreciate the disputed policy choices made by the states appearing before it, and to carry out its function wisely and with a view to the stability and development of the law as well as to ongoing relations between the parties. At the national level, blended adversarial and investigative procedures are increasingly recognized as appropriate for disputes to which a significant public interest attaches. 1 A tribunal’s task in such cases should not simply be to choose between two competing conceptions of the facts presented in adversarial fashion.2 Greater involvement may be essential. This is not beyond the capabilities of an international court or tribunal; indeed note has been made of the capacity of the ICJ, and other bodies, to assess ‘seemingly unmanageable volumes of evidence concerning highly complex situations’.3 1. For example, John Griffith has called for a move from adversarial to inquisitorial judicial procedure in public law cases. J.A.G. Griffith, ‘Judicial Decision-Making in Public Law’, Public Law (1985) 564-582; John Allison has suggested a conception of adjudication as ‘collaborative expert investigation’ for dealing with polycentric disputes. Here, adjudication is characterised both by party participation and by an active role for adjudicators, who may have to complement the parties’ proofs, and even their arguments, in considering the ramifications of a decision. J.W.F. Allison, ‘Fuller’s Analysis of Polycentric Disputes and the Limits of Adjudication’, Cambridge Law Journal (1994) 367-383 at 381. See also; J.W.F. Allison, A Continental Distinction in the Common Law: A Historical and Comparative Perspective on English Public Law (Clarendon Press: Oxford, 1996) at 205-6; Markus Benzing, ‘Community Interests in the Procedure of International Courts and Tribunals’, 5 The Law and Practice of International Courts and Tribunals (2006) 369-408 at 384. 2. Mirjan Damaška, Evidence Law Adrift (Yale University Press: New Haven, 1997) at 100. 3. Thomas M. Franck, Fairness in International Law and Institutions (Clarendon Press: Oxford, 1995) at 338. Certainly, complete passivity on the part of decision-makers is not desirable.



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The governing documents of a number of international courts and tribunals provide for the appointment and consultation by a court or tribunal of independent experts. International courts and tribunals may additionally possess inherent powers in this regard.4 The expectation that technical experts might be consulted directly by a court or tribunal if necessary dates back some time. Reference may be made to the Order of the Permanent Court of International Justice (PCIJ) establishing an expert committee in the Case Concerning the Factory at Chorzów in 1928.5 The Order provided that the Court, or the President, would fix a date for a public sitting to which the experts would be summoned. The aim was to enable the agents of the parties to discuss the experts’ report and to enable the Court and the agents to ask the experts for explanations on the issues involved. However, this procedure proved unnecessary when a settlement was reached. The procedure has been used since only in one case in the International Court of Justice, in the Corfu Channel case.6 The most consistent practice in appointing independent scientific experts is found in the dispute settlement procedures of the WTO. The WTO system for taking expert evidence was devised as a response to the needs of the dispute resolution process in cases involving complex scientific questions. The system was not specifically envisaged in the WTO Dispute Settlement Understanding (DSU), but rather was developed by panels to meet their needs, taking into account the relevant provisions of the DSU. The consultation of tribunal-appointed scientific experts by WTO panels is a two-stage process. In the first, written, phase of the consultation procedure a list of questions is submitted to the experts, and each expert is asked to respond in writing to those questions corresponding to his or her area of expertise. Should they wish to do so, parties to WTO proceedings are free to submit written comments on the replies received from the experts. Fuller observed helpfully that, in respect of the judge’s engagement in a case, ‘[T]he critical value [is] not passivity, but detachment’. Robert G. Bone, ‘Lon Fuller’s Theory of Adjudication and the False Dichotomy between Dispute Resolution and Public Law Models of Litigation’, 75 Boston University Law Review (1995) 1273-1310. Although it is often welcomed as an indication of neutrality in an adversarial context, complete passivity may remove decisionmakers’ capacity to clarify significant points at crucial moments in the development of their understanding. Damaška, Evidence Law Adrift, supra note 2, at 96. 4. C. F. Amerasinghe, Evidence in International Litigation (Martinus Nijhoff: Leiden/Boston, 2005) at 306. 5. Case Concerning the Factory at Chorzów (Germany v. Poland) (Claim for Indemnity – Merits) (1928) PCIJ Series A No. 13, para. 8 and Order (13 September 1928), PCIJ Series A No 17. Durward V. Sandifer, Evidence before International Tribunals (University Press of Virginia Charlottesville, 1975) at 333. 6. See, infra, text accompanying notes 88–93. Anna Riddell and Brendan Plant, Evidence Before the International Court of Justice (British Institute of International and Comparative Law: London, 2009) at 62–6; Corfu Channel Case (United Kingdom v Albania), Order (17 December 1948) ICJ Reports (1947-1948) 124. For the use of expert evidence in assessing compensation, see Order (19 November 1949) ICJ Reports (1949) at 237.

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The experts’ written answers are compiled and incorporated in a panel’s report. Supplementary written questions from the panel may be submitted to the experts between the written consultation and the second stage in the consultation of the experts. The second stage in the consultation of the independent experts consists of an oral consultation or ‘joint meeting’. Joint meetings with experts are generally held between the two substantive meetings between a panel and the parties, i.e. the two rounds of hearings, frequently immediately preceding the second substantive meeting. The joint meetings take place over a one to two day period, and are attended by the panel, its experts, the parties and their experts, and third parties. The procedure is moderately informal.7 This procedure has been used now in a good many cases decided under Article XX of the GATT and under the SPS Agreement.8 This type of ‘hands on’ approach is to be encouraged. Dialogue with independent experts enables an international court or tribunal to discover more about the essence of the issues under dispute and to deal with issues requiring particular clarification. Direct consultation of independent experts may also help to round out an otherwise adversarial and binary presentation of a case, potentially softening a dispute as well as bringing greater clarity and completeness to the overall picture. Most of all, such processes provide the best opportunity for a court or tribunal to come fully to grips with the science. 7. In one case, for example, the Chair of the panel emphasised that it was really up to the experts how they responded to parties’ questions. In his experience past proceedings had been very satisfactorily conducted: ‘this is not an interrogation or court of law, they should feel relaxed about it and obviously offer their expertise as they see fit.’ Panel Report, Australia – Measures Affecting Importation of Salmon, WT/DS18/R and Corr.1, adopted 6 November 1998, DSR 1998:VIII, 3407, Annex 2, Transcript of the Joint Meeting with Experts, at para. 7. 8. Panel Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products, WT/ DS58/R and Corr.1, adopted 6 November 1998, DSR 1998:VII, 2821; Panel Report, EC Measures Concerning Meat and Meat Products (Hormones), Complaint by Canada, WT/DS48/R/ CAN, adopted 13 February 1998, DSR 1998:II, 235; Panel Report, EC Measures Concerning Meat and Meat Products (Hormones), Complaint by the United States, WT/DS26/R/USA, adopted 13 February 1998, DSR 1998:III, 699; Panel Report, Australia Salmon, supra, note 8; Panel Report, Australia – Measures Affecting Importation of Salmon – Recourse to Article 21.5 of the DSU by Canada, WT/DS18/RW, adopted 20 March 2000, DSR 2000:IV, 2031; Panel Report, Japan – Measures Affecting Agricultural Products, WT/DS76/R, adopted 19 March 1999, DSR 1999:I, 315; Panel Report, European Communities – Measures Affecting Asbestos and Asbestos-Containing Products, WT/DS135/R and Add.1, adopted 5 April 2001, DSR 2001:VIII, 3305; Panel Report, Japan – Measures Affecting the Importation of Apples, WT/DS245/R, adopted 10 December 2003, DSR 2003:IX, 4481; Panel Report, Japan – Measures Affecting the Importation of Apples – Recourse to Article 21.5 of the DSU by the United States, WT/DS245/RW, adopted 20 July 2005; Panel Report, European Communities – Measures Affecting the Approval and Marketing of Biotech Products, WT/DS291/R, WT/DS292/R, WT/DS293/R, Corr.1 and Add.1, 2, 3, 4, 5, 6, 7, 8 and 9, adopted 21 November 2006; Australia-Measures Affecting the Importation of Apples from New Zealand, DS 367.



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3. The Problem with the Consultation of Independent Experts Despite its advantages, a stronger trend towards closer consultation with independent experts by international courts and tribunals would raise certain issues. As tribunals consult more closely with experts, and input from experts becomes more significant to the legal questions in a case, the roles of adjudicator and experts potentially become blurred. The starting point must be that a court or tribunal to which a dispute is submitted alone has the authority to take a binding decision on the issues raised by a case, and a tribunal’s findings must be based on its own convictions.9 The need for international courts and tribunals to be alert to the possibility of inadvertent delegation to experts was emphasised by Professor Gillian White in her seminal work in 1965.10 She underlined that the role of the independent expert was limited to assisting a tribunal in the establishment or elucidation of matters of fact. In principle, it is the tribunal and not the expert who is tasked with identifying the relevance and significance of the factual aspects of a case.11 As one tribunal has observed, ‘[n]o matter how well qualified an expert may be … it is fundamental that an arbitral tribunal cannot delegate to him the duty of deciding the case.’12 This division of labour is closely connected with the traditionally fundamental distinction between fact and law. Facts are physical, the law is normative.13 The distinction perpetuates a sense of fairness and legitimacy about the adjudicatory process.14 Adjudication is regarded as the relatively straightforward application of the law to the facts.15 In scientific disputes we may have to modify the traditional rationalist model of adjudication, according to which ‘operative distinctions have to be maintained between questions of fact and questions of law, questions of fact and questions of 9. This rule is well explained by the Franco-Italian Conciliation Commission in the I.V.E.M. Claim, 7 March 1955, 22 ILR 875. V.S. Mani, International Adjudication: Procedural Aspects (Martinus Nijhoff Publishers: The Hague, London, 1989) at 237; Gillian M. White, The Use of Experts by International Tribunals (Syracuse University Press: Syracuse, New York, 1965) at 142–143. 10. White, Experts, supra note 10, at 11-12, and chapter 9. 11. Ibid., at 164 citing Sir Hersch Lauterpacht, The Development of International Law by the International Court (Stevens & Sons Limited: London, 1958). 12. Starrett Housing Corporation, Starrett Systems Inc and Starrett Housing International Inc v Government of the Islamic Republic of Iran, Bank Omran, Bank Mellat and Bank Markazi, Interlocutory Award (19 December 1983); Final Award (14 August 1987), 16 Iran-US CTR 112 at 565. 13. George Ress, ‘Factfinding at the European Court of Justice’ in R. B. Lillich (eds.), FactFinding before International Tribunals: Eleventh Sokol Colloquium (Transnational Publishers: Ardsley-on-Hudson, New York, 1991) 177–207. 14. Jose E. Alvarez, ‘Burdens of Proof’, 14 Michigan Journal of International Law (1993) 399–427 at 411. 15. J. Bentham, Rationale of Judicial Evidence: Specially applied to English Practice: from the Manuscripts of Jeremy Bentham (Hunt and Clarke: London, 1827).

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value, and questions of fact and questions of opinion.’16 Mixed questions of fact and law arise with frequency. Court-appointed experts will inevitably be drawn into questions of legal interpretation through their involvement in the application of legal terms. The perspectives offered by a scientific expert will help determine the application of a legal concept such as ‘reasonableness’ in the case at hand – and in the course of this process the scientific expert’s advice will also come to shape the development of the conventions and usages on which the established meaning of the legal concept of ‘reasonableness’ in the context of the provision in question will be based. As Salmon observes, the interpretation of a legal rule does not always precede its application. Rather, there is a dialectic movement between the two processes.17 The essential point is that an international court, tribunal or panel that has authority to carry out tasks such as the interpretation of legal terms and the legal categorisation of factual issues, yet in a scientific case the insights necessary to make sound legal decisions may come from the experts consulted by the tribunal.

4. Mixed Questions of Fact and Law in Health and Environmental Disputes The type of case addressed in this article is often characterised by mixed questions of fact and law. These mixed questions of fact and law include tests governing how states should act in situations of incomplete scientific knowledge, for example by requiring them to act only in ways that are reasonable, necessary or proportionate, or to cooperate appropriately with one another.18 Professor Cass Sunstein describes claims about ‘what it is best to do or how it is best to act in the face of uncertainty’ as ‘lurking normative’ claims, precisely because their factual aspect may be more apparent than their normative or legal dimension.19 By way of illustration, fact and law have been close in disputes relating to environmental protection under the United Nations Convention on the Law

16. William Twining, Rethinking Evidence: Exploratory Essays (2nd edn, Cambridge University Press, 2006) at 75-80; Terrence Anderson, David Schum and William Twining, Analysis of Evidence (2nd edn, Cambridge University Press, 2005); J.A. Jolowicz, On Civil Procedure (Cambridge University Press, 2000) at 212. 17. Jean J.A. Salmon, ‘Le Fait dans L’Application du Droit International’, 175(II) Recueil des Cours (1982) 257-414 at 343. 18. The first three of these points are drawn from Richard Bilder, ‘Some Limitations of Adjudication as an International Dispute Settlement Technique’, 23 Virginia Journal of International Law (1983) 1–12; than their normative or legal dimension. 19. C. Sunstein in James Chandler, Arnold I Davidson and Harry Harootunian (eds.), Questions of Evidence: Proof, Practice and Persuasion across the Disciplines (The University of Chicago Press, 1994) at 196.



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of the Sea (UNCLOS).20 Had the Southern Bluefin Tuna cases proceeded to the merits, the International Tribunal for the Law of the Sea (ITLOS) would have had to ascertain whether Japan had fulfilled its obligations to cooperate in relation to measures necessary for the conservation of the living resources of the high seas under Articles 64 and 116 - 119 of the UNCLOS.21 Likewise in the Mox Plant case Ireland alleged inter alia that the UK’s authorisation and operation of the Mox Plant would breach the obligations of cooperation to protect the marine environment found in Articles 123 and 197 of UNCLOS. Here, too, an assessment of the cooperation that was needed in order to protect the marine environment would have had to be made. However, again the case did not reach the merits stage. Turning to the law of the World Trade Organisation, the exception in Article XX(b) of the General Agreement on Tariffs and Trade is couched in terms of the necessity of measures to protect human, animal or plant life and health. The necessity test has been adopted also under Article 2.2 of the WTO Agreement on Sanitary and Phytosanitary measures (the SPS Agreement), as well as under Article 2.2 of the WTO Agreement on Technical Barriers to Trade. Compliance with Article 2.2 of the SPS Agreement is, in particular a frequent subject of adjudicatory rulings in SPS cases.22 Compliance with similar obligations may also become the subject of dispute under bilateral agreements. In the Case concerning Pulp Mills Argentina asserted that Uruguay had violated obligations under the 1975 Statute of the River Uruguay inter alia to take all necessary measures for the rational and optimal utilisation of the river and to preserve the aquatic environment through appropriate measures.23 Determining the necessity of environmental measures and the appropriate extent of cooperation in the circumstances could have involved judgment combining a close appreciation of the science with the legal principles at issue, had the Court not readily found that the scientific evidence put forward by Argentina was insufficient to establish a case against Uruguay, except in regard to violation of procedural rights.24 The question whether to appoint independent scientific experts was the subject of vigorous difference between a number of the judges in 20. United Nations Convention on the Law of the Sea, 10 December 1982, in force 16 November 1994, 21 ILM 1261. 21. Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan) (Request for Provisional Measures) Order (27 August 1999) 117 ILR 148. 22. Panel Report, Australia Salmon, supra note 8; Panel Report, Japan–Agricultural Products, supra note 9. Compliance with Article 2.2 is also at issue in Australia – Measures Affecting the Importation of Apples from New Zealand. 23. Case concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay) (Merits) Judgment (20 April 2010); Application Instituting Proceedings filed in the Registry of the Court on 4 May 4 2006. (visited 2 May 2010). 24. Ibid.

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the Case concerning Pulp Mills.25 Judges Al-Khasawneh and Simma observed in their Joint Dissenting Opinion that ‘[t]he conclusions of scientific experts might be indispensable in distilling the essence of what legal concepts such as “significance” of damage, “sufficiency”, “reasonable threshold” or “necessity” come to mean in a given case.’26 The majority of the Court was concerned only that the experts appearing in this case had appeared as counsel rather than expert witnesses, and therefore had not been subject to cross-examination.27 The closeness between fact and law may often be less overt in investment law, but scientific determinations will also be of considerable potential significance in investment disputes.28 In both investment and trade disputes, the legal issues before the court or tribunal may depend on an assessment of the motive behind a state’s adoption of measures affecting trade or investment. Frequently, such assessments will need to be based on inference, and to a degree science may come to be used as an ‘objective proxy’ for an assessment of motive.29 So long as the science relied upon by a state appears to cross a threshold of acceptability, it becomes difficult to draw inferences about adverse motives on the part of the state. For example, motive is relevant when assessing whether a measure taken by a host state is ‘for a public purpose’ as part of determining whether the measure is an exercise of the host state’s ‘police powers’ and therefore does not constitute expropriation.30 To take an example, in the case of Methanex Corp. v. United States of America the Tribunal found that it had no jurisdiction to determine the merits of the dispute, on the basis that Methanex had failed to establish that the US measures in question were intended to benefit domestic ethanol producers or to harm 25. Ibid., Judges Al-Khasawneh, Simma, Yusuf, Cançado Trindade and Judge ad hoc Vinuesa considered that the Court should have taken a more proactive role and appointed independent experts to assist its decision-making. Ssee Joint Dissenting Opinion of Judges Al-Khasawneh and Simma, Declaration of Judge Yusuf, Separate Opinion of Cançado Trindade, Dissenting Opinion of Judge ad hoc Vinuesa. In his Separate Opinion Judge Keith gave an explanation of the Court’s decision not to pursue this option in the circumstances of the case, where the raw data on water quality provided a basis on which the Court was comfortable to decide substantive issues. 26. Ibid., Joint Dissenting Opinion of Judges Al-Khasawneh and Simma, at para. 17. 27. Ibid., at paras 167–168. See also Joint Dissenting Opinion of Judges Al-Khasawneh and Simma, at para. 6 and Separate Opinion of Judge Greenwood, at paras 27–28. See also Like Judge Greenwood, Jolowicz has taken the view that the qualification of facts by party-appointed witnesses confuses the function of witness and advocate, within the common law. Jolowicz, On Civil Procedure, supra note 17, at 235. 28. Martin J. Wagner, ‘International Investment, Expropriation and Environmental Protection’, 29 Golden Gate University Law Review (1999) 465–538 at 530–534; Marcos A. Orellana, ‘The Role of Science in Investment Arbitrations Concerning Public Health and the Environment’, 17 Yearbook of International Environmental Law (2007) 48-72. 29. Céline Lévesque, ‘Science in the Hands of International Investment Tribunals: A Case for ‘Scientific Due Process’’, 20 Finnish Yearbook of International Law (2009) pp-pp. 30. See for example Tecnicas Medioambientales Tecmed S.A. v. The United Mexican States, 43 ILM (2003) at 133.



