Finnish Yearbook of International Law Volume Volume 25, 2015 9781509927159, 9781509927180, 9781509927173

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Finnish Yearbook of International Law

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Finnish Yearbook of International Law Volume 25, 2015

Edited by

Tuomas Tiittala

HART PUBLISHING Bloomsbury Publishing Plc Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, UK HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2019 Copyright © The editor and contributors severally 2019 The editor and contributors have asserted their right under the Copyright, Designs and Patents Act 1988 to be identified as Authors of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www.nationalarchives.gov.uk/doc/ open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2019. The editors welcome unsolicited contributors related to international law. General information for authors and a detailed guide to the Yearbook’s house style can be found at www.fsil.fi/fybil. Communications to the editors should be addressed to: Finnish Yearbook of International Law Erik Castrén Institute of International Law and Human Rights P.O. Box 4 (Yliopistonkatu 3) FI-00014 University of Helsinki, Finland E-mail:[email protected] The Ius Gentium Association gratefully acknowledges the support of the Legal Department of the Finnish Ministry for Foreign Affairs to the publication of the Yearbook. A catalogue record for this book is available from the British Library. ISBN: HB: 978-1-50992-715-9 ePDF: 978-1-50992-717-3 ePub: 978-1-50992-716-6 Typeset by Compuscript Ltd, Shannon To find out more about our authors and books visit www.hartpublishing.co.uk. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters.

FYBIL Volume 25 Editors Editor-in-Chief Tuomas Tiittala

Special Sections Editor Mehrnoosh Farzamfar

Editors Paolo Amorosa Tero Kivinen Outi Penttilä Iuliana-Raluca Luca Walter Rech Janne Valo

Associate Editors Heta Heiskanen Jens Kremer Tero Lundstedt Olivia Packalén-Peltola

Kristiina Honko Rain Liivoja Katariina Paakkanen Vasilena Savova David Scott Katariina Simola

Editorial Advisory Board Ove Bring Bengt Broms Christine Chinkin James Crawford Ruth Donner Kari Hakapää Lauri Hannikainen Päivi Kaukoranta Jan Klabbers

Outi Korhonen Martti Koskenniemi Erkki Kourula Pirkko Kourula Raimo Lahti Marja Lehto Kimmo Nuotio Anne Orford Esa Paasivirta

Allan Rosas Holger Rotkirch Martin Scheinin Bruno Simma Markku Suksi Hugh WA Thirlway Pål Wrange

Honorary Board Katja Creutz Veijo Heiskanen Juhani Kortteinen Paavo Kotiaho

Tuomas Kuokkanen Juhani Parkkari Jarna Petman Ritva Saario

Kari T Takamaa Taina Tuori Matti Tupamäki Åsa Wallendahl

The Editorial Board is grateful to all the external reviewers for their contribution to this volume.

Contents General Section Athanasios Yupsanis Autonomy for Minorities: Definitions, Types and Status in International Law

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Special Section One: Law, War and New Technology Sia Spiliopoulou Åkermark Old Rules and New Technology: Drones and the Demilitarisation and Neutralisation of the Åland Islands

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Isabella Brunner, Marija Dobrić and Verena Pirker Proving a State’s Involvement in a Cyber-Attack: Evidentiary Standards before the ICJ

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Natalia Jevglevskaja Legal Review of New Weapons: Origins of ­Article 36 of AP I

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Kenneth Kraszewski Classification of Cyber Operations under International Law

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Special Section Two: The Ideal of the International – Principles, Backlash and Resistance Nikolay Marin and Bilyana Manova The Rise of Nationalism and Populism in Liberal Democracies as a Challenge for Public International Law

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Book Reviews Edited by Tuomas Tiittala Jaanika Erne Martti Koskenniemi, Walter Rech and Manuel Jiménez Fonseca (eds), International Law and Empire. Historical Explorations

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Yihong Zhang Wenhua Shan and Jinyuan Su (eds), China and International Investment Law: Twenty Years of ICSID Membership

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David M Scott Wayne Sandholtz and Christopher A Whytock (eds), Research Handbook on the Politics of International Law 

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Tuomas Tiittala William A Schabas and Shannonbrooke Murphy (eds), Research Handbook on International Courts and Tribunals

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New Finnish Doctoral Dissertations in International Law Paolo Amorosa The American Project and the Politics of History: James Brown Scott and the Origins of International Law

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Karen Knop The American Project and the Politics of History: James Brown Scott and the Origins of International Law by Paolo Amorosa, Doctoral Dissertation, University of Helsinki, 2018

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Maija Dahlberg Developing the Reasoning of the European Court of Human Rights Would Improve its Judicial Legitimacy

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Julia Jansson The Death of the Freedom Fighter – How the Threat of Terrorism is Suffocating the Protection of Political Criminals

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Saskia Hufnagel and Christopher L Blakesley The Death of the Freedom Fighter – How the Threat of Terrorism is Suffocating the Protection of Political Criminals by Julia Jansson, Doctoral Dissertation, University of Helsinki, 2018

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Jens Kremer The End of Freedom in Public Places? Privacy Problems Arising from Surveillance of the European Public Space

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Iain Cameron The End of Freedom in Public Spaces? Privacy Problems Arising from Surveillance of the European Public Space by Jens Kremer, Doctoral Dissertation, University of Helsinki, 2017

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Taina Tuori From League of Nations Mandates to Decolonization: A History of the Language of Rights in International Law

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Jochen von Bernstorff From League of Nations Mandates to Decolonization. A History of Rights by Taina Tuori, Doctoral Dissertation, University of Helsinki, 2016

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General Section

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Autonomy for Minorities: Definitions, Types and Status in International Law Athanasios Yupsanis* Abstract: Autonomy for minorities is a recurring issue in legal and political studies. Adherents of the idea argue that it would offer enhanced protection to minorities and ensure State and regional peace and stability. Opponents claim that it could lead to destabilisation and secession, as well as to discrimination against ‘minorities within minorities’. These concerns have resulted in a refusal so far to recognise such a right to minorities. Recent developments, however, like the recognition of a right to autonomy to indigenous peoples in the 2007 UN Declaration on the Rights of Indigenous Peoples (UNDRIP), can benefit minorities, notwithstanding the fact that the UN treats these two kinds of groups as distinct categories with different sets of rights, because of the several analogies and similarities found between them. In this context, it is argued that recognising a right to autonomy to minorities in international law upon certain terms, would give them a better bargaining position for negotiating their rights within States’ borders. In such a case, a combination of territorial and non-territorial arrangements would foster minority protection and help prevent ethnic conflict. Keywords: territorial autonomy, non-territorial/cultural autonomy, minority rights

1. Introduction The idea of autonomy, which the Oxford English Dictionary defines as ‘the right of self-government’,1 is ‘a re-emerging topic’2 for minorities in academic and policy makers’ domestic discussions on the management of ethno-cultural diversity and the protection of minority rights both in Europe

* LL.M, PhD in International Law, Adjunct Lecturer at the School of Political Sciences of Aristotle University of Thessaloniki; Contact: [email protected]. 1. See Glen Anderson, ‘Secession in International Law and Relations: What Are We ­Talking About?’ (2013) 35 Loyola of Los Angeles International and Comparative Law Review 343–88, 385. 2. Péter Kovács, ‘Autonomy and International Law’ [translated by Endre Orbán] (2012) 3 Délkelet Európa – SouthEast Europe International Relations Quarterly 1–3, 1.

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and elsewhere.3 Its proponents include several scholars and certain ­political bodies, such as the Parliamentary Assembly (PACE) of the Council of Europe (CoE), and a few individual States (eg Hungary), which argue that minority autonomy can contribute to minority protection and ethnic conflict prevention. The PACE, for example, has recently stated in its Resolution 1985 (2014) that ‘[m]inority protection is … a means of conflict ­prevention’,4 and that ‘territorial arrangements might play an important role for the effective protection of the rights of national minorities’.5 The PACE also referred to non-territorial arrangements in its Resolution 1866 (2012) on the adoption of an additional protocol to the European Convention on Human Rights (ECHR) for national minorities, suggesting that such a protocol could guarantee some minimum standards, ‘including the right to cultural autonomy to preserve national identity’.6 In an analogous context, the Advisory Committee (ACFC) of the Framework Convention for the Protection of National Minorities (FCNM) of CoE examined the functioning and impact of territorial and non-territorial cultural autonomy arrangements in those States Parties where they exist, and commented that the former ‘can foster a more effective participation of persons belonging to national minorities in various areas of life’,7 while the latter can ‘contribute to the preservation and development of minority cultures’.8 3. Günther Rautz, ‘Exploring Territorial and Cultural Autonomy as a Means of Conflict Resolution and Minority Protection’ in Thomas Benedikter (ed), Solving Ethnic Conflict Through Self-Government: A Short Guide to Autonomy in Europe and South Asia (Bozen/Bolzano, EURAC, 2009) 4–5. 4. PACE, Resolution 1985 (2014), The Situation and Rights of National Minorities in Europe, debate on 8 April 2014 (13th Sitting), para 6 www.assembly.coe.int/nw/xml/XRef/XrefXML2HTML-en.asp?fileid=20772&lang=en (last accessed 10 December 2018). All further references to online sources are accurate as of that date. 5. Ibid, para 7. See also PACE, Resolution 1333 (2003), Positive Experiences of Autonomous Regions as a Source of Inspiration for Conflict Resolution in Europe, debate on 24 June 2003 (19th Sitting), para 16 www.assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en. asp?fileid=17120&lang=en. 6. PACE, Resolution 1866 (2012), An Additional Protocol to the European Convention on Human Rights on National Minorities, text adopted by the Standing Committee, acting on behalf of the Assembly, on 9 March 2012, para 6.3 www.assembly.coe.int/nw/xml/XRef/ Xref-XML2HTML-EN.asp?fileid=18074&lang=en. For a critical view on the PACE’s minority autonomy proposal, see Stephanie E Berry, ‘The Siren’s Call? Exploring the Implications of an Additional Protocol to the European Convention on Human Rights in National Minorities’ (2016) 23 International Journal on Minority and Group Rights 1–38, 11. 7. ACFC, Commentary on the Effective Participation of Persons Belonging to National Minorities in Cultural, Social and Economic Life and in Public Affairs, ACFC/31DOC(2008)001, Strasbourg, 5 May 2008, para 134. 8. Ibid, para 135.

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The opponents of the idea, on the other hand, include the vast majority of States, which fear that it would lead to destabilisation and even to secession, and scholars, who argue that it will result in discrimination against ‘internal minorities’.9 Due mainly to strong States’ objections to the recognition of a minority right to autonomy, no such right exists, not only in general public international law,10 but also in the stricter context of the regional European legal order, which accords stronger protection to minorities. The FCNM, for example, the only legally binding multilateral instrument devoted to minority rights, does not provide for a right to autonomy of persons belonging to minorities, whether territorial or non-territorial/cultural.11 Also, the aforementioned PACE resolutions and recommendations are merely of a political nature and not legally binding,12 as are the very few, and weakly worded, relevant provisions found in exclusively ‘soft law’ minority texts, which will be examined below. Public international law, however, is not carved in stone, but is constantly evolving and adapting to new situations, needs and demands. Originally it mainly governed relations between States, which were the only subjects that had rights and duties under its norms. Today, however, groups such as indigenous peoples to a larger degree13 and minorities to a lesser are also recognised, albeit reluctantly, as minor actors, having some rights and duties under it.14 Specifically regarding minority rights it should be noted that, until the late 1980s, most States declined to adopt positive measures of minority protection, under the argument that this kind of treatment is ­detrimental

9. Farimah Daftary, ‘Insular Autonomy: A Framework for Conflict Resolution? A Comparative Study of Corsica and the Aaland Islands’ (2001) 1 The Global Review of Ethnopolitics 19–40, 20. 10. See Doris Wydra, ‘The Crimea Conundrum: The Tug of War Between Russia and Ukraine on the Questions of Autonomy and Self-Determination’ (2004) 10 International Journal on Minority and Group Rights 111–30, 123; Thomas D Musgrave, Self-Determination and National Minorities (Oxford, Clarendon Press, 1997) 208; Patrick Thornberry, ‘Minorities and Europe: The Architecture of Rights’ (1994) XLII European Yearbook 1–19, 10. 11. György Frunda (Rapporteur), An Additional Protocol to the European Convention on Human Rights on National Minorities, Committee on Legal Affairs and Human Rights, AS/Jur(2011)46, 8 November 2011, para 58. 12. Tudor Tănăsescu, ‘Council of Europe and the Protection of Minorities’ (2013) 2 AGORA International Journal of Juridical Sciences 197–203, 202. 13. See Vassilis Grammatikas, ‘Kossovo v. South Osetia? Modern Politics of Secession and International Law’ (2009) 1 Journal of International Law 26–43, 27. 14. See Prosper Nobirabo Musafiri, ‘Right to Self-Determination in International Law: Towards Theorisation of the Concept of Indigenous Peoples/National Minority?’ (2012) 19 International Journal on Minority and Group Rights 481–532, 481.

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to national unity since it creates privileges for minorities.15 This attitude was also in line with the interpretation agreed at the time of the adoption (1966) of Article 27 of the International Covenant on Civil and Political Rights (ICCPR), the main universal legally binding minority norm, which provides that minority members shall not be denied their right to use their language, to enjoy their culture and to profess and practice their religion.16 Its negative phrasing was construed to imply a passive State duty of noninterference in the exercising of minority rights, rather than a proactive State role.17 Such an approach, however, has been abandoned since the early 1990s, and the necessity of State sustaining action in order to realise a full equality between majority and minority members, as well as to guarantee the necessary preconditions for the protection and promotion of minorities’ identity, is now widely accepted.18 One might also note that, although minority rights are individual,19 current developments, such as the interpretation given for Article 15 para 1 (a) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) on the right to take part in cultural life by the Committee on Economic, Social and Cultural Rights (CESCR) in its General Comment No 23 (2009), recognise inter alia the minority per se as a bearer of the specific right.20 Under the prism, then, of this evolutional nature of international law, it could be argued that the recent recognition of a right to autonomy to indigenous peoples in the 2007 UN Declaration on the Rights of Indigenous Peoples (UNDRIP) can benefit minorities because of the several analogies and similarities found between them.21 Recognising a right to autonomy to minorities in international law under certain g­ uarantees,

15. Patrick Thornberry, ‘Is There a Phoenix in the Ashes? International Law and Minority Rights’ (1980) 15 Texas International Law Journal 421–58, 456. 16. See Athanasios Yupsanis, ‘Article 27 of the ICCPR Revisited: The Right to Culture as a Normative Source for Indigenous/Minority Participatory Claims in the Case Law of the Human Rights Committee’ (2013) 26 Hague Yearbook of International Law 358–409. 17. Jean-Paul Schreuder, ‘Minority Protection Within the Concept of Self-Determination’ (1995) 8 Leiden Journal of International Law 53–80, 70. 18. Linos-Alexandros Sicilianos, ‘The Protection of Minorities in Europe: Collective Aspects of Individual Rights’ in Linos-Alexandros Sicilianos and Antonis Bredimas (eds), The Protection of Minorities: The Framework Convention of the Council of Europe (Athens, Sakkoulas, 1997) 93–129, 116, 128 (in Greek). 19. Johanna Gibson, ‘The UDHR and the Group: Individual and Community Rights to Culture’ (2008–2009) 30 Hamiline Journal of Public Law and Policy 285–317, 295. 20. See Athanasios Yupsanis, ‘The Meaning of ‘Culture’ in Article 15 (1) (a) of the ICESCR – Positive Aspects of CESCR’s General Comment No. 21 for the Safeguarding of Minority Cultures’ (2012) 55 German Yearbook of International Law 345–83. 21. Makau Mutua, ‘The Iraq Paradox: Minority and Group Rights in a Viable Constitution’ (2006) 54 Buffalo Law Review 927–55, 938.

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such as a strong commitment on the part of the minority autonomous institutions to the States’ territorial integrity and to the rights of ‘minorities within minorities’, would mean that its existence, its weakening and its abolishment would not depend exclusively on national legislation as has been the case until now. Such a development would give minorities added bargaining strength with which to negotiate their rights within the States’ territory. As the ACFC has commented, territorial and non-territorial instruments can be ‘fully in line with the international law principle of territorial integrity and can be a useful tool to promote the enjoyment of minority rights’.22 In this light, and after analysing the definitions and types of models of autonomy, this article suggests that territorial settlements are best suited to minorities that are geographically compact and highly politically motivated, while nonterritorial schemes can be better adapted to the needs of small and scattered minorities. Also, given that each territorial minority has its own ‘minority diaspora’ within the State, it would be logical to suggest that a combination of territorial and non-territorial arrangements would most effectively foster minority protection and help prevent ethnic conflict.

2. Definitional Issues: Territorial and Non-Territorial Autonomy 2.1.  The Concept of Autonomy Assessing the definitions given for the meaning of the word ‘autonomy’ and its main types is a necessary first step towards acquiring a more or less clear ­picture of its basic elements and the scope of protection it may provide to minority groups. The definitional approaches suggest that territorial settlements are more suitable for the satisfaction of the claims of geographically concentrated minorities, while non-territorial arrangements correspond better to the needs of scattered minorities. Also, given the broader scope of devolved powers enjoyed by territorial regimes, it is fair to argue that they provide stronger protection to minority identities than non-territorial schemes. Beginning, then, with the meaning of the notion, Hannum and Lillich noted in their seminal essay 35 years ago that ‘[a]utonomy is not a term of art or a concept that has a generally accepted definition in international law’.23 22. ACFC, The Framework Convention: A Key Tool to Managing Diversity Through ­Minority Rights, Thematic Commentary No 4, ACFC/56DOC(2016)001, Strasburg, 27 May 2016, para 78. 23. Hurst Hannum and Richard B Lillich, ‘The Concept of Autonomy in International Law’ (1980) 74 American Journal of International Law 858–89, 858.

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A  similar approach is presented by Légaré and Suksi in their introductory note to the 15th volume of the 2008 International Journal on Minority and Group Rights dedicated to the issue.24 In the same vein, Cassese points out that the concept is ‘still vague and imprecise’.25 The first remark to be made on the topic, then, is that there is still no commonly agreed definition of autonomy in international law.26 Etymologically, the notion derives from the Greek words αυτο (self ) and νόμος (law), thus literally meaning the right to make one’s own laws.27 Today, the term is used in various scientific fields, its content differing depending on the context. In philosophy, for example, it signifies an individual’s power to determine alone, through his/her own rational will, a ‘positive ­liberty’; in the natural sciences, it means organic independence or the condition of a phenomenon conforming only to its own laws and not subject to higher rules;28 in legal-political vocabulary it stands for self-government, a term that is often intermixed or used interchangeably with ‘autonomy’, as synonymous with it.29 Other concepts used in legal and political studies are ‘self-­management’, ‘self-rule’, ‘self-administration’, ‘home rule’ and ‘self-­legislation’.30 This multiplicity of terms reflects inter alia the variety of the typology of autonomy arrangements. Indeed, there is no uniform model of autonomy, since each case depends on such factors as ‘history, traditions of governance, the size of territory, the size and number of communities,

24. André Légaré and Markku Suksi, ‘Introduction: Rethinking the Forms of Autonomy at the Dawn of the 21st Century’ (2008) 15 International Journal on Minority and Group Rights 143–55, 143. 25. Antonio Cassese, Self-Determination of Peoples: A Legal Reappraisal (Cambridge, ­Cambridge University Press, 1995) 355. 26. Samuel De Jaegere, ‘The Belgian Thesis Revisited: United Nations Member States’ Obligation to Develop Autonomy for Indigenous Peoples’ (2003) XIV Finnish Yearbook of International Law 159–204, 198. 27. Matti Wiberg, ‘Ambiguities and Clarifications of the Concept of Autonomy’ in Zelim A  Skurbaty (ed), Beyond a One Dimensional State: An Emerging Right to Autonomy? ­(Leiden/Boston, Martinus Nijhoff Publishers, 2005) 177–90, 181. 28. Ruth Lapidoth, Autonomy: Flexible Solutions to Ethnic Conflicts (Washington, DC, United States Institute of Peace Press, 1996) 29. 29. Lauri Hannikainen, ‘Self-Determination and Autonomy in International Law’ in Markku Suksi (ed), Autonomy: Applications and Implications (The Hague/London/Boston, Kluwer Law International, 1998) 79–95, 79. 30. Natalia Loukacheva, ‘On Autonomy and Law’, Institute on Globalization and the Human Condition, Working Paper Series GHC 05/3 (2005) 2 www.crunch.mcmaster.ca/ institute-on-globalization-and-the-human-condition/documents/IGHC-WPS_05-3_ Loukacheva.pdf.