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foreign methanol producers. Accordingly the US measures did not ‘relate to’ Methanex or its investments and jurisdiction was lacking under Article 1101(1) of the North American Free Trade Agreement (NAFTA).31 Scientific considerations are not the only evidence that will be relevant in such cases, as there may be other evidence that indicates a state’s motivations.32 However tribunals have pronounced obliquely on the correctness of the science.33 Science may also be relevant within an investment treaty dispute in determining whether there may be any genuine reason to treat a foreign investor differently from locals. Here it is not just that the absence of a convincing scientific rationale for differing treatment may be a factor indicating discriminatory intent: the science may also provide an objective justification for differing treatment. Similarly, science may be relevant in determining whether an investor has been accorded fair and equitable treatment, although the degree of relevance may depend on the standard that is applied to gauge fair and equitable treatment. Arbitrators may need to assess the objective value of the science relied upon by host states, although they should still not necessarily find themselves obliged to determine whether the science is correct in all respects. The root of the difficulty in the consultation of experts lies in the distinction between the particular and the general. A court’s or tribunal’s determination of what is sufficient, insufficient, discriminatory, necessary, reasonable, proportionate or ‘for a public purpose’ may draw on more than the factual advice provided by experts relative to the particular case. It may also draw on the experts’ assessments of what is, in general, sufficient, insufficient, discriminatory, necessary, reasonable, proportionate or ‘for a public purpose’.34 Yet it is the members of 31. Methanex Corp. v. United States of America (2005), Part IV, Chapter E, at para. 22. Award available at (visited 2 May 2010). 32. See for example, the examination in the Methanex case of the ‘scientific and administrative record.’ Ibid., Part IV, Chapter E, at para. 20, emphasis added. Note also that in the Tecmed case the Tribunal turned to evidence that the Mexican decision not to renew authorisation for the operation of the investor’s landfill was driven mainly by socio-political factors. 33. See e.g. Methanex Tribunal found that ‘the question is whether the scientific conclusions which were presented to the Governor were so faulty that the Tribunal may reasonably infer that the science merely provided a convenient excuse for the hidden regulation of methanol producers.’ Ibid., Part IV, Chapter E, at para. 19. The Tribunal also said that it was ‘not persuaded that the [University of California] Report was scientifically incorrect’. Ibid., and Part III, Chapter A, at para. 101. 34. As explained by Walker: ‘This preference for rule-based reasoning over generalisation-based reasoning creates a tendency for the legal fact-finding process to transform generalisations into rules. This natural tendency can easily operate through the mechanism previously discussed: Individual scientists testify before fact-finding panels about their scientific reasoning, factfinding panels adopt some of that reasoning as their own, some of that reasoning becomes ‘soft rules’ as the Appellate Body defers to it and later panels follow it, and some generalisations are explicitly converted into default rules of law.’ Vern R. Walker, ‘Transforming Science into Law: Default Reasoning in International Trade Disputes’ in Wendy Wagner and Rena Steinzor,

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international courts and tribunals, rather than the scientific experts, who should be responsible for the broader long-term implications of the way in which a legal term is understood and applied in a given case. It is the court or tribunal that is vested with the authority to carry out this quintessentially legal function, and the court or tribunal is expected to do so in accordance with the legal rules governing interpretation. The concern that expert evidence should be particular rather than general, or ‘specific rather than conclusory’ has been recognised in national law.35 In most instances the members of a court or tribunal have had decades of training equipping them for their task. In contrast, technical experts are highly specialised in their own fields, but without legal expertise. As stated strongly by one commentator: Supplying sufficient intelligence to decision makers is one function; applying policy to the facts of a dispute is another. There are no indications that the technical specialist is a specialist in the application of policy, that his training gives him a perception of inclusive interests, that he grasps the techniques of authoritative decisions or is in any sense expert in its strategies.36

5. Mixed Questions of Fact and Law in WTO Cases It is primarily in WTO cases that science and law have come closest to convergence. For example, in Australia-Salmon the Panel required expert input in interpreting what might be meant by the term ‘risk assessment’ in the SPS Agreement. The Panel wanted to know from the experts whether in their view risk assessment had to be conducted on a disease by disease basis, whether an option by option assessment of possible responses to a risk was a minimum requirement of a risk assessment, and whether they considered risk assessments inherently had to be quantitative or could instead take a qualitative form.37 The Panel also consulted the panel-appointed experts on comparisons between risks, in order to deal with the legal question of whether Australia’s practices were discriminatory and contrary to Article 5.5 of the SPS Agreement.38 In Japan – Measures Affecting Agricultural Products the Panel asked the experts whether they considered there was an objective or rational relationship between the varietal testing requirement imposed by Japan and any of the evidence the parties had submitted. This went to the legal question whether Japan’s measures

35. 36. 37. 38.

Rescuing Science from Politics: Regulation and the Distortion of Scientific Research (Cambridge University Press, 2006) 165 at 185. Christopher B. Mueller and Laird C. Kirkpatrick, Evidence (4th edn, Wolters Kluwer: Alphen aan den Rijn, 2003) at 636. W. Michael Reisman, Nullity and Revision: The Review and Enforcement of International Judgments and Awards (Yale University Press: New Haven, 1971) at 453. Panel Report, Australia-Salmon, supra note 8, at para. 8.74, para. 8.88 and paras 8.86–8.87. Ibid., Annex 2, Transcript of the Joint Meeting with Experts, questions 5,6,9,10 and 11.



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were based on a risk assessment.39 In EC-Hormones the Appellate Body had interpreted Article 5.1 as requiring that the results of the risk assessment must ‘sufficiently warrant – that is to say, reasonably support – the SPS Measure at stake’.40 In the Continued Suspension of Obligations cases, it has at times seemed likely that a WTO panel constituted under Article 21.5 of the DSU will have to assess whether EC compliance with its obligations in relation to five of the six hormones in question is ‘insufficient’ for a risk assessment and a temporary ban on this substance is therefore justified under Article 5.7 of the SPS Agreement.41 In European Communities – Measures Affecting Asbestos and Asbestos-Containing Products the experts were involved in the Panel’s task of assessing whether or not the EC measures could be considered ‘necessary’ to protect human life or healt under Article XX(b) of the GATT. This included assessing whether there were any reasonably available alternatives to the EC asbestos ban. The Panel asked the experts to make comparisons between risks in respect of the French policy of using substitute products in place of asbestos. Three of the experts considered that chrysotile was very potent, and as none of the substitute fibres demonstrated carcinogenicity in humans he believed that in terms of public health it would be beneficial to use some of these substitutes.42 Occasionally the impact of expert evidence is not always apparent on the face of a final report. For example in the 1998 case of US-Shrimp, it was clear that the Appellate Body’s final disposal of the case was informed by the experts’ advice that sea turtles faced different problems in different locations. Yet in reaching this decision the Appellate Body, not being empowered to determine questions of fact, did not directly rely on the panel’s consultation of scientific experts.43 Variations in the degree of closeness between fact and law in a complex WTO SPS dispute may be demonstrated with reference to EC – Approval and Marketing of Biotech Products. In EC-Biotech, the Panels’ written consultation with its experts focused around three issues, which were flagged to the parties in advance.44 Fact and law potentially ran together in relation to all three of the issues. The panel portrayed the role of the independent experts that it consulted as the provision 39. Japan – Measures Affecting Agricultural Products, supra note 9, at paras 8.32, 8.35. 40. Appellate Body Report, European Communities – Measures Concerning Meat and Meat Products (Hormones), [adopted 13 february 1998] DSR 1998:I, 135, at para. 193. 41. Canada-Continued Suspension of Obligations in the EC-Hormones Dispute, Complaint by the EC, WT/DS321, adopted 14 November 2008; US-Continued Suspension of Obligations in the EC-Hormones Dispute, Complaint by the EC, WT/DS320, adopted 14 November 2008. 42. EC - Asbestos, supra note 9, Annex VI, Transcript of Joint Meeting with Experts, at paras 381, 383, and 385. 43. The Appellate Body found that US requirements for Turtle Excluder Devices were discriminatory. Appellate Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products, adopted 6 November 1998, DSR 1998:VII, 2755. 44. Panel Report, EC-Biotech, supra note 9, at para. 7.18. The parties were invited to suggest specific questions for the experts on each issue, which they did. Ibid., at para. 7.20.

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of ‘the necessary scientific input to assist the Panel in understanding the issues raised by the Parties and to resolve the trade dispute before it’.45 The first of the three issues on which the Panel consulted the experts involved background information to assist in determining whether there were unjustified delays in the EC’s processing of applications to import biotech products. This went to whether or not the EC had breached the requirement to avoid ‘undue delay’ in Article 8 and Annex C(1)(a) of the SPS Agreement. The experts were asked to address various aspects of the way that the approvals process had been operating, specifically: scientific and technical grounds for comments and objections by member states; scientific and technical grounds for requests for additional information from applicants; and justifications on scientific and technical grounds for time taken to evaluate additional information.46 The Panel’s final report referred at various points to the advice provided by experts, but on this issue the input from the scientific experts was generally highly scientific in nature, directed toward answering relatively narrow questions posed by the Panel.47 Fact and law were not as close as they could have been. The second issue related to EC member states’ individual safeguard measures banning biotech products. The Panel set out for the experts the definition of ‘risk assessment’ from the SPS Agreement, as well as the text of Article 5.2 and 5.3 of the SPS Agreement.48 The Panel wanted to know from the experts how the scientific and other documentation relied upon by individual states compared with the existing international standards. These standards were found in IPSM 11, Codex Alimentarius and the Cartagena Protocol on Biosafety. The Panel asked the experts about the extent to which individual member states’ evidence and documentation evaluated the risks of the biotech products.49 The Panel was also interested in whether member states’ documentation was ‘sufficient to support’ the safeguard measures. As referred to above in relation to Japan - Agricultural Products, this had previously been identified by the Appellate Body as a test for fulfilment of the requirement in Article 5.1 that sanitary and phytosanitary measures be ‘based on’ a risk assessment. The expert advice on these matters thus went closely to the legal questions before the Panel. Expert advice provided in relation to the second issue also went to the matter of whether the EC should be able to rely on Article 5.7 of the SPS Agreement in relation to individual member states’ safeguard measures: the experts were asked whether the evidence from the individual member states’ supported the adoption of a temporary prohibition on biotech products and whether the scientific 45. 46. 47. 48. 49.

Ibid., at para. 7.30. Ibid., Annex H, Replies by the Scientific Experts, at 57. For example, ibid., at paras 7.873–7.874. 7.894, 7.922– 7.923, 7.927–7.928, 7.930. Ibid., Annex H, Replies by the Scientific Experts, at 170. Ibid., questions 60, 64, 67, 70, 73, 76, etc.



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evidence available to individual member states was insufficient to permit a risk assessment.50 Fact and law also ran closely together here. The third issue in the written consultation related to the question of discrimination. The experts were asked to assist the Panel in determining whether there were significant differences in the risks from the biotech products at issue in the case and (a) biotech products approved in the EC before October 1998, (b) comparable novel non-biotech products (such as plant products from selective breeding, cross-breeding and mutagenesis) and (c) foods produced with biotechnology processing aids such as genetically modified yeasts, bacteria and enzymes.51 The intention was for the Panel to assess whether there was any basis for finding the EC to be out of compliance with Article 5.5 of the SPS Agreement, referred to above in relation to Australia – Salmon. Article 5.5 prohibits arbitrary or unjustifiable distinctions in the levels of protection that member states consider to be appropriate in different situations, where these distinctions result in discrimination or a disguised restriction on international trade. Ultimately, express reliance was placed on the experts’ evidence in EC-Biotech only in relation to the scope of the SPS Agreement, and the question of compliance with the procedural obligation under Annex C(1)(a) to process import applications without undue delay. This was because the Panel decided to make such issues the central focus of the case, rather than assessing compliance with the core SPS disciplines.52 To take an example of how expert evidence was used in determining the scope and applicability of the SPS Agreement, the Panel defined ‘pest’ with reference to expert advice on many points. Genetically modified plants could be ‘pests’ in various respects, including where their introduction led to plants growing where they were undesired, crossbreeds with undesirable traits, and organisms with pesticide resistance, as well as through their effects on nontarget organisms.53 Reliance on the experts’ advice on issues going to the scope of the SPS Agreement is notable because of the significance of the Panel’s findings for future litigation and within the broader WTO context.54 These examples from WTO jurisprudence demonstrate the importance of independent experts in a scientific case and their contribution to the legal find50. Panel Report, EC-Biotech, supra note 9, Replies by the Scientific Experts, questions 61, 65, 68, 71, 74, 77, etc. and questions 59, 63, 66, 69, 72, 75, 78, etc. 51. Ibid., at 226. 52. For discussion see Caroline E. Foster, ‘Prior Approval Systems and the Substance-Procedure Dichotomy under the WTO SPS Agreement’, 42(6) Journal of World Trade (2008) 1203–1217. 53. Panel Report, EC-Biotech, supra note 9, at para. 7.256 and note 408, at para. 7.260 and note 412, at para. 7.269. 54. The Panel’s broad approach to the applicability of the SPS Agreement has even been described as ‘SPS imperialism.’ Joanne Scott, The WTO Agreement on Sanitary and Phytosanitary Measures: A Commentary (Oxford University Press, 2007) at 17.

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ings, even though it is the international adjudicatory body that has exclusive authority to carry out tasks such as the interpretation of legal terms and the legal categorisation of factual issues.

6. Remedies How can adjudication using independent court-appointed experts be modified in order to deal with the potential blurring of roles between adjudicators and experts? Even the best efforts to prevent expert engagement in legal aspects of a case will not always be effective.55 For example, in WTO dispute settlement panels are increasingly careful in crafting the questions they put to the experts. In addition, the experts’ instructions clearly request them to refrain, in their written comments, from expressing views on the legal issues before the panel. This request is repeated at the beginning of the joint meeting with experts.56 There are other remedies for the unavoidable involvement of independent experts in legal issues, but these remedies are only partial. Essentially, it is important that everything practicable is done to try and ensure the continued fairness of international adjudicatory decision-making and, to the extent possible, certainty in the law. First, a tribunal should always make it clear it has gone through a process of forming its own views on those matters requiring it to do so – and this is particularly necessary where a tribunal decides to adopt the same views as an expert.57 The imprimatur of the tribunal attaches to all of the findings that it adopts, and this is a responsibility that must be shouldered despite the complexity of a dispute. The tribunal can be taken to be aware of the need for legal interpretations to be of general application and to carry a responsibility for helping ensure that will be the case even where expert input is significant for determining legal issues in a particular instance. Second, maximum transparency must be accorded to the reasoning behind the decisions in these cases. Third, certain safeguards for 55. ‘[I]n some circumstances the expert cannot avoid making some assumptions about the value of certain facts in presenting their opinion ...’ Riddell and Plant, supra note 7, at 329. 56. See for example the Chair’s instructions in the Continued Suspension of Concessions cases, supra note 41, Panel Report, Annex G, Transcript of the Joint Meeting with Experts, at para. 666. See also Panel Report, US-Continued Suspension of Obligations in the EC-Hormones Dispute, Complaint by the EC, WT/DS320, adopted 31 March 2008. 57. Consider White’s example of the North Atlantic Coast Fisheries Case where a committee of experts was tasked with determining both factual questions about the fishery and also the appropriateness, necessity, reasonableness and fairness of the disputed legislation. These questions clearly involved analysis and value judgement. The tribunal in this case was careful to retain a discretion in its handling of the report of the committee of experts. However in any event the establishment of a Permanent Mixed Fisheries Commission superseded reliance upon the committee of experts. White, Experts, supra note 10, at 167. Award of the Tribunal of Arbitration in the Question Relating to the North Atlantic Coast Fisheries (Great Britain/United States of America) (1910) X1 RIAA 167.



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the parties can be built into the consultation process. The parties should be given the opportunity to comment on the written questions that a panel intends to put to the experts, and identify questions that they consider would be likely to elicit from the experts their views on legal questions. The parties must be given the opportunity to comment on experts’ written responses to the panel’s written questions.58 All this is reflected in WTO practice. International courts and tribunals should not fight shy of taking overall responsibility for the decisions made in a case. As in the common law, ‘[a] Court trying a dispute…must itself decide the issues between the parties, no matter how difficult the issues, or how much their determination may require specialist knowledge.’59 In contrast, under Roman law a judge might refuse to pronounce judgment if neither party to a dispute could provide a convincing case.60 The doctrine of non liquet could result in deferral of a decision in the absence of sufficient information about the facts of the case.61 There is no authority for the recognition of such a doctrine in international law. International courts have a duty to reach a decision on disputes properly brought before them. The best way to avoid the real danger of reaching a decision based on facts that a court or tribunal does not properly comprehend is to make use of the best available means for the consultation of appropriate experts. Comfort may be drawn from the realization that there will seldom be a suggestion that international courts and tribunals should make narrow or specific findings involving taking a precise position on scientific issues. While the science must be thoroughly interrogated, a court’s findings on mixed questions of science and law will be predicated only on such views on the science as must be formed in order to make these findings. For example, in the Gabčíkovo-Nagymaros case, Hungary emphasized that the ICJ ‘does not have to pronounce definitively on contested scientific issues, but it does have to decide whether there were serious scientific concerns on issues affecting vital resources’. 62 In the Case Concerning Pulp Mills, counsel for Argentina urged the Court not to focus solely on the issue of whether or not the plant was causing harm, although it was necessary for the Court to consider these risks.63 Judges Al-Khasawneh and Simma observed in 58. In the Case Concerning Pulp Mills Judges Al-Khasawneh and Simma noted the value of hearing parties’ comments on the evidence of court-appointed experts. Case concerning Pulp Mills on the River Uruguay, supra note 24, Joint Dissenting Opinion of Judges Al-Khasawneh and Simma, at para. 13. 59. A.A.S. Zuckerman, Zuckerman on Civil Procedure: Principles of Practice (Sweet and Maxwell: London, 2006) at 731, footnote omitted. 60. Sandifer, supra note 6, at 126. 61. White, Experts, supra note 10, at 87. 62. Case Concerning the Gabčíkovo-Nagymaros Project (Hungary/Slovakia) Judgment (25 September 1997), ICJ Reports (1997) at 7; Verbatim Record (3 March 1997), at 94–95. See also Verbatim Record (10 April 1997), at 15–16. (visited 2 May 2010). 63. Case Concerning Pulp Mills, supra note 24, Verbatim Record (14 September 2009), translation,

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their Joint Dissenting Opinion that ‘the task of a court of justice is not to give a scientific assessment of what has happened, but to evaluate the claims of parties before it and whether such claims are sufficiently well-founded so as to constitute evidence of a breach of a legal obligation’.64

7. The Broader Context All these issues lie on the horizon of international adjudication. As yet, expert input does not have a high profile in the final decisions of most international courts and tribunals deciding disputes involving challenges to activities with an effect on human health or the environment. The configuration of the disputes to date has not ultimately required a closer involvement with the scientific evidence. Provisional measures are often sought in disputes relating to human health or the environment. Where a case does not progress to the merits this reduces the range of legal issues with scientific elements that courts and tribunals are required to consider. In an application for provisional measures the central legal issue to which science will be relevant will be whether there is an urgent need to preserve the parties’ rights or, under UNCLOS, the environment. Provisional measures were sought in the Nuclear Tests cases,65 the Mox Plant case,66 the Southern Bluefin Tuna cases67 and the Land Reclamation dispute,68 and in none of these cases were the merits adjudicated. Further, a court or tribunal will consider an application for provisional measures in the knowledge that the issues will be assessed more closely at the merits stage. Indeed, in its provisional measures order in the Southern Bluefin Tuna case the International Tribunal for the Law of the Sea observed that it could at 13–19. (visited 2 May 2010). 64. Ibid., Joint Dissenting Opinion of Judges Al-Khasawneh and Simma, at para. 4. 65. Nuclear Tests Case (New Zealand v France), Request for the Indication of Interim Measures of Protection, Order (22 June 1973) ICJ Reports (1973) at 135; see also Nuclear Tests Case (Australia v France) Request for the Indication of Interim Measures of Protection, Order (22 June 1973) ICJ Reports (1973) at 99. Interim measures were sought also in Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) Case, ICJ Reports (1995) at 288. 66. In the Dispute Concerning the MOX Plant, International Movements of Radioactive Materials and the Protection of the Marine Environment of the Irish Sea (Ireland v. United Kingdom) Request for Provisional Measures, Order (3 December 2001) 41 ILM 405. See also the reaffirmation of the Tribunal’s measure by the Tribunal constituted under Annex VII of the LOSC to hear the merits of the case, in Mox Plant case (Ireland v United Kingdom) (Suspension of Proceedings on Jurisdiction and Merits and Request for Further Provisional Measures) Order (24 June 2003), 42 ILM 1187. 67. Southern Bluefin Tuna cases, supra note 22. 68. Case Concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v. Singapore) (Provisional Measures) Order (8 October 2003) (visited 2 May 2010).