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and internal and external pressures’.31 Broadly speaking, however, autonomy is generally seen in legal and political theory as either territorial or non-­ territorial. In the first case, the autonomy is rooted in the principle of territoriality, meaning that the rules to be applied depend mainly on the specific geographical area in question. In the second, it is based on the personality principle, namely that the application of the relevant norms depends on the ethnic affiliation of the persons concerned, irrespective of their place of residence within the state.32

2.2.  Basic Elements of Territorial Autonomy A common feature of the several definitions given for the notion of territorial autonomy is that of an institutional arrangement for establishing a legal regime marked by the transfer of certain executive, legislative and judicial powers in one or more specified fields of governmental competence33 from the central authorities to a region of the State without its being detached from the State of which it is a part.34 That region usually possesses some ethnic or cultural distinctiveness,35 which the majority or a large part of its inhabitants want to preserve and develop. Thus, territorial autonomy firstly presupposes a clearly identifiable territory where a minority or an indigenous people lives in a fairly concentrated way, constituting a regional majority, because it then becomes easier to delineate the jurisdiction within which the specific self-government will be exercised.36 It is within this territory that the principle of territoriality, on which territorial autonomy is based, applies; this means ‘that the local autonomous legislative body should be elected and the administrative body selected by the inhabitants of the autonomous area’.37 31. Mark Bennett, ‘Indigenous Autonomy and Justice in North America’ (2004) 2 New ­Zealand Journal of Public and International Law 203–16, 207. 32. Kenneth D McRae, ‘The Principle of Territoriality and the Principle of Personality in Multilingual States’ (1975) 4 International Journal of the Sociology of Language 33–54, 33, 40. 33. Stefan Wolff, ‘Conflict Management in Divided Societies: The Many Uses of ­Territorial Self-Governance’ (2013) 20 International Journal on Minority and Group Rights 27–50, 32. 34. James Crawford, The Creation of States in International Law, 2nd edn (Oxford, Oxford University Press,2006) 323. 35. Lars Adam Rehof, ‘Human Rights and Self-Government for Indigenous Peoples’ (1994) 61/62 Nordic Journal of International Law 10–41, 19. 36. Markku Suksi, ‘Concluding Remarks’ in Suksi (n 29) 357–63, 359. 37. Kristian Myntti, ‘The Beneficiaries of Autonomy Arrangements – With Special Reference to Indigenous Peoples in General and the Sami in Finland in Particular’ in Suksi (n 29) 277–94, 278.

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The second element, which is inseparable from the first, is the existence of a specific minority group (or indigenous people) which is officially recognised by the government concerned. As Myntti comments, ‘[e]ven if it is true that the exercise of far-reaching autonomous powers requires that the authority and jurisdiction of the autonomous bodies be territorially defined, people, not territories, need and demand autonomy’.38 Finally, a third constituent aspect of territorial autonomy regimes is their subjection to State sovereignty. As Hannum observes, ‘[a]utonomy is not equivalent to independence, and autonomous governments should not expect to be immune from the influence of central governments’.39 Under this perception, the areas in which the territorial self-government may assume primary or significant authority include, according to the ‘Organization for Security and Cooperation in Europe’s (OSCE) Lund Recommendations on the Effective Participation of National Minorities in Public Life’, ‘education, culture, use of minority language, environment, local planning, natural resources, economic development, local policing functions, housing, health and other social services’.40 The central government, for its part, retains its exclusive jurisdiction in the fields of defence, foreign affairs, immigration and customs, macroeconomic policies and monetary affairs.41 Further, depending on the range of matters delegated and the scope and depth of the devolved powers, territorial regimes are divided into those entities that i) enjoy legislative powers (often called ‘political autonomies’) like ­Catalonia, Euskadi, Galicia, Scotland, Gagauzia, Greenland, South Tyrol, the Åland Islands etc, or ii) hold regulatory/administrative powers, like Corsica, Wales, Nunavut, etc.42 From the above description one may conclude that territorial autonomy seems to be a workable means of protection for minorities that are politically conscious of their ethnic distinctiveness and are geographically compact in

38. Ibid (emphasis added). 39. Hurst Hannum, Autonomy, Sovereignty, and Self-Determination: The Accommodation of Conflicting Rights (Philadelphia, University of Pennsylvania Press, 1990) 468. 40. ‘The Lund Recommendations on the Effective Participation of National Minorities in Public Life and Explanatory Note’ (2000) 11 Helsinki Monitor 47–61, 50 (Chap III, para 20). 41. Ibid, 49, 59 (Chap III, para 15); See also Hans-Joachim Heintze, ‘Implementation of Minority Rights Through the Devolution of Powers – The Concept of Autonomy Reconsidered’ (2002) 9 International Journal on Minority and Group Rights 325–43, 332. 42. Roger Suso, ‘Territorial Autonomy and Self-Determination Conflicts: Opportunity and Willingness Cases from Bolivia, Niger and Thailand’, Institut Catala International per la Pau, ICIP Working Papers, 2010/01, Barcelona (2010) 12, http://icip.gencat.cat/ web/.content/continguts/publicacions/workingpapers/arxius/wp10_1_ang.pdf.

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a way that permits the effective exercise of the delegated powers in their area of inhabitancy. This model gives minority institutions a broad jurisdiction in several fields that are crucial for the protection and promotion of ­minority identity, while at the same time it does not endanger States’ stability and territorial integrity, since autonomy can by its very nature be exercised only within States’ borders. Thus, it seems to be a practical mode of mutual compromise between minority bodies and State governments.

2.3.  Non-Territorial Forms of Autonomy Non-territorial autonomy is usually understood in legal and political studies as ‘personal’, ‘cultural’ and ‘functional’.43 Other terms also in use are ‘national cultural autonomy’, ‘extraterritorial’, ‘corporate’ and ‘segmental’.44 As Henrard notes, a common denominator of all these non-territorial forms of autonomy ‘is that the competences are transferred not in relation to a certain specific territory but in relation to a certain community, irrespective of size and place of residence in the State’.45 Beyond this general observation, one may note that the differences and distinctions between the three main types of non-territorial autonomy are not perfectly clear, but partly overlap and intertwine, which explains why a certain term may have different meanings for different scholars and officials. For example, there are scholars who use the terms ‘personal’ and ‘cultural’ autonomy interchangeably, considering ‘that this type of autonomy applies to all the members of a certain group within the state, regardless of the place of their residence’.46 Others do the same with the terms ‘functional’ and ‘cultural’ autonomy.47 A third view holds that cultural autonomy is confined to cultural matters, such as language, education and so on, while personal autonomy is autonomy granted to a group as a legal person irrespective of the territorial principle. Under this understanding, cultural autonomy is personal autonomy limited to cultural affairs.48 Finally, there are authors for whom personal autonomy refers more 43. Tatiana Rudneva, ‘Non-Territorial Autonomy in Russia: Practical Implications of Theoretical Approaches’ (2012) 7 The Romanian Journal of Society and Politics 27–47, 30. 44. John Coakley, ‘Introduction: Dispersed Minorities and Non-Territorial Autonomy’ (2016) 15 Ethnopolitics 1–23, 11. 45. Kristin Henrard, ‘Participation, Representation and Autonomy in the Lund Recommendations and their Reflections in the Supervision of the FCNM and Several Human Rights Conventions’ (2005) 12 International Journal on Minority and Group Rights 133–68, 141. 46. Lapidoth (n 28) 37. 47. Sherrill Stroschein, ‘What Belgium Can Teach Bosnia: The Uses of Autonomy in Divided House States’ (2003) Issue 3 Journal of Ethnopolitics and Minority Issues in Europe 1–30, 10. 48. Rudneva (n 43) 30.

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to a guarantee of certain basic civil liberties and rights to all individuals, irrespective of their belonging or not to a specific group.49 Regarding functional autonomy, Suksi argues that it is possible to speak about this type of autonomy when private subjects of law are vested with public functions and powers.50 In the same vein, Malloy points out that while non-territorial autonomies are generally agreed to be public law instruments, functional autonomies ‘need not be adopted as public law instruments’ but operate through private establishments regulated by the law on private ­associations.51 Finally, for Henrard, ‘the only difference between the three types of non-territorial autonomy seems to be the type of body/corporation that exercises the competences transferred’.52

2.4.  Concluding Remarks The above analysis leads to the conclusion that there are at least three main differences between the non-territorial/cultural and the territorial autonomy model, namely, that i) the administration is assigned to a culturally rather than territorially defined group, ii) the scope of self-government is limited to cultural aspects, and iii) cultural authority can be exercised only over those individuals who voluntarily opt for the cultural group.53 On this basis, it seems reasonable to argue that the territorial autonomy model provides for stronger minority protection, since it covers a broader range of areas of minority interest than the non-territorial one, which is more focused on specific items, mostly in the cultural sphere. In this regard, it could be claimed that territorial autonomy is more appropriate for the case of minorities that are highly politically motivated, usually in connection with the national identity of another ‘kin’ state, and thus are not probably satisfied with rights of an exclusively cultural nature.

49. Michael Tkacik, ‘Characteristics of Forms of Autonomy’ (2008) 15 International Journal of Minority and Group Rights 369–401, 370–71, 374. 50. Markku Suksi, ‘Functional Autonomy: The Case of Finland with Some Notes on the Basis of International Human Rights Law and Comparisons with Other Cases’ (2008) 15 International Journal on Minority and Group Rights 195–225, 197. 51. Tove H Malloy, ‘The Lund Recommendations and Non-Territorial Arrangements: Progressive De-territorialization of Minority Politics’ (2009) 16 International Journal on Minority and Group Rights 665–79, 667–68, 672. 52. Henrard (n 45) 141. 53. Yvonne Donders, ‘The UN Declaration on the Rights of Indigenous Peoples – A Victory for Cultural Autonomy?’ in I Boerefijn and J Goldschmidt (eds), Changing Perceptions of Sovereignty and Human Rights: Essays in Honour of Cees Flinterman (Antwerp, Intersentia, 2008) 99–122, 100.

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3. The Battle of Autonomies: Non-Territorial Autonomy v Territorial and Vice Versa 3.1.  Arguments in Favour of Non-Territorial Arrangements In legal and political theory there is a confrontation between those who argue that territorial settlements can offer enhanced protection to minorities and those who claim that non-territorial forms of autonomy can be of more functional value as regards the safeguarding of minority cultures. Given, however, that each geographically compact minority has its own ‘minority diaspora’, which lives outside the autonomous area and thus does not enjoy the minority protection that the autonomy regime provides, it is logical to suggest that a combination of these two basic forms of autonomy can provide a more holistic protection to all members of the minorities concerned. To begin with the non-territorial autonomy model, its proponents argue that it has additional benefits that allegedly make it a more attractive choice than the territorial one. First, as has been recognised by monitoring bodies (ACFC), intergovernmental committees (Venice Commission) and independent experts (OSCE Lund Recommendations),54 it may prove particularly useful for the maintenance and development of minority identities in situations where the territorial model is, for practical reasons, unable to do so, such as in the case of minorities dispersed over the State territory.55 An analogous argument has for similar reasons been made by some scholars for non-territorial minorities such as the Roma,56 as well as for several indigenous peoples who have been victims of alien and violent invasion that made them scattered minorities in their own ancestral lands.57 Second, it is claimed that it can offer viable compromises in cases of ethnically mixed areas over which more than one ethno-national group have

54. See respectively ACFC/31DOC(2008)001 (n 7), para 135; Venice Commission, A General Legal Reference Framework to Facilitate the Settlement of Ethno-Political Conflicts in Europe, adopted at the 44th Plenary Meeting (13–14 October 2000), CDL-INF(2000)16, Strasbourg, 3 November 2000, 8; ‘The Lund Recommendations … and Explanatory Note’ (n 40) 50, 60 (Chap III, para 17). 55. Henry J Steiner, ‘Ideals and Counter-Ideals in the Struggle Over Autonomy Regimes for Minorities’ (1991) 66 Notre Dame Law Review 1539–60, 1542. 56. See Illona Klimova-Alexander, ‘Transnational Romani and Indigenous Non-Territorial Self-Determination Claims’ in David J Smith and Karl Cordell (eds), Cultural Autonomy in Contemporary Europe (London and New York, Routledge, 2008) 59–80. 57. Ephraim Nimni, ‘Nationalist Multiculturalism in Late Imperial Austria as a Critique of Contemporary Liberalism: The Case of Bauer and Renner’ (1999) 4 Journal of Political Ideologies 289–314, 297.

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‘inherited’ competing claims, by granting a certain degree of non-territorial self-rule to all the ethno-national groups without assigning exclusive control over the contested common territory to any of them, thus avoiding interethnic frictions.58 Third, it guarantees enjoyment of the minority rights to all members of a minority, irrespective of where they live within the national territory, whereas the territorial model covers only those residing in a given region, leaving those who live dispersed across the rest of the country (‘minority diaspora’) outside its field of protection.59 Moreover, it enjoys stronger individual legitimacy, for it applies only to those members who voluntarily identify with the group for whose benefit it is established, whereas territorial autonomy applies to all inhabitants of a specific region regardless of their will, thus including those who are not members of the group or do not want to identify with it.60 Furthermore, it avoids the creation of ‘minorities within minorities’, since the members of the national majority population and of minorities other than the one which is regionally dominant (‘internal minorities’) will not find themselves in a vulnerable position in a particular region, as in the case of territorial autonomy.61 Lastly, non-territorial autonomy is supposed to pose a lesser danger for States’ territorial integrity – since it can satisfy the cultural needs of the minorities without compromising State sovereignty – than territorial autonomy, which is considered by many governments as a first step to secession,62 thus making the adoption of this model more pragmatic.63 For all

58. Asbjørn Eide, ‘Good Governance, Human Rights, and the Rights of Minorities and Indigenous Peoples’ in Hans-Oto Sano and Gudmundur Alfredsson with the collaboration of Robin Clapp (eds), Human Rights and Good Governance – Building Bridges (The Hague/London/New York, Martinus Nijhoff Publishers, 2002) 47–71, 67. 59. David J Smith, ‘Minority Territorial and Non-Territorial Autonomy in Europe: Theoretical Perspectives and Practical Challenges’ in Zoltán Kántor (ed), Autonomies in Europe: Solutions and Challenges (Budapest, L’ Harmattan, 2009) 15–23, 18. 60. Ruth Lapidoth, ‘Autonomy: Potential and Limitations’ (1994) 1 International Journal on Group Rights 269–90, 282. 61. Athanasios Yupsanis, ‘Cultural Autonomy’ in Andreas Wiesand, Kalliopi C ­ hainoglou, Anna Śledzińska-Simon with Yvonne Donders (eds), Culture and Human Rights: The Wroclaw Commentaries (Berlin/Boston, De Gruyter, Cologne, ARCult Media, 2016) 124–26, 125. 62. See Svante E Cornell, ‘Autonomy as a Source of Conflict: Caucasian Conflicts in Theoretical Perspective’ (2002) 54 World Politics 245–76, 246. 63. See Max van der Stoel, ‘Reflections on the Role of the OSCE High Commissioner on National Minorities as an Instrument of Conflict Prevention’ in Institute for Peace Research and Security Policy at the University of Hamburg and IFSH (eds), OSCE Yearbook 1999 (Baden-Baden, 2000) 381–91, 385–86.

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these reasons, non-territorial/cultural autonomy is presented as ‘a promising alternative’64 to territorial autonomy.

3.2.  Pro Territorial Autonomy Arguments Adherents of the territorial autonomy version, though agreeing that nonterritorial/cultural autonomy ‘may be the best on offer for dispersed and intermixed populations’65 as well as for the Roma and perhaps for some indigenous peoples,66 strongly doubt its adequacy to address the needs and claims of mobilised, sizeable, and territorially concentrated national minorities. First of all, they point out that confining non-territorial/cultural autonomy to the cultural sphere does not satisfy the demands of the kinds of minorities that, in addition to cultural rights, also want ‘to control local or regional governments, police forces, courts, economic and social welfare policies’.67 Also, they argue that while de-territorialising national minority identities seems more promising at first glance, it is largely unrealistic in the real world, where very often there is a deep link between national minorities and their territory, which is central to their self-understanding, histories and aspirations.68 This emotional attachment is unlikely to be satisfied by the non-territorial cultural approach, since these minorities ‘seek not simply self-government, but selfgovernment in and over their national homeland’.69 In addition, it is said that non-territorial/cultural autonomy regimes cannot guarantee the preservation of the minority language in the long term.70 As Bauböck emphasises, dispersed minority enclaves are not likely to survive

64. Aviel Roshwald, ‘Between Balkanization and Banalization: Dilemmas of Ethnocultural Diversity’ (2007) 3 Ethnopolitics 365–78, 373. 65. John McGarry and Margaret Moore, ‘Karl Renner, Power Sharing and Non-Territorial Autonomy’ in Ephraim Nimni (ed), National Cultural Autonomy and its Contemporary Critics (London and New York, Routledge [Taylor and Francis e-Library], 2005) 64–81, 86. 66. Will Kymlicka, ‘Renner and the Accommodation of Sub-State Nationalisms’ in Nimni, ibid 117–27, 125. 67. Rainer Bauböck, ‘Political Autonomy or Cultural Minority Rights? A Conceptual Critique of Renner’s Model’ in Nimni (n 65) 83–95, 88. 68. Will Kymlicka, ‘National Cultural Autonomy and International Minority Rights Norms’ (2007) 6 Ethnopolitics 379–93, 388. 69. Margaret Moore, ‘Sub-State Nationalism and International Law’ (2004) 25 Michigan Journal of International Law 1319–40, 1335. 70. Rainer Bauböck, ‘Multinational Federalism: Territorial or Cultural Autonomy?’, Willy Brandt Series of Working Papers in International Migration and Ethnic Relations, 2/01 (2001) 33 https://dspace.mah.se/bitstream/handle/2043/690/Workingpaper201.pdf; jsessionid=CDAE45DB7F0100B723B0E0752E9308A1?sequence=1.

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linguistically even when their members have the right to establish and maintain educational institutions, if their language is not a useful resource in the larger environment.71 This is because, ‘a language may prosper best if it has a territorial statutory basis in which it is the primary medium of social and economic exchange and a principal medium for work, business and social interaction’.72 It is mainly for these reasons that most of the geographically compact national minorities opt for territorial autonomy much more than for non-territorial cultural autonomy. Furthermore, proponents of the territorial autonomy model claim that the suggestion inherent in the non-territorial/cultural autonomy scheme, ie that, by inevitably creating internal minorities, territorial settlements may produce ethnic tensions and lead to further oppression and reactionary secessionist demands, thus making the choice of cultural autonomy more attractive, has not been shown to be solid in practice. On the contrary, territorial arrangements have ‘arguably helped reduce the risks of violence, oppression and secession’, as several of the Western States that have adopted it would have faced much greater threats of ethnic mobilisation and destabilisation had they not accommodated the desire for territorial autonomy.73 From such perspectives, then, non-territorial cultural autonomy is best understood not as an alternative to the territorial model, but rather as a potential supplement to it as regards the case of territorially concentrated mobilised national minorities.74

3.3.  Concluding Thoughts To conclude, it seems that territorial forms of self-government are more suitable for the needs of those minorities that are sizeable and live compactly in a specific area, while non-territorial settlements appear to serve better the interests of those minorities that are small and dispersed across a country.75 It should be noted, however, that the distinction between the two models

71. Bauböck (n 67) 88. 72. John McGarry and Brendan O’ Leary, ‘Territorial Pluralism: Taxinomizing its Forms, Virtues and Flaws’ in Carlo Basta, John McGarry and Richard Simeon (eds), Territorial Pluralism: Managing Difference in Multinational States (Vancouver/Toronto, UBC Press, 2015) 13–53, 33. 73. Kymlicka (n 66) 119. 74. Bauböck (n 67) 84; Kymlicka (n 66) 118. 75. Ferenc Kalmár (Rapporteur), The Situation and Rights of Traditional National Minorities in Europe, Report of the Committee on Equality and Non-Discrimination, Doc 13445, 24 March 2014, para 64.

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does not mean that these are mutually exclusive or contradictory. ­Territorial autonomy regimes, for example, may recognise personality-based cultural rights to ‘internal minorities’ within their territory, as is the case with the national minority councils in the Autonomous Province of Vojvodina in Serbia.76 There are also settlements where territorial self-government is combined with non-territorial forms of cultural autonomy for members of the minority who live outside the autonomous region, such as the Francophones who live outside Quebec and the members of indigenous peoples who live outside their autonomous territory in Canada.77 These examples show that in practice territorial and non-territorial forms of autonomy can be complementary, providing for a more holistic protection for all members of the minority group or indigenous people concerned.78

4. Territorial and Non-Territorial Autonomy in International Law 4.1. Territorial Autonomy Norms in Non-Legally Binding Minority Instruments In several countries there exist both territorial and non-territorial/cultural autonomy regimes for minorities. Well-known instances of minority territorial autonomy include inter alia those of the German- and Ladin-speaking minorities of the Trentino-Alto Adige (South Tyrol) in Italy, the Swedishspeaking minority of the Åland Islands in Finland, the Gagauzian minority in Moldova, the Hungarian minority of Vojvodina in Serbia, etc.79 ­Examples of non-territorial/cultural arrangements include, but are not limited to, Estonia, the Russian Federation, Hungary and Slovenia.80 Most often their

76. José-María Arraiza, ‘The Management of Linguistic Diversity Through Territorial and Non-Territorial Autonomy’ (2015) 8 Europäisches Journal für Minderheitenfragen 7–33, 11. 77. Johanne Poirier, ‘Autonomy and Diversity’ in Ronald L Watts and Rupak Chattopadhyay (eds), Building on and Accommodating Diversities (New Delhi, Viva Books, 2008) 37–53, 51; Kymlicka (n 68) 385; Lapidoth (n 60) 281. 78. See José-María Arraiza, Making Home Rules for Mother Tongues – The Legal Implications of Linguistic Diversity in the Design of Autonomy Regimes (Åbo, Åbo Akademi University, 2015) 107. 79. See Thomas Benedikter, The World’s Modern Autonomy Systems: Concepts and Experiences of Regional Territorial Autonomy (Bolzano/Bozen, EURAC, 2009) 66–81 (for South Tyrol), 107–112 (for the Åland Islands), 122–29 (for the Gagauzia), 135 (for Vojvodina). 80. Yash Ghai, ‘Public Participation, Autonomy and Minorities’ in Skurbaty (n 27) 3–45, 41.