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not ‘conclusively assess the scientific evidence presented by the parties’.69 In the Gabčíkovo-Nagymaros case there was no application for provisional measures, as the parties had agreed on this in the Special Agreement for submission of their dispute to the Court, signed on 7 April 1993 in Brussels. The case proceeded directly to the merits stage. In the Case Concerning Pulp Mills the International Court of Justice declined Argentina’s request for provisional measures requiring Uruguay to suspend the authorization, construction and commissioning of the mills on the River Uruguay.70 The generally low profile accorded to scientific input is similar both in relation to the input of party-appointed experts and that of independent experts appointed by tribunals. The scientific evidence presented by the parties in the Gabčíkovo-Nagymaros case was referred to very briefly in the judgment of the ICJ. Reference even to the views of the Hungarian Academy of Sciences was made initially only in the form of an excerpt from a communication between the Hungarian Deputy-Prime Minister and his Czechoslovak counterpart explaining the Hungarian change of position in relation to the completion of the project.71 In dealing subsequently with the Hungarian plea of ecological necessity, the Court noted the impressive amount of scientific material placed on record by the parties and stated that it had given most careful attention to this material, but concluded that there was no need to determine which of the parties’ scientific point of view was better founded.72 The Court considered that a potential danger which remained uncertain could not be imminent in character and could not found a justification of necessity. This has been considered a controversial finding.73 In 69. Southern Bluefin Tuna Cases, supra note 22, at para. 80. 70. Case Concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay), Request for the Indication of Provisional Measures, Order (15 July 2006) (hereafter Case Concerning Pulp Mills (Provisional Measures)) ICJ Reports (2006). Uruguay also submitted an unsuccessful request to the Court for provisional measures. In Uruguay’s case, the request was an attempt to bring an end to Argentinean citizens’ blockades impeding transit across the General San Martin Bridge. Case Concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay), Request for the Indication of Provisional Measures, Order (23 January 2007), ICJ Reports (2007). 71. Case Concerning the Gabčíkovo-Nagymaros Project, supra note 63, at para. 35. The Committee had considered environmental, ecological, and seismological issues, as well as issues related to water-quality, and adopted the view that there was inadequate knowledge of the consequences of environmental risks associated with the project. The Committee found the risks associated with implementation of the project according to the original plan to be unacceptable. Further thorough and time-consuming studies were recommended by the Committee (although the Hungarian government noted that it could not be stated for certain that adverse impacts would ensue). 72. Ibid., at para. 54. 73. For commentary see inter alia Afshin A-Khavari and Donald R Rothwell, ‘The ICJ and the Danube Dam Case: A Missed Opportunity for International Environmental Law?’, 22 Melbourne University Law Review (1998) 507–536 at 529–530 and for a perspective taking into account more recent developments see Caroline E. Foster, ‘Necessity and Precaution in International Law: Responding to Oblique Forms of Urgency’, 32(2) New Zealand Universities Law Review (2008) 265–283 at 278–9.

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the Case Concerning Pulp Mills, the ICJ addressed the scientific issues before it over several pages of its judgment. More detailed treatment or investigation was considered unnecessary by the majority of the Court.74 In contrast with the relatively light touch applied in relation to expert evidence by the ICJ, WTO Panels more frequently make express reference to the expert evidence from the experts whom they consult. For instance, in the highly scientific case Japan-Measures affecting the Importation of Apples, the Panel relied freely and directly on the experts’ advice both during the original proceedings and subsequently at the compliance stage. The WTO panel dealing with the complaints in the Continued Suspension of Obligations cases was clearly reliant on its appointed experts’ advice. Further, the points in relation to which the Panel relied on expert evidence were, initially, dispositive of the overall case. The Panel found that the EC had failed to base its measures on a risk assessment in compliance with Article 5.1 of the WTO Agreement on Sanitary and Phytosanitary Measures, and that the EC could not rely on the provision in Article 5.7 allowing temporary measures without a risk assessment. Therefore the Panel determined that the EC had failed to establish the respondents’ breach of Article 22.8 of the DSU and thus of Article 23.1 of the DSU.75 In the event, the Appellate Body reversed these findings, because the Panel had applied the wrong legal tests when it made use of expert testimony. 76 The Appellate Body found that the purpose of a panel’s consultation with experts in relation to Article 5.1 was not to test ‘whether the panel-appointed experts would have done a risk assessment in the same way as a disputant’, and reached the same conclusions.77 The purpose was to help the panel verify ‘that a risk assessment was supported by coherent reasoning and respectable scientific evidence, and in this sense was objectively justifiable’.78 The panel had overstepped the mark by undertaking a role exceeding what was required in order to assess compliance with 74. Case concerning Pulp Mills on the River Uruguay, supra note 24, see in particular at paras 227–262. See, supra, text accompanying notes 24–25. 75. Article 22.8 of the DSU states that a suspension of concessions or other obligations shall be temporary and shall only be applied until such time as a measure found to be inconsistent with a covered agreement has been removed. Article 23.1 requires a member seeking redress of a violation of obligations under the covered agreements to have recourse to the rules and procedures of the DSU. The EC’s reasoning was that, as the EC had brought itself into compliance with the SPS Agreement, the respondents’ suspension of their obligations to the EC had to be lifted in accordance with Article 22.8. In continuing with the suspension of obligations in these circumstances, the respondents were seeking redress of a violation otherwise than in accordance with the DSU and so were in breach of Article 23.1. 76. Appellate Body Report, Continued Suspension of Obligations cases, Complaint by Canada, supra note 42, at paras 617, 619, in relation to Article 5.1, and, in relation to Article 5.7, 734. See also US-Continued Suspension of Obligations in the EC-Hormones Dispute, supra note 42. 77. Ibid., at para. 592. 78. Ibid., at para. 590.



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Article 5.1, and in doing so had misused the advice of the panel-appointed experts. When it came to Article 5.7, the Appellate Body considered that the panel had again erred, adopting an incorrect legal test for determining the insufficiency of scientific evidence, and therefore incorrectly appreciating the significance of the evidence before it.79 The Appellate Body was not criticizing the Panel for relying on expert evidence, only for making errors of law in relation to the interpretation of Articles 5.1 and 5.7. However, because the Panel made such errors, the evidence of the appointed experts was of less significance in the final outcome than it might otherwise have been.

8. The Wider Array of Methods for receiving Expert Evidence Do problems in relation to the complementary roles of experts and adjudicators arise also in relation to the wider array of methods for receiving expert evidence? Evidence specific to a case is frequently introduced direct from party-appointed experts in written form, and the appearance of party-appointed expert witnesses in court is a longstanding international practice.80 Basic procedures for hearing partyappointed expert witnesses were developed by the ICJ in the Corfu Channel case, and procedures are now well established in other international tribunals.81 Scientific evidence or critique might alternatively or additionally be presented by the parties’ advocates. These advocates may even be experts themselves, as seen in the Case Concerning the Gabčíkovo-Nagymaros Project and the Case Concerning Pulp Mills.82 The problems addressed in this article are less likely to arise as intensely in relation to expert witnesses appointed by the parties, as a court or tribunal is less likely to rely as directly and overtly on evidence understood by all participants as partisan in some degree. Further, the evidence will be framed by the party’s understanding of the case. It may or may not be accurately directed to relevant 79. Ibid., at paras 731 and . The test applied by the Panel was whether there was a ‘critical mass’ of new evidence and/or information that called into question the fundamental precepts of previous knowledge and evidence so as to render previously sufficient evidence insufficient. The Appellate Body considered this threshold too high. Ibid., at para 712. 80. See e.g. In the Case concerning Certain German Interests in Upper Silesia, four German expert witnesses and one Polish expert witness appeared before the PCIJ to comment on methods for preventing the subsidence of land, and found that acquisition of lands adjacent to a mining area was necessary for this purpose. Case concerning Certain German Interests in Polish Upper Silesia, PCIJ Series A, No. 713 (1926) at 51f. Neill H. Alford, Jr. ‘Fact Finding by the World Court’, 4 Villanova Law Review (1958) 37–91 at 68; Sandifer, supra note 6, at 332. 81. The Corfu Channel Case (United Kingdom v Albania) ICJ Pleadings (1948) 427–29. For a detailed overview, Alford, supra note 81, at 69–73. See also S. Rosenne, The Law and Practice of the International Court (2nd edn, Martinus Nijhoff Publishers: Leiden, 1985) at 572. 82. Case Concerning the Gabčíkovo-Nagymaros Project, supra note 63; Case Concerning Pulp Mills, supra note 24 and see text accompanying note 28.

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mixed questions of fact and law as perceived by the court or tribunal. Even where evidence from party-appointed experts is persuasive, this evidence is naturally a step removed from the court or tribunal by virtue of having been introduced by a party and subjected to the adversarial process. For these reasons, the risk of the court or tribunal abdicating responsibility for adjudication is lessened. A court or tribunal is unlikely to rely directly, without overtly making its own assessment of the facts, on scientific material introduced by counsel, even where counsel are themselves experts. Both party-appointed and tribunal-appointed experts may appear in a case, as in the Corfu Channel case.83 As mentioned just above, it was in the Corfu Channel case that the International Court of Justice developed procedures for questioning party-appointed witnesses. Additionally, a Commission of Experts was tasked with making an independent study of the facts in dispute between the parties in this case and was asked to prepare a report dealing with the likelihood of Albanian knowledge of the minelaying in the Channel.84 Following the delivery of the report, Albania complained of gaps in the report and further information was obtained from the Yugoslav government, with the experts also carrying out a site visit.85 When the Commission’s second report was presented, an additional short hearing was held and the experts were asked to respond to questions from members of the Court.86 The Court accorded ‘great weight’ to the experts’ opinion, considering their examination at the locality to have been carried out in such a way as to guarantee that their information was correct and impartial.87 In WTO cases involving scientific experts, such as EC-Hormones, both tribunal-appointed and party-appointed experts have participated in joint meetings with experts.88 Problems of the nature discussed in this article might potentially arise in relation to the testimony of a party-appointed expert who appeared in an expressly independent capacity. The idea of the party-appointed ‘independent’ witness is slightly at odds with the general duty of experts in many national jurisdictions today. Despite their being party-appointed experts, they are expected to operate 83. Alford, supra note 81, at 36–37; Keith Highet, ‘Evidence and Proof of Facts’ in Lori F. Damrosch (ed.), The International Court of Justice at a Crossroads (Transnational Publishers Inc.: Dobbs Ferry, New York, 1987) 355–375 at 361. 84. Corfu Channel Case, supra note 82; ICJ Reports (1949) 142, Annex 2, Experts’ Report (8 January 1949. 85. Ibid., at 151, Decision (17 January 1949), regarding an Enquiry on the Spot. 86. Ibid., at 152, Experts’ Report (8 February 1949), on the Investigations and Tests at Siberisk and Saranda; Ibid., at 163, Questions put by three Members of the Court (10 February 1949). The experts replied subsequently. Corfu Channel Case, supra note 82, at 165, Experts’ Replies (12 February 1949), to Questions put by Three Members of the Court; White, Experts, supra note 10, at 112. For a description of the procedures that were followed, Rosenne, supra note 82, at 1326–1336. 87. Corfu Channel case, supra note 82, at 22. 88. Panel Report, EC Measures Concerning Meat and Meat Products (Hormones), supra note 9.



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independently of the parties who appoint them. However the designation may involve a heightened degree of independence. One particular task that may be requested of a party-appointed independent witness is that he or she put forward a review of the advice that a party has relied upon in its dealings with the other party. Exactly such a role was performed by Professor Sir John Beddington in the Southern Bluefin Tuna Cases.89 An unusual and notable feature of Professor Beddington’s appearance was that ITLOS entertained his examination on the voir dire.90 Reviewing the opinion of Australian scientists Polacheck and Preece, Professor Beddington persuasively took the view that carried the day: ‘[c]learly, any increase in captures over those taken in 1997 can only further decrease the probability that the desired recovery can be achieved.’91 In the Land Reclamation case Malaysia asked Mr Roger Falconer to appear before the Tribunal as an independent consultant.92 In the Case Concerning Pulp Mills there was considerable debate over when an expert might qualify as independent, on which the Court declined to express a view.93 ‘Independent’ party-appointed witnesses have also been put forward in other fora. For example, in the EC-Asbestos case, Canada wished two of its delegation experts to be viewed as impartial and informed the meeting that they ‘are serving as honorary members of the delegation and have declined to accept any compensation from Her Majesty in order that both their independence and the appearance thereof may be guarded’.94 Problems of the type to which this article is directed are less likely in relation to expert studies commissioned by the parties before their dispute reaches the stage of litigation, as such evidence may be at a level of generality unfocussed on the particular legal issues arising in the case. To take an example, in the Belgium/ Netherlands (Iron Rhine) arbitration the Netherlands drew attention to a report by the Alterra Research Institute for the Green World, on which the Netherlands’ had based its environmental impact statement (EIS) of the temporary use of the 89. Southern Bluefin Tuna Cases, supra note 22. 90. Questions on the voir dire were restricted to points relating to the independence of the witness rather than his scientific credentials. Verbatim Record (18 August 1999) [at?] 38 line 27 (visited 2 May 2010). See also Order (27 August 1999) supra, at para. 25. On the use of the voir dire see also the South West Africa cases. ICJ Pleadings South West Africa Cases X 341 at 345, 346. For discussion, see Jessup, foreword, in Sandifer, supra note 6, at x and 340–341; Schwarzenberger, Georg, International Law as applied by International Courts and Tribunals (London: Stevens and Sons Ltd. 1986) at 648, 649; Highet, supra note 84, at 360–361. 91. Southern Bluefin Tuna Cases, supra note 22, Statement of Professor John Beddington submitted in evidence by Australia and New Zealand, para. 64. 92. Case Concerning Land Reclamation, supra note 69, Verbatim Record (25 September 2003, at 11.00 am) at 32–33. < www.itlos.org/> (visited 2 May 2010). 93. Case Concerning Pulp Mills, supra note 24, at paras. 166–168. 94. Panel Report, EC–Asbestos, supra note 9, Annex VI, Transcript of Joint Meeting with Experts, at para. 7. Canada made use of the experts on the Canadian delegation in questioning the correctness of particular points of record asserted by the Panel’s experts. Idem, 107, 189

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reactivated Iron Rhine railway through Dutch territory.95 The EIS also relied on a draft study by a firm called Transport Consultants and Engineers in relation to the ecological value of the protected areas that would be affected and for a detailed assessment of the effects of reactivation on their ecosystems and the protective measures that should be taken.96 The evidence presented in the 1995 Request for an Examination of the Situation may also be considered. In this case the ICJ considered New Zealand’s request to open earlier proceedings against France in relation to underground nuclear testing in the Pacific. Inter alia, New Zealand cited a 1982 study led by the noted French volcanologist M. Tazieff, in which the ‘venting’ of radio-active products from Mururoa and Fangataufa atolls was not excluded, and another study led by Hugh Atkinson, Director of the New Zealand National Radiation Laboratory, in 1983, which found evidence of venting.97 The parties may also cite the general views of UN specialised agencies and other intergovernmental organizations as well as of national authorities in other jurisdictions.98 In its WTO case against the EC ban on chrysotile asbestos in EC-Asbestos Canada referred to views of the Directorate-General XXIV of the EC, the United States Occupational Safety and Health Administration, the United States Environmental Protection Agency, and the WHO’s International Agency for Research on Cancer.99 Reference was made in the Case Concerning Pulp Mills to international organisations as an authoritative source of technical information. Argentina observed that the World Health Organisation had classified dioxins and furans as ‘known human carcinogens’ linked with problems in neurological development of newborns and to a variety of immunological diseases. In the Nuclear Tests Cases of 1973-1974 New Zealand cited in support the 1962 conclusions of the United Nations Scientific Committee on the Effects of Atomic Radiation (UNSCAER). UNSCAER was set up by the General Assembly in 1955 to collect and study radiological information including on fallout for nuclear weapons tests.100 Where the reports cited are pre-existing and contain general material there are unlikely to be serious difficulties. Many international courts and tribunals are empowered to make site visits. Here, general information may be provided to a court or tribunal on-site. The legal content of this information will probably be low, and so the problems addressed 95. Rejoinder of the Kingdom of the Netherlands, , at 8ff. 96. Counter-Memorial of the Kingdom of the Netherlands , at 27, para. 2.13.1.2. 97. Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) Case, Order (22 September 1995) ICJ Reports (1995) 288. 98. See Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), (26 February 2007) at paras 227ff. 99. Panel Report, EC–Asbestos, supra note 9, at paras 3.178, 3.327. 100. Nuclear Tests Case (New Zealand v France), supra note 66, Application for Provisional Measures, at para. 8. See also Nuclear Tests Case (Australia v France) Request for the Indication of Interim Measures of Protection, ICJ Reports (1973) at 99.