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legal basis is domestic, since a right of minorities to autonomy in treaty and customary international law is at best under question.81 A careful reading of the major international and regional minority norms and instruments, such as Article 27 of the ICCPR, the relevant 1992 UN Declaration and the FCNM, clearly show that there is no explicit reference to autonomy, whether territorial, non-territorial/cultural, or in any other form.82 The very few and weakly worded specific references to (mostly territorial) autonomy are found exclusively in the minority texts of so-called ‘soft law’83 and occur in the first half of the 1990s, when the minority issue was at the top of the international (mainly European) community’s agenda. In this context, the first provision to refer expressis verbis to (territorial) autonomy for minorities is found in Chapter IV, paragraph 35.2, of the most far-reaching document of its time, the 1990 Copenhagen Document of the then Conference on Security and Co-operation in Europe (CSCE), which states that: The Participating States note the efforts undertaken to protect and create conditions for the promotion of the ethnic, cultural, linguistic and religious identity of certain national minorities by establishing, as one of the possible means, appropriate local or autonomous administrations corresponding to the specific historical and territorial circumstances of such minorities and in accordance with the policies of the State concerned.84

This ‘rather ambiguous and somewhat confused’85 stipulation does not create legal obligations for the States, since the Copenhagen Document is not

81. JA Frowein and Roland Bank, The Participation of Minorities in Decision Making Processes, Expert Study submitted on Request of the Committee of Experts on Issues Relating to the Protection of National Minorities (DH-MIN) of the Council of Europe, DH-MIN(2000)1, November 2000, 18. 82. Regarding the observation that there is no explicit reference to autonomy in Art 27 ICCPR and the relevant UN Declaration, see Yousef T Jabareen, ‘Toward Participatory Equality: Protecting Minority Rights Under International Law’ (2008) 41 Israel Law Review 635–76, 672. Regarding the same observation for the FCNM see Alan Phillips, ‘Participation and the Council of Europe’s Framework Convention for the Protection of National Minorities (FCNM)’ in Skurbaty (n 27) 305–20, 305, 310. 83. See Steven Wheatley, ‘Deliberative Democracy and Minorities’ (2003) 14 European Journal of International Law 507–27, 522 (fn 98); Henrard (n 45) 141 (fn 48). 84. ‘Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE, 29 June 1990’ (1990) 11 Human Rights Law Journal 232–45, 243. See also Malcolm N Shaw, ‘Peoples, Territorialism and Boundaries’ (1997) 3 European Journal of International Law 478–507, 486. 85. Thomas Buergenthal, ‘The Copenhagen OSCE Meeting: A New Public Order for Europe’ (1990) 11 Human Rights Law Journal 217–32, 228.

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legally binding.86 It certainly has moral and political force,87 which means that it ‘implies, and should give rise to, an internal legislative or administrative response’.88 Even in this case its ‘extremely feeble wording’,89 in conjunction with the excessive requirements for its fulfilment,90 which leave a wide margin of discretion to the States, make it sound more like a vague general recommendation for the adoption of best practice policies than a right.91 In the words of Pentassuglia, ‘it simply highlights a possibility, not a mandatory outcome’.92 A similar attitude towards (territorial) autonomy was manifested in the few subsequent CSCE/OSCE documents that refer explicitly to the concept. Thus, in the 1991 Geneva Report of experts on national minorities, the participating States just noted with interest (sic) that positive results have been obtained by some of them by inter alia ‘local autonomous administration, as well as autonomy on a territorial basis, including the existence of consultative, legislative and executive bodies chosen through free and periodic elections’.93 Also, in the 1999 Lund Recommendations, it is inter alia simply stated that ‘[a]ppropriate local, regional or autonomous administrations that correspond to the specific historical and territorial circumstances of national minorities may undertake a number of functions in order to respond more effectively to the concerns of these minorities’.94 In this respect, the Explanatory Note to the Recommendations adds that ‘[t]erritorial self-government can help preserve the unity of the States while increasing the level of participation and involvement of minorities by giving them a greater role in a level of government that reflects their geographic concentration’.95 As Packer 86. Janusz Symonides, ‘The Legal Nature of Commitments Relating to the Question of Minorities’ (1996) 3 International Journal on Group Rights 301–23, 322. 87. Arie Bloed, ‘Institutional Aspects of the Helsinki Process After the Follow-Up Meeting of Vienna’ (1989) 36 Netherlands International Law Review 342–63, 345. 88. Oscar Schachter, ‘The Twilight Existence of Nonbinding International Agreements’ (1977) 71 American Journal of International Law 296–304, 303. 89. Aristoteles Constantinides, ‘The Involvement of the Organization for Security and Cooperation in Europe in Issues of Minority Protection’ (1996) 9 Leiden Journal of International Law 373–95, 383. 90. Yoram Dinstein, ‘Autonomy Regimes and International Law’ (2011) 56 Villanova Law Review 437–53, 442. 91. John Packer, ‘Autonomy and the Effective Participation of Minorities in Public Life: Developments in the OSCE’ in Skurbaty (n 27) 321–35, 325. 92. Gaetano Pentassuglia, ‘The EU and the Protection of Minorities: The Case of Eastern Europe’ (2001) 12 European Journal of International Law 3–38, 5. 93. ‘Report of the CSCE Meeting of Experts on National Minorities, Geneva, 19 July 1991’ (1991) 12 Human Rights Law Journal 332–34, 333 (Chap IV). 94. ‘The Lund Recommendations … and Explanatory Note’ (n 40) 50, para 20. 95. The Lund Recommendations … and Explanatory Note’ (n 40) 60, para 19.

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points out, the Lund Recommendations are just ‘recommendations [emphasis in the original] of independent experts and enjoy so far no official status in international relations’; but since they are the product of a team of internationally recognised experts acting independently and pro bono, they could be seen as an authoritative interpretation of the relevant international minority standards, serving as helpful reference points for policy and law m ­ akers.96 However, it should be emphasised, as Palermo indicates, that unlike all other fields covered by the Lund Recommendations, ‘virtually nothing has changed in regard to territorial autonomy in the OSCE region’. This means, he explains, that neither has a new territorial settlement been set up nor has much changed in the legislative framework of the existing autonomy regimes in Europe.97 A stronger statement on (territorial) autonomy came in 1993, in Article 11 of the PACE Recommendation 1201, which provided that: In the regions where they are in majority, the persons belonging to minorities shall have the right to have at their disposal appropriate local or autonomous authorities or to have a special status, matching their specific historical and territorial situation and in accordance with the domestic legislation of the state.98

As Kymlicka comments, this recommendation – which was also not legally binding – recognised territorial autonomy as a right and not merely as a best practice as the Copenhagen Document did; this reflects the high-water mark of support for territorial autonomy within European organisations, as since then there has been a marked movement away from it.99 Thus, while reference was made – albeit in a toothless way – to Article 11 in Hungary’s bilateral treaties with the Slovak Republic (1995) and Romania (1995),100 the

96. John Packer, ‘The Origin and Nature of the Lund Recommendations on the Effective Participation of National Minorities in Public Life’ (2000) 11 Helsinki Monitor 29–45, 41, 44. 97. Francesco Palermo, ‘When the Lund Recommendations Are Ignored. Effective Participation of National Minorities Through Territorial Autonomy’ (2009) 16 International Journal on Minority and Group Rights 653–63, 654–55. 98. PACE, ‘Recommendation 1201 (1993) on an Additional Protocol on the Rights of National Minorities to the European Convention on Human Rights’ (1995) 16 Human Rights Law Journal 108–13, 112. 99. Will Kymlicka, ‘The Internationalization of Minority Rights’ (2008) 6 International Journal of Constitutional Law 1–32, 22–23. 100. For the treaty of Hungary with Slovakia, see Nicole VT Lugosi, ‘The Hungarian Minority Question in Slovakia and Romania’ (2011) Issue 2 Review of Applied Socio-Economic Research 111–20, 115; For the treaty with Romania, see Geoff Gilbert, ‘Autonomy and Minority Groups: A Right in International Law?’ (2001–2002) 35 Cornell International Law Journal 307–53, 323.

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whole proposal of the Recommendation for an additional protocol to ECHR was finally abandoned by the Heads of State and Government of the CoE.101 Instead, priority was given to the adoption of the FCNM, which does not explicitly contain a right to autonomy, whether territorial or non-territorial. Indeed, the Venice Committee, which was requested by the Committee of Legal Affairs and Human Rights of the PACE to prepare an opinion on the interpretation of the Draft Protocol, with particular reference to Article 11, opined that, given the absence of an explicit reference to a right to autonomy in the FCNM and in the case law of the ECHR, ‘international law cannot in principle impose on States any territorial solutions to the problem of minorities and that States are not in principle required to introduce any forms of decentralization for minorities’.102 As the same Committee observed: States seem in fact to be afraid that the right to have appropriate local or autonomous administrations … may promote secessionist tendencies. Even those States which, while adhering to the principle of unitarity have granted a large degree of regional autonomy, hesitate to accept binding international instruments on the right of minorities to a certain autonomy.103

4.2.  Non-Territorial Autonomy Provisions in Minority Texts The aforementioned situation does not differ even as regards the establishment of non-territorial/cultural autonomy arrangements, despite the fact that autonomy of dispersed minorities appears, in theory at least, less threatening to the integrity of the states than autonomy of territorially concentrated minorities.104 As Klebes points out, the State’s sensitivity with regard to autonomy in any form is very strong, and governments see even non-­ territorial/cultural autonomy as a first step leading to administrative autonomy and finally to secession.105 Thus, explicit references to ‘non-territorial 101. Stephen Deets, ‘Reimagining the Boundaries of the Nation: Politics and Development of Ideas on Minority Rights’ (2006) 20 East European Politics and Societies 419–46, 435–37. 102. Opinion of the European Commission for Democracy Through Law on the Interpretation of Article 11 of the Draft Protocol to the European Convention on Human Rights Appended to Recommendation 1201 of the Parliamentary Assembly, CDLMIN(1996)004e-rev-restr, Strasbourg, 11 March 1996, para 2 (b). 103. Ibid, para 2 (c); See also Gaetano Pentassuglia, ‘State Sovereignty, Minorities and Self-Determination: A Comprehensive Legal View’ (2002) 9 International Journal on Minority and Group Rights 303–24, 321–22. 104. William Safran, ‘Spatial and Functional Dimensions of Autonomy: Cross-National and Theoretical Perspectives’ (1999) 5 Nationalism and Ethnic Politics 11–34, 11. 105. Heinrich Klebes, ‘The Council of Europe’s Framework Convention for the Protection of National Minorities’ (1995) 16 Human Rights Law Journal 92–98, 96.

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arrangements’ (in the wording of the CSCE/OSCE documents)/‘cultural autonomy’ (in the phrasing of the CoE texts) are also rare. Starting, then, chronologically with the 1991 CSCE Geneva Report, the participating States noted with interest that positive results had been obtained by some of them by, inter alia, ‘self-administration by a national minority of aspects concerning its identity in situations where autonomy on a territorial basis does not apply’.106 Further, the Lund Recommendations declare that ‘[n]on-territorial forms of governance are useful for the maintenance and development of the identity and culture of national minorities’.107 In the same spirit the UN’s informative pamphlet on minority rights of the Human Rights Office of the High Commissioner states that ‘[t]he promotion of [minority] rights, identity and culture can be strengthened through the introduction and promotion of certain forms of self-governance, including … cultural autonomy’.108 Finally, in the ACFC’s Commentary on effective minority participation, the Committee simply comments, with regard to the cultural autonomies that exist in some States Parties, that ‘these are granted collectively to members of a particular national minority, regardless of a territory’ aiming inter alia ‘to delegate to national minority organizations important competencies in the area of minority culture, language and education and can, in this regard, contribute to the preservation and development of minority cultures’109 as well as ‘in increased participation of minorities in cultural life’110 and in public affairs.111 As Osipov observes, all the references to non-territorial autonomy in the CSCE/OSCE and the CoE documents [besides not being legally binding] are broad in nature and vague as to their interpretation, creating – instead of answering – questions regarding the beneficiaries and the content of autonomy.112

4.3.  Concluding Observations Given, then, the absence of an explicit right for minorities to either territorial or non-territorial/cultural autonomy in the international and 106. ‘Report of the CSCE Meeting’ (n 93) 333 (Chap IV); See Jane Wright, ‘Minority Groups, Autonomy, and Self-Determination’ (1999) 19 Oxford Journal of Legal Studies 605–29, 621–22. 107. See ‘The Lund Recommendations … and Explanatory Note’ (n 40) 50, para 17. 108. UN Human Rights Office of the High Commissioner, Minority Rights: International Standards and Guidance for Implementation, HR/PUB/10/3, New York and Geneva, 2010, 41. 109. ACFC/31DOC(2008)001 (n 7), para 135. 110. ACFC/31DOC(2008)001 (n 7), para 67. 111. ACFC/31DOC(2008)001 (n 7), para 72. 112. Alexander Osipov, ‘Non-Territorial Autonomy and International Law’ (2011) 13 ­International Community Law Review 393–411, 400.

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regional minority texts, the dominant position in legal theory is that minorities do not enjoy a positive right of territorial or non-territorial/cultural autonomy in public international law.113 As Thornberry puts it, ‘[a]utonomy is seen as a grant, not a right’.114 In this light the legal basis for the creation of autonomy regimes rests primarily, if not exclusively, on the ad hoc arrangements of the national legislations.115 Establishing a right to autonomy for minorities in international law is, then, necessary, so that its existence, weakening or abolition will not depend exclusively on national legislation, as was the case for example in Kosovo under the Milosevic regime. Such a development would give them a better bargaining position to negotiate their rights within the States’ borders. After all, international law is not static but continually evolves, responding to the times and to peoples’ needs, as the case of indigenous peoples indicates, so that one should not a priori preclude the gradual recognition of such a right to minorities under the argumentation explored below.

5. Possible Modes of Recognition of a Minority Right to Autonomy in International Law 5.1.  Preliminary Remarks Although the current reality in public international law regarding the (non-) existence of a right of minorities to autonomy stands as described above, there exist some avenues on which minorities could work in order to reverse this situation, namely a) through the claiming of their peoplehood, b) via invoking an analogical implementation of the relevant provisions of the UNDRIP, and c) by asking for a dynamic interpretation of their participatory rights. Achieving the recognition of a right to autonomy in international law is crucial because it would offer them a permanent and more secure basis 113. Zelim A Skurbaty, ‘Introduction’ in Skurbaty (n 27) xxxi–Iviii, xxxvii, xIiii; Roberta Medda-Windischer, ‘New Minorities, Old Instruments? A Common but ­Differentiated System of Minority Protection’ (2011) 13 International Community Law Review 361–91 376, 379; Palermo(n 97) 656–57; Dinstein (n 90) 438–42; Shaw (n 84) 488–89; Wheatley (n 83) 522; Packer (n 91) 329; Pentassuglia (n 103) 320–21; Loukacheva (n 30) 5; Heintze (n 41) 329; Henrard (n 45) 141. For a different view, arguing that territorially concentrated minorities may perhaps have a right to autonomy within the existing state structures, see Douglas Sanders, ‘Is Autonomy a Principle of International Law?’ (1986) 55 Nordic Journal of International Law 17–21, 17. 114. Patrick Thornberry, ‘Images of Autonomy and Individual and Collective Rights in International Instruments on the Rights of Minorities’ in Suksi (n 29) 97–124, 123. 115. Zelim A Skurbaty, ‘Is There an Emerging Right to Autonomy? Summary Reflections, Conclusions and Recommendations’ in Skurbaty (n 27) 565–68, 565.

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for deciding on their own issues, fulfilling their rights and promoting their ­identity.116 The present situation, where such a grant depends exclusively on the goodwill of the States, meaning that it is an entirely internal national matter subject to States’ discretionary power, is unsatisfactory. Even the strongest constitutional stipulations can be altered or repealed and the most progressive governments can change their policies or lose power to more conservative and anti-minorities ones.117 An international law guarantee can certainly provide better protection against the weakening or abolition of an autonomous regime against the will of the minority concerned.118 It is essential, then, to examine how such a development could possibly take place. It should be noted a priori that all three options offered to minorities for seeking recognition of a right to autonomy in international law are hard to realise in the near future due to strong State reluctance to such a development. However, as Hilpold rightly observes, ‘what presently appears as illusionary and utopian can become a hard fact in reality in the next future’.119

5.2.  Claiming Autonomy through Peoplehood The first path by which minorities could achieve a right to autonomy is by asserting their peoplehood. Under current international law only ‘peoples’,120 and more specifically ‘peoples under colonial domination’, ‘peoples subject to alien occupation’, and ‘peoples under racist regimes’, have a right to selfdetermination.121 To these categories the recent UNDRIP added ‘indigenous peoples’ as bearers of a right to ‘internal self-determination’ (autonomy).122 116. Frederik Harhoff, ‘Institutions of Autonomy’ (1986) 55 Nordic Journal of International Law 31–40, 39–40. 117. Athanasios Yupsanis, ‘ILO Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries 1989-2009: An Overview’ (2010) 79 Nordic Journal of International Law 433–56, 449. 118. Markku Suksi, ‘Keeping the Lid on the Secession Kettle – A Review of Legal Interpretations Concerning Claims of Self- Determination by Minority Populations’ (2005) 12 International Journal on Minority and Group Rights 189–226, 200. 119. Peter Hilpold, ‘Self-Determination and Autonomy: Between Secession and Internal SelfDetermination’ (2017) 24 International Journal on Minority and Group Rights 302–35, 334–35. 120. Gudmundur Alfredsson, ‘The Faroese People as a Subject of International Law’ (2001) 1 Faroese Law Review 45–57, 48. 121. Jean Salmon, ‘Internal Aspects of the Right to Self-Determination: Towards A Democratic Legitimacy Principle?’ in Christian Tomuschat (ed), Modern Law of Self-Determination (Dordrecht/Boston/London, Martinus Nijhoff Publishers, 1993) 253–82, 256. 122. Timo Koivurova and Adam Stepien, ‘How International Law Has Influenced the National Policy and Law Related to Indigenous Peoples in the Arctic’ (2011) 19 Waikato Law Review 123–43, 128.

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‘Minorities’ are not considered ‘peoples’123 for the purpose of international law and consequently do not enjoy that right.124 The problem is that there is no generally accepted official definition of the terms ‘peoples’,125 ‘indigenous peoples’126 and ‘minority’127 in international law. The issue is a very important one, since each designation carries different legal consequences. The ‘peoples’ who have a right to self-determination in international law have been defined at different times and according to different interests and needs in significantly different ways. In the Wilsonian era such peoples were identified with the ‘nations’ as ethno-national communities (‘ethnic self-­determination’), whereas in the decolonisation era the right to self-­ determination was recognised to colonial peoples defined not in ethnic but in territorial terms (‘territorial self-determination’).128 It was the entire colonial population conceived as a single entity, and not each separate ethnic group living within a colonial territory, that had the right to self-determination (‘one people per colony’).129 The exercise of this right could result, according to the 1541/1960 Resolution of the UN General Assembly, in the following outcomes: a) establishment of a sovereign and independent State, b) free association with an independent State, and c) integration with an independent State.130 To these options the 1970 UN Declaration on Friendly Relations131

123. See Aureliu Critescu, The Right to Self-Determination – Historical and Current Development on the Basis of United Nations Instruments, UN Doc E/CN.4/Sub.2/404/Rev.1 (New York, United Nations Publications, 1981), para 279. 124. Jure Vidmar, ‘International Legal Responses to Kosovo’s Declaration of Independence’ (2009) 42 Vanderbilt Journal of Transnational Law 779–851, 809. 125. See James Crawford, ‘The Rights of Peoples: Some Conclusions’ in James Crawford (ed), The Rights of Peoples (Oxford, Clarendon Press, 1988) 159–75, 168–70. 126. See Abdullah Al Faruque and Najnin Begum, ‘Conceptualising Indigenous Peoples’ Rights: An Emerging New Category of Third-Generation Rights’ (2004) 2 Asia-Pacific Journal on Human Rights and the Law 1–29, 3–6. 127. See Abdulrahim P Vijapur, ‘International Protection of Minority Rights’ (2006) 43 International Studies 367–94, 370–72. 128. Susanna Mancini, ‘Rethinking the Boundaries of Democratic Secession: Liberalism, Nationalism, and the Right of Minorities to Self-Determination’ (2008) 6 International Journal of Constitutional Law 553–84, 555–56. 129. Ulrike Barten, ‘What’s In a Name? Peoples, Minorities, Indigenous Peoples, Tribal Peoples and Nations’ (2015) 14 Journal on Ethnopolitics and Minority Issues in Europe 1–25, 3. 130. See Principles Which Should Guide Members in Determining Whether or not an Obligation Exists to Transmit the Information Called for under Article 73 c of the ­Charter, UN Doc A/RES/15/1541 (15 December 1960) Annex, Principle VI. 131. See Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, UN Doc A/RES/25/2625 (24 October 1970) Principle 5.4.