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in this article should not arise. In the Gabčíkovo-Nagymaros case, following an invitation by Slovakia, and Hungary’s expression of co-operation, arrangements were made for the site visit in a Protocol of Agreement concluded between the parties and supplemented by Agreed Minutes. The Court was in the area from 1 to 4 April 1997, visiting locations on the Danube and taking note of ‘technical explanations given by the representatives who had been designated for the purpose by the parties’.101 This site visit gave the Court the opportunity to deepen its understanding of the system of locks being constructed on the Danube, and to receive technical explanations that complemented the evidence it received on the construction of the system via the parties’ pleadings and the evidence they submitted formally to the Court. Even where the court or tribunal does not do so, their appointed experts may in appropriate circumstances conduct site inspections. In Corfu Channel, for example, the experts made a site inspection, as referred to above. This included inspecting the vessel alleged to have laid the mines in the Corfu Channel and conducting night-time observation tests with a blacked out vessel from Albanian look-out points.102 No site visit was made in the Case concerning Pulp Mills, although at least one of the judges considered this would have been valuable.103 Difficulties may however arise where international courts and tribunals seek advice from international organizations specializing in relevant fields. Provision is made in the Statute of the ICJ for the Court to request the provision of information by public international organizations, and to receive from them information provided at their own initiative that is relevant to cases before the court.104 For example, in the ICJ’s Advisory Opinion on the Construction of a Wall the ICJ referred to the UN Secretary General’s report on the wall, the written update to the report, and a voluminous dossier that the Secretary-General had provided dealing also with the humanitarian and socio-economic impact of the wall on the Palestinian population.105 A proactive approach to seeking the input of international organisations has been taken in cases involving human health within international trade law. The GATT panel dealing with Thailand-Cigarettes the Panel consulted repre101. Case Concerning the Gabčíkovo-Nagymaros Project, supra note 63, at para. 10. 102. Supra, text accompanying notes 88–93. Consider also the wide ranging enquiries conducted in the Behring Fur-Seal Arbitration (Great Britain/United States of America), 1 Moore International Arbitrations 945. 103. Case concerning Pulp Mills, supra note 24, Separate Opinion of Cançado Trindade, at para. 151. See also the Dissenting Opinion of Judge ad hoc Vinuesa, at para. 93, discussing the enquiry carried out in the Corfu Channel case. 104. Article 34(2) ICJ Statute. See also Article 69 ICJ Rules. Amerasinghe, Evidence, supra note 4, at 159. 105. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion), (9 July 2004) at para. 57, referring to the Report of the Secretary-General prepared pursuant to General Assembly resolution ES-10/13 A/ES-10/248, including particularly Section D – Humanitarian and Social Impact.

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sentatives of the World Health Organisation, at the request of Thailand and in accordance with an understanding between the parties, on technical aspects of the case including the health effects of cigarette use.106 The practice of consulting specialized agencies on technical questions has effectively been continued by WTO panels. In EC-Hormones, one of the experts included in the consultation process was from the Codex Alimentarius Commission.107 The Codex Secretariat was sent written questions as part of the Panel’s written consultations with experts.108 The WTO panel charged with producing a report in the Continued Suspension of Obligations cases consulted the Codex Alimentarius Commission, the Joint Expert Committee on Food Additives of the Food and Agriculture Organisation and the World Health Organisation, and the International Agency for Research on Cancer.109 The parties were invited to comment on the replies of these organisations together with the replies of the panel-appointed scientific experts, and then to comment on the comments made by the other parties.110 Representatives from these three organisations participated in the Joint Meeting with Experts, including Dr Cogliano, head of the Carcinogen Identification and Evaluation Group at the International Agency for Research on Cancer, who served at the same time as one of the six independent experts appointed by the Panel. In the event, their contributions during the meeting focused on explaining the institutional functioning of their respective agencies, as well as clarifying their agencies’ written responses. However it is possible that an international court or tribunal could treat evidence from international organisations similarly to evidence from independent witnesses and issues of the type canvassed earlier in this article might arise.

9. Conclusion Clearly there will be continue to be instances where international courts and tribunals must address closely mixed questions of fact and law, at times with definitive consequences. A closer engagement with the science, and with the testimony of scientific experts, will become an inevitable feature of the international adjudication of disputes involving potential harm to human health or the environment. A number of international disputes involving scientific issues are on the horizon. In 2008, Ecuador submitted an application to the International Court 106. GATT Panel Report, Thailand – Restrictions on Importation of and Internal Taxes on Cigarettes, DS10/R, adopted 7 November 1990, BISD 37S/20. 107. Panel Report, EC Measures Concerning Meat and Meat Products (Hormones), supra note 9. 108. Ibid., at para. 6.7. 109. Panel Report, Canada-Continued Suspension of Obligations in the EC-Hormones Dispute, supra note 42, Annex E Transcript of Joint Meeting with Experts. 110. Ibid., Annex F.



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of Justice in relation to aerial spraying by Colombia of herbicides at its border with Ecuador, as part of Colombia’s coca eradication programme. Ecuador has reported serious adverse health reactions as well as negative effects on crops and biodiversity.111 In the WTO, there are ongoing issues in relation to European requirements for the labelling of biotech products, and New Zealand is involved in dispute settlement proceedings against Australia over longstanding phytosanitary restrictions on the importation of New Zealand apples.112 Mexico is suing the US over the required labelling of tuna as having been caught using ‘dolphin-friendly’ methods, while the US has objected to the EU ban on poultry imports that have been subjected to chemical washes.113 Disputes may also arise in relation to climate change, both in the WTO, putting non-discrimination disciplines under considerable pressure, and in other fora.114 Regional fisheries organisations are giving serious consideration to adopting trade sanctions in order to enforce stock management and conservation measures, and this may give rise to further scientifically-oriented trade disputes. Australia is contemplating legal action before the International Court of Justice in relation to Japan’s scientific whaling programme. Scientific issues will also be to the fore in a number of North American Free Trade Agreement cases that are already underway. In September 2009, argument on the merits was heard in Crompton (Chemtura) Corp v. Government of Canada, regarding a prohibition on the use of lindane-based seed treatment for canola.115 In Dow AgroSciences LLC v. Government of Canada, a case concerning a precautionary ban by the government of Quebec on pesticides, consideration will need to be given to the thresholds for the invocation of the precautionary principle.116 In Vito G. Gallo v. The Government of Canada the Canadian Gov111. Aerial Herbicide Spraying (Ecuador v. Colombia), Application Instituting Proceedings (31 March 2008) (visited 2 May 2010). 112. Australia – Measures Affecting the Importation of Apples from New Zealand, Complaint by New Zealand, DS 367. 113. United States – Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, DS 381. 114. Drawing attention to the plight of the Inuit, we have already seen the Petition to the InterAmerican Commission on Human Rights Seeking Relief from Violations Resulting from Global Warning Caused by Acts and Omissions of the United States, submitted by Sheila Watt-Cloutier, with the support of the Inuit Circumpolar Conference, on Behalf of All Inuit of the Arctic Regions of the United States and Canada, 7 December 2005. The Commission was unable to process the petition because it included insufficient information about a possible violation of rights, but a hearing of a general nature was convened on the relationship between global warming and human rights. 115. Crompton (Chemtura) Corp v. Government of Canada, Notice of Intent to submit a Claim to Arbitration under Section B of Chapter 11 of the North American Free Trade Agreement (6 November 2001) (visited 2 May 2010). 116. Dow AgroSciences LLC v. The Government of Canada, Notice of Intent to submit a Claim to Arbitration under Chapter 11 of the North American Free Trade Agreement (25 August

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ernment is subject again to challenge, in relation to legislative intervention to prevent the use of a decommissioned iron ore mine in northern Ontario as a waste disposal site.117 Bilcon of Delaware v. Canada concerns an allegedly unduly lengthy environmental assessment review process in relation to a proposed quarry and marine terminal in Nova Scotia.118 Disputes are also arising in other investment fora. For example in the investment dispute Marion Unglaube v. Republic of Costa Rica a German couple are bringing a suit against the Republic of Costa Rica regarding legislation interfering with their tourist project in Playa Grande through the establishment of a national park for the protection of leatherback turtle nesting grounds.119 Tobacco company Philip Morris is pursuing Uruguay under the bilateral investment treaty between Uruguay and Switzerland following a Uruguayan decision to require extensive health warnings on cigarette boxes. International courts and tribunals may be content with allowing the parties to present countervailing scientific evidence, through expert reports, affidavits, advocacy and the appearance and examination and cross-examination of the parties’ own expert witnesses. Much can be learnt this way, and this basic model of adjudication is not to be discarded. Further, the parties may prefer this type of approach, as it allows each of them to retain a much fuller sense of control over their case. Lawyers from common law backgrounds may derive a particular advantage, as they are more used to presenting evidence and engaging in the cross-examination of opposing witnesses than lawyers from other legal traditions. However, there are also objective advantages to a more active judicial handling of a case, with direct and moderately informal consultation of experts appointed by the court or tribunal, along the lines of the procedure seen in the WTO. Arguably, fairness between litigants and fairness to the wider community may often best be served if international courts and tribunals appoint and consult closely with independent advisors when necessary.120 The presentation of expert evidence according to a traditional adversarial model may not prompt international courts and tribunals in the same way to come fully to terms with the scientific evidence in a case, and a court or tribunal may be more likely to produce a judgment that decides a case largely on the basis of legal issues. The proposition of 2008). Issues arising in this case will include whether, in light of all the circumstances of the case, reliance on the precautionary principle was sufficiently appropriate that the treatment accorded to the investor could be considered fair and equitable, and sufficiently appropriate that the actions of the host state could be classified as being for a public purpose such that the ban would not be regarded as an expropriation. 117. Vito G. Gallo v. The Government of Canada, Statement of Claim (23 June 2008). 118. Bilcon of Delaware v. Canada, Statement of Claim (30 January 2009). (visited 2 May 2010). 119. Marion Unglaube v. Republic of Costa Rica, ICSID case No. ARB/08/1, (visited 2 May 2010). 120. Alex Stein, Foundations of Evidence Law (Oxford University Press, 2005) at 237.



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a move in the direction of more independent enquiry by international courts and tribunals does raise serious questions about the extent of court-appointed experts’ involvement in decision-making, and even about experts’ involvement in constructing interpretations of legal rules. There is no ready remedy for this, but that should not hold back the development of practice where the need for new methods becomes imperative. It will be important to ensure transparency, to afford the parties opportunity to comment at every appropriate stage, and that the court or tribunal assume responsibility overall for its decisions. States are likely on the whole to support approaches to international adjudication under which every practicable and reasonable measure is taken to produce outcomes that will be accepted by litigants and by the international community.121

121. Lawrence R. Helfer, and Anne-Marie Slaughter, ‘Toward a Theory of Effective Supranational Adjudication’ 107 Yale Law Journal (1997) 273–392.



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An Introduction to Space Law by I. H. Ph. Diederiks-Verschoor and Vladimir Kopal. 3rd rev’d edn. Alphen aan den Rijn: Wolters Kluwer, 2008. 280 pp. ISBN 978–90–411–2647–4 For most international lawyers, space law is a bit of an esoteric specialization. Typically, lawyers who are drawn to international law want to work on human rights, on environmental issues or international criminal law, on trade and investment or, more traditionally, on the law of the sea, or the law of armed conflict perhaps. Amidst these staples of the broader discipline of international law, space law has always remained a bit of an outsider: good for a page or two in most introductory textbooks (often treated in tandem with air law), but otherwise the province of specialists, assembled in places such as the International Institute of Air and Space Law of the University of Leiden, the National Centre for Remote Sensing, Air and Space Law at the University of Mississippi, or the Institute of Air and Space Law at the University of Cologne. Space law may have remained a bit of an outsider because it is a relatively new invention. Where even ‘new’ areas in international law can often claim a considerable pedigree by having been around in different form (investment law can be seen as having re-incarnated the arcane topic of ‘protection of aliens’; international criminal law can be traced back as far in time as one wants via Nuremberg and Leipzig), space law, by definition, only arose when space exploration became a practical option: roughly from the 1950s onwards. Retired Dutch law professor Isabella Henrietta Philepina DiederiksVerschoor, formerly at the University of Utrecht, ranks as one of the pioneers on this new frontier, and qualifies as one of the ‘éminences grises’ of the field. Born in 1915, she has authored leading introductory texts to both air law and space law. The book under review is the third edition of her textbook on space law, revised with the help of another leading scholar in the field, Vladimír Kopal.1 An Introduction to Space Law is a traditional textbook in a variety of ways. A first way is that the text is organized along sensible lines but without aspiring to develop an overarching central argument, with separate chapters providing an overview of the various relevant treaties, the exploration and uses of outer space, environmental issues, and the use of outer space for peaceful purposes. These chapters are bookended by a chapter on the delimitation between air and space, and one on trends in the case law. The book comes in at some 160 pages of text, and another 60 pages or so which reproduce the texts of the relevant treaties. This makes that the student has the necessary materials readily available, and can consult them while simultaneously reading the authors’ authoritative commentary. The book is also very traditional in its tone. It highlights the importance of the UN and other organizations (in particular its Committee on the Peaceful Uses of Outer Space, chaired for many years by co-author Kopal), and indeed of cooperation in general. The final sentence of the last really substantive chapter (it is followed by the chapter on case law which, however, would have been better as an annex) speaks volumes. After noting, again in very traditional fashion, that the peaceful use of outer space depends ultimately 1. The first edition was positively reviewed by Paul Gormley in 6 Finnish Yearbook of International Law (1995) 604–619.

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on the political will of states, Diederiks-Verschoor notes: ‘It is my firm conviction that we have to reach our goal by closer international, regional and/or bilateral co-operation, and this is what we should all try to stimulate and work toward’ (at 145). The reasoning too (or absence thereof ) is perhaps more traditional than would be desirable. Diederiks-Verschoor often notes that she is in agreement with a position, or concurs, but omits to provide argumentation. A borderline case is her position on Reagan’s Strategic Defense Initiative (SDI), first launched in 1983, which, she suggests, ‘is not illegal under the Outer Space Treaty as long as it remains a research project’ (at 142). That begs the question, of course: there was little to be gained by SDI without any form of implementation. The statement here smacks a bit of saying that there is nothing illegal in thinking about killing someone as long as you don’t actually attempt to do so. But at other points the absence of argumentation is more blatant still. Why, e.g., should ground-based invention in space technology be treated as regular inventions, subject to flag state law? (at 122). And why would it be preferable to regulate intellectual property issues related to space activities in an annex to the 1974 Brussels Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite, instead of devoting a separate convention to the topic? (at 114). It might well be that the answers reside in obvious and practical concerns, but especially in a text aimed at a student audience and the general public, such matters may well deserve to be spelled out. Finally, one item which illustrates the highly traditional approach underlying the book is that whenever the author is critical of a treaty provision, it is almost invariably for want of precision. But that raises familiar problems: how to define such things as ‘best efforts’, or ‘harmful contamination’ or ‘appropriate measures’? Complaining that such terms lack precision is correct, but only in a fairly meaningless way: since law-making politicians are bound never to fully agree on any given topic, and since the law cannot cover all contingencies at any rate, the law inevitably needs to fall back on open-ended clauses. This has been a staple of jurisprudence since at least the early 1960s, and it remains a bit surprising nowadays to see such insights neglected.2 Having said all this, though, the book under review is an extremely useful and authoritative overview of international space law. It contains solid and insightful discussions of the relevant treaties, ranging from the 1967 Outer Space Treaty and the 1972 Liability Convention to the 1979 Moon Agreement. It covers some of the more relevant topics (peaceful use of outer space, environmental issues), and does so in considerable detail. It familiarizes the reader in pleasant ways with such exotic topics as remote sensing and commercial satellites, and almost in passing makes the point that technologically it is no longer a problem to have aircraft passengers safely use their mobile phones, due to the invention of so-called ‘mobile earth stations’ (at 69). As the above comments on Reagan’s SDI already suggest, it is not always clear to what extent the book is actually updated. Or rather, it seems to be the case that the author has mainly left a previous version intact and added a paragraph here and there whenever a new development warranted doing so. Indeed, when discussing the use of satellites for

2. An early contribution in Dutch on the open-ended nature of much law is G. J. Wiarda, Drie typen van rechtsvinding (Zwolle: Tjeenk Willink, 1972). This was first published, in different format, in 1963.



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navigation, such is explicitly stated (at 69). It also remains unclear how co-author Kopal has influenced the text: mostly, the work is written in the singular form. Still, this is a nice and readable introduction to space law, which is well-suited as a textbook for university students and the general public, in conformity with the intention stated in the Preface. In this light, it is surprising, to say the least, that the book is only available in hardcover and at the considerable retail price of USD 136. Surely, any potential reader confronted with opportunity costs will think twice (or more often still) before deciding to purchase such an expensive book, its qualities notwithstanding. Jan Klabbers

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Human Rights, Southern Voices: Francis Deng, Abdullahi An-Nai’m, Yash Ghai and Upendra Baxi edited by William Twining. Cambridge University Press, 2009. viii + 238 pp. ISBN 978–0–521–13026–4 (paperback), ISBN 978–0–521–11321–2 (hardback) Human Rights, Southern Voices is not a book about some special theme relating to human rights. Neither is it (per se) a book about the four jurists whose texts it includes – even though the editor does give some interesting information about the authors on the way. The raison d’être of Human Rights, Southern Voices is rather to give voice to writers who represent these ‘southern voices’1 and who deserve more attention in the western academic world. The editor, William Twining, explains: A just international order and a healthy cosmopolitan discipline of law need to include perspectives that take account of the standpoints, interests, concerns, and beliefs of non-western people and traditions. The dominant Western scholarly and activist discourses about human rights have developed largely without reference to these other standpoints and traditions.2 Claims about universality sit uneasily with ignorance of other traditions and parochial or ethnocentric tendencies. The purpose of this book is to take a modest first step towards de-parochializing our juristic canon by making accessible the basic ideas about human rights of four jurists who present distinct ‘Southern’ perspectives. (at 1)

Twining does not want to evaluate the texts of the authors but lets them speak for themselves. And that they do. The jurists already repeatedly mentioned are Francis Deng, Abdullahi An-Na’im, Yash Ghai and Upendra Baxi. The structure of the book offers no surprises: after a short general introduction by Twining follow the actual readings composed of some key texts of the authors and the book ends with a conclusion by the editor. Each of the readings is set up by a short preface in which Twining introduces the author and gives some information about the author’s past, education, and work on human rights. I find these introductions to be worthy of a special mention. Not only do they provide an interesting reading, but they also turn out to be surprisingly helpful when pondering on and interpreting the texts: knowing the authors’ pasts helps to understand their thinking. I often found myself wondering how the radical past of An-Na’im as a follower of Tahi, or Deng’s dualist background as a son of a paramount chief, on the one hand, and as part of one of the poorest people in the world, on the other, have affected their thoughts on human rights. Some connections, like why the East African Asian Ghai gives so much attention to the fight against racism, or why the concept human dignity has such an important part in the texts of the Yale-educated Deng, are easier to figure out, but no less important. The actual readings consist of already published articles and pieces of articles/books by the four authors – they are not new and they do not necessarily constitute a seamless 1. In the conclusion of the book, Twining goes through several problems and advantages relating to the term ‘southern.’ He concludes that: ‘“Southern” in this context does not refer to a place – rather to what Upendra Baxi calls “geographies of injustice”’ (at 212). 2. Twining refers here to Chapter 1 of his own book: William Twining, General Jurisprudence: Understanding Law from a Global Perspective (Cambridge University Press, 2009).