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added the choice of any other political status freely decided.132 The fourth alternative could certainly lead, as Suksi notes, to ‘a “middle ground” between independence on the one hand and integration on the other’,133 that is, to various forms of autonomy. However, despite the fact that the relevant texts provided for several modes of implementation of the right, the UN practice largely equated the right of self-determination with independence (the so-called ‘external self-determination’) by showing a preference for the first option for almost all former colonial territories.134 Beyond the decolonisation context, the right to self-determination was recognised first and foremost to the inhabitants of the existing independent states as a whole.135 In essence this perception arbitrarily equated the ­‘people’ with the state as spokesman of the entire population.136 This meant that sub-state ethnic groups such as minorities were not recognised separately as holders of the right to their own self-determination.137 With the end of decolonisation and the granting of independence to almost all former colonies, several scholars pointed out that in order for the right to continue to have some substance it should be interpreted as the right of a people to freely choose its form of governance through a democratic process138 ‘within the framework of existing sovereign states and consistently with the maintenance of the territorial integrity of those states’139 (the so-called ‘internal self-determination’). This distinction, which partially echoes the aforementioned fourth choice given for the exercise of self-determination by the

132. Jens Elo Rytter, ‘Self-Determination of Colonial Peoples – The Case of Greenland Revisited’ (2008) 77 Nordic Journal of International Law 365–400, 367. 133. Suksi (n 118) 195–96, 209, 225. 134. Kavus Abushov, ‘Autonomy as a Possible Solution to Self-Determination Disputes: Does it Really Work?’ (2015) 22 International Journal on Minority and Group Rights 182–201, 185. 135. Simone F van den Driest, ‘Crimea’s Separation from Ukraine: An Analysis of the Right to Self-Determination and (Remedial) Secession in International Law’ (2015) 62 Netherlands International Law Review 329–63, 338. 136. See David Makinson, ‘Rights of Peoples: Point of View of a Logician’ in Crawford, The Rights of Peoples (n 125) 69–92, 73. 137. Tina Kempin Reuter, ‘The Right to Self-Determination of Ethnic Groups: The Canton of Jura in Switzerland’ (2016) 23 International Journal on Minority and Group Rights 250–69, 251. 138. Surendra Bhandari, ‘From External to the Internal Application of the Right to SelfDetermination: The Case of Nepal’ (2014) 21 International Journal on Minority and Group Rights 330–70, 350–51. 139. Zoilo A Velasco, ‘Self-Determination and Secession: Human Rights-Based Conflict Resolution’ (2014) 16 International Community Law Review 75–105, 82.

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1970 UN Declaration on Friendly Relations, has found great acceptance in legal theory and has been adopted by some human rights bodies.140 For example, in the Katangese Peoples’ Congress v Zaire case, where Mr Gerard Moke, President of the Katangese Peoples’ Congress, speaking as representative of the Katangese, who constitute part of the Zaireoise people, invoked violation of Article 20 para 1 of the African Charter on Human and Peoples’ Rights (ACHPR) on the right of peoples to self-determination, the African Commission on Human and Peoples’ Rights (AComHPR) stated that: self-determination may be exercised in any of the following ways independence, selfgovernment, local government, federalism, confederalism, unitarism or any other form of relations that accords with the wishes of the people but fully cognizant of other recognized principles such as sovereignty and territorial integrity.141

In this context, it has been suggested that minority claims to autonomy might  be brought as part of the ‘internal’ right to self-determination.142 In order for such a suggestion to gain a solid legal basis, it would first have to be accepted that the term ‘people’ should not be equated with a States’ population and thus with the State itself, since the majority of States are in reality multinational. As Crawford has emphasised ‘[i]f the phrase “rights of peoples” has any independent meaning, it must confer rights on peoples against their own governments’.143 A meaningful contribution in this direction came in the late 1990s from the Constitutional Court of Canada. In the case of Reference re Secession of Quebec regarding the right of the legislature or the Government of Quebec to effect the secession of Quebec from Canada unilaterally, the Constitutional

140. See Committee on the Elimination of Racial Discrimination, General Recommendation No 21, Right to Self-Determination, 23/08/1996, para 4, contained in Report of the CERD – Fifty First Session, UN Doc A/51/18, Supplement No 18. 141. Katangese Peoples’ Congress v Zaire, Communication No 75/92, African Commission on Human and Peoples’ Rights (1995), para 4; See Mtendeweka Owen Mhango, ‘Recognizing a Right to Autonomy for Ethnic Groups Under the African Charter on Human and Peoples’ Rights: Katangese Peoples Congress v. Zaire’ (2007) 14 Human Rights Brief 11–15, 12. 142. Miodrag A Jovanović, ‘Territorial Autonomy in Eastern Europe – Legacies of the Past’ (2002) Issue 4 Journal of Ethnopolitics and Minority Issues in Europe 1–16, 4. 143. James Crawford, ‘The Rights of Peoples: “Peoples” or “Governments”?’ in Crawford, The Rights of Peoples (n 125) 55–67, 56.

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Court of Canada, after noting that the precise meaning of the term ‘people’ remains somewhat uncertain, opined that: It is clear that ‘a people’ may include only a portion of the population of an existing state. The right to self-determination has developed largely as a human right and is generally used in documents that simultaneously contain references to ‘nation’ and ‘state’. The juxtaposition of these terms is indicative that the reference to ‘people’ does not necessarily mean the entirety of a state’s population.144

This judgment is not legally binding in international law but can be used, according to Article 38 para 1 (d) of the International Court of Justice’s Statute, as a subsidiary means for the determination of its rules of law, and has also had great influence on legal theory. It makes perfectly clear that a ‘people’ does not have to coincide with the whole population of an existing State, but there can be several peoples in one State.145 The next step, then, is to see whether minorities can be considered ‘a people’ constituting part of the whole population of a State. Here the semi-­ jurisprudence of the AComHPR proves to be particularly helpful. In a series of cases brought before it regarding inter alia violations of Article 20 of the ACHPR on the right to self-determination, the Commission relied explicitly for guidance on the definition of the term ‘people’ given by the international meeting of experts held by the United Nations Economic, Social and Cultural Organization (UNESCO) in 1989. According to them, a ­‘people’ is a group of individual human beings who share some or all of the following characteristics: a) a common historical tradition, b) racial or ethnic identity, c) cultural homogeneity, d) linguistic unity, e) religious or ideological affinity, f ) territorial connection, and g) common economic life.146 Adopting this approach the AComHPR has found in the Kevin Mgwanga Gunme v ­Cameroon case, considering the violation of inter alia Article 20 of the ACHPR concerning the right to self-determination of the anglophone Southern C ­ ameroonians within the francophone Republic of Cameroon, that the Southern ­Cameroonians constitute a ‘people’ based on their numerous characteristics, ‘which include a common history, linguistic tradition,

144. Reference re Secession of Quebec [1998] 2 SCR 217, para 124; See Peter Radan, ‘Constitutional Law and Secession: The Case of Quebec’ (1998) 2 Macarthur Law Review 69–85, 76. 145. Timo Koivurova, ‘Sovereign States and Self-Determining Peoples: Carving Out a Place for Transnational Indigenous Peoples in a World of Sovereign States’ (2010) 12 International Community Law Review 191–212, 198. 146. International Meeting of Experts on Further Study of the Concept of the Rights of Peoples, UNESCO, Paris, 27–30 November 1989, SHS – 89/CONF.602/7, Paris, 22 February 1990,7–8.

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territorial connection and political outlook’ as well as a self-perception as a people with a separate and distinct identity.147 The Commission made its position even clearer in the Sudan Human Rights Organization v Sudan and Center on Housing Rights and Evictions v Sudan cases, opining that: An important aspect of this process of defining ‘a people’ is the characteristics, which a particular people may use to identify themselves, through the principle of self identification, or be used by other people to identify them. These characteristics, include the language, religion, culture, the territory they occupy in a state, common history, ethno-anthropological factors, to mention but a few. In States with mixed racial composition, race becomes a determinant of groups of ‘peoples’, just as ethnic identity can also be a factor. In some cases groups of ‘a people’ might be a majority or a minority in a particular State.148

The Commission has, therefore, embraced a very broad understanding of the term ‘people’, which could certainly cover indigenous and tribal peoples, minorities, descendants of the European colonial settlers, Asian immigrant communities and nomadic societies.149 Although in a more global context there is reluctance to adopt such a broad conception of the term ‘peoples’, the AComHPR’s semi-jurisdiction could gradually contribute to further development of the right to internal self-determination.150 Especially as regards the case of minorities, this reading enhances the position of those scholars who strongly and convincingly argue that minorities undoubtedly fulfill the subjective and objective criteria of peoplehood in its ethnic sense (self-perception, common history, language, culture and historical presence in a specific territory) and should accordingly be recognised as peoples in international law.151 The UN, however, has yet to adopt such an approach. The quasi-judicial body most competent, according to Article 40 of the ICCPR and Article 1

147. Kevin Mgwanga Gunme v Cameroon, Communication No 266/2003, African Commission on Human and Peoples’ Rights, paras 170, 179; See Simon M Weldehaimanot, ‘The ACHPR in the Case of the Southern Cameroons’ (2012) 9 SUR – International Journal on Human Rights 85–107, 90–91. 148. Sudan Human Rights Organization v Sudan, Communication No 279/2003 and Center on Housing Rights and Evictions v Sudan, Communication No 269/05, African Commission on Human and Peoples’ Rights, para 220. 149. Dinah Shelton, ‘Self-Determination in Regional Human Rights Law: From Kosovo to Cameroon’ (2011) 105 American Journal of International Law 60–81, 69. 150. Kalana Senaratne, ‘Internal Self-Determination in International Law: A Critical Third World Perspective’ (2013) 3 Asian Journal of International Law 305–39, 321. 151. Felix Ermacora, ‘The Protection of Minorities Before the UN’ (1983, IV) 182 Recueil des Cours 247–370, 327; Nirmala Chandrahasan, ‘Minorities, Autonomy and the Intervention of Third States’ (1993) 23 Israel Yearbook on Human Rights 129–45, 135.

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of its Optional Protocol, to interpret Article 1 of the Covenant on the right to self-determination, the Human Rights Committee (HRC), has so far declined to clearly recognise minorities as peoples with a right to internal self-determination. Specifically, the HRC has carefully avoided, in its semijuridical jurisprudence, determining whether an indigenous people, such as the Lubicon Band of Canada, or a minority, such as the ethnic-German population living in South Tyrol, constitute ‘peoples’ within the meaning of Article  1 of the Covenant.152 Indeed, the Committee initially appeared to sustain the differentiation between peoples and minorities by stating in its 1994 General Comment No 23 that ‘[t]he Covenant draws a distinction between the right to self-determination and the rights protected under ­Article 27. The former expresses a right belonging to peoples … Article 27, on the other hand, relates to rights conferred on individuals as such’.153 Later, though, the Committee seemed to recognise [albeit in cases concerning indigenous peoples and not sensu stricto minorities] a certain interaction between Articles 1 and 27 of the Covenant,154 by stating that ‘the provisions of article 1 may be relevant in the interpretation of other rights protected by the Covenant, in particular article 27’.155 However, in its latest relevant decision, the Committee omitted to make such a connection, recalling instead its constant adherence to the principle that ‘the Optional Protocol provides a procedure under which individuals can claim that their individual rights have been violated, but that these rights do not include those set out in article 1 of the Covenant’.156 Thus, ‘in the case of minorities, even “internal” self-determination is open to question’.157

152. See respectively Chief Bernard Ominayak and the Lubicon Lake Band v Canada, Communication No 167/1984, Human Rights Committee, UN Doc CCPR/C/38/167/1984 (1990) para 32.1; A.B. et. al. v Italy, Communication No 413/1990, Human Rights Committee, UN Doc CCPR/C/40/413/1990 (1990) para 3.2. 153. Human Rights Committee, General Comment No 23: The Rights of Minorities (Art. 27), UN Doc CCPR/C/21/Rev.1/Add.5 (08/04/1994) para 3.1. See Frances Radey, ‘Self-Determination and Minority Rights’ (2002) 26 Fordham International Law Journal 453–99, 459. 154. See Gaetano Pentassuglia, ‘Indigenous Groups and the Developing Jurisprudence of the African Commission on Human and Peoples’ Rights: Some Reflections’ (2010) 3 UCL Human Rights Review 150–63, 155. 155. Apirana Mahuika et al v New Zealand, Communication No 547/1993, Human Rights Committee, UN Doc CCPR/C/70/547/1993 (2000), para 9.2. 156. Angela Poma Poma v Peru, Communication No 1457/2006, Human Rights Committee, UN Doc CCPR/C/95/D/1457/2006 (2009), para 6.3. 157. Joshua Castellino and Jeremie Gilbert, ‘Self-Determination, Indigenous Peoples and Minorities’ (2003) 3 Macquarie Law Journal 155–78, 161.

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While, then, at present it seems highly unlikely that minorities will be recognised as peoples proper in international law, one should not forget that this was also true for indigenous peoples some years ago.158 Due to governments’ resistance, for example, to the designation of indigenous nations as ‘peoples’, it was only possible to employ the term in the legally binding ILO Convention No 169 under the compromised disclaimer of Article 1 para 3, clarifying that ‘its use shall not be construed as having any implications as regards as the rights which may attach to the term under international law’.159 Also, during the drafting process of the UNDRIP, several States were vehemently opposed to the use of the concept ‘peoples’ in the text, proposing instead terms such as ‘indigenous populations’ and ‘persons belonging to indigenous groups’.160 Even well-established democracies with high human rights profiles such as Canada and Sweden refused to accept the Indian and Sami groups on their territories as ‘peoples’ with a right to self-determination under Article 1 of the ICCPR.161 In fact, until the adoption of the 2007 Declaration it was heavily disputed whether indigenous nations could be classified as ‘peoples’ under international law.162 It was the advocacy of indigenous peoples that brought about the desired result, not the goodwill of the States.163 Minorities could press, as indigenous peoples did, for the revision of the arbitrary distinction between ‘peoples’, as the entire population of sovereign States, which possess the right to self-determination, and ‘minorities’, which do not.164 158. Brad R Roth, ‘Secessions, Coups and the International Rule of Law: Assessing the Decline of the Effective Control Doctrine’ (2010) 11 Melbourne Journal of International Law 11–48, 14. 159. Asbjørn Eide, ‘International Cooperation for Group Accommodation Through Minority Protection: A Review of Standard Setting and Institution Building at Regional and Global Levels’ (2006) 13 International Journal on Minority and Group Rights 153–70, 162. 160. Linzhu Wang, ‘The Definition of Indigenous Peoples and its Applicability in China’ (2015) 22 International Journal on Minority and Group Rights 232–58, 240. 161. Erica-Irene Daes, ‘The UN Declaration on the Rights of Indigenous Peoples: Background and Appraisal’ in Stephen Allen and Alexandra Xanthaki (eds), Reflections of the UN Declaration on the Rights of Indigenous Peoples (Portland, Hart Publishing, 2011) 11–40, 27. 162. Katja Göcke, ‘The Case of Angela Poma Poma v. Peru before the Human Rights Committee – The Concept of Free Prior and Informed Consent and the Application of the International Covenant on Civil and Political Rights to the Protection and Promotion of Indigenous Peoples’ Rights’ (2010) 14 Max Planck Yearbook of United Nations Law 337–70, 350. 163. Julian Burger, ‘The UN Declaration on the Rights of Indigenous Peoples: From Advocacy to Implementation’ in Allen and Xanthaki (n 161) 41–59, 42. 164. Stephen Allen, ‘Recreating ‘One China’: Internal Self-Determination, Autonomy and the Future of Taiwan’ (2003) 1 Asia-Pacific Journal on Human Rights and the Law 21–51, 31.

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In this effort minorities should bear in mind that indigenous peoples gained recognition of their peoplehood by the international community not because they are culturally and physically ‘endangered peoples’ or because they are formerly sovereign ‘first nations’ who have been wrongfully deprived of their sovereignty and were victims of major historical injustices, although such arguments have a certain moral gravity, but because they constitute a non-significant threat for States’ territorial integrity and sovereignty. As Daes has noted, they are vulnerable, are mostly small and with limited resources,165 and most importantly they usually do not have ‘kin states’.166 Many ‘kin states’ to minorities act provocatively, trying to use them in an inappropriate way that violates the rule of non-intervention in the internal affairs of other States.167 This intrusive attitude makes host States suspicious towards their minorities because of fears for their national unity and stability.168 Minorities then have to offer clear and absolute guarantees towards their host States against any improper intervention from their ‘kin states’, on the one hand denying any role that would destabilise the internal order of their host States and on the other acting as a bridge of friendship between the two. This is an essential prerequisite in order for States to positively reconsider their attitude towards the recognition of minorities as peoples entitled to internal self-determination (autonomy).

5.3.  Minority Autonomy via an Analogical Use of the UNDRIP After two and a half decades of heated discussions and contested deliberations in the UN, indigenous peoples have succeeded in gaining recognition of their right to autonomy. Specifically, as Article 4 of the relevant 2007 UN Declaration proclaims: ‘[i]ndigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions’.169 Although the Declaration carries 165. Erica-Irene A Daes, ‘An Overview of the History of Indigenous Peoples: Self-­ Determination and the United Nations’ (2008) 21 Cambridge Review of International Affairs 7–26, 24. 166. Miriam J Aukerman, ‘Definitions and Justifications: Minority and Indigenous Rights in a Central/East European Context’ (2000) 22 Human Rights Quarterly 1011–50, 1045. 167. See Sia Spiliopoulou Åkermark, ‘Internal Self-Determination and the Role of Territorial Autonomy as a Tool for the Resolution of Ethno-Political Disputes’ (2013) 20 International Journal on Minority and Group Rights 5–25, 22. 168. Gillian Triggs, ‘The Rights of “Peoples” and Individual Rights: Conflict or Harmony?’ in Crawford The Rights of Peoples (n 125) 141–57, 146. 169. UN Declaration on the Rights of Indigenous Peoples, UN Doc A/RES/61/295, Annex, 13 September 2007. See Fabiana de Oliveira Godinho, ‘The United Nations Declaration

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legal significance for the development of customary international law,170 it is not a legally binding instrument and therefore imposes no legal obligations upon States.171 Conversely, it has been argued by Wiessner, based on a widespread study of state practice combined with the necessary opinio juris, that indigenous peoples’ right to autonomy has achieved the status of customary international law.172 Consequently, according to this approach, the Declaration reflects pre-existing customary international law as regards this specific right.173 A more modest position implies that indigenous peoples’ right to autonomy is emerging but is not yet crystallised.174 In this regard, Xanthaki has claimed that to view ‘the Declaration or substantial parts of it [and indeed that of autonomy one may say] as customary international law may be rather premature’.175 This view does not dismiss the specific Declaration or the ‘soft’ law instruments in general as non-law, nor overlooks the growing importance of non-binding instruments in the international legal system,176 but addresses indigenous peoples’ right to autonomy as an issue that clearly requires further debate and clarification.177

on the Rights of Indigenous Peoples and the Protection of Indigenous Rights in Brazil’ (2008) 12 Max Planck Yearbook of United Nations Law 247–86, 257–58. 170. Timo Koivurova, ‘From High Hopes to Disillusionment: Indigenous Peoples’ Struggle to (re)Gain Their Right to Self- Determination’ (2008) 15 International Journal on Minority and Group Rights 1–26, 3. 171. Bradford W Morse, ‘Indigenous Peoples and Water Rights: Does the United Nations’ Adoption of the Declaration on the Rights of Indigenous Peoples Help?’ (2010) 20 Journal of Water Law 254–67, 255; Shaw (n 84) 488. 172. See Siegfried Wiessner, ‘Rights and Status of Indigenous Peoples: A Global Comparative and International Legal Analysis’ (1999) 12 Harvard Human Rights Journal 57–128, 127. 173. See Marc Weller, ‘Settling Self-Determination Conflicts: Recent Developments’ (2009) 20 European Journal of International Law 111–65, 116–17, who seems to imply such a position. See also Siegfried Wiessner, ‘The Cultural Rights of Indigenous Peoples: Achievements and Continuing Challenges’ (2011) 22 European Journal of International Law 121–40, 135–136 (fn 85). 174. See Heather A Northcott, ‘Realisation of the Right of Indigenous Peoples to Natural Resources Under International Law Through the Emerging Right to Autonomy’ (2012) 16 The International Journal of Human Rights 73–99. 175. Alexandra Xanthaki, ‘Indigenous Rights in International Law Over the Last 10 Years and Future Developments’ (2009) 10 Melbourne Journal of International Law 27–37, 36. 176. See Mauro Barelli, ‘The Role of Soft Law in the International Legal System: The Case of the United Nations Declaration on the Rights of Indigenous Peoples’ (2009) 58 International and Comparative Law Quarterly 957–83, 959–60. 177. Steven C Roach, ‘Minority Rights and an Emergent International Right to Autonomy: A Historical and Normative Assessment’ (2004) 11 International Journal on Minority and Group Rights 411–32, 429. See also Osipov (n 112) 402; Loukacheva (n 30) 14.