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whole. Twining has chosen articles for the purpose of providing a relatively coherent picture of the most central human rights theories of the authors, instead of some more specific topic. This is a very tempting deal from a student’s perspective since the readings provide an easy, guided passage to the central ideas of these scholars, but through their own texts instead of secondary sources. Deng’s reading consists of three parts. In the first part he gives an introduction to the culture, traditions and values of his people, the Dinka (chapter 2.2). In the second part, consisting of magazine articles, Deng discusses briefly human rights, universalism, and democracy in the African context (chapter 2.3). The universal claim of human rights and the challenge of relativism will be discussed in more detail later in this review, since it forms in my opinion the most fundamental issue for all the four writers, as well as one that binds the texts together. Regarding democracy, Deng is very concerned about two things in particular. First, the ethnic and religious pluralism in Africa leads to a situation where Africans vote on the basis of their ethnic or religious identity instead of political opinions and democracy risks becoming a dictatorship by numbers (at 33–4). Second, because the constitutions of many African states were drafted by their colonial masters, they lack legitimacy and are often discarded (at 35). In the third part Deng studies the compatibility of the Dinka culture and human rights (chapter 2.4). In An-Na’im’s text – even though it covers several topics – there are two themes that rise above the others. The first is the compatibility of Islam and human rights. Central to this theme is the argument that Islam is perfectly compatible with human rights but that sharia law is not. An-Na’im stresses that sharia was created to make sure that Islam can survive in a particular historical context. However, since the world has changed a lot from those days, sharia should change as well. And it should change to a direction that is closer to the more tolerant views of the Qur’an (and human rights) (chapters 3.2 and 3.3). The second theme is the creation of an intelligent strategy for the promotion of universal human rights. Such a strategy is An-Na’im’s famous approach that focuses on internal struggle and cross-cultural dialogue. An-Na’im believes that lack of cultural legitimacy is one of the main causes of human rights violations. He points out that all individuals within a society by no means hold uniform views on cultural values and norms. But dominant groups, that have the chance of representing cultures outside, maintain interpretations of cultures that suit their own interests. Within each society, an internal struggle is therefore required. Each society has to find an interpretation of human rights that suits their basic values but is not blurred by individual interests. When an adequate level of legitimacy within each tradition is found, scholars can work for cross-cultural legitimacy through discourse (chapter 3.4). Ghai’s reading, like Deng’s, consists of three clear parts. In the first one he studies the universalism versus relativism debate (chapter 4.2). In the second part, Ghai discusses human rights in the Asian context (chapter 4.3). He especially stresses the diversity of Asia. The final part consists of various short excerpts of Ghai’s papers (chapter 4.4). These excerpts articulate Ghai’s opinions on various topics relating to human rights. Generally, it is important to note that Ghai believes that human rights are historically determined and a result of social struggles. He is wary of ideological approaches that seek to lock us into polarities (at 122–23). His approach to human rights is, therefore, very practical and material. It is also fitting that Ghai devotes a lot of attention to the effects that

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globalization and poverty have on the least well-off and the realization of their rights. He is of the opinion that the dominance of the economic ideology of globalization has diminished values of equality, solidarity and social justice (at 145). Baxi’s reading is based on two articles. However, both of these articles discuss several themes relating to human rights and often it seems that Baxi somehow manages – in his learned yet radical way – to touch upon almost every central topic that has something to do with human rights, despite the relatively short space given to every reading. Baxi’s many-sided chapter is tied together with one central theme: human suffering. According to Baxi ‘the historic mission of contemporary human rights is to give voice to human suffering, to make it visible and to ameliorate it’ (at 164). Baxi sees human rights as a way of protest, a way to question political practices everywhere. To quote him again: ‘Human rights languages are all that we have to interrogate the barbarism of power, even when these remain inadequate to humanize fully the barbaric practices of politics’ (at 164). As already mentioned, a theme that unites all of the readings is the debate between universalism and relativism. All four authors support universal human rights but in different ways and for different reasons. Deng and An-Na’im believe, most clearly of the four, that there are some universal values that all humans and traditions share. Deng derives – not surprisingly for a student of the New Haven School – the universality from the concept of human dignity shared by all human beings (at 36). An-Na’im’s point of departure is the golden rule of reciprocity (at 64-6). An-Na’im argues that ‘universal human rights are those which a cultural tradition would claim for its own members and must therefore concede to members of other traditions if it is to expect reciprocal treatment from those others’ (at 66). However, his universalism has a very pragmatic level as well. He points out that ‘there are certain universal standards of human rights which are binding under international law and that every effort should be made to enforce them in practice. Thus the principle of respect for and protection of human rights has been described as jus cogens’ (at 63). In this pragmatism he comes – even if only slightly and for a short time – close to Ghai who sees both universalism and relativism as important but does not necessarily believe in either and supports human rights more as a useful framework for practical negotiations (at 113). Ghai’s opinion is that ‘in the discourse of rights, concerns with culture are less important than the balance of power and the competition for resources’ (at 112). Finally, Baxi – even though often very sceptical towards human rights – derives their universality from the fight against universal suffering. None of the four is ready to embrace universalism unreservedly, however. They all are wary of the ‘dark sides’ of universalism, the possibility of intolerance and the lack of cultural sensibility. Consequently they emphasize cultural particularities. But just like in the case of universalism, they reject strong forms of relativism. They recognize that the relativist arguments are most often raised by dominant elites who get to represent the culture or society to the outside world – to further their individual interests: they are used to wrongfully justify violations. All four authors navigate, therefore, somewhere in between universalism and relativism. I am not sure if any of the authors bring anything strikingly new to the universalismrelativism debate. This is, of course, only natural considering that the texts concerning this topic are at least ten years old in the case of each of the authors. Keeping in mind that all of the texts are also previously published, demanding something new would in-



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deed be quite paradoxical. Even so, the central ideas of each of them are still of extreme importance. For example, the approach of internal struggle and cross-cultural dialogue of An-Na’im is one of the few intelligent strategies for the promotion of universal human rights. Each of the authors also approaches the debate from a reasonable and learned perspective and their arguments are very well-put. Especially Deng and Baxi pay a lot of attention to human rights critique. Human Rights Southern Voices should therefore be of interests for even those already quite well versed in the debate – as long as they haven’t already studied the thoughts of the four jurists in detail. Despite the fact that all four authors take human rights critique into account, perhaps the uppermost feeling after reading their ideas about universalism is hope. It is true that universally acceptable yet effectively applicable human rights can never exist in practice. The reasons are at least threefold. First, it is impossible to capture the essence of such abstract principles as human rights in legally binding rules. Second, human rights treaties, just like all other treaties, are the result of conflicting political interests and therefore indeterminate. And finally, because of the first two reasons, human rights conflicts are always a question of balancing conflicting claims against each other – and therefore vulnerable to decision-makers’ subjective interests.3 But Human Rights, Southern Voices demonstrates that the work for human rights is still not futile. Deng and An-Na’im show with their studies of the Dinka and Islamic cultures that the central values behind human rights are indeed compatible with these two cultures no matter how different they are from western ones. I believe that a key point for both jurists – and one that is mentioned also in the texts of Ghai and Baxi – is that it is necessary to differentiate between practices that are followed ‘just because’, and often violate the rights of some group, and the true values of communities. The problem is, of course, that outsiders cannot know which values really matter. Classifying everything foreign as an unnecessary practice gives the most powerful states the chance to use human rights as a weapon for cultural imperialism – human rights language is an impressive tool of power, after all. But this is when the internal struggle, cross-cultural dialogue approach, supported by both Deng and An-Na’im, enters the picture, suggesting culturally sensitive strategies for solving this problem.4 Ghai the negotiator and Baxi the protest scholar might not be as optimistic about the future of human rights as the ‘human rights believers’ Deng and An-Na’im are but (as explained above) even they end up supporting the project of universal human rights. Before this review starts to sound too much like an advert, I must hasten to say that I do have some critical remarks as well – or I maybe I should say had. In his introduction – as quoted in the beginning of this review – Twining wrote that he wanted to de3. See Martti Koskenniemi, ‘Human Rights, Politics and Love’, 4 Mennesker & Rettigheter (2001) 33–45; Jarna Petman ‘Human Rights, Democracy and the Left’, 2 Unbound: Harvard Journal of the Legal Left (2006) 63–90; Duncan Kennedy, ‘The Critique of Rights in Critical Legal Studies’, in Wendy Brown and Janet Halley (eds), Left Legalism/Left Critique (Duke University Press, 2002) 178–227. 4. Unfortunately for this approach, the more serious the human rights violations become, the less useful approach seems to be. To take an extreme example, one could ask how the approach could help in a situation where the international community plans a humanitarian intervention. Internal struggle is clearly not possible in this case and cross-cultural dialogue does not seem very realistic, either. This criticism might not be very fair, since the approach is clearly not created for these kinds of situations, but the problem is nevertheless quite grave since it is precisely in these extreme cases where human rights are most easily used as a tool for power – one can think of wars of Afghanistan and Iraq, for example.

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parochialize western juristic circles. When I was reading the book, I repeatedly had to wonder if – keeping that object in mind – the choice of writers was correct. I’m sure that everyone has heard the phrase ‘human rights are made by (and for) white middle-aged men’. Despite the purpose of the book, the only difference between that stereotype and the authors chosen for Human Rights, Southern Voices seems to be that none of the writers is white. But, even so, they are all educated at top western universities (and I would be ready to argue that authors like An-Na’im are quite well known among western academics already). In addition the authors come from a rather limited geographical area (both Deng and An-Na’im are from Sudan, Ghai is from Kenya and Baxi from India). I think that it would have been interesting to throw someone from the Far East or Latin-America into the mix. Similarly, it would have been interesting to include an author more critical towards human rights. I wrote, however, that I had some complaints. This is because as soon as I reached the conclusion of the book, I came to find out that – to my relief, and perhaps a little bit to my annoyance since this was the only piece of criticism that I managed to come up with – Twining had (not very surprisingly) thought of all this as well. But he wanted to choose writers that he knew personally and who wrote in English. Concerning maledominance, a separate volume for gender issues and feminist perspectives is on its way. This last explication does not feel wholly satisfactory, however. Is it not a bit problematic that ‘southern’ women are given voice only on questions relating solely to gender-issues? Would it not be necessary to hear their voices also on more general issues, like the ones discussed in this book? Nevertheless, after reading Twining’s conclusion and taking into account the wonderful end result that the Human Rights, Southern Voices surely is, it is hard to question his choices. To conclude, Human Rights, Southern Voices provides an extremely interesting and thought-provoking reading. For a student it is also quite an intellectual rollercoaster ride, for all of the authors argue for their opinions in such a persuasive way that the reader goes through a metamorphosis from a human rights believer, to a down-to-earth pragmatist, to a protest scholar, and ends up in a complete state of bafflement. Some (extra) warnings are required, however: Human Rights, Southern Voices is not for those who have no previous knowledge of human rights and are just looking for a basic textbook. The book discusses very fundamental and theoretical questions behind human rights and is – excluding some parts – not an introduction to the human rights debate. Neither does the book target those who are already very familiar with the authors, since it is based on their previous papers that highlight their most central ideas. However, for everyone in between, Human Rights, Southern Voices is a must read: each of the readings is filled with enlightened, well put and often brilliant thoughts. And the introductions and conclusion by William Twining help to take everything out of them. Ukri Soirila



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Human Righs: Confronting Myths and Misunderstandings by Andrew Fagan. Edward Elgar: Cheltenham, 2009. 154 pp. ISBN 978– 1–84844–161–3 In the context of cultural homogenisation, often called ‘globalisation’, political discussion is increasingly framed in terms of human rights, which are often referred to as the vocabulary of a universal ethical system. Therefore, Andrew Fagan’s book, which purports to confront ‘a number of enduring and significant myths and misunderstandings which afflict both the theory and the practice of human rights’ (at 1), promises to be a significant and interesting contribution. In what follows, I attempt to provide an overview of Fagan’s argument and to subject it to a few fundamental criticisms. At the outset Fagan suggests that the foremost myth in need of correction is the belief that we now live in a veritable age of human rights. ‘This age,’ says Fagan, ‘is yet to arrive, as evidenced by the countless millions, if not billions, of human beings whose basic human rights are systematically denied every waking day of their lives’ (at 1). He remarks that like many other so-called historical ‘ages’ or epochs before, the age of human rights remains ‘a relatively rarefied property of the privileged few, who are sometimes too quick to misconstrue their own conditions for those of others’ (ibid.). In Chapter 1, Fagan addresses what he calls a widespread misunderstanding, namely the established tendency to confuse social privileges with human rights. ‘[T]his tendency,’ he suggests, ‘has its roots within human rights theory and the difficulty in determining the basis and scope of what it means to be human in the first place’ (at 3). He argues that neither interest theory (which identifies as the purpose of human rights the protection of those fundamental interests that constitute us as humans) nor choice theory (which views human rights as the mechanism of securing and promoting the exercise of individuals’ free choice) has proven satisfactory in establishing an equitable demarcation between rights and social privileges. A more constructive place to develop a functional criterion of distinction lies, according to Fagan, in a re-engagement with systematic human suffering as a central motive for human rights and, beyond that, an account of human rights ‘as a form of minimal moral perfectionism’ (at 25). Following this line of argumentation, in Chapter 2 Fagan takes issue with the legal positivist myth of human rights. He argues that a vision of human rights as a strictly legal phenomenon falls blatantly short of human rights ideals: a comprehensive understanding of human rights necessarily needs to acknowledge and respect its moral dimension, which is not reducible to, or dependent upon, legal recognition and codification. In Chapter 3, perhaps somewhat surprisingly, Fagan addresses what he calls the myth of human rights as a universally valid moral doctrine. He is aware that in light of the argument as laid out in Chapter 2 this may seem as a simple contradiction on his part for typically refutations of legal positivism appeal to moral universalism and characterise legal positivism as an expression of moral relativism.1 This is correct, says Fagan, but he adds that arguments supporting human rights’ universal validity tend to ignore the social basis to human rights. He aims to demonstrate that a successful extension of the legitimacy 1. For a classic example see Hans Kelsen, ‘Absolutism and Relativism in Philosophy and Politics’, 42 The American Political Science Review (1948) 906–914.

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of human rights requires a serious engagement with society and culture in order to go beyond the standard claim that the globally acceptable justification of human rights is purely theoretical and that socio-cultural circumstances have no bearing on the matter. Chapter 4 focuses on the relationship between human rights principles and nation states. Fagan argues that there is a widespread cosmopolitan misunderstanding of human rights, which portrays them as inevitably incompatible with the modern state. In his view a correct understanding of human rights as a contemporary moral doctrine must include a comprehensive and accurate account of the institutional capacity of the state to protect and promote human rights. Chapter 5 retains this focus and addresses what Fagan calls an important myth concerning the relationship between democracy and human rights. Fagan shares the standard position that democracy is both a necessary and a sufficient pre-condition of human rights. However, drawing upon Henry Shue’s notion of rights holism and relying on his understanding of human rights as a means of fighting suffering, Fagan confronts the view that democracy is based on the enjoyment of civil and political rights alone and does not require any significant concern for what are called economic, social and cultural rights. Chapter 6 extends the notion of rights holism and addresses what Fagan calls a significant misunderstanding concerning the relationship between rights and duties. Opening this analysis in the context of a discussion of economic justice, Fagan takes issue with the argument that human rights are insensitive to duties. In his view, this argument fails to conceptualise adequately the necessary role of duty as a counterpart to the possession and effective exercise of any human right. The concluding chapter, Chapter 7, attempts to outline ‘a positive and constructive vision and account of human rights in the contemporary age’ (at 5). Fagan admits that his aim is not to end all subsequent discussion of the topic, but rather to present an account that suffers less from popular myths and misunderstandings, which affect both our understanding of human rights and, more importantly, the prospects for their realisation. Fagan’s discussions are thought-provoking and many points he raises deserve consideration far beyond the format of this review. Among such issues is Fagan’s claim that democracy (or that form of political organisation which we have come to call thus) is a necessary pre-condition of human rights and his view that human rights are essentially a moral phenomenon, even though they cannot be seen as a universally valid moral doctrine. He draws an interesting distinction between the substance and the form of human rights (though not in so many words), hinting that although the moral content of human rights is universally and uniformly valid, this cannot necessarily be said about the form of social regulation that human rights acquire in a particular socio-cultural setting. However, the most significant aspect of Fagan’s book is his treatment of the meaning and theoretical foundation of the very notion of human rights. Fagan is fundamentally correct that although ours is an era in which human rights have become the prevalent if not the standard vocabulary of political rhetoric, discussions over or involving human rights often seem to suffer from a lack of understanding of what precisely is meant by human rights. This harmonises with the observation that James Griffin made in another recent attempt at conceptualising human rights:



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When during the seventeenth and eighteenth centuries the theological content of the idea [of human rights] was abandoned, nothing was put in its place. The term was left with so few criteria for determining when it is used correctly, and when incorrectly, that we often have only a tenuous, and sometimes a plainly inadequate, grasp on what is at issue. Its indeterminateness of sense is not something characteristic of ethical terms in general; it is a problem specifically, though perhaps not uniquely, with the term ‘human right’.2

The aim of overcoming or at least diminishing this confusion, which lessens considerably the extent to which political discussion based on, involving or centring on human rights may be described as rational, is at the core of the book under review. According to Fagan, his intention is ‘to encourage all students and practitioners of human rights to reflect upon what they consider the basis and scope of human rights rightfully to be’ (at 3). Fagan is right that confusion concerning the concept of human rights manifests itself in an inability to distinguish between human rights and social benefits. The process of trying to define more and more social benefits as human rights, aptly called ‘human rights inflationism’, may devalue the whole idea of human rights. Fagan’s example of British prisoners successfully bringing a class-action case against the British government, claiming that the Prison Service violated their human rights by failing to provide them with a methadone substitute for their heroine addiction, outlines the problem with sufficient clarity. As Fagan notes, the scope of human rights obviously extends beyond seeking to protect populations from genocide, but indeed, how much further does it extend? Where to draw the line and what to use as a justified and functional criterion? This is a critically important question. It is not difficult to agree with Fagan that it cannot be answered without a consideration of two foundational questions of human rights: what justifies their existence and what is their purpose? Seeking an answer, Fagan criticises the view that the purpose of human rights is securing that which makes us human (either fundamental human interests or personal autonomy, as he puts it) and argues that human rights exist ‘not to ensure human life per se but to protect and promote the conditions for a certain quality of life for all’ (at 6). Both interest theory and choice theory are, according to Fagan, insufficient to function as a convincing justification for human rights. The former suffers from what he calls the ‘motivational question’, i.e. it fails to explain why anyone should be interested in ensuring that the interest of others be secured. The latter leaves too many important questions unanswered for the purposes of identifying both the basis and the scope of human rights. However, and as argued below, it seems that the criticism Fagan directs at the interest theory and choice theory applies, mutatis mutandis, no less to his own theory. In Fagan’s view, human rights properly understood are the means to overcome human suffering and to secure the conditions for a minimally good life. On the one hand, he admits that the ‘concept of a minimal threshold may not, ultimately, overcome the inherently evaluative character of attempts to define the basis and scope of humankind and our correlative rights’ (at 24). Yet on the other hand, he is confident that ‘[i]t does offer us, for the time being at least, a more satisfactory criterion by which we may begin to separate rights from privileges’ (ibid.). 2. James Griffin, On Human Rights (Oxford University Press, 2009) at 2.

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This view is questionable, to say the least. Firstly, the concept of a minimally good life seems, if anything, even more open-ended than that of fundamental human interests. People’s visions as to what constitutes a minimally good life differ drastically depending on whether the question is posed, say, in Finland, Tibet, Iran or Sudan. Furthermore, suffering itself is far from having a uniform perception and interpretation within humankind. Although the hedonist view, which considers happiness in terms of maximising pleasure and avoiding suffering, is dominant in the contemporary materialistically inclined Western culture, it is far from universal even within the Western philosophical tradition, not to mention Eastern philosophical thought. For example, in Stoic and Christian philosophy, as well as in Buddhism and Hinduism, suffering has a very meaningful place in human existence and noble (good) life is seen to consist not in avoiding suffering, but rather in confronting it either by discovering its meaning or overcoming it by mastering one’s control over senses. Thus, Fagan’s assumption that avoidance of suffering is a universally shared aim of humankind is, at best, questionable and should at least be well qualified. Furthermore, although Fagan puts the notion of suffering (or its prevention) at the centre of his understanding of human rights and admits that ‘[a]ny attempt adequately to distinguish between human rights and social privileges must begin with determining what constitutes human suffering’ (at 24), he does not present a convincing analysis as to what ought to be considered as the ‘systematic and significant human suffering’ that human rights are supposed to do away with. What kind of suffering is systematic and when is suffering significant? In the following passage he makes an effort to determine the kind of suffering that human rights should counter, but as he himself admits, this effort is not sufficient, leaving too many questions unanswered: Human rights must aim to eradicate systematic physiological suffering in the many forms it takes. Human rights must also aim to provide protection to individuals from those systematic forms of psychological suffering which, for example, oppress people for their beliefs and conscience, or exclude the possibility of developing ideals and values which are not approved of by those in power. However, they must not be extended to cover more overtly partial attempts to secure for particular constituencies the satisfaction of wants the realisation of which amounts to a mere social privilege. What constitutes suffering remains, admittedly, a controversial area of concern and debate (at 145).

Adding to this Fagan’s words that ‘[s]ocial and cultural factors are obviously deeply influential upon how human suffering is identified and measured’ (at 146), it becomes increasingly questionable whether his theory provides a functional criterion whereby to call the difference between human rights and social benefits. After all, and coming back to Fagan’s already mentioned example, deprivation from heroine may also cause very real and significant suffering to long-time addicts. Moreover, Fagan criticises the interest theory by arguing that it is not clear why people should be interested in other people having access to that which secures their fundamental interests. But he fails to demonstrate how this is different when we are talking about people’s interest in other people’s ability to be free from suffering. At the end of the day, it is a question of empathy in either case. Hence, the motivational question that Fagan



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invokes to criticise the interest theory of human rights – why should people care about the well-being of others? – is just as relevant with regard to his own theory. Although Fagan’s decision to build his theory of human rights around the notion of human suffering may seem not reasoned enough, the rest of his theory is consistent with this point of departure. He consistently conceives of human rights as a means of eradicating human suffering and guaranteeing a certain quality of life, and thus logically regards the distinction between civil and political rights on the one hand and social, economic and cultural rights on the other to be artificial and unjustified (ideologically motivated). However, it should not go unnoticed that the human rights project is anyhow thoroughly influenced by ideological ambitions far beyond the protection of human dignity and that conceptualising human rights as the means of eradicating human suffering threatens to make it even more so. Fagan pays too little attention to this problem, although he is aware of it, writing that ‘a concern to prevent suffering may run the risk of resorting to an unduly paternalist approach to regulating human affairs, which compounds to the problem by thwarting some people’s expressed will and commitments’ (at 146). This is a serious concern and one that should not be dismissed lightly. Following Fagan’s vision that ‘the moral essence of human rights is a commitment to the resources necessary for their enjoyment within a global community’ (at 22), the international human rights project may easily be turned into an ideological mechanism of promoting the welfare state model as the ideal and perhaps the only form of organising society so as to bring about ‘a veritable age of human rights’, where everyone has enough resources to be free from systematic and significant human suffering. This seems troubling since the sustainability of the welfare state model of government, which is a very recent invention and which the anti-suffering model of human rights would seem to promote as the ideal way of organising the society, is becoming increasingly questionable (as evidenced, among other factors, by demographic, economic and cultural processes in countries applying it). Although Fagan says that his approach ‘appears to ask relatively little of human rights’ (at 146), it actually appears to burden human rights too heavily. Fagan himself seems to be aware that what he asks of human rights is simply unrealistic. At the beginning of the book he maintains that a commitment to human rights entails ‘a commitment to satisfactorily securing the conditions required for a world finally free from the effects of systematic misery and avoidable suffering’ (at 1). Yet he later admits that such a state of affairs is a utopia (indeed largely in the sense Thomas More used the term) which cannot possibly be brought about. However, he does not view this as a serious problem, stating rather that human rights necessarily need to contain a ‘utopian element’ to retain a critical independence (at 47). A vision of a world ‘free from the effects of systematic misery and avoidable suffering’ is no doubt compelling. But is such an ‘age of human rights’ in principle attainable in the imperfect world we live in? Is the hope that human rights will liberate us from systematic misery and significant suffering rooted in a realistic understanding of the human condition? May it not be that these problems are caused not only by deficient social structures, but also and indeed primarily by the fact that, contrary to Rousseau’s vision of human nature, man is not entirely good?

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In this case the problem of misery and suffering is essentially not only social, but also (and perhaps even primarily or overwhelmingly) moral. This would indicate that the problem of misery and suffering cannot be overcome by way of trying to perfect social structures. A failure to understand this has been at the root of several 20th century attempts of establishing a perfect society – whether by Nazis or by Bolsheviks – through developing a social structure so perfect that men no longer need to be good. Thus, it would seem that by hoping that human rights will take us into a world free from systematic misery and avoidable suffering we are expecting too much from human rights. This, in turn, threatens to take the whole human rights project to the kind of ideological condition in which it is difficult to tell whether its promotion is part of the solution to or of the cause of misery and inhumanity in society. Fagan is right that dispelling human rights myths and misunderstandings requires confronting fundamental questions. But it seems that the questions he raises are not fundamental enough. He pays a lot of attention to properly conceptualising the scope of human rights, but dedicates much less and indeed too little attention to the philosophical basis of human rights. However, coming up with a coherent and convincing account of the scope of human rights seems to be not just difficult, but impossible without a prior determination of their philosophical foundation. If the international human rights project cannot draw a rational distinction between human rights and social benefits – if it lacks an understanding of what human rights are and wherein they are rooted –, it is in a crisis. This crisis is not institutional or normative, but predominantly philosophical. Thus, ways of overcoming the crisis have to be sought first of all on the level of philosophy. Dispelling myths and correcting misunderstandings concerning human rights requires overcoming the reluctance to engage with speculative philosophy, especially metaphysical questions and, first of all, questions pertaining to the essence of being human. Only by answering these questions is it possible to determine the anthropological reality that underlies our understanding of human rights. If we do not have an understanding of human nature, then we lack an understanding of human dignity. If we do not have an understanding of human dignity (a concept that figures rarely in Fagan’s text), then we cannot possibly have a proper understanding of why men (unlike other creatures) should have natural (pre-political) rights in the first place and what these rights should be all about. Any view of universal human rights that fails to explain what it is in human beings that constitutes the very essence of their humanity has little hope of being convincing. These profound philosophical questions seem to be driven out of the human rights discourse, which has become highly formal. The international human rights project has been given a glittering rhetorical façade of universality, yet a look behind it reveals that oftentimes there is little if any understanding of how to substantiate this rhetoric philosophically in a culture that has embraced moral relativism as a fundamental component (if not the basis) of its worldview. Jacques Maritain, the head of the UNESCO-convened philosophers’ group which helped prepare the Universal Declaration of Human Rights, has admitted that the Declaration was adopted within a very limited timeframe as a practical solution and that its philosophical foundation was left to be determined at a later time. He was aware that building a grand edifice such as the Universal Declaration without a firm foundation was



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likely to bring about serious problems. Therefore he warned that ‘[s]o long as minds are not united in faith or philosophy, there will be mutual conflicts between interpretations and justifications’.3 Another member of the philosophers’ group, Richard McKeon, added that ‘[t]he fundamental problem is not found in piling a list of human rights’ but rather in ‘what is meant by these rights’.4 He also noted that so long as questions concerning the foundations of human rights remain unsettled, the Universal Declaration of Human Rights would suffer from vigorous attempts of controlling its interpretation ‘for the purpose of advancing special interests’.5 Unfortunately, the task of determining the philosophical foundations of the international human rights project has never been undertaken (at least not on the UN level) and confusion in this regard has only grown. This has allowed the human rights project to be abused, just as Maritain and McKeon predicted, as a play-ground of interest-groups seeking to employ human rights rhetoric with its prestige, and its appeal to objectivity, to advance ideological ambitions. As Mary Ann Glendon has said, [i]f human rights cannot be placed on a solid philosophical basis, the doors are open for endless manipulation and deconstruction. The hopes they present – for democracy, rule of law, peace, and dignified living – dissolve amidst power politics. And might becomes right.6

This is a worrying state of affairs, especially as our only basis for common values oftentimes seems to reside in human rights. Thus, if these cannot be defined in a rational manner, we are in a state of ethical anarchy.7 As such, it is praise-worthy that Fagan has written a book to call attention to this confusion and that he frames it as a serious problem threatening to undermine the ideals underlying the human rights project. However, his contribution to overcoming this problem would have been much more substantial and convincing had he faced the most difficult questions more seriously. All in all, Fagan has made a fine effort identifying several myths and misunderstandings haunting the modern project of human rights. However, it appears that he has done better in outlining the problems than in providing a satisfactory vision of the ways of dispelling the myths and correcting the misunderstandings. I cannot but agree with Fagan when he writes that his concept of human rights requires ‘much closer analysis’ if the ‘argument is to stand on sufficiently robust foundations’ and that ‘further theorising and argument are required adequately to support this proposal [of human rights as a means of eradicating systematic and significant suffering]’ (at 146 and 152). But as Fagan recognizes, this is in line with the goal he set for himself: not to solve all questions related to human rights, but to inspire further deliberation over the fundamental problems of the modern project of human rights and to encourage 3. Jacques Maritain, ‘Introduction’, in Human Rights: Comments and Interpretations (Paris: UNESCO, 1948) at 3. 4. Richard McKeon, ‘The Philosophic Bases and Material Circumstances of the Rights of Man’, in Human Rights, supra note 3, 23–34, at 24. 5. Ibid., at 25. 6. Mary Ann Glendon, ‘Preface’ in Janne Haaland Matláry, When Might Becomes Right: Essays on Democracy and the Crisis of Rationality (Gracewing: Leominister, 2007) at x. 7. See Haaland Matláry, When Might Becomes Right, supra note 6, at 5.

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asking questions about the very foundations upon which this project rests. Further attempts of responding to this challenge remain much awaited. Varro Vooglaid



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Equal in Law, Unequal in Fact - Racial and Ethnic Discrimination and the Legal Response thereto in Europe* Timo Makkonen A peculiar circumstance underlies international fight against racial and ethnic discrimination. On the one hand we have what appears to be strong legal protection from these forms of discrimination. Discrimination on the basis of ‘race’ is prohibited virtually by every key human rights convention and declaration. The International Convention on the Elimination of All Forms of Racial Discrimination1 has been ratified by none less than 173 countries. The EU Racial Equality Directive2, for its part, has raised the standard of protection to an entirely new level across the EU. What is also noteworthy is that in many of these legal instruments states have made a pledge no less than to eliminate all forms of racial discrimination. On the other hand, racial and ethnic discrimination is still rampant everywhere in the world, including Europe. According to a large-scale survey published by the EU Agency for Fundamental Rights (FRA)3 in 2009, some 30% of the persons belonging to the surveyed immigrant and minority groups have experienced discrimination on account of their origin in the course of the past 12 months. Discrimination testing studies, which are high in reliability and validity, confirm that, on the average in the EU area, immigrant jobseekers are discriminated against in every third application procedure. Though precise figures cannot be given, we can safely assume that every year millions if not tens of millions individuals experience discrimination on account of their origin in Europe alone (as some 140 million people in the EU area are immigrants or belong to minorities). My dissertation sets out to map this gap between the theory of legal protection and the practice. It addresses the following three sets of research questions: First, what is the nature, extent, causes and consequences of discrimination in Europe today? Second, what kind of protection does international and European law offer from that discrimination? And why does the law fail to deliver equality? Third, given the shortcomings of the present legal response to discrimination, what can be done to improve that response?

The first research question, relating to the nature of discrimination, is analysed by means of tapping into quantitative, qualitative and theoretical research carried out in the disciplines of sociology and social psychology. On the basis of a pile of persuasive *

Lectio praecursoria, held at the public examination of the doctoral dissertation at the University of Helsinki, 5 March 2010. Professor Christopher McCrudden from the University of Oxford acted as opponent. 1. The International Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1965, in force 4 January 1969, 660 UNTS 195. 2. Council Directive 2000/43/EC of 29 June 2000 on the principle of equal treatment between persons irrespective of racial or ethnic origin, OJ 2000 No. L 180. 3. EU-MIDIS results on the European Union Minorities and Discrimination Survey, European Agency for Fundamental Rights (2009).

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evidence it is concluded that racial and ethnic discrimination is highly pervasive in Europe today, that its causes include prejudices and racism and also - and possibly more importantly - some less obvious phenomena, such as seemingly neutral but biased business practices, and internalized stereotypes that lead even non-prejudiced people to engage in discrimination. One of the findings of the study is also that it is not skinheads or extreme right-wing activists that are responsible for most acts of discrimination, but what we would consider ordinary people. Another key finding is that we should pay special attention to what I call everyday discrimination, which is those relatively frequently occurring incidents that immigrants and individuals belonging to minorities face in their everyday living environment. With regard to the consequences of discrimination, the study found that discrimination – including everyday discrimination – comes to cause and sustain major social and economic disadvantages, that discrimination negatively affects also people other than its direct targets, and that the effects of discrimination can be carried on across generations. It is also concluded that knowledge of the existence of discrimination against a group can have a general demoralizing effect on the persons belonging to that group, leading to avoidance behaviour where immigrants and members of minorities avoid situations where they might end up discriminated against. In this respect, one of my key findings is that the different forms of discrimination, the disadvantage that discrimination and its expectation engenders, and the prejudices and stereotypes that disadvantages on their part feed, come to form a dangerous, selfsustaining vicious circle that it very difficult to break. In other words, I argue that it is not enough to focus on individual instances of discrimination; it is also necessary to focus upon their causes and consequences. The second research question, the present international and European legal protection from discrimination, has been examined in the study by means of analysing altogether eleven legal instruments, including most key human rights conventions. Each one of these instruments is analysed with respect to the following questions: what is defined as discrimination; in which situations does the prohibition to discriminate apply; which groups are protected from discrimination, and how is ‘race’ and ethnic origin defined; and what kind of action is required from the state to implement its obligations. Again a number of findings have been made. Anti-discrimination law has, explicitly in the case of some instruments and through interpretation in other cases, come to recognize and prohibit many different forms of discrimination, including not just direct but also indirect discrimination and harassment. That said, the law has major difficulties when it comes to tackling intersectional, structural and institutional discrimination. The primary focus of the international human rights law in particular is on guaranteeing of equality of rights, on prohibition of discrimination in the exercise of public powers and on banning Apartheid and other manifest forms of discrimination. To that extent the focus of the law is, from a today’s perspective in Europe, on historical forms of discrimination. Yet, the law has also come to cover many of the areas of life that are important from the point of view of fighting contemporary forms of discrimination, including areas such as employment, education, housing and social services. Yet there are other structural properties of contemporary anti-discrimination law that to some extent explains its ineffectiveness in tackling discrimination in practice. There is,



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firstly, legal uncertainty, as many of the relevant provisions are written in open, flexible and at times obscure language, meaning that it is not always clear what kinds of action are prohibited or required. A key factor that undermines the effectiveness of the law is that the law addresses individual instances of discrimination, not so much the causes or consequences of discrimination more generally. The law shows little understanding of the ‘collateral damage’ inflicted by discrimination upon the indirect victims of discrimination, including the victims’ family, other people belonging to the same group, businesses and even the society at large, even though discrimination does have a negative effect on all of them. A key issue is that the law does not really require the taking of positive action, or requires it only to a modest extent, though positive action is one of the keys in unlocking a positive development whereby it would be possible to break the cycle of disadvantages, prejudices, stereotypes and social distance that those disadvantages feed. The chief mischief however lies in the enforcement department. International and European anti-discrimination law poses few requirements when it comes to enforcement and remedies. Most of the legal instruments simply require for there to be an ‘effective remedy’, though the EU racial equality directive and the International convention on the Elimination of All forms of Discrimination go a bit further, and require the existence of a judicial or administrative remedy. However, surveys indicate that only some 14-18 % of the victims of discrimination report of their experiences to the authorities or at the place where discrimination took place. And there are even countries, such as Portugal, where surveys indicate that virtually none of the victims of discrimination report about their experiences, for instance by means of taking legal action. On the basis of these research findings, and findings that indicate that possibly as few as every fourth discrimination case dealt with by a court or a tribunal end up with a finding of discrimination, I give the rough estimate that only some 5 % of acts of discrimination lead to the imposition of a legal sanction. In other words, with 95 % probability there will be no legal sanction whatsoever for an act of discrimination. This means that the general preventive effect of the law is poor, and that the wrongs done will usually not be remedied in practice. This, in my view, is the single most important reason for the gap between the theory of legal protection and the practice. There are many reasons why people do not take legal action. Litigation is slow, potentially expensive and certainly stressful for the complainant. Contemporary forms of discrimination are often also subtle and covert, meaning that it will be very difficult to come up with the requisite evidence to prove that discrimination has taken place. My third research question asked what can be done to improve the legal response to discrimination. To answer this question I analysed in quite some detail how data collection, positive duties and positive action can be used to fight discrimination. I also analyse how the enforcement of the prohibition of discrimination can be made more effective. With respect to all these issues I analyse what are the benefits and legal and political challenges involved in taking these actions. Overall, I conclude that these approaches can have a positive, though always limited, impact in practice. There is, unfortunately, no single cure-all for discrimination. My overall conclusion is that we need to move from laws that simply prohibit discrimination to laws and policies that require active promotion of equality. We need action on a broad front. As one distinguished scholar in this field has said, a wise policy-maker

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does not want to put all her eggs in one basket and will want instead to keep a range of tools available with which to attempt to achieve the desired changes in behaviour. I fully agree with that statement. We also need to have an inclusive debate about the kinds of equality that we want. But we also need to be realistic and cautious, as in all likelihood we will never be able to keep the promise we have made to eliminate all forms of racial and ethnic discrimination.