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The recognition of a right to internal self-determination (autonomy) for indigenous peoples in the UNDRIP has been hailed, notwithstanding its vagueness, as ‘the most important advance in the law of self-determination’ since the adoption of the common Article 1 of the ICCPR and ICESCR.178 Indeed, it is the first international legal text, even of a ‘soft law’ nature, to explicitly extend the right to internal self-determination to a sub-national group.179 This development may have major implications for the scope of the right to self-determination, empowering the autonomy claims of other sub-national groups, such as minorities.180 There are certainly good arguments to support this case, since besides their differences several commonalities between the two population categories exist, as analysed below. Starting adversely with the current legal reality, one can note that although in almost all situations indigenous peoples constitute minorities within the States where they live,181 Bolivia and Guatemala being the two best known exceptions to that rule, contemporary international law treats the two groups separately and accords them different sets of legal protection.182 Thus, beyond the recognition of a right to internal self-determination (autonomy) to indigenous peoples only, international law also accords them a series of rights whose nature and content differ considerably from those of minorities, establishing a stronger status for the former.183 Specifically, indigenous instruments are typically worded in the form ‘indigenous peoples have’, meaning that the rights accorded are collective, whereas minority texts recognise rights mainly, if not exclusively, to ‘persons belonging to minorities’, that is they are individual rights.184 This emphasis on collective rights

178. Robert T Coulter, ‘The U.N. Declaration on the Rights of Indigenous Peoples: A Historic Change in International Law’ (2008–2009) 45 Idaho Law Review 539–53, 548. 179. Mauro Barelli, ‘Shaping Indigenous Self-Determination: Promising or Unsatisfactory Solutions?’ (2011) 13 International Community Law Review 413–36, 422. 180. Stephen Allen, ‘The Consequences of Modernity for Indigenous Peoples: An International Appraisal’ (2006) 13 International Journal on Minority and Group Rights 315–40, 335–36. 181. Alessandro Fodella, ‘International Law and the Diversity of Indigenous Peoples’ (2006) 30 Vermont Law Review 565–94, 572. 182. Yousef T Jabareen, ‘Redefining Minority Rights: Successes and Shortcomings of the UN Declaration on the Rights of Indigenous Peoples’ (2011) 18 UC Davis Journal of International Law and Policy 119–61, 125. 183. Dieter Kugelman, ‘The Protection of Minorities and Indigenous Peoples Respecting Cultural Diversity’ (2007) 11 Max Planck Yearbook of United Nations Law 233–63, 236. 184. Patrick Thornberry, Cultural Rights and Universality of Human Rights, Day of General Discussion, Right to Take Part in Cultural Life (article 15 (1) (a) of the Covenant, UN Doc E/C.12/40/15 (9 May 2008) 9.

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corresponds to indigenous societal needs and structures, which are centered on the community rather than the individual. It is the community, for example, that holds rights to the lands,185 traditional knowledge,186 etc. Second, rights to land and natural resources are core elements of the ILO Convention No 169 and the UNDRIP, while minority provisions contain no such rights.187 This differentiation is due to the fact that land rights are crucial for the cultural and physical survival of indigenous societies, because they rely upon their lands to provide them with the natural resources that are necessary for their subsistence and because they are also spiritually tied to their ancestral ­territories.188 Third, indigenous norms aim at providing an environment in which indigenous peoples shall have the right to preserve their communities outside the dominant society, while minority stipulations aim at ensuring respect for minority rights within the majority society.189 This difference is attributed to the assumption that minorities want to be part of the national society as a whole while preserving their distinct characteristics, whereas indigenous peoples tend to maintain a different way of life.190 In general, the special status of indigenous peoples is justified on the ground that the indigenous societies are the original holders of their traditional lands, retain substantial distinct cultural characteristics,191 and additionally are peoples on the brink of extinction (‘endangered peoples’).192 The ­implication

185. CG Benedict, ‘The Status and Rights of Indigenous Peoples in Canada’ (1999) 59 Heidelberg Journal of International Law (ZaöRV) 405–42, 428–29. 186. Kerrin Schillhorn, ‘The Status and Rights of Indigenous Peoples in Australia’ (1999) 59 Heidelberg Journal of International Law (ZaöRV) 443–62, 461. 187. Asbjørn Eide, Working Paper on the Relationship and Distinction Between the Rights of Persons Belonging to Minorities and Those of Indigenous Peoples, UN Doc E/CN.4/ Sub.2/2000/10 (19 July 2000), para 9. 188. Rainer Grote, ‘The Status and Rights of Indigenous Peoples in Latin America’ (1999) 59 Heidelberg Journal of International Law (ZaöRV) 497–528, 511. 189. Mattias Åhrén, ‘The Provisions on Lands, Territories and Natural Resources in the UN Declaration on the Rights of Indigenous Peoples: An Introduction’ in Claire Chartes  and Rodolfo Stavenhagen (eds), Making the Declaration Work: The United Nations Declaration on the Rights of Indigenous Peoples (Copenhagen, International Work Group for Indigenous Affairs, 2009) 200–15, 201–202. 190. Asbjørn Eide and Rianne Letschert, ‘Institutional Developments in the United Nations and at the Regional Level’ (2007) 14 International Journal on Minority and Group Rights 299–332, 319. 191. René Kuppe, ‘The Three Dimensions of the Rights of Indigenous Peoples’ (2009) 11 International Community Law Review 103–18, 105, 110–11. 192. Lauri Hannikainen, ‘The Status of Minorities, Indigenous Peoples and Immigrant and Refugee Groups in Four Nordic States’ (1996) 65 Nordic Journal of International Law 1–71, 3.

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is thus that the problems faced by indigenous peoples are in many ways a ‘special category’ deserving special legal status and protection.193 While the case of indigenous peoples is certainly one of tears, blood, horror, exploitation and extermination, some of the aforementioned assumptions justifying their differential treatment in comparison to minorities are partially misleading. Thus, although several characteristics of indigenous peoples’ attachment to their lands, such as the traditional patterns of land usage, collective ownership and spiritual or religious ties to them, are not to be found in the case of minorities, which are mostly adapted to Western notions of economy and private property and practice major world religions,194 it is at the same time true that the latter also have a strong emotional attachment to their historical homelands.195 Also, regarding the argument that indigenous peoples do not just seek measures for their integration, but claim a long term differential status as distinct peoples in order to pursue an autonomous development of their cultures,196 one could note that this is not absolutely true for all of them, since there are indigenous peoples who want to participate fully in the material and cultural life of the societies around them.197 Similarly, there are minorities which give great emphasis to the preservation of their distinctive cultures.198 On this point, Musafiri correctly notes that the difference between indigenous peoples and minorities is a matter of degree, not of kind.199 Indeed, if one compares the two most widely cited UN working definitions for the concepts of ‘minority’ and ‘indigenous peoples’, namely those of Capotorti200 and Cobo201 respectively, one would have to conclude that 193. Marianne Van Den Bosch and Willem Van Genugten, ‘International Legal Protection of Migrant Workers, National Minorities and Indigenous Peoples – Comparing Underlying Concepts’ (2002) 9 International Journal on Minority and Group Rights 195–233, 230–31. 194. Aukerman (n 166) 1039. 195. Will Kymlicka, ‘Beyond the Indigenous/Minority Dichotomy’ in Allen and Xanthaki (n 161) 183–208, 200; Aukerman (n 166) 1038–39. 196. Garth Nettheim, ‘“Peoples” and “Populations” – Indigenous Peoples and the Rights of Peoples’ in Crawford, The Rights of Peoples (n 125) 107–26, 126. 197. Anna Meijknecht, ‘The (Re-)emergence of Indigenous Peoples as Actors in International Law’ (2002–2003) 10 Tilburg Foreign Law Review 315–24, 316. 198. Aukerman (n 166) 1014, 1022–23. 199. Musafiri (n 14) 507–508. 200. See Francisco Capotorti, Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities, UN Doc E/CN.4/Sub.2/384/Rev.1 (New York, United Nations Publications, 1979), para 568. 201. See José Martinez Cobo, Study of the Problem of Discrimination Against Indigenous Populations, Volume V, Conclusions, Proposals and Recommendations, UN Doc E/CN.4/ Sub.2/1986/7/Add.4 (New York, United Nations Publications, 1987), para 379.

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they do not differ by much. The main difference is that only those groups that are connected with a specific territory which their ancestors inhabited prior to its colonisation or invasion can be regarded as indigenous peoples.202 Barring this difference, minorities and indigenous peoples are comparable groups in the sense that both have in the past been victims of gross violations of their human rights,203 and in the present share a common experience of discrimination and lack of access to the whole range of human rights law.204 They belong to non-dominant,205 vulnerable, politically and economically marginalised groups206 that are ethnically distinct from the majority population as regards their language, religion, culture and traditions.207 They are conscious of their different cultures208 and want to preserve and transmit them to their future generations.209 Thus, there is a good deal of overlap between these two kinds of groups and many of their concerns are in practice broadly similar,210 especially those issues concerning non-discrimination and cultural integrity.211 As Daes noted, ‘no definition or list of characteristics can eliminate overlaps between the concepts of minority and indigenous peoples. Cases will continue to arise

202. Malgosia Fitzmaurice, ‘The New Developments Regarding the Saami Peoples of the North’ (2009) 16 International Journal on Minority and Group Rights 67–156, 132. 203. Joshua Castellino, ‘The MDGs and International Human Rights Law: A View from the Perspective of Minorities and Vulnerable Groups’ (2009) 13 The International Journal of Human Rights 1–28, 11. 204. Joshua Castellino, ‘Indigenous Rights and the Right to Development: Emerging Synergies or Collusion?’ in Allen and Xanthaki (n 161) 367–86, 368. 205. Budislav Vukas, ‘International Protection of Minorities: Limits of Growth’ (2000) XXIX Thesaurus Acroasium 21–36, 26. 206. Snežana Trifunovska, ‘One Theme in Two Variations – Self-Determination for Minorities and Indigenous Peoples’ (1997) 5 International Journal on Minority and Group Rights 175–97, 178. 207. Borhan Uddin Khan and Muhammad Mahbubur Rahman, Protection of Minorities: Regimes, Norms and Issues in South Asia (Cambridge Scholars Publishing, 2012) 16. 208. Bent Ole Gram Mortensen, ‘The Greenland Self-Government Act: The Pitfall for the Inuit in Greenland to Remain an Indigenous People?’ (2016) VIII The Yearbook of Polar Law 103–28, 110. 209. Alexandra Xanthaki, ‘Indigenous Rights in the Russian Federation: The Case of Numerically Small Peoples of the Russian North, Siberia, and Far East’ (2004) 26 Human Rights Quarterly 74–105, 77. 210. Tom Hadden, ‘The United Nations Group on Minorities’ (2007) 14 International Journal on Minority and Group Rights 285–97, 296. 211. S James Anaya, ‘International Human Rights and Indigenous Peoples: The Move Toward the Multicultural State’ (2004) 21 Arizona Journal of International and Comparative Law 13–61, 21.

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that defy any simple, clear-cut attempt at classification’.212 Brownlie also critically comments on the separate treatment of minorities and indigenous peoples as an impediment to fruitful work, on the grounds that the rights and claims of groups with their own cultural histories and identities are in principle the same.213 In this vein, the UNDRIP could set a precedent that minorities could invoke to strengthen their rights by attaining inter alia a right to autonomy. After all, since whatever arguments exist for recognising a right to self-­government to indigenous peoples also apply to a significant degree to minorities, it would be morally inconsistent to deny it to the latter.214 One has, however, to accept that such a transformative potential of the UNDRIP seems unlikely to take place in the near future, as for reasons of security States have adopted the Declaration under an understanding of its sui generis character. Even so, such an approach is short-sighted, since it is conceptually unstable, as Kymlicka warns.215 The present situation, in which it is more advantageous to be labeled an indigenous people than a minority,216 is very likely to lead to tensions over the issue of definitions, making many or even all minorities claim indigenous status.217 Thus, States will sooner or later have to face the reality and give functional responses to minority autonomy claims.

5.4.  Minority Autonomy through Effective Participation A third way through which minorities could gradually succeed in gaining a recognition of a right to autonomy without having to argue that they either constitute ‘peoples’ or that they are entitled to the analogical implementation of the UNDRIP as regards its autonomy element, is via the road of participatory rights. The right of every citizen to take part in the conduct of public affairs, to vote and to be elected, stated in Article 25 of the ICCPR, is related to the right of self-determination of peoples, but it is also distinct

212. Erica-Irene Daes, Working Paper on the Relationship and Distinction Between the Rights of Persons Belonging to Minorities and Those of Indigenous Peoples, UN Doc E/CN.4/ Sub.2/2000/10 (19 July 2000), para 41. 213. Ian Brownlie, ‘The Rights of Peoples in Modern International Law’ in Crawford, The Rights of Peoples (n 125) 1–16,16. 214. Kymlicka (n 195) 199–201. 215. Kymlicka (n 195) 203–207. 216. See Russel Lawrence Barsh, ‘Indigenous Peoples in the 1990s: From Object to Subject of International Law?’ (1994) 7 Harvard Human Rights Journal 33–86, 81–82. 217. Aukerman (n 166) 1013, 1020; Kymlicka (n 195) 205–206.

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from it.218 It is well established in international law as a freestanding right.219 A progressive approach of the specific provision beyond its individualistic orientation, such as the one suggested below by Scheinin, in combination with a dynamic interpretation220 of Article 2, paras 2 and 3 of the minority UN Declaration and Article 15 of the FCNM, which call for the effective participation of minority members in the cultural, religious, social, economic and public life as well as in the decisions at national and regional level that affect them, could open the door to minority autonomy structures.221 Under this prism, it is critical to question whether simple majority rule can fully secure effective participation of minority members in public affairs.222 Reality proves that, read restrictively, the ‘one man, one vote’ democratic principle can deprive minorities of any real opportunity to improve their ­situation.223 This happens simply because minorities are outvoted in the ­‘winner takes all’ context and are unable to protect their interests.224 Thus, absolute democracy can lead to minority oppression (‘majority tyranny’).225 Another approach, then, is needed, which could make the right of minority members to participation truly effective, in order to generate space for the maintenance and promotion of their identities.226 Such an innovative 218. Human Rights Committee, The Right to Participate in Public Affairs, Voting Rights, and the Right of Equal Access to Public Service, Article 25, General Comment No 25, UN Doc CCPR/C/21/Rev.1/Add.7 (12 July 1996), para 2. 219. Patrick Thornberry, ‘The UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities: Background, Analysis, Observations and an Update’ in Alan Phillips and Allan Rosas (eds), Universal Minority Rights (Turku/Abo and London, Abo Akademi University Institute of Human Rights and Minority Rights Group International, 1995) 13–76, 42–43. 220. See Gudmundur Alfredsson, ‘Minority Rights: A Summary of Existing Practice’ in Phillips and Rosas, ibid, 77–86, 81. 221. Anne-Christine Bloch, ‘Minorities and Indigenous Peoples’ in Asbjørn Eide, Catarina Krause and Allan Rosas (eds), Economic, Social and Cultural Rights (Dordrecht/Boston/ London, Martinus Nijhoff Publishers, 1995) 309–21, 316–17. 222. Jungwon Park, ‘Integration of Peoples and Minorities; An Approach to the Conceptual Problem of Peoples and Minorities with Reference to Self-Determination Under International Law’ (2006) 13 International Journal on Minority and Group Rights 69–93, 77. 223. Joshua Castellino, ‘The Protection of Minorities and Indigenous Peoples in International Law: A Comparative Temporal Analysis’ (2010) 17 International Journal on Minority and Group Rights 393–422, 401–402. 224. Katerina Tsotroudi, ‘Ethnic Minorities and Collective Rights in the New Europe: Some Observations’ (1993) 46 Revue Hellenique de Droit International 225–49, 233–34. 225. Daniel Thürer, ‘National Minorities: A Global, European and Swiss Perspective’ (1995) 19 Fletcher Forum of World Affairs 53–69, 67–68. 226. Marc Weller, ‘Creating the Conditions Necessary for the Effective Participation of Persons Belonging to National Minorities’ (2004) 10 International Journal on Minority and Group Rights 265–90, 267.

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approach is found in the concurring individual opinion of Scheinin in the case JGA Diergaardt (late Captain of the Renoboth Bater Community) et al v Namibia. In his view there are situations where the right of participation of Article 25 of the ICCPR calls for special arrangements for members of minorities and indigenous peoples. In such cases, it is not sufficient to give individual members of these communities the individual right to vote in general elections. ‘Some forms of local, regional or cultural autonomy may be called for in order to comply with the requirement of effective rights of participation.’227 This reading of Article 25 of the ICCPR, which goes beyond the individualistic orientation of the right of political participation, in combination with Articles 2, paras 2 and 3 of the relevant UN Declaration and para 15 of the FCNM, could lead to minority autonomy.228 The UN Forum on Minority Issues has taken such a view by suggesting that the right to effective political participation can be ensured through many different means, including ‘forms of territorial or personal autonomy’.229 A similar position has been adopted by the chairperson of the former UN Working Group on Minorities, Asbjørn Eide, in his Commentary on the UN Declaration on the rights of persons belonging to minorities.230 Also, the Explanatory Report of the FCNM encourages governments to consider, for instance, ‘decentralized or local forms of government’ as a means of achieving effective ­participation.231 It should also be noted that from a practical perspective the separation of the provisions on effective participation from the more politically sensitive right to self-determination, in either its external or its internal dimension,  may

227. Individual Opinion by Martin Scheinin, UN Doc CCPR/C/69/D/760/1997 (6 September 2000) 17–18. See Annelies Verstichel, ‘Recent Developments in the UN Human Rights Committee’s Approach to Minorities, with a Focus on Effective Participation’ (2005) 12 International Journal on Minority and Group Rights 25–41, 27, 35, 41. 228. See Balázs Vizi, ‘Does European Integration Support the Minority Quest for Autonomy? Minority Claims for Self-Government and Devolution Processes in Europe’ in Zoltán Kántor (ed), Autonomies in Europe: Solutions and Challenges (Budapest, L’HarmattanNPKI, 2014) 25–35, 27; Patrick Thornberry, ‘The Democratic or Internal Aspect of Self-Determination With Some Remarks on Federalism’ in Tomuschat (n 121) 101–38, 134. 229. Human Rights Council, Recommendations of the Second Session of the Forum on ­Minority Issues on Minorities and Effective Political Participation (12 and 13 November 2009), UN Doc A/HRC/13/25 (2 February 2010), para 9. 230. Asbjørn Eide, Commentary to the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, UN Doc E/CN.4/Sub.2/AC.5/2001/2 (2 April 2001), paras 20, 38 and 39. 231. Framework Convention for the Protection of National Minorities and Explanatory Report, H(95)10 (1995), para 80 https://rm.coe.int/CoERMPublicCommonSearch​ Services/DisplayDCTMContent?documentId=09000016800c10cf.

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have some advantages, making them more politically acceptable to States and possibly increasing the prospects of their successful implementation.232 However, the ACFC has so far tacitly declined such an approach in its supervision of Article 15 of the FCNM. Specifically, despite commenting positively on the States that by their own initiative have established autonomous arrangements, the Committee does not go so far as to imply that ­Article 15 encompasses a right to autonomy for minorities in order to obtain effective participation.233 In this regard, Houten and Wolff note that the autonomy solutions ‘are not part of the official CoE “agenda”’234 at least for now. Still, it is a potential that minorities can explore to the extent possible, using it as a starting point to the way to autonomy.

5.5.  Concluding Views Current international law does not entail a right to autonomy for minorities. However, it does offer, as has been analysed, some avenues on which minorities could work on to gain its recognition. While such a development seems unlikely to happen in the near future, due mainly to State anxieties, much will depend on the broadening and deepening of the concept of democracy in society at large. In a living and functional democratic society all issues, even the most ‘sensitive’ such as minority autonomy rights, should freely be put into open dialogue and discussion. Minority representatives should have a real opportunity, meaning available time and space and adequate access to all kinds of media and public fora, to articulate in detail their arguments and make them known to the dominant ethnic majority in order to clarify that autonomy on the one hand does not mean secession and on the other constitutes an inherent element of the democratic principle and a valuable instrument for minority citizens to pursue their cultural development in the same way that citizens of the ethnic majority do. Convincing then the dominant ethnic majority and gaining its neutrality or even its understanding towards the autonomy issue is a necessary prerequisite for State governments to be more receptive to the relative minority demand. In this context,

232. See Helen Quane, ‘The UN Declaration on the Rights of Indigenous Peoples: New Directions for Self-Determination and Participatory Rights?’ in Allen and Xanthaki (n 161) 259–87, 273, 281. 233. Julie Ringelheim, ‘Minority Rights in a Time of Multiculturalism – The Evolving Scope of the Framework Convention on the Protection of National Minorities’ (2010) 10 Human Rights Law Review 99–128, 126 (fn 122). 234. Pieter van Houten and Stefan Wolff, ‘The Dynamics of Ethnopolitical Conflict Management by International and Regional Organizations in Europe’ (2008) 7 Journal of Ethnopolitics and Minority Issues in Europe 1–31, 12.

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an agenda which would be based not on a nationalistic but on a civic style rhetoric in the spirit of goodwill would have more chances of success. After all, recognising a right to autonomy to minorities could lead to enhancement of the democratic structures of the society, both at international and national level, since autonomy in its original literary meaning in the Greek language, refers, as mentioned, to the right to make ones’ laws and take decisions on matters of direct concern. Minority populations would be more satisfied in the State they reside if they themselves instead of State officials of different ethnic background are in the position to take decisions in areas of minority interest such as education, culture, language, etc. In this way autonomy can contribute to minority satisfaction and State stability at the same time.

6.  Anti-Autonomy Critics and Counter-Arguments Critical voices against the recognition of a right to autonomy, territorial or non-territorial/cultural, to minorities, note that the co-existence in a State territory of different laws embodying a diversity of legal traditions may not only create legal antinomies but also political conflicts in terms of values protected by the law.235 In the same context, it has been claimed that these kinds of settlements enhance ethnic separation and reinforce the isolation of minorities, thus undermining on the one hand the common public sphere bridging the different communities and favouring on the other the centrifugal forces that threaten the stability of the State.236 Indeed, most States are very uncomfortable with the idea of minority autonomy as they fear that it will bring destabilisation, which can even escalate to secession. Others argue that granting autonomy to minorities on the one hand ‘may threaten norms of equality and individual rights at the within-group level’237 by sustaining for example traditional practices that violate the rights of women or by legitimising policies that restrict the right of minority members to exit from their group, and on the other, in the case of territorial arrangements, could subject the other minorities that live in the autonomous area to policies

235. Giovanni Matteo Quer and Sara Memo, ‘Releasing Minorities from the “Nationalist Trap”: From Territorial to Personal Autonomy in a “Multiple Demoi Europe”’ (2012) 47 Cuadernos Europeos de Deusto 149–75, 166. 236. Emmanuel Dalle Mulle, ‘Belgium and the Brussels Question: The Role of the NonTerritorial Autonomy’ (2016) 15 Ethnopolitics 105–24, 120–21. 237. Jan Muś and Mirella Korzeniewska-Wiszniewska, ‘Divide et Impera Principle. Minority Oriented State Policy in the Balkans’ (2013) 13 New Balkan Politics 73–89, 79.

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of discrimination and assimilation.238 Also, on the level of implementation and especially as regards the non-territorial/cultural autonomy experiments that have taken place almost exclusively in Eastern Europe, it has been pointed out that these are not working properly.239 On the one hand the relative instruments imply only a minimalist action on the part of the States and lack strong requirements for financial support,240 and on the other the cultural councils/self-governments have neither clear status and competences nor decisive powers in their field.241 Replying to the aforementioned concerns, it could be argued, first, that the existence of different cultural values in a society can contribute to its strengthening as a whole than to its fragmentation and disruption.242 To this end, certain educational and social policy programmes promoting integration and cultivating mutual understanding between majority and minority members, as well as a sense of citizen’s common civil identity could help. Considering the States’ fears, Gross accepted in his report that autonomy is certainly a concept that can have negative connotations, since it can be seen as a threat to the State’s territorial integrity and a first step towards secession. However, he added, ‘there is frequently little evidence to sustain this view’.243 Indeed, as Murswiek notes, autonomy could be the best prevention against secession, if only granted in a timely fashion.244 In this light, there is in theory

238. Stephen Deets and Sherrill Stroschein, ‘Dilemmas of Autonomy and Liberal Pluralism: Examples Involving Hungarians in Central Europe’ (2005) 11 Nations and Nationalism 285–305, 293. 239. Kaan Namli, ‘De-Territorializing Minority Rights: The Application of NonTerritorial Autonomy for Dispersed Minority Communities’ (Master’s thesis, İhsan Doğramacı Bilkent University, 2016) 29 http://repository.bilkent.edu.tr/bitstream/ handle/11693/30165/10113480.pdf.pdf?sequence=1. 240. Jala Garibova, ‘Cultural Autonomy: The Perceived vs. Realistic Scope’ (2012) 213 ­International Journal of the Sociology of Language 105–109, 106. 241. Liliya Aliyeva, ‘Tove H. Malloy, Alexander Osipov, and Balazs Vizi (2015) Managing Diversity Through Non-Territorial Autonomy: Assessing Advantages, Deficiencies, and Risks. Oxford: Oxford University Press (Book Review)’ (2016) 2 Intersections. East-­ European Journal of Society and Politics 135–37, 137. 242. See Laura Pineschi, ‘Cultural Diversity as a Human Right? General Comment No. 21 of the Committee on Economic, Social and Cultural Rights’ in Silvia Borelli and Federico Lenzerini (eds), Cultural Heritage, Cultural Rights, Cultural Diversity – New Developments in International Law (Leiden/Boston, Martinus Nijhoff Publishers, 2012) 27–53, 29, 36. 243. Andreas Gross (Rapporteur), Positive Experiences of Autonomous Regions as a Source of Inspiration for Conflict Resolution in Europe, Committee on Political Affairs and Democracy, Doc 9824, 3 June 2003, para 9. 244. Dietrich Murswiek, ‘The Issue of a Right of Secession – Reconsidered’ in Tomuschat (n 121) 21–39, 39.

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strong support for the view that autonomy arrangements carry benefits that overcome the aforementioned anti-autonomy argument, focusing mainly on examples where the autonomy settlements led to a decrease in violence in a series of ethnic conflicts (eg in the Basque Country, Corsica, Northern Ireland).245 In any case, in order to ease a State’s reasonable anxiety it would be wise to have clear and sincere guarantees from the representatives of the minorities concerned that they will not engage in activities contrary to State sovereignty. This requirement does not emanate from an absolute respect for States’ integrity, since human history has repeatedly seen the disintegration of various types of polities that have claimed they would last forever,246 but from acknowledgement of the fact that there is no mono-ethnic territory in the world. Thus, any separation from a State and creation of a new one would inevitably lead to the formation of new minorities subjected to the dominance of their new masters,247 as the case of the marginalised Serbian and Roma minorities in independent Kosovo clearly shows. After all, minority members should not only have rights guaranteeing real and full equality with the members of the ethnically dominant majority but also duties as citizens of the State. Second, any autonomy settlement must respect the principles of equality and non-discrimination.248 The autonomous government authorities should fully guarantee the enjoyment of human rights by all the members of the State’s dominant majority who constitute a numerical minority in the autonomous territory, as well as of the members of other minorities.249 No minority autonomy right can be used as a pretext to suppress or infringe non-minority members’ rights.250 They must also wholly safeguard the rights 245. Daniel Rodrigues, ‘Considerations of the Role of Federalism in Managing Ethnic Plurality in Multinational States in Conflict Prevention’ (2014) 4 Janus.Net e-Journal of International Relations 104–17, 108–109. 246. Christian Tomuschat, ‘Self-Determination in a Post-Colonial World’ in Tomuschat (n 121) 1–20, 6. 247. Sia Spiliopoulou Åkermark and Sarah Stephan, ‘Editorial: Rethinking Territorial Arrangements in Conflict Resolution – Introduction to the Special Issue of the International Journal on Minority and Group Rights’ (2013) 20 International Journal on Minority and Group Rights 1–3, 2. 248. Gross (n 243) para 17. See also Layos Arday, ‘Self-determination, Self-government, Regionalization, Autonomy’ (translated by Zsofia Csuti) (2012) 3 Délkelet Európa – SouthEast Europe International Relations Quarterly 1–8, 5–6. 249. Gudmundur Alfredsson, ‘The Rights of Indigenous Peoples with a Focus on the National Performance and Foreign Policies of the Nordic Countries’ (1999) 59 Heidelberg Journal of International Law (ZaöRV) 529–42, 535. 250. See Marco Odello, ‘The Right to Take Part in Cultural Life: General Comment No. 21 of the United Nations Committee on Economic, Social and Cultural Rights’ (2011) 27 Anuario Espanol de Derecho International 493–521, 505–506.

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of the members of their own group who do not wish to identify with it.251 Finally, they have to combat any traditional practices that violate the human rights and fundamental freedoms under the banner of cultural relativism.252 Next, the failures of some autonomy regimes should not necessarily be blamed on them, but on the conditions under which they were applied.253 Majtényi, for example, has argued that Hungary’s cultural autonomy has failed not because of the supposed or real deficiencies of the idea, but because of the inappropriate implementation and malfunctions of the legislation.254 The same conclusion ensues from the poor functioning of the cultural autonomy arrangements in other countries, such as in Estonia and the Russian Federation, where the establishment of the relevant regimes seems primarily to serve hidden political agendas rather than minority protection, resulting in toothless minority cultural self-governments.255 Such cases illustrate that when goodwill on the part of State authorities is lacking, there can be no substantive autonomy. Thus, a true spirit of meaningful collaboration between the State authorities, the ethnic majority and the minority/minorities living in a State is a prerequisite for the different models of autonomy to become an effective instrument of minority protection and conflict prevention.

7.  Final Thoughts Autonomy for minorities is not and cannot be a panacea, since there is a wide variety of minority situations around the world that are in need of different treatment.256 In general, however, it can be one of the best vehicles for minority protection,257 and for the prevention of ethnic conflicts.258 251. See Timor Varady, ‘Minorities, Majorities, Law and Ethnicity: Reflections of the Yugoslav Case’ (1997) 19 Human Rights Quarterly 9–54, 46. 252. See the relevant discussion in Federico Lenzerini, The Culturalization of Human Rights Law (Oxford, Oxford University Press, 2014) 127–28. 253. Gross (n 243) para 15. See also Csaba Máté Sarnyai and Pap Tibor, ‘Individual, Community, Identity’ (2015) 1 West Bohemian Historical Review 167–76, 173–74. 254. Balázs Majtényi, ‘What has Happened to our Model Child? The Creation and Evolution of the Hungarian Minority Act’ (2005–2006) 5 European Yearbook of Minority Issues 397–443, 419. 255. See Athanasios Yupsanis, ‘Cultural Autonomy for Minorities in the Baltic States, Ukraine, and the Russian Federation; A Dead Letter’ (2016) XXXVI Polish Yearbook of International Law 109–35. 256. Hurst Hannum, ‘Contemporary Developments in the International Protection of the Rights of Minorities’ (1991) 66 Notre Dame Law Review 1431–48, 1442. 257. Kay Hailbronner, ‘The Legal Status of Population Groups in a Multinational State Under Public International Law’ (1990) 20 Israel Yearbook on Human Rights 127–54, 140. 258. Mtendeweka Mhango, ‘Governance, Peace and Human Rights Violations in Africa: Addressing the Application of the Right to Self-Determination in Post-Independence Africa’ (2012) 5 African Journal of Legal Studies 199–214, 213.

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It can accommodate population diversity and enhance integration without ­assimilation,259 as well as provide minorities with the necessary space and control over the development of their culture, language and religion, without jeopardising State integrity, as it is exclusively oriented towards internal structures and arrangements.260 Given its positive potentials it is sad that such a right exists only for indigenous peoples in contemporary international law. Developments like the ACHPR’s broad conception of the term ‘people’, in a way that certainly includes ‘minorities’, in combination with the application to them of the legal doctrine of internal self-determination, which includes forms of autonomy/self-government, could lead to the recognition of such a right to minorities in international law. Also, given the several commonalities between minorities and indigenous peoples, an analogical implementation of the relevant UNDRIP provisions on autonomy could have the same result. Indeed such a development is morally and practically justified. A dynamic interpretation of the minority participatory rights found in the relevant UN Declaration and the FCNM could additionally contribute in this direction. In order for such a right not to become a tool of oppression of internal minorities, its recognition should be conditional on the absolute respect of their human rights. Moreover, in order to avoid any attempt by ‘kin states’, where these exist, to manipulate autonomous minority institutions with the aim of serving their own political agenda, any recognition should be made dependent on the full respect of the States’ territorial integrity, and the minorities should give strong commitments in this direction. An unreasonable disloyalty should incur the penalty of the unilateral repeal by the State government of the autonomy regime. Autonomy can work only if there is a spirit of goodwill on all sides concerned. In such a context, a combination of territorial and non-territorial schemes could offer stronger minority protection and ensure peace and stability.

259. Kristin Henrard, ‘The Interrelationship Between Individual Human Rights, Minority Rights and the Right to Self-Determination and its Importance for the Adequate Protection of Linguistic Minorities’ (2001) 1 The Global Review of Ethnopolitics 41–61, 57. 260. Kelley Loper, ‘Substantive Equality in International Human Rights Law and its Relevance for the Resolution of Tibetan Autonomy Claims’ (2011) 37 North Carolina Journal of International Law and Commercial Regulation 1–46, 31.

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Old Rules and New Technology: Drones and the Demilitarisation and Neutralisation of the Åland Islands Sia Spiliopoulou Åkermark1 Abstract: The juxtaposition of the old regime of the demilitarisation and ­neutralisation of the Åland Islands, as a territorially bound regime, to modern drone technology, which transgresses strict territorial borders and territorially bound jurisdictions, offers us the possibility to explore some of the present-day problems with the law concerning the exercise of territorial sovereignty. Speed, mobility and multilevel governance reconfigure the guarantees offered by the rule of law, both national and international. Developments in the field of airspace regulation, including the multiple usages and users of drones for military or ‘hybrid’ purposes, pose new challenges and questions regarding the demilitarised space of the Åland Islands. Such questions need to be articulated and explored. Do drones really change anything for the demilitarisation and neutralisation regime of Åland? Is the demilitarisation and neutralisation regime of the Åland Islands, for which observance Finland holds the core responsibility, legally prepared to deal with such questions? This is the main question in the present article. The main argument in this article is that while the current trends can result in a reinvigoration of the regime, they also can result in its erosion. Keywords: Demilitarisation, Neutralisation, Åland Islands, Drones, Unmanned aircraft, Territorial surveillance, Situational Awareness

1. Sia Spiliopoulou Åkermark, Juris doctor, Associate professor in international law and Director of The Åland Islands Peace Institute (Mariehamn, Finland). Her work focuses on diversity, self-government, the use of force, the interplay of national and international law and the institutions of international law. Among her previous books are Justifications of Minority Protection in International Law ((Uppsala & Dordrecht, Iustus förlag & Kluwer Law, 1997), and the edited volumes The Åland Example and Its Components – Relevance for International Conflict Resolution (Mariehamn, The Åland Islands Peace Institute, 2011) and Självstyrelser i Norden i ett fredsperspektiv – Färöarna, Grönland och Åland (Mariehamn & Copenhagen, The Åland Islands Peace Institute & Nordic Council, 2015, co-edited with Gunilla Herolf ).

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1.  New and Old Questions Concerning Drones At the inauguration of the new Hybrid Centre of Excellence in Finland, Jens Stoltenberg, Secretary General of the North Atlantic Treaty Organization (NATO), announced that NATO is purchasing new drones, which shall be used to improve the capacities of situational awareness, intelligence, surveillance and reconnaissance, all in the effort to tackle ‘hybrid threats’.2 While the term ‘hybrid threats’ is not defined in the constituting agreement of this new institution, could such drones be used for this purpose in the demilitarised zone of the Åland Islands?3 International lawyers, as well as national legislators, have only recently started grappling with the implications of the technical possibilities offered by unmanned aircraft, often called drones (the two terms shall be used interchangeably in the present text). Public consciousness and international law have been dominated, with good reason, by the controversial usages of drones for targeted killings in Pakistan, Afghanistan and other conflict areas.4 This is not surprising, considering that drones used for war purposes today form a huge area of innovation and public spending in many countries. Meanwhile, many other basic issues remain unaddressed, such as the registration and licencing of civil and military unmanned aircraft, dual usages of such aircraft, and the application of general air law provisions on such vehicles. After reviewing some of the basic issues concerning drones today, we shall examine the challenges posed by drones on the old regime of the

2. ‘Secretary General participates in Hybrid Centre of Excellence inauguration with Finnish leaders and EU High Representative’ www.nato.int/cps/ic/natohq/news_147497.htm (last accessed 12 December 2018). The Memorandum of Understanding of the new institution can be accessed at www.hybridcoe.fi/wp-content/uploads/2017/08/Hybrid-CoE-finalMou-110417-1.pdf (last accessed 12 December 2018). An analysis of the institutional set up and international legal implications of this Centre are beyond the scope of the present argument. 3. This article is one of the outcomes of the research project ‘Demilitarisation in an Increasingly Militarised World. International Perspectives in a Multilevel Regulatory Framework – the Case of the Åland Islands’ which has been funded by the Kone Foundation and the Åland Culture Foundation. The author warmly thanks Professor Lauri Hannikainen, Kim Westman of the Finnish Border Guard, and the anonymous reviewers for their comments at various stages of this work. I am in debt to my colleagues in the project for their critical and constructive support. The author takes all responsibility for assessments made in the present text. 4. Christof Heyns, Dapo Akande and Lawrence Hill-Cawthorne, ‘The International Law Framework Regulating the Use of Armed Drones’ (2016) 65 International and Comparative Law Quarterly 791–827.

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­ emilitarisation and neutralisation of the Åland Islands, which has its origins d in the mid-nineteenth century, ie in an era prior to airplanes, helicopters, satellites and drones. The juxtaposition of the old regime of the demilitarisation and neutralisation of the Åland Islands as a territorially bound regime to drone technology offers us the possibility to explore some of the present-day challenges with the law applicable in the demilitarised zone. It is, of course, not the first time that new technology shapes new contingencies for the demilitarisation. The use of submarines, telegraphy and airplanes, for instance, have all influenced the development of international law and the interpretation of specific aspects thereof, such as the demilitarisation and neutralisation of the Åland Islands. However, in the present article, emphasis is placed only on airspace and aviation, its regulation and the applicability of the relevant rules on drones. Drones enter airspace like airplanes and may violate the demilitarisation and neutralisation regime, if they are military-like in character or operate with military aims. Thus, at one level, there is no difference at all from the problems affecting aircraft. However, the use of drones poses additional new concrete issues that must be tackled in the future on their own merits. Such problems are likely to continue surfacing incrementally, given that the present inventory is non-exhaustive and to some extent include speculative elements, for the purpose of detecting possible trajectories in the future uses of drones. Nowadays, we can identify the following issues: 1) If the air force (Finnish or other) detects a drone in its own airspace and suspects that it has no right to be there, there may be a greater predisposition to shoot it down, since communication with whoever controls the drone, from whatever spot around the globe, may be more time-consuming and complicated and also since there would be no human casualties of pilots involved. In addition, it has been reported that loss of data links between the ground control station and drones is a rather common phenomenon.5 These factors may also increase the risk of military confrontation in the demilitarised zone. In addition, such a relaxed attitude to the use of force in the air may result in an escalation in the use of force and increased diplomatic tensions, especially when the shooting down of drones is accompanied by the shooting down of

5. According to one report, links were disrupted or lost in more than a quarter of the worst drone crashes. Craig Whitlock, ‘When Drones Fall from the Sky’ The Washington Post www. washingtonpost.com/sf/investigative/2014/06/20/when-drones-fall-from-the-sky/?utm_ term=.a7b11edff5c7 (last accessed 18 December 2018).