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Vertical Natural Gas Transportation Capacity, Upstream Commodity Contracts and EU Competition Law by Kim Talus. Doctoral Dissertation, University of Helsinki, 2010. 1. General Assessment Although there is quite a body of literature on long term contracts in both the electricity and gas sectors, and at the same time, there is a considerable literature on the topic of energy security, the thesis is original in that it makes a clear distinction between the past, current and possible future treatment of long term capacity and reservation contracts. The author examines the foreclosure effects of these contracts in legal, economic and political terms. Given this fresh perspective, the author has brought a different perspective to the wide range of literature that he has discussed and analysed. The thesis has demonstrated the author’s excellent knowledge of the sector and the issues arising from the application of EU competition law as well as regulatory law to the energy sector. The author has included an in-depth coverage of recent and topical developments. He has analysed a wide array of literature – both in international relations, policy studies and economic studies. He has taken a critical approach to this literature and drawn upon it to support his own thesis that commodity and capacity contracts need to be considered separately and treated differently if the objectives of energy security are to be realised. He takes a useful approach to distinguishing the non-economic or nonquantifiable benefits of security of supply from the quantifiable, economic benefits. He also in this light develops different concepts of security of supply and draws briefly on related literature in the field of environmental objectives. The thesis has carefully analysed European jurisprudence on the question of energy markets and security of supply as well as related case law on the implementation of the EU directives and regulations. It includes an extensive but structured analysis of European competition principles and their application to long-term contracts. In addition, he has drawn on US case law and has compared legal and academic commentary on both EU and US law from a number of national jurisdictions. A very useful comparison of US law and policy and recent developments in the area of gas contracts has also been added. It is clear that the author has a thorough knowledge of the EU gas sector and has carefully analysed the legal issues relating to the execution of long term commodity and capacity contracts in a rapidly changing legal and political environment. He has approached an extensive body of regulation, regulatory decisions, case law and Commission practice and has reviewed a large number of official reports and surveys as can be seen from his extensive bibliography. An academic analysis of long term contracts is inevitably hampered by the fact that these are commercial documents and as such are confidential. The author does not suggest at any point in his thesis that he has been able to access such contracts. Furthermore many contractual disputes between the parties to such contracts – whether they are governments or energy companies – are usually resolved through arbitration. The rulings of arbitration panels are not always publicly available. European Commission decisions screen out confidential information – including any direct description of relevant contractual



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clauses. The author cannot therefore have been expected to analyse the actual content of long term contracts in the gas sector – only their effects on competition and security of supply. He has demonstrated through his extensive but succinct coverage of the relevant literature that he has an excellent knowledge of his field in this respect.

2. Critical Assessment In my view, I think that a split between commodity and capacity contracts may not necessarily prove to be the only solution to ensuring either security of supply or competition in gas markets – or a balanced pursuit of both objectives. I think that we cannot ignore the ongoing efforts of the European gas industry to continue to tie transport up in nice knots anyway through swaps and deals on storage, ancillary services etc, and side deals on using each other’s capacity reservations. There is now some analysis of the dangers of these practices. However a more focussed analysis of the way capacity is actually used in practice or how hubs are actually managed would have been a valuable development in the overall argumentation presented in this thesis. Could these issues be addressed by competition law or is tough regulation required? The candidate was however able to address these issues in the public defence and conceded the difficulties involved. Also as I see it, there is quite a bit of re-thinking among economists about the advantages of long term commodity contracts. This recent research could have been taken on board. I would also have also expected a focus on the implications of the suggested approach for Finland, and security of supply issues there, but given the specificity of the Finnish market this does not seem to be a major gap in the thesis. Indeed the Finnish market seems to exclude the possibility of real competition, as the candidate clearly explained at the public defence. From a strictly legal point of view, long term contracts are probably not illegal merely because of their length - there have always been other factors involved, including as the thesis points out, destination clauses. The candidate fully addressed these issues in his public defence and commented on how the changing nature of the supply market would require a more nuanced and complex analysis of long term commodity contracts. Leigh Hancher Professor of European Law University of Tilburg

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Defining Human Trafficking, Identifying Its Victims. A Study on the Impact and Future Challenges of the International, European and Finnish Legal Responses to ProstitutionRelated Trafficking in Human Beings* Venla Roth Trafficking in human beings has become a major international concern over the last two decades. Women, men and children are trafficked for the purposes of sexual exploitation and forced labour as well as for the commercial marriage market, the selling of organs and for adoptions. According to the International Labour Organisation (ILO), women and girls constitute the majority of persons trafficked for the purpose of both sexual exploitation and forced labour, which are the two most worrisome types of exploitation in Europe.1 Whether organised or committed by persons close to the victim, transnational or internal in nature, this criminal phenomenon has been recognised as one of the most serious human rights challenges of our time. Modern trafficking in human beings became a European problem in the 1990s. This was influenced by the collapse of the communist regimes and the violent conflicts in the area of former Yugoslavia, leading to massive migratory flows to Western Europe. Currently, the estimates of the scale of this ‘underside of globalisation’ vary considerably, from less than 500,000 to 4,000,000 persons annually worldwide. The number of identified trafficking victims has, nevertheless, remained very low in most countries. The United Nations Office on Drugs and Crime (UNODC) reported last year that there is a large disparity between the abstract estimates of trafficking and the actual number of identified victims of human trafficking.2 This disparity has been noticed also in Finland. According to the first National Plan of Action, adopted by the Government in 2005, it is estimated that Finland is a country of transit and destination for hundreds of trafficked persons each year.3 Despite a considerable number of anti-trafficking measures that have been taken in recent years, only some forty persons have been successfully referred to the system of victim assistance. The system of victim assistance became operative in 2006. Also, the number of investigations, prosecutions and convictions for trafficking has remained low, although the penal provisions on human trafficking entered into force in August 2004. Although part of this discrepancy may be explained by exaggerated estimations, seeking for political attention and for money, there are reasons to believe that a vast majority of potential trafficking victims are currently not identified.

Lectio praecursoria, held at the public examination of the doctoral dissertation at the University of Turku, 22 January 2010. Associate Professor Ineke Boerefijn from the University of Utrecht acted as opponent. 1. A Global Alliance against Forced Labour. Global Report under the Follow-up to the ILO Declaration on Fundamental Principles and Rights at Work, International Labour Organisation (Geneva, 2005). 2. Global Report on Trafficking in Persons, United Nations Office on Drugs and Crime (Vienna, 2009). 3. National Plan of Action against Trafficking in Human Beings: Finland, Ministry for Foreign Affairs of Finland, Ulkoasiainministeriön julkaisusarja 18/2005 (Helsinki, 2005). *



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There are certainly many reasons to explain this non-identification of trafficking victims. Trafficking in human beings is a clandestine phenomenon. Trafficked persons generally live and work on the margins of society, trying to be ‘invisible’ and to hide from the authorities. Often victims of trafficking do not see themselves as victims. In order to send remittances and assist their families in the country of origin, they are ready to accept poor wages and indecent working conditions and to submit to almost any kind of abuse in the countries of destination. In addition, victims may reside or work in the country illegally or be guilty of some crime or other undesired activity, such as prostitution, and can therefore, be afraid of becoming exposed to the authorities and expelled from the country. It is also in the interest of traffickers that outsiders do not become aware of the exploitation, and thus, they seek to conceal it through any means. Without ignoring these real practical difficulties hampering victim identification, I have sought in my dissertation to explore other reasons inherent in legal practices and legal categorisations that may influence the understanding of who the victims of human trafficking really are. Indeed, in my dissertation I argue that part of the problem of victim identification has to do with the difficulty to define human trafficking legally and distinguish trafficking from other related phenomena. I argue that victims of trafficking are constantly treated as illegal immigrants, smuggled migrants, clandestine workers or unwanted foreign prostitutes, and are punished and returned to their home countries without being identified or assisted irrespective of the obligations arising from the international and European legal instruments to protect the rights of trafficked persons. The question of what the international definition of human trafficking really refers to exercises the minds of academics and practitioners all over the world. These definitional questions are of crucial importance from the viewpoint of the individual, as in the current legal framework only trafficked persons are entitled to certain rights guaranteed by international and domestic law. In the Finnish legal system, being identified as a trafficking victim is even more crucial for sexually exploited victims than it is for economically exploited migrant workers, as the procedural position of procured prostitutes differs substantially from that of trafficking victims who are automatically granted a victim status in pre-trial investigations and criminal proceedings. Procured prostitutes normally serve as witnesses in the criminal procedure, as pandering or pimping is currently regarded as a victimless crime even if the prostitutes would have faced serious threats of violence or restrictions to the freedom of movement. This is not the case in the field of labour exploitation, as economically exploited migrant workers are always considered to be victims in the pre-trial investigations and criminal proceedings. In my theses, I seek to examine whether trafficking exists in prostitution in Finland by analysing pandering cases that have been brought before the court in the 2000s, and by examining the reports and studies published at that time. I also seek to analyse how trafficking in human beings is currently understood in the legal settings and what kind of persons exploited in prostitution are identified as victims of human trafficking or other related crimes. I demonstrate that the recognition of trafficking as a domestic problem in Finland took place only in 2005. That recognition could have occurred earlier: the condition of the field of foreign prostitution had clearly changed at the turn of the century. The num-

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ber of foreign prostitutes had considerably increased, the involvement of transnational organised crime in pandering operations had intensified, and the methods used by the procurers against the prostitutes had clearly become more brutal.4 Despite the information on various coercive and suppressive methods, these women were not regarded as victims of any crime, let alone trafficking in human beings. As these prostitutes were considered to be fully aware of the nature and conditions of the work that they were supposed to carry out in Finland, they were not regarded as victims of human trafficking or other related crimes in the legal terms. These women were considered to be ‘voluntary’ migrating prostitutes, although it was well known that procurers deceived them into prostitution, threatened them with violence, restricted their freedom of movement, controlled them financially and prevented them from giving up prostitution when they so desired. While analysing those few court cases that have been brought before the Finnish courts of law under the heading of human trafficking, I noticed that this general manner of thinking has not changed much: these women engaged in prostitution are regarded as voluntarily migrating prostitutes, although the penal provisions on human trafficking based on the international and European legal instruments would allow and even require a different interpretation in certain cases. The prior consent of the victim to engage in prostitution still seems to play a decisive role in determining whether or not the person in question is a victim of human trafficking. Within this legal understanding, prostitutes must disprove the legal presumption of their consent to engage in prostitution by claiming either deception or compulsion with violence. If she has not been deceived or forced into prostitution, she must at least be a mentally disabled person whose ability to consent to prostitution can be questioned. This study argues that among the most urgent problems in defining human trafficking and identifying its victims is the overemphasis on the element of forceful recruitment and/or transportation in the definition of human trafficking. Finland is not the only country struggling with this problem. One of the consequences of analysing trafficking in terms of forceful recruitment and transportation is that it becomes necessary to demonstrate the existence of physical force or deception to prostitution at the stage of recruitment and/or transportation. It becomes important to stress that the woman of concern did not consent to prostitution or ‘choose’ to be a prostitute, but was deceived, duped, tricked, forced or abducted into prostitution. At least she must be a mentally disabled person. I argue that concentrating on the recruitment and transportation element of trafficking carriers a risk of ignoring the exploitative outcomes of the movement and of distinguishing between ‘innocent’ and ‘guilty’ victims of sexual exploitation, implying that the former group deserves assistance and protection, and that the abuse that the latter group experiences is victims’ own fault. The trafficking victim must be an ‘ideal’ victim. This kind of understanding resembles the difficulties that the Finnish legal system has with other forms of violence against women in general, and against prostitutes, 4. Martti Lehti and Kauko Aromaa, Naiskauppa, laiton siirtolaisuus ja Suomi. Nykytilanne, lainsäädäntö ja tutkimuslähteet (Oikeuspoliittinen tutkimuslaitos: Helsinki, 2002); Jari Leskinen, Jari ’Organisoitu paritus ja prostituutio Suomessa’, Rikostutkimus (2002) 9-30.



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in particular. As I seek to show in my dissertation, women in prostitution, more than women in general, are seen as ‘deserving’ of violence and less deserving of a victim status on the basis of their social characteristics and the context in which the violence in question occurs. The legal system seems to accept the conception that prostitutes are used to mistreatment and that violence and other forms of abuse constitute a rather ‘natural’ part of prostitution. For this reason, it is difficult to recognise violence and the victimhood in prostitution. My dissertation and many other studies on trafficking demonstrate that many sexually exploited trafficking victims have acted as prostitutes already in their country of origin, after which they have knowingly migrated for prostitution without any physical violence, and then continued to act as prostitutes during and after criminal proceedings. In Western Europe, the horrific stories of sexual slavery from which escape is nearly impossible seem not to correspond to the experiences of most sexually exploited trafficking victims. Contrary to the general belief, coercion usually occurs at the time when the victim has entered prostitution and relates to the conditions to which she has been subjected afterwards. Much of the abuse is psychological. It is much more common that the perpetrators resort to psychological pressure and manipulation than use actual physical violence. Indeed, the recent data obtained from other European countries demonstrates that trafficking victims are currently provided with slightly better working conditions and the possibility to earn money as a means to dissuade them from protesting to the authorities and seeking help. In addition, the perpetrators take advantage of the dependency of their victims caused by debts to the traffickers, smugglers or money-lending firms. Traffickers also abuse victims’ vulnerable positions arising, for example, from insecure or illegal residence status, fear of deportation orders, distrust of authorities, or other vulnerabilities such as the lack of mental capacity to protect oneself from exploitation.5 The main purpose of my dissertation is to look for alternative ways of understanding and conceptualising human trafficking for the purpose of sexual exploitation in order not to reproduce this false distinction between ‘innocent’ victims and ‘guilty’ prostitutes, which is largely based on the liberal notion of free will and the expression of non-consent. The alternative approach presented by this study recognises that people act and make decisions in certain circumstances and with certain capabilities. The essence of trafficking should not be reduced to the element of forceful recruitment or transportation, and thus, to the prior consent to engage in prostitution. Rather, attention should be paid to the most essential requisites of trafficking, including the degree of vulnerability of the person and his or her dependency on the perpetrators, as well as the coercive conditions under which she or he sells sex. Human trafficking should, thus, be understood as contextual or circumstantial rather than as an issue of choice, consent and free will. 5. See e.g. Gail Kligman and Stephanie Limoncelli ‘Trafficking Women after Socialism: To, Through, and From Eastern Europe’, 12 Social Politics: International Studies in Gender, State & Society (2005) 118–140; May-Len Skilbrei and Marianne Tveit ‘Defining Trafficking Trough Empirical Work. Blurred Boundaries and their Consequences’, 12 Gender, Technology and Development (2005) 9-30; Rebecca Surtees, Second Annual Report on Victims of Trafficking in South-Eastern Europe, (International Organization for Migration: Geneva, 2005); Judith Vocks and Jan Nijboer ‘The Promised Land: A Study of Trafficking in Women from Central and Eastern Europe to the Netherlands’, 8 European Journal on Criminal Policy and Research (2000) 379–388.

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This study concludes by reasserting its conviction that the anti-trafficking activities and strategies can possibly achieve their goals, but that success requires that the counter trafficking actors have a more or less common understanding concerning what trafficking is and who victims of trafficking are. I argue that the efficiency of the action against human trafficking is largely dependent on how trafficking is defined legally and how the penal provisions on human trafficking are applied and interpreted in practice, where the legal boundaries between trafficking and related phenomena are drawn, and how effectively the victims of human trafficking are identified, assisted and redressed. Due to the difficulties in determining these legal boundaries, this study supports the idea that the systems of victim assistance should not be strongly connected with the penal provisions on trafficking and their interpretations but that they should be opened up to cover a more extensive group of foreign victims of other related crimes that violate fundamental human rights. To conclude, trafficking in human beings is a complex and multi-faceted problem, and thus, combating it is challenging in all circumstances. Trafficking, as it is determined today, is a rather novel concept and the anti-trafficking framework is an international creation, which requires time to transform into operational and functional anti-trafficking strategies and activities on the national level. The Finnish anti-trafficking work is still at the stage of development. I believe that trafficking can be counteracted by taking small steps. The fog around the issue of human trafficking will gradually dissipate but it will take time, patience and hard work. The journey will be long, but some progress is already in view.

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Vertical Natural Gas Transportation Capacity, Upstream Commodity Contracts and EU Competition Law by Kim Talus. Doctoral Dissertation, University of Helsinki, 2010. 1. General Assessment Although there is quite a body of literature on long term contracts in both the electricity and gas sectors, and at the same time, there is a considerable literature on the topic of energy security, the thesis is original in that it makes a clear distinction between the past, current and possible future treatment of long term capacity and reservation contracts. The author examines the foreclosure effects of these contracts in legal, economic and political terms. Given this fresh perspective, the author has brought a different perspective to the wide range of literature that he has discussed and analysed. The thesis has demonstrated the author’s excellent knowledge of the sector and the issues arising from the application of EU competition law as well as regulatory law to the energy sector. The author has included an in-depth coverage of recent and topical developments. He has analysed a wide array of literature – both in international relations, policy studies and economic studies. He has taken a critical approach to this literature and drawn upon it to support his own thesis that commodity and capacity contracts need to be considered separately and treated differently if the objectives of energy security are to be realised. He takes a useful approach to distinguishing the non-economic or nonquantifiable benefits of security of supply from the quantifiable, economic benefits. He also in this light develops different concepts of security of supply and draws briefly on related literature in the field of environmental objectives. The thesis has carefully analysed European jurisprudence on the question of energy markets and security of supply as well as related case law on the implementation of the EU directives and regulations. It includes an extensive but structured analysis of European competition principles and their application to long-term contracts. In addition, he has drawn on US case law and has compared legal and academic commentary on both EU and US law from a number of national jurisdictions. A very useful comparison of US law and policy and recent developments in the area of gas contracts has also been added. It is clear that the author has a thorough knowledge of the EU gas sector and has carefully analysed the legal issues relating to the execution of long term commodity and capacity contracts in a rapidly changing legal and political environment. He has approached an extensive body of regulation, regulatory decisions, case law and Commission practice and has reviewed a large number of official reports and surveys as can be seen from his extensive bibliography. An academic analysis of long term contracts is inevitably hampered by the fact that these are commercial documents and as such are confidential. The author does not suggest at any point in his thesis that he has been able to access such contracts. Furthermore many contractual disputes between the parties to such contracts – whether they are governments or energy companies – are usually resolved through arbitration. The rulings of arbitration panels are not always publicly available. European Commission decisions screen out confidential information – including any direct description of relevant contractual



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clauses. The author cannot therefore have been expected to analyse the actual content of long term contracts in the gas sector – only their effects on competition and security of supply. He has demonstrated through his extensive but succinct coverage of the relevant literature that he has an excellent knowledge of his field in this respect.