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manned aircraft, leading to a general escalation in aerial use of  force. Such developments were observed, for instance, when the Turkish Air Force first shot down an unmanned drone at the Syrian border in October 2015 and thereafter a manned warplane, leading to a deterioration of Turkish-Russian relations.6 2) There has been considerable apprehension in the Baltic Sea region about the risks involved in the switching off of transponders in airplanes.7 If airplanes are difficult to locate and identify on radar screens when transponders are switched off, one may have a reason to believe that this is even more the case when it comes to drones, if their users want them to remain unidentified. Moreover, such a development may deepen possible trust deficits in the international legal system and the idea of the rule of law in international affairs. 3) Today, drones are used just as much for civilian purposes as for military, as we shall discuss further below. The extensive dual usage of drone technology is coupled with a combination of public and private owners and operators of such technology, in ways that make it increasingly difficult to assess what is permitted and what is prohibited in international law, in general, and under the demilitarisation and neutralisation regime for the Åland Islands, in particular. 4) At a broader level, there is an ongoing global debate about the weaponisation of autonomous technologies at the expense of their development and usage for much needed civilian purposes and without any real discussion about the implications this has on the interpretative reasoning that is needed when implementing legal rules.8 For instance, a possible wider usage of drone technology for target identification and possible shooting down in the air, as in border control or missile defence systems, may limit the freedom a state has in deciding whether to use force or not in the first place and in a concrete and contingent situation. After all, the right to self-defence is precisely a right, which involves a set of underlying

6. ‘Turkish Air Force Downs “Russian” Drone near Syria Border’ The Times (16 October 2015) and ‘Turkey’s Downing of Russian Warplane’ (BBC News, 1 December 2015) www. bbc.com/news/world-middle-east-34912581 (last accessed 12 December 2018). 7. ‘Ny radarstation ska spåra flygplan utan transponder’ (Ny Teknik, 7 June 2016) www. nyteknik.se/fordon/ny-radarstation-ska-spara-flygplan-utan-transponder-6589596 (last accessed 12 December 2018). 8. UNIDIR, Framing Discussions about the Weaponization of Increasingly Autonomous ­Technologies, 2014 www.unidir.ch/files/publications/pdfs/framing-discussions-on-the-weaponi​zationof-increasingly-autonomous-technologies-en-606.pdf (last accessed 12 December 2018).

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decisions to be made and which does not automatically prescribe the best methods for its exercise.9 5) Other problems in the practical and legal use of drones affect, inter alia, the protection of personal integrity, congestion, and the risk of collisions in the air, as well as surveillance in the territory of third countries, ie extraterritorial jurisdiction.10 The effects of such weaponisation on North-South relations are a wider theme but remain beyond the scope of the present study. Today, many kinds of activities may be technologically possible, but our political and legal systems have not yet managed to find ways to address the broad range of possibilities and to manage their risks and downsides, as reflected in ongoing debates about the regulation of cyberspace. The use of drones may be highly beneficial, for instance, for the documentation and surveillance of large environmental threats in the open sea, rescue operations, or transportation of necessities for persons entrapped in remote areas. Other drone activities can be, however, far more problematic. This has prompted the United Nations Institute for Disarmament Research (UNIDIR) to focus on the need for identification at the initial stage of the functions, where autonomous technology is acceptable globally, to be followed by rules for such usages.11 It can be expected that the current development towards greater autonomy of aircraft and other vehicles shall be pursued in the military as well as in the civilian realm. The introduction of systems with greater autonomy is a fact, and defensive weapon systems with autonomous capabilities are already being deployed. According to one estimate, the international market for unmanned aircraft will be worth up to 80 billion US dollars by 2020.12 According to the same experts, the United States of America is the world’s largest operator of unmanned aircraft and the front-runner in producing and using technology for military purposes since the 1950s. The Global Positioning System (GPS) and advances in telecommunications have made possible the operation of drones at ever-greater distances for purposes of intelligence,

9. Sia Spiliopoulou Åkermark, ‘The Puzzle of Collective Self-Defence : Dangerous Fragmentation or a Window of Opportunity? An Analysis with Finland and the Åland Islands as a Case Study’ (2017) 22 Journal of Conflict and Security Law 249–74. 10. Stephan Hobe, ‘Drones in International Law: The Applicability of Air and Space Law’ in Hans-Joachim Heintze and Pierre Thielbörger (eds), From Cold War to Cyber War: The Evolution of the International Law of Peace and Armed Conflict Over the Last 25 Years (­Heidelberg, Springer, 2016) 107–12 at 110. Kimon P Valavanis and George J ­Vachtsevanos, Handbook of Unmanned Aerial Vehicles (Heidelberg, Springer, 2015) 103. 11. UNIDIR (n 8) 5. 12. Valavanis and Vachtsevanos (n 10) 94–102.

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surveillance, ­targeting and reconnaissance since the 1980s. Interestingly, however, researchers conclude that outsourcing, where a private contractor provides unmanned aircraft services, is already a growing trend among ‘cash-strapped European militaries’, due to the high cost of purchasing such unmanned aircraft.13 This adds then the private–public fusion and the difficulty of regulating and monitoring private actors in military (state) activities to our list of open questions. Furthermore, it is known that other superpowers pursue similar projects. Russian drones have been used in Ukraine and Syria, and a programme for the development of Russian drones by 2025 has been launched by the Russian Rostec weapons corporation, while China has become a lead actor in the export of armed drones.14 As noted by historian David Edgerton, the ‘agenda for discussing the past, present and future of technology is set by the promoters of new technologies’.15 On the more empirical problems emphasising the ‘thing’ rather than the norms, we can note the following reported problems, even though such technical problems are not the focus of the present study.16 The loss of data links between the ground control station and the drone has been one of the most common causes of crashes in the past decade. Experts argue that there is particularly a need to allocate sufficient satellite bandwidth to control unmanned aircraft and to provide a means of transmitting communications and real-time data from sensors to ground control stations and other receiving facilities.17 Some countries have had problems with the allocation of enough bandwidth, which has led them to use commercial satellite operators in addition to military satellite systems. The London Satellite Exchange (LSE), for example, is one commercial operator that has been providing data links for unmanned aircraft for several countries. There is an expanding drone nomenclature on the basis of weight, range, capacity and level of automatisation, but such detail is not needed for the purposes of our study even though these technical aspects may also involve the need for legal adaptation.18 13. Valavanis and Vachtsevanos (n 10) 94–102. 14. Tobias Burgers and Scott Romaniuk, ‘Will China Adhere to its Own Norm Prohibiting Lethal Drone Strikes?’ (The Diplomat, 6 October 2016) thediplomat.com/2016/10/ will-china-adhere-to-its-own-norm-prohibiting-lethal-drone-strikes/ (last accessed 12 December 2018). 15. David Edgerton, The Shock of the Old: Technology and Global History since 1900 (New York, Oxford University Press, 2007) ix. 16. The above-mentioned UNIDIR study distinguishes between issues of technology, functions, assessments, predictability and goals. See also nn 3 and 5 above. 17. Valavanis and Vachtsevanos (n 10) 101–102. 18. D Sanz, J Valente, J del Cerro, J Colorado and A Barrientos, ‘Safe Operation of Mini UAVs: A Review of Regulation and Best Practices’ (2015) 29:19 Advanced Robotics 1221–33, 1227 and 1330.

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Hence, unmanned aircraft are today being used widely and for a variety of military and civilian purposes, including intelligence, surveillance, targeting and reconnaissance. At the same time, the regulatory activity concerning drones is only starting to ‘take off’. Each state has its own air laws and regulations. Today, there is an effort to harmonise developments in this field. Several regional efforts have been launched to draft guidelines for the use of unmanned aircraft in controlled airspace, for instance, through the European Remotely Piloted Aircraft Systems (RPAS) Steering Group, and more recently the European Aviation Safety Agency (EASA), which presented a ‘Prototype Commission Regulation on Unmanned Aircraft Operations’ in 2016.19 Since these proposals are still at the stage of consultation and concern in principle civil aviation only, we shall not focus on them in the present article. Rather, we shall look at regulatory efforts in Finland, a country that is considered among the forerunners of global trends in this field. Is the demilitarisation and neutralisation regime of the Åland Islands, for which Finland is the core responsible state, legally equipped to deal with the questions raised by the use of drone technology? This is the main question in the present article. Already in 1856, when the first Convention on the Non-Fortification of the Åland Islands was negotiated and signed, steam engine vessels had started replacing sailing ships. The army of the Russian Empire was not prepared to defend the fortress of Bomarsund on the Åland Islands from the unexpected approach of steam ships from the north.20 Technological development was a factor that influenced the early days of the demilitarisation and neutralisation of Åland, starting already in the technological advancements of the mid-nineteenth century, which was also the time when Jules Verne’s debut novel Five weeks in a Balloon, appeared (1863), announcing broadly the era of aerial technology. Soon thereafter, the Finnish Air Force became among the first such forces worldwide, established formally in 1918 through Swedish help during the civil war.21 As we shall see in more detail below, the Convention on the Non-Fortification and Neutralization of the Åland Islands (1921) 19. European Aviation Safety Agency, Prototype Commission Regulation on Unmanned A ­ ircraft Operations (22 August 2016), www.easa.europa.eu/system/files/dfu/UAS%20­Prototype% 20Regulation%20final.pdf (last accessed 12 December 2018). 20. Convention sur la non-fortification des Iles d’Aland (Annexée au Traité Générale de Paris, 1856). Published in de Clercq, Recueil des traités de la France, Paris, 1880, tome VII, 59. Cited in JO Söderhjelm, Démilitarisation et Neutralisation des Iles d’Aland en 1856 et 1921 (Helsingfors, 1928) 341–43. Graham Robins, Håkan Skogsjö and Jerker Örjans, ­Bomarsund: Det Ryska Imperiets Utpost i Väster (Mariehamn, Skogsjömedia, 2004). 21. Heikki Nikunen, Air Defence in Northern Europe (Helsinki, National Defence College, 1997).

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reflected such technological developments of the First World War through references to submarines and aircraft.22 The structure of this article is as follows: After this introduction, outlining the core issues involved in the expansion of the use of drone technology (section 1), I will turn to the core elements of international and Finnish airspace regulation, focusing on the distinction between civil and military aviation (section 2). This section is followed by an examination of present day Finnish regulation on drones (section 3). This forms the background against which issues of drones are discussed in their relation to the demilitarisation and neutralisation of the Åland Islands (section 4), followed by a closer look at problems pertaining to demilitarisation in the air after the end of the Cold War (section 5). The concluding section (section 6) summarises the overall conclusions and identifies the overarching trends concerning the relationship between drones and demilitarisation in the case of the Åland Islands. This article gives an account of legal developments until mid-2017.

2. The Early Days of International Airspace Regulation and the Finnish Aviation Act One of the many legal consequences of the First World War was the insight that aviation needed regulation, both for protecting the safe transport of persons and goods and maximising the potential of this new means of transport, as well as for minimising the devastating effects of aerial bombing. These experiences and needs resulted in the adoption of the Paris Convention for the Regulation of Aerial Navigation in 1919 as part of the work in the Paris Peace Conference.23 The Convention recognised complete and exclusive sovereignty of states over the airspace above their territory, often linked to the principle of cuius est solum, eius est usque ad coelum et ad inferos (translated as ‘who owns the soil, owns up to the sky and down to the grave’). States wanted to recognise that ‘every Power’, not simply the contracting parties, has complete and exclusive sovereignty over the airspace above its territory (including above territorial waters). This put an end to several decades of legal disputes regarding whether the air was free in the same way as the high seas.24 22. LNTS No 255, vol 9, 211 (1922). The Convention is presently found among the multilateral treaties deposited with the UN Secretary-General. 23. Convention Relating to the Regulation of Aerial Navigation (1919), LNTS, Vol XI, p 173. The Convention, which is no longer in force, has also been published in (2005) 30(1) Annals of Air and Space Law, 5. 24. Michael Milde, International Air Law and ICAO, 2nd edn (The Hague, Eleven International Publishing 2008) 10–12.

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The result was the recognition of the principle of full sovereignty over the air, a principle described as ‘an axiom and a backbone of international air law’.25 During peacetime, States Parties undertook to accord freedom of ‘innocent passage’ above their territory to the private aircraft of the other contracting states, provided that the conditions laid down in the 1919 Convention were also observed. The Convention established a system of registration of aircraft and of authorisation of flights, distinguishing between ‘state aircraft’ (used by military, customs and police) and private aircraft (Articles 30–33 of the 1919 Convention). State aircraft, including military and such, always need prior authorisation to fly over the territory of another state (Art 32). The 1919 Convention was succeeded by the Chicago Convention on International Civil Aviation (1944).26 Similar to the earlier agreement, we find in the Chicago Convention the following provision: ‘The contracting States recognize that every State has complete and exclusive sovereignty over the airspace above its territory’ (Article 1). In line with the previous agreement, the Chicago Convention distinguishes clearly between civil and state aircraft and elaborates on the different regimes pertaining to them in ­Article 3 entitled ‘Civil and state aircraft’. Following Art 3(c), access for a state aircraft to fly over the territory of a third state needs authorisation by special, ad hoc agreement, or ‘otherwise’. Unmanned aircraft, when acting as a state aircraft, also fall under this rule. The wording of Article 3(c) is open to arrangements of access to airspace by various regimes, including in principle also within military alliances or other institutionalised forms of cooperation. Much later, in 1982, the UN Convention on the Law of the Sea (UNCLOS) confirmed that a state has sovereignty not only over its land territory, internal waters and territorial sea, but also over the airspace above these spaces (Article 2).27 In Finland, airspace is currently regulated primarily through the Aviation Act (Act No 864/2014). The recent revision of the Act addressed the need to implement European Union efforts towards a ‘seamless’ sky under the Single European Sky (SES) programme. This SES-legislation of the 25. Ibid. 26. Convention on International Civil Aviation, 102 UNTS 15 (1948) 295. Today, the Convention has 191 States Parties, and Finland adhered to it in 1949. Information on ratifications retrieved from ICAO: www.icao.int/secretariat/legal/List%20of%20Parties/ Chicago_EN.pdf (last accessed 12 December 2018). FFS 11/1949. 27. Pirjo Kleemola-Juntunen, Passage Rights in International Law : A Case Study of the Territorial Waters of the Åland Islands (Rovaniemi, University of Lapland, 2014) 106–232. Kleemola-Juntunen emphasises that ‘no rule has ever existed in customary international law that grants foreign aircraft a right of overflight above territorial seas’ (at 307).

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­ uropean  Union  (EU) is found in Regulations No 549/2004 (so-called E Framework Regulation), No 550/2004, No 551/2004 and No 552/2004 (socalled Interoperability Regulation) as amended by Regulation No 1070/2009 as well as through more detailed implementing rules.28 Basic definitions pertinent to the Aviation Act are found in the second paragraph. Here, the Act distinguishes between ‘model aircraft’, used as a hobby or sport; ‘unmanned air vehicles’, which fly without a pilot on board; and ‘remotely controlled unmanned vehicles’, which require a system and location of remote control. Military aviation is defined as aviation ‘with a military aim or by a military aircraft’, thus, allowing for consideration of situations where an aircraft registered in a civil register performs military aviation if the aim is of a military nature. The Aviation Act is accompanied by the Regulation on Military Aviation (No 557/2011),29 which regulates the military aircraft register and the identification marks of military aircraft. The Regulation on Military Aviation does not specifically mention anything about unmanned air vehicles. However, the Regulation requires that a military aircraft register is in place, for the purposes of aviation security, individualisation of military aircraft, and for fulfilling the international obligations of Finland. The military aircraft register is kept by the Finnish Military Aviation Authority, which has its legal basis in the Finnish Defence Forces Act (Act No 551/2007).30 Finally, in Finland, restricted airspace is defined and updated regularly through government regulations. The most recent regulation restricting access to parts of Finnish airspace is Regulation No 614/2015, which applies to a number of forbidden or restricted airspace zones, such as areas of military importance or above the nuclear power installations of Finland.31 Furthermore, the Finnish Transport Safety Agency (Trafi) can provide other temporary exemptions for some of the areas defined in the Regulation.

3.  Finnish Regulation on Drones The legal basis of Finnish regulation on territorial control is the Territorial Surveillance Act adopted in 2000 (Act No 755/2000). Section 2 provides 28. EU Regulations No 549–552/2004 [2004] OJ L96, 31 March 2004. Sia Spiliopoulou Åkermark, ‘The Meaning of Airspace Sovereignty Today – A Case Study on Demilitarisation and Functional Airspace Blocks’ (2017) 86 Nordic Journal of International Law 91–117. 29. Statsrådets förordning om militär luftfart, FFS 557/2011. 30. Finnish Act on Defence Forces, 27 §, Act No 551/2007. 31. Statsrådets förordning om ändringar av statsrådets förordning om områden där luftfart är inskränkt, FFS 614/2015.

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definitions, including ‘government aircraft’, which is defined as ‘a military, frontier guard, police or customs aircraft or an aircraft which is used by a state for transport, courier, survey or other corresponding flights’.32 Military aircraft refers to ‘an aircraft bearing national military markings and belonging to a national armed force’.33 Chapter 2 of the Act regulates the entry into and stay in Finland by military persons, vehicles, government aircraft and government vessels. The restrictions apply thus in principle not only to military aircraft, but also to government aircraft (and vessels). The basis of the entry right for foreign government aircraft is either an international treaty binding on Finland or permission provided by the responsible Finnish authorities (Section 5 in the Act). The Act does not include any specific provision referring to the Åland Islands, as is customary in legal acts concerning matters of territorial control in Finland. As we shall see below, the Finnish Government addressed these matters in 2004 through a government decision. Section 14 of the Act prohibits aerial photography from an aircraft ‘or other airborne craft’ (ie also drones) within certain areas, mostly of military interest as well as in restricted areas under Regulation 614/2015 mentioned above. The Åland Islands or parts thereof are not among the restricted areas. In 2015, the Finnish Transport Safety Agency (Trafi) issued (and amended in 2016) a regulation regarding civil unmanned vehicles, and Finland is generally considered to have one of the more liberal regulations concerning drones.34 The Trafi Regulation governs the use of remotely piloted aircraft, and of model aircraft weighing more than 250g. The regulation is not applicable to the use of such aircraft indoors or to military aviation. It requires operators of such aircraft to provide Trafi with the basic information concerning the basic technical data of the aircraft, the nature, scope and location of the operations.35 Furthermore, flights must not endanger, disturb, nor prevent the operations of any authorities or first response units. Details of flights must be stored for three years. Finland and Trafi, however, seem to have certain doubts regarding the use and risks of remotely piloted aircraft. The Trafi Regulation of October 2015 introduced restrictions in the use and operation of remotely piloted aircraft

32. Unofficial translation by the Ministry of Defence, Finland. 33. Territorial Surveillance Act, Section 2(8). 34. Trafi, ‘Regulation on Remotely Piloted Aircraft and Model Aircraft’, issued originally in October 2015 and replaced by OPS M1-32 of 23 December 2016, which entered into force in January 2017. See also Yle Nyheter, Finland har EU:s liberalaste drönarregler, https://svenska.yle.fi/artikel/2016/04/08/finland-har-eus-liberalaste-dronarregler-suntfornuft-ska-racka-langt (last accessed 12 December 2018). 35. Section 3.1.2 of Trafi Regulation OPS M1-32 (2016).

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and model aircraft. Operations must be based on visual line-of-sight and take place below 150 metres from the surface of the water or ground. Beyond visual line-of-sight, operations are permitted only in areas that are specifically reserved for that purpose. Paragraph 3.1.12 of the same regulation provides that flying remotely piloted aircraft ‘in the vicinity of an airport’, ie within a Control Zone (CTR), Flight Information Zone (FIZ) or Radio Mandatory Zone (RMZ), is permitted at altitudes of not more than 50 metres from the surface of the ground or water provided that the horizontal distance to the runway is at least five kilometres. With regard to uncontrolled aerodromes and heliports, special attention must be paid, according to the regulation, to the air traffic in its ‘vicinity’, and any ‘local instructions’ must be taken into account, where applicable. As is evident from the above, the main concerns from the perspective of civil aviation have been those of airworthiness and safety in aviation and for all the population, as well as of specifically important safety zones such as larger airports and large energy production units. In addition to this new Trafi Regulation, the Ministry of Defence announced, in November 2016, a new study to be conducted in Finland with regard, in particular, to the regulation of military unmanned vehicles.36 We shall return to these issues after looking into analysing aviation issues with regard to the Åland Islands.

4. The Basics of Aviation and Demilitarisation in the Åland Islands Aircraft came to the Åland Islands in the early twentieth century, in connection with the First World War.37 In 1936, the regional Government of Åland decided to establish a land-based airport. Inaugurated in 1937, the airport was a few kilometres northwest of the city of Mariehamn, and

36. Finnish Ministry of Defence, Press Release, ‘Työryhmä Selvittämään Miehittämätöntä Ilmailua Ja Lennokkitoimintaa Koskevan Lainsäädännön Kehittämistä Turvallisuuden Näkökulmasta’ (25 November 2016) www.defmin.fi/?9_m=8094&s=8&l=fi (last accessed 12 December 2018). In the media, there has been some discussion, although no mention of the Åland demilitarisation as such. See ‘Försvaret ser drönare som ett potentiellt hot’ (25 November 2016) svenska.yle.fi/artikel/2016/11/25/forsvaret-ser-dronare-som-ettpotentiellt-hot (last accessed 12 December 2018). 37. Kenneth Gustavsson, Granboda flygstation: Ryskt marinflyg på Åland under första ­världskriget (Ålands museum, 1991). Christina Remmer, Mariehamns Stads Historia 1961–1986 (Mariehamns stad, 1999) 73–74.