2. Critical Assessment In my view, I think that a split between commodity and capacity contracts may not necessarily prove to be the only solution to ensuring either security of supply or competition in gas markets – or a balanced pursuit of both objectives. I think that we cannot ignore the ongoing efforts of the European gas industry to continue to tie transport up in nice knots anyway through swaps and deals on storage, ancillary services etc, and side deals on using each other’s capacity reservations. There is now some analysis of the dangers of these practices. However a more focussed analysis of the way capacity is actually used in practice or how hubs are actually managed would have been a valuable development in the overall argumentation presented in this thesis. Could these issues be addressed by competition law or is tough regulation required? The candidate was however able to address these issues in the public defence and conceded the difficulties involved. Also as I see it, there is quite a bit of re-thinking among economists about the advantages of long term commodity contracts. This recent research could have been taken on board. I would also have also expected a focus on the implications of the suggested approach for Finland, and security of supply issues there, but given the specificity of the Finnish market this does not seem to be a major gap in the thesis. Indeed the Finnish market seems to exclude the possibility of real competition, as the candidate clearly explained at the public defence. From a strictly legal point of view, long term contracts are probably not illegal merely because of their length - there have always been other factors involved, including as the thesis points out, destination clauses. The candidate fully addressed these issues in his public defence and commented on how the changing nature of the supply market would require a more nuanced and complex analysis of long term commodity contracts. Leigh Hancher Professor of European Law University of Tilburg



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Vertical Natural Gas Transportation Capacity, Upstream Commodity Contracts and EU Competition Law* Kim Talus What is energy law? Is there such a thing as ‘energy law’ or ‘EU energy law’? Or is what we energy lawyers call ‘EU energy law’ nothing but a compilation of rules on competition, free movement of goods, state aid, environmental regulation, of course coupled with some sector specific rules necessary at the initial stages of the market liberalisation? It would seem that the answer to this question relates to the degree of specificity of the legal issues relating to the energy industry that allows us to focus on the economic regulation of this area and distinguish it from others. While there are thousands of industries, only a very few have given rise to a particular academic discipline. Energy industry has done that and energy law is today taught in programs and universities across the world. This allows me to state that regardless of the status of Energy law as a separate field of law, it is surely a separate academic discipline where teaching and research are increasingly taking place. This energy law research may sometimes be combined with environmental aspects as is the case in, for example, Leuven or UCL London. Other times the focus is on the network dependency, as is the case in the MERNI program at University of Bonn. Other institutions, such as Dundee, Houston or UCL School of Energy and Resources have a more holistic approach and examine all the facets of the industry and the regulation of various elements of the industry. Regardless of the particularities of a given program, it is clear that energy law has established its position among various academic disciplines at EU level and at an international level. If we accept this interpretation and agree that energy law is a separate academic discipline, the next question is then obviously: what is energy law? And what is EU energy law? Clearly, there is no singular or self-contained body of law called International or EU energy law.1 At an international level, Energy law, as I see it, encompasses contractual and legal issues relating to foreign investments including host government contracts, international investment protection and related dispute resolution. It also includes rules governing international trade in energy, regulation of imports and exports of energy products and so-on. Here energy regulation comes close to the regulation of resources industries more generally. However, arguably certain differences exist and these derive, among other things, from the particularities of the energy as a strategic commodity. At EU level, the EU energy acquis does indeed encompass certain areas of general EU law such as competition law, state aid, and the basic freedoms. It also includes environmental regulation. However, the core area of EU energy acquis is the sector specific regulation that is designed to address the particularities of this sector. These particulari*

Lectio praecursoria, held at the public examination of the doctoral dissertation at the University of Helsinki, 16 June 2010. Professor Leigh Hancher from the University of Tilburg acted as opponent. 1. C. Redgwell, ‘International Energy Law’ in M. Roggenkamp, C. Redgwell, I. del Guayo and A. Ronne, (eds), Energy Law in Europe (Oxford University Press, 2007) 13-144 at 13.

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ties would, among others, include the infrastructure dependency and the need to ensure public service obligation.2 EU energy law usually refers to the regulation of electricity and gas markets. This is natural, as the EU energy acquis is largely focused on the regulation of these two network-bound sectors. Unlike electricity and natural gas, the EU internal oil markets have not been subject to the same intense legislation.3 This is because of the very different character of oil markets; their global nature and lesser infrastructure dependence. Whereas electricity runs in electricity grids and natural gas in pipelines, oil products are moved by pipelines, vessels and vehicles, depending on the stage of the supply chain. Generally, it is very common in the EU energy market related academic literature to examine natural gas and electricity together and approach these two commodities as if they were identical. There are various reasons for this. It may be that the sector-specific regulations for natural gas and electricity being very similar, has made this choice natural. Another reason may be the similarity of the approach of the Commission in its competition law enforcement. However, energy law is an excellent example of the need to consider the factual, both economic and political, context in which the law operates. There are significant differences in electricity and gas markets and the interpretation of the sector-specific regulation and the application of EU competition law must take these differences into account. One of the most crucial and significant differences between these two markets is that electricity is generated within the EU at various locations and the choice is based on a number of factors such as availability of sufficient transmission capacity and the proximity of a consumption centre. There are also generating facilities that are mainly used as a back-up system. This is not the case for natural gas, although gas storage plays a somewhat similar role providing flexibility to the system. Here, the EU is dependent on a very small number of external suppliers. Natural gas is only located in gas fields in areas were the geology is suitable for natural gas reserves to develop. Unlike electricity, natural gas is also a commodity that will be depleted at some point in time. These factors cannot be affected by any human measures. A good example of this need to distinguish between electricity and gas is provided by the subject matter of my thesis: long-term commodity contracts.4 The approach to long-term upstream commodity contracts must differentiate in the electricity and natural gas sectors. Here the dependence on a very limited number of sources (as opposed to the increasingly decentralised power generation) and the clear preference of the suppliers to work through long-term contracts must be considered. The political element of the natural gas trade must be taken into consideration. In the natural gas sector, EU is dealing with two major pipeline suppliers, Russia and Algeria, which together account for more than 50 percent of the EU natural gas imports. These countries are not, and will not be, EU member states and there are no 2. For these and other EU energy law issues, see the 2008-2011 editions of B. Delvaux, M. Hunt and K. Talus (eds.), EU Energy Law and Policy Iissues (Euroconfidentiel. Brussels ) 3. K. Talus and T. Nunes, ‘Regulation of Oil Imports in the United States and the European Union’, 2 Oil, Gas, Energy Law Intelligence (2011). Available at (visited 24 May 2011). 4. Kim Talus, Vertical Natural Gas Transportation Capacity, Upstream Commodity Contracts and EU Competition Law (Kluwer Law International: The Hague, 2011).



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indications that these countries would accept to comply with the EU energy acquis or join the Energy Community Treaty, instead they view the acquis as a way to discriminate against the major energy suppliers. Due to factors like the general difficulties in the political relationship between the Western European countries and Russia, the degree of suspicion of the new member states, largely following the historical reasons and events like the gas supply cuts of 2006 and 20095, the political aspects of the trade in natural gas are going to dominate the legal issues in the short and medium term. The European Commission has made attempts to overcome these difficulties by creating various cooperative mechanisms such as the Partnership and Cooperation Agreement, the EU-Russia Energy Dialogue, Association Agreements or Strategic Energy Partnerships. The tangible effects of these mechanisms have not been very significant and as was most recently seen in the context of the Energy Charter Treaty and the Russia‘s notification that it did not intend to become a contracting party to the ECT, these mechanisms are unable to provide for their intended results.6 Because of these factors, a legal study in EU natural gas markets cannot ignore the political or (geo)political context in which the law has to operate. This calls for a “law in context” type of approach. Moving now to the topic of my thesis. The concrete issue that is addressed in my thesis is the application of EU competition law into long-term upstream natural gas commodity and transportation capacity contracts. It concludes that while long-term commodity contracts should be left as an option for the EU companies, the focus of the competition law enforcement should be the capacity contracts. At a more abstract level, the thesis examines the interplay between law and politics. If we consider the Internal Energy Market working document7 from the European Commission as the starting point for the liberalisation, the efforts to open-up the markets and create an EU-wide competitive market are beyond their 20th birthday. The Sector Inquiry from 2005-20078 portrayed a rather grim picture of the actual effects these liberalisation efforts have had. In essence, cross-border trade is still very low, the former monopoly companies still retain the majority of their home markets and access conditions for new competitors are difficult or impossible due to factors like vertical integration or pre-liberalisation agreements. Clearly, the sector specific regulation has been unable to address the major issues that these liberalisation efforts face. Looking at the content of the Third Legislative Package9 and the changes in the Third party access and unbundling 5. S. Pirani, J. Stern and K. Yafimava, ‘The Russo-Ukrainian Gas Dispute of January 2009: a Comprehensive Assessment’ NG 27 (Oxford Institute for Energy Studies, 2009). 6. For more information on these attempts and the ECT, see the articles of A. Belyi and A. Konoplyanik on OGEL (www.ogel.org). 7. The Internal Energy Market. Commission Working Document (COM (88) 238 final) 2 May 1988. 8. Inquiry pursuant to Article 17 of Regulation (EC) no. 1/2003 into the European gas and electricity sectors (COM/2006/851 final) 10 January 2007. 9. Regulation (EC) No 713/2009 of the European Parliament and of the Council of 13 July 2009 establishing an Agency for the Cooperation of Energy Regulators, Regulation (EC) No 714/2009 of the European Parliament and of the Council of 13 July 2009 on conditions for access to the network for cross-border exchanges in electricity and repealing Regulation (EC) No 1228/2003, Regulation (EC) No 715/2009

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regimes, or the powers of the new EU level Agency, the ACER10, it does not seem that the Third Package will provide for any major changes to the present situation. On an ideological level, it is easy to agree with the United States Supreme Court that when there exists a regulatory structure designed to deter and remedy anticompetitive harm, the additional benefit to competition provided by antitrust enforcement will tend to be small11. However, there are both economic and practical arguments in favour of competition law enforcement in situations where the market is already regulated through sector specific regulation, such as in case of EU natural gas markets. First, sanctions for anticompetitive conduct are normally more effective under general EU competition law. This was well illustrated in the E.ON seals case12 where a broken seal brought a 38 million euro fine to E.ON, despite the claims from the company that the seal was old and defect or that the cleaner must have wiped the seal with some kind of chemical causing the word “void” to appear on the seal as a sign of unauthorised entry. Second, the possibility to apply general competition law when the national regulatory authorities have failed to act or when the national governments make attempts to shield their national champions is of great significance. Sector specific regulation has been unable to address the problems relating to upstream natural gas commodity and capacity contracts. The Sector Inquiry indicated that the effects of these contracts are significant for the overall progress in the markets. As such, the increasingly powerful competition law enforcement of the Commission has to be welcomed. There is no doubt that EU competition law is applicable to these contracts. However, it is equally clear that this application faces significant political difficulties. This thesis has advocated in favour of a policy choice where the long-term upstream commodity contracts are left as an option to the EU energy companies and, instead, foreclosure is addressed through attacking capacity contracts. This policy choice will circumvent, or at least alleviate, the political difficulties connected with the long-term upstream commodity contracts and may, if properly overseen by the authorities, have largely the same effect. Under this approach, advocated by this thesis and seemingly in line with the approach of the European Commission13, long-term upstream contracts will continue to be controlled by the former monopolists. However, as these importers can no longer import the full contractual volumes but, instead, will have to dispose the addition volumes to other geographical markets or to developing gas hubs, some degree of competition will necessarily emerge. The large players might still of the European Parliament and of the Council of 13 July 2009 on conditions for access to the natural gas transmission networks and repealing Regulation (EC) No 1775/2005, Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC, Directive 2009/73/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in natural gas and repealing Directive 2003/55/EC. 10. Regulation (EC) No 713/2009 of the European Parliament and of the Council of 13 July 2009 establishing an Agency for the Cooperation of Energy Regulators. 11. Verizon Communications, Inc. v. Law Offices of Curtis V. Trinko, L.L.P., 540 U.S. 398. 12. Commission Press Release, ‘Antitrust: Commission imposes € 38 million fine on E.ON for breach of a seal during an inspection’, (IP/08/108), 30 January 2008. 13. See, for example, COMP/39.316 - GDF foreclosure or COMP/39.317 - E.On gas foreclosure.



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retain the most significant market shares but they would compete against each other, something that is currently not the case. Additionally, if progress towards hub trading continues and even increases due to the need to dispose significant new volumes to other markets than the immediate home-market of the incumbent, gas procurement through trading and LNG could provide opportunities to new companies. The impact of shale gas could have a similar effect, depending on the extent of the possible discoveries. However, the practical effects of the introduction of the capacity caps are somewhat uncertain and to be successful, require close supervision from the European Commission. For example, one possible outcome is that the incumbents are able to renegotiate their contracts with external producers who in turn enter the downstream markets themselves and thus become the new entrants. Other possible scenarios are that the incumbents use artificial methods to circumvent the capacity cap through the use of swaps, using each other‘s transport capacity or other possible options they might have. Because this second danger, incumbents taking bilateral or coordinated measures to bypass the 50 per cent capacity cap, the supervision of the markets and commitments would be of primary importance for the next years. The first option, external producers entering the downstream market could create addition competition but could from a political perspective be difficult for most of the member states to accept. The Third Country Clause of the Third Package, the so-called Gazprom clause, is an illustration of this. This kind of approach requires an increasingly interventionist competition policy. The same approach has to be implemented across the EU and the progress and the effects have to be rigorously monitored. The fact that companies have agreed to these capacity caps suggests that they are aware of the issues raised in this study and have taken steps to address the potential commercial consequences that the imposition of these capacity caps may bring. This kind of development would require the readiness from the Commission to act where necessary to protect the degree of competition that the EU natural gas markets can sustain.

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Vertical Natural Gas Transportation Capacity, Upstream Commodity Contracts and EU Competition Law by Kim Talus. Doctoral Dissertation, University of Helsinki, 2010. 1. General Assessment Although there is quite a body of literature on long term contracts in both the electricity and gas sectors, and at the same time, there is a considerable literature on the topic of energy security, the thesis is original in that it makes a clear distinction between the past, current and possible future treatment of long term capacity and reservation contracts. The author examines the foreclosure effects of these contracts in legal, economic and political terms. Given this fresh perspective, the author has brought a different perspective to the wide range of literature that he has discussed and analysed. The thesis has demonstrated the author’s excellent knowledge of the sector and the issues arising from the application of EU competition law as well as regulatory law to the energy sector. The author has included an in-depth coverage of recent and topical developments. He has analysed a wide array of literature – both in international relations, policy studies and economic studies. He has taken a critical approach to this literature and drawn upon it to support his own thesis that commodity and capacity contracts need to be considered separately and treated differently if the objectives of energy security are to be realised. He takes a useful approach to distinguishing the non-economic or nonquantifiable benefits of security of supply from the quantifiable, economic benefits. He also in this light develops different concepts of security of supply and draws briefly on related literature in the field of environmental objectives. The thesis has carefully analysed European jurisprudence on the question of energy markets and security of supply as well as related case law on the implementation of the EU directives and regulations. It includes an extensive but structured analysis of European competition principles and their application to long-term contracts. In addition, he has drawn on US case law and has compared legal and academic commentary on both EU and US law from a number of national jurisdictions. A very useful comparison of US law and policy and recent developments in the area of gas contracts has also been added. It is clear that the author has a thorough knowledge of the EU gas sector and has carefully analysed the legal issues relating to the execution of long term commodity and capacity contracts in a rapidly changing legal and political environment. He has approached an extensive body of regulation, regulatory decisions, case law and Commission practice and has reviewed a large number of official reports and surveys as can be seen from his extensive bibliography. An academic analysis of long term contracts is inevitably hampered by the fact that these are commercial documents and as such are confidential. The author does not suggest at any point in his thesis that he has been able to access such contracts. Furthermore many contractual disputes between the parties to such contracts – whether they are governments or energy companies – are usually resolved through arbitration. The rulings of arbitration panels are not always publicly available. European Commission decisions screen out confidential information – including any direct description of relevant contractual



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clauses. The author cannot therefore have been expected to analyse the actual content of long term contracts in the gas sector – only their effects on competition and security of supply. He has demonstrated through his extensive but succinct coverage of the relevant literature that he has an excellent knowledge of his field in this respect.

2. Critical Assessment In my view, I think that a split between commodity and capacity contracts may not necessarily prove to be the only solution to ensuring either security of supply or competition in gas markets – or a balanced pursuit of both objectives. I think that we cannot ignore the ongoing efforts of the European gas industry to continue to tie transport up in nice knots anyway through swaps and deals on storage, ancillary services etc, and side deals on using each other’s capacity reservations. There is now some analysis of the dangers of these practices. However a more focussed analysis of the way capacity is actually used in practice or how hubs are actually managed would have been a valuable development in the overall argumentation presented in this thesis. Could these issues be addressed by competition law or is tough regulation required? The candidate was however able to address these issues in the public defence and conceded the difficulties involved. Also as I see it, there is quite a bit of re-thinking among economists about the advantages of long term commodity contracts. This recent research could have been taken on board. I would also have also expected a focus on the implications of the suggested approach for Finland, and security of supply issues there, but given the specificity of the Finnish market this does not seem to be a major gap in the thesis. Indeed the Finnish market seems to exclude the possibility of real competition, as the candidate clearly explained at the public defence. From a strictly legal point of view, long term contracts are probably not illegal merely because of their length - there have always been other factors involved, including as the thesis points out, destination clauses. The candidate fully addressed these issues in his public defence and commented on how the changing nature of the supply market would require a more nuanced and complex analysis of long term commodity contracts. Leigh Hancher Professor of European Law University of Tilburg

Ius Gentium Association Ius Gentium International Law Association (est. 1983) provides a lively, active and easily accessible forum for all interested in international law and related issues. Ius Gentium organizes events and encourages its members to take part in international legal discussion and activities, in studying, teaching and researching international law. The Association is an active publisher, the main publication being the Finnish Yearbook of International Law by Brill/Martinus Nijhoff Publishers. The Association conducts seminars and discussion groups concentrating on questions of recent interest in international law and related fields. Through its members and activities, Ius Gentium converses with several international legal scholars, research institutes and legal bodies. The members represent a great variety of professions; among them there are diplomats, university professors, lawyers, researchers and students. The members share an interest in global matters in general and in international law in particular. The majority of the members are Finnish citizens. Although most of the members have a legal background, other academic fields, in particular political and social sciences are also represented. Should you have any questions concerning the Ius Gentium Association, please contact the Secretary of the Association via the Erik Castrén Institute of International Law and Human Rights, P.O. Box 4 (Yliopistonkatu 3), FIN-00014 University of Helsinki, Finland.