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o­ perational in 1940 (in the midst of the Second World War). Mariehamn airport is administered not by the Åland Government, but by the Finnish Finavia, a state-owned company. On the public information site for the airport, it is emphasised that the airport serves ‘solely commercial and general aviation’, as no military aircraft visit the demilitarised islands.38 Since spring 2017, air traffic management in Finland has been run by a separate, new, and also state-owned company, ANS, which was announced in late December 2016.39 In addition to the main airport, there are ten helicopter platforms around the islands, as well as a smaller local airport (with a 650-metre landing runway) on the island of Kumlinge. One of the helicopter platforms is situated on the island of Bogskär, which is the southernmost point of Finland. It is a helicopter pad on top of the electronic lighthouse located on the island. Bogskär is part of the Åland Islands’ demilitarised zone, as identified in the 1921 Convention and thus has its own demilitarised zone of three nautical miles. Several of the alleged or confirmed intrusions to the demilitarised and neutralised area in recent years have in fact concerned the waters and airspace around Bogskär.40 Meanwhile, as mentioned above, the Åland Islands are a demilitarised and neutralised zone under international law. The regime of the Åland Islands’ demilitarisation and neutralisation is a complex web of rules and institutions developed over 160 years. It has its origin in the internationalisation of this region, as a result inter alia of the Crimean War. The 1856 Convention established the original contractual basis of the demilitarised regime of the islands between the superpowers of the time, ie Great Britain, France and Russia.41 The agreement combined diplomatic and military means and goals. This system was broadened by the Decision of the Council of the League of Nations on 24 June 1921, which in turn resulted in the 1921 Convention on 38. Mariehamn airport information, Finavia 2016 www.finavia.fi/en/mariehamn/about/ (last accessed 12 December 2018)). 39. See www.finavia.fi/en/newsroom/2016/finavia-looks-incorporating-air-navigationindependent-company (last accessed 12 December 2018). The establishment of ANS followed shortly after the passing of responsibility over air management issues from the Ministry of Transport and Communications to the Finnish Government by a decision of 13 May 2016. 40. Sia Spiliopoulou Åkermark, ‘Åland’s Demilitarisation and Neutralisation: Continuity and Change’ in Sia Spiliopoulou Åkermark (ed), The Åland Example and Its Components – Relevance for International Conflict Resolution (Mariehamn, The Åland Islands Peace Institute, 2011) 50–71. For a more recent reported incident see, Nya Åland, ‘Sveriges försvarsmakt kränkte åländskt luftrum’ www.nyan.ax/nyheter/forsvarsmakten-krankteluftrum/ (last accessed 13 December 2018). 41. Convention sur la non-fortification des Iles d’Aland (1856).

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the Non-Fortification and Neutralization of the Åland Islands, alongside the strengthening and international endorsement of the autonomous position of the islands under the exclusive sovereignty of the Republic of ­Finland.42 In 1940, at the end of the Winter War, the Soviet Union and Finland signed a bilateral treaty in which Finland undertook to retain the islands as demilitarised, not to fortify them and not to put them at the disposal of the armed forces of foreign states.43 The Soviet Union was also granted the right to establish and maintain a consulate on Åland, which has among its tasks the supervision of the fulfilment of the Finnish demilitarisation and neutralisation commitments. The Russian consulate is present and still in operation today in Mariehamn, the capital of the Åland Islands, witnessing the continued validity of the 1940 treaty. At the end of Second World War, the Treaty of Peace (1947), with ­Finland on the one side and the allies on the other, provided laconically in its Article 5 that the Åland Islands ‘shall remain demilitarised in accordance with the situation as at present existing’. This left room for the coexistence of the older regulations of 1856 and 1921 with more recent ones, notably the 1940 treaty.44 Recent confirmations of the demilitarisation and neutralisation took place in 1992 (vis à vis Russia), confirmations by the European Union institutions at the time of accession of Finland in 1994 (Protocol II on Åland) and, more recently, in connection with the ratification and entry into force of the Lisbon Treaty of the European Union.45 The network and system, the comprehensiveness, and timespan of international treaty-based obligations and rights and of their implementation have also resulted in legal experts arguing for a customary position as an ‘objective regime’ or even an erga omnes nature of the regime.46 Such a status would entail that not even 42. Finnish Treaty Series No 1/1922. 43. Finnish Treaty Series No 24/1940. 44. Holger Rotkirch, ‘The Demilitarization and Neutralization of the Aland Islands: A Regime “in European Interests” Withstanding Changing Circumstances’ (1986) 23 Journal of Peace Research 357–76. Lauri Hannikainen, ‘The Continued Validity of the D ­ emilitarised and Neutralised Status of the Åland Islands’ (1994) 54:3 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 614–51. 45. Finnish Ministry for Foreign Affairs, Ålands demilitarisering och neutralisering mot bakgrund av de nya europeiska utmaningarna [‘Åland’s Demilitarisation and Neutralisation in Light of New European Challenges'] (2011) https://eurooppatiedotus.fi/wp-content/ uploads/sites/19/2017/02/demilitar_aland_12.10.11.pdf (last accessed 13 December 2018). 46. Mikaela Björkholm and Allan Rosas, Ålandsöarnas demilitarisering och neutralisering (Åbo, Åbo akademis förlag, 1990); Ulf Linderfalk, ‘International Legal Hierarchy Revisited – The Status of Obligations Erga Omnes’ (2011) 80 Nordic Journal of International Law 1–23.

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contracting parties can alone modify or annul the status of the islands as demilitarised and neutralised. With the limited attention paid over time to the demilitarisation and neutralisation of the Åland Islands, there has been even more limited interest in matters pertaining to the regime, as it applies to the airspace of the zone concerned. It has been established that the airspace above the Åland Islands is demilitarised and neutralised, which was re-confirmed by the decisions and regulations adopted in 2004 by the Finnish Government. The demilitarisation regime is also being regularly re-confirmed by the way Finland deals with any reports and instances of intrusions in the demilitarised zone through a system (put in place in 2005) emphasising openness.47 This system includes the regular issuance of press releases on possible violations by the Ministry of Defence and the conduct of criminal investigations by the Finnish Border Guard.48 Article 3 of the 1921 Åland Convention explicitly provides the core obligation of contracting parties, namely that: ‘No military or naval establishment or base of operations, no military aircraft or base of operations, and no other installation used for war purposes shall be maintained or set up in the zone described in Article 2’ (emphasis added). Article 4 similarly provides: Except as provided in Article 7, no military, naval or air force of any Power shall enter or remain in the zone described in Article 2; the manufacture, import, transport and re-export of arms and implements of war in this zone are strictly forbidden (emphasis added).

The second section of Article 4 regulates the rights of Finland during peacetime and ends by a provision pertaining to Finnish military aircraft (point c): ‘Finland may fly her military aircraft over the zone, but, except in cases of force majeure, landing there is prohibited’. By contrast, this entails that military overflight over the zone is not permitted for the air forces of other states. All this is further explained in Article 6, first paragraph, which explains the additional conditions applying at time of war: ‘In time of war, the zone described in Article 2 shall be considered as a neutral zone and shall not, directly or indirectly, be used for any purpose connected with military operations’ (emphasis added).

47. Björkholm and Rosas, ibid, 55. For Söderhjelm, writing in 1928, airspace demilitarisation and neutralisation was clearly not a major concern, and little attention is paid to this aspect of the regime. Söderhjelm (n 20). 48. Letter from the Finnish Coast Guard (received 01 June 2017) filed with the author.

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There is, thus, no institution comparable to innocent passage with regard to aircraft and aviation. As mentioned earlier, a state has sovereignty not only over its land territory, internal waters and territorial sea, but also over the airspace above these spaces. It has been considered that this airspace stretches upwards to at least 90–100 km, even though the borderline between national airspace and outer space has not been clearly defined in international agreements. The 100 km borderline coincides with the so-called Kármán line of 100 km altitude, which is often used for separating aeronautics from astronautics.49

5. Problems Pertaining to the Demilitarisation in the Air after the End of the Cold War Problems concerning the airspace aspects of the demilitarisation regime have occurred occasionally, alongside discussions of maritime character.50 Intense discussions were triggered in Finland and on the Åland Islands in connection with the Finnish accession to the Open Skies Treaty. The Treaty on Open Skies was originally signed in Helsinki on 24 March 1992 at the occasion of the Helsinki follow-up meeting of the Conference on Security and Cooperation in Europe (CSCE).51 The Treaty was originally negotiated between members of the Warsaw Pact and NATO, and the Treaty assigned the governments of Canada and Hungary as depositories of the Treaty.52 It entered into force in 2002, and Finland and Sweden submitted their accession applications on the same day in January 2002. The Open Skies Treaty creates a system of confidence-building measures through regular overflights

49. Björkholm and Rosas (n 46) 55. Stephan Hobe and Kuan Wei-Chen, ‘Legal Status of Outer Space and Celestial Bodies’ in Ram S Jakhu and Paul Stephen Dempsey (eds), Routledge Handbook of Space Law (Routledge, 2017) 25–41. 50. Yannick Poullie, ‘Åland’s Demilitarisation and Neutralisation at the End of the Cold War – Parliamentary Discussions in Åland and Finland 1988–1995’ (2016) 23 International Journal on Minority and Group Rights 179–210; Spiliopoulou Åkermark (n 40). Pär Flyghed, Ålandskonventionen – En konvention i förändring? (Swedish National Defence ­College, 2005). 51. Holger Rotkirch, ‘A Peace Institute on the War-Path: The Appilication of the Treaty on Open Skies to the Neutralized and Demilitarized Åland Islands and the Powers of the Åland Autonomy’ in Jarna Petman and Jan Klabbers (eds), Nordic Cosmopolitanism  – Essays in International Law for Martti Koskenniemi (Leiden, Martinus Nijhoff P ­ ublishers, 2003) 61–88. Päivi Kaukoranta, ‘Negotiation of the Treaty on Open Skies Revisited: Finnish Features’ in Petman and Klabbers (eds), Nordic Cosmopolitanism (Leiden, Brill, 2003) 371–89. 52. Article XVII, para 1.

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for the purpose of observation from Vancouver in Canada to Vladivostok on the Russian east coast. Overflights are to be undertaken with an unarmed aircraft equipped with sensors. The Finnish Government regarded that the confidence-building goal of the Open Skies Treaty was in full accordance with the purpose of the demilitarisation and neutralisation of the Åland Islands. The US ambassador to the Open Skies Treaty conference even suggested that such overflights could be employed to monitor respect for demilitarised zones, even though this reference was in fact made in a South Asian context.53 Furthermore, the Finnish Ministry for Foreign Affairs argued that the purpose and content of the agreement did not allow territorial reservations even though no provision regarding reservations was in fact included in the agreement.54 As mentioned above, Article 4 of the Åland Convention of 1921 provides that no military air force shall enter or remain in the demilitarised and neutralised zone. The Convention does not make any distinction on the basis of the purpose of flights and the goal of intrusions. Furthermore, and as mentioned earlier, there is no right of innocent passage in the air. On 30 November 2001, the Finnish Ministry for Foreign Affairs informed the Åland Government about the planned accession to the Open Skies Treaty, in accordance with the Autonomy Act of Åland (Section 58), which requires that the Åland authorities be informed about treaty negotiations pertaining to issues within the sphere of competences of the Åland authorities, or otherwise of particular importance to the Åland Islands. In January 2002, the Ministry for Foreign Affairs of Finland provided the Åland Government with additional information, which included a description of the nature of observation aircraft and commented upon the issue of airfields.55 Under the Open Skies Treaty, the term ‘observation aircraft’ means ‘an unarmed, fixed wing aircraft designated to make observation flights, registered by the relevant authorities of a state party and equipped with agreed sensors’. Furthermore, the Ministry clarified that the term ‘unarmed’ means that the observation aircraft used for the purposes of the Treaty is not equipped to carry and deploy weapons. Finally, the Ministry noted that Finland would not have observation aircraft of its own. Regarding the question of airfields, it was explained that the only instance where an observation aircraft may land on the Åland Islands would be in an emergency situation, an exception in conformity with the Åland Convention.

53. Cited in Rotkirch (n 51) 77. 54. Rotkirch (n 51) 79. 55. Rotkirch (n 51) 79.

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The matter was discussed by the Autonomy Committee of the Åland Parliament (Självstyrelsepolitiska nämnden) in April 2002.56 After having heard several experts and officials, the Committee was of the view that Finland should inform all States Parties to the Open Skies Treaty of the obligations pertaining to the demilitarisation and neutralisation of the Åland Islands and that observation flights over the islands should not be undertaken. Since the islands were in any case demilitarised and neutralised, there was no reason for such flights to take place, argued the Committee of the Åland Parliament. The Foreign Affairs Committee of the Finnish Parliament deliberated on the matter later that same year and, as was argued by the Ministry for Foreign Affairs, concluded that there was no contradiction between the Open Skies Treaty and the Åland Convention. The Committee noted however that the Governor of Åland should be kept informed on such matters even though it was ‘unlikely’ that overflights above Åland would in fact occur.57 Finland ratified the Open Skies Treaty in December 2002. Accounts of military staff experts seem to confirm that the OSCE military aircraft avoid routes using the airspace of the demilitarised zone.58 In connection with the military exercise Nordic Peace 2003, ­Norwegian military helicopters flew over Åland on their way to Finland, with permission from the Finnish authorities. The helicopters reportedly flew at an altitude of 900 metres within the international flight routes.59 The Norwegian Defence Ministry responded that it had not been informed about the demilitarisation.60 The Minister for Foreign Affairs, Erkki Tuomioja, provided a response to a written question in the Finnish Parliament that the Finnish military had a regulated right to be present in the zone in accordance with military regulations and that there were plans at the time to investigate what practices had been followed in the matter.61 56. Autonomy Committee of the Åland Parliament Proposal on Open Skies, 10 April 2002 (Självstyrelsepolitiska nämnden, Åland lagting, Open Skies-avtalet och Ålands demilitarisering och neutralisering, Förslag Nr 1/2001-2002, 10 April 2002). 57. Utrikesutskottets betänkande, Finlands riksdag, UtUB 23/2002 rd, 15 October 2003. 58. Oral observation by Anders Gardberg, 7 September 2010, after a seminar on the demilitarisation and neutralisation. Ålands demilitarisering och neutralisering mot bakgrund av de nya europeiska utmaningarna eurooppatiedotus.fi/sv/2011/10/14/alands-demilitariseringoch-neutralisering/ (last accessed 13 December 2018). 59. Ministry of Defence of Finland, ‘Nordic Peace 2003 övningen och Åland’ (Press Release, 12 September 2003). 60. Spiliopoulou Åkermark (n 40) 65. Interestingly, this also means that the Norwegians involved in the Nordic Peace exercise of 2003 were unaware of the demilitarisation and neutralisation regime. 61. Parliament of Finland, Answer to written question 12 November 2003 (Finlands riksdag, Svar till Skriftligt spörsmål SS 457/2003, 12 November 2003).

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From 1995 (Finland joining the European Union) to 2010, there were 11 reported violations of the demilitarised zone by ships or aircraft, and as far as we know, none concerning drones. It is significant that from 2002 to 2009, according to the information provided by the Coast Guard, there were no reported violations of the demilitarised airspace, at least publicly. Since 2010, the few intrusions that have occurred have been attributed to aircraft belonging to Member States of NATO. In 2010, there were two reported aircraft intrusions in the demilitarised zone. In one case, the intrusion was made by two Dutch airplanes and, in another, by a US aircraft.62 In 2011, an American aircraft was reported to have violated the demilitarised zone in the area between the islets of Bogskär and Flötjan in the southernmost part of the Åland archipelagos. While the period after 2011 has not yet been documented systematically, there have been occasional reports in more recent years too, involving Danish, Polish, Swedish, US and Russian aircraft. Nevertheless, Russian aircraft has not been reported for any violations of the demilitarised and neutralised zone, but rather for violations of other parts of the Finnish airspace, in particular in the Gulf of Finland.63 The Nordic Peace 2003 experiences and mistakes, coupled with the exchanges concerning the Open Skies Treaty in 2002, prompted reaction from the Finnish authorities. At a conference on the Åland Islands in March 2005, Erkki Tuomioja, Minister for Foreign Affairs in Finland at the time, announced that the Finnish Government had debated the matter of overflights, inter alia, as a consequence of the debates surrounding the Nordic Peace 2003 military exercise. The Government had issued guidelines to be used for flights and passage in the demilitarised zone.64 While the Government decision of June 2004 and the subsequent Air Force regulation are classified for 25 years and are, as such, not public (Section 24 of Act on Publicity of Documents, Act No 621/1999), a considerable part of the relevant conclusions was included in the speech by the Finnish Minister for Foreign Affairs. 62. Spiliopoulou Åkermark (n 40). 63. See, eg, Svenska Yle, ‘Två amerikanska C-17-transportplan misstänks ha kränkt F ­ inlands luftrum söder om Åland, uppger Försvarsministeriet i ett pressmeddelande’ svenska. yle.fi/artikel/2015/08/23/misstanke-om-luftrumskrankning-nara-aland (last accessed 13 December 2018); Nya Åland, ‘Misstänkt luftrumskränkning söder om Åland’ www. nyan.ax/?s=misst%C3%A4nkt+luftrumskr%C3%A4nkning (last accessed 18 December 2018). 64. Erkki Tuomioja, ‘Åland och demilitarisering i dag’ (Ministry for Foreign Affairs, Finland, 2005). The minutes and decision of the Government are however not public yet, following 25 years of confidentiality under Finnish legislation.

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After briefly reviewing the circumstances of the Nordic Peace 2003 events and the core rules in the 1921 Convention on the Non-Fortification and Neutralization of the Åland Islands, the ministerial speech of March 2005 described the considerations taken by the Finnish Government in the proposals put forward for a government decision. According to the Ministry, the Government had investigated in these matters and had come to a number of conclusions. The first finding was that military aircraft had used the air route above the Åland Islands since this route is the best-served route, in terms of flight service, navigation facilities, and search and rescue possibilities. However, the Finnish Government took note of the fact that foreign military aircraft are not permitted under the demilitarisation regime. These rules ‘need to be respected rigorously’, explained the Minister for Foreign Affairs, adding that ‘military aviation is possible only for transporting persons and maintenance purposes and only in military aircraft, which is intended for such transportation goals and which are not equipped with any weapons or any special reconnaissance equipment’.65 In practice, according to the explanations offered by the Minister for Foreign Affairs, these ‘exceptions’ mainly concern cases of ‘state aircraft’ (­regeringsplan), which are used by heads of state or government or other high ranking political leaders when travelling. Other foreign military aircraft are directed through the Finnish entry permission system under the Act on Territorial Surveillance, to flight routes outside the demilitarised and neutralised zone, explained Minister Tuomioja (emphasis added). Tuomioja further stated that in the procedures for authorising aircraft entry into Finnish airspace, the conditions of the Åland Convention should be mentioned. Further comments were made with reference to ships and the prohibited transport of weapons and soldiers; however, in the present text, I shall only focus on matters of air traffic and its role in remotely piloted aircraft. In sum, in 2004 and 2005, the Finnish Government confirmed that with regard to aircraft, the interpretation and implementation of the regime meant the following: —— foreign military aircraft is not permitted under the demilitarisation regime; —— the demilitarisation and neutralisation regime is to be respected ‘rigorously’;

65. Ibid. In the original: ‘… militär luftfart är möjlig i zonen endast för person- och underhållstransporter med militära luftfartyg som är utrustade för dessa ändamål och som är obeväpnade och utan särskild spaningsutrustning’. (Translation by the author.)

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—— state aircraft used for transport of heads of state or government leaders had been allowed to use the routes over the Åland Islands; —— all other military aircraft will be directed to flight routes outside the demilitarised and neutralised zone; —— in permission procedures for aircraft entry into Finnish airspace, ‘the conditions of the Åland Convention shall be mentioned’. These conclusions and decisions are still valid today, and they also cover military drones and drones used for military purposes. A strict reading of the totality of the above analysis means that all foreign unmanned military aircraft are prohibited in the demilitarised and neutralised zone. Using the demilitarised zone of the islands to control unmanned aircraft of a military nature or in military operations is prohibited too, since the overall aim of the demilitarisation and neutralisation regime is that the islands shall never become a cause of military danger for any state. This prohibition also covers civil drones, which are involved in military activities, such as the gathering of intelligence and situational awareness information. All kinds of drones are prohibited around the airport of Mariehamn following Trafi Regulation OPS M1-32, mentioned above. Pursuant to Section 3.1.13 of the abovementioned Trafi Regulation, local instructions can be issued for uncontrolled aerodromes and heliports. However, there are potentially important developments currently taking place that shall need further evaluation in the future. At the beginning of this article, it was mentioned that NATO Secretary General Jens Stoltenberg, in connection with the inauguration of the Centre of Excellence on Hybrid Threats in Finland in October 2017, announced the development of NATO drones. Whether drones operated by NATO or by Finland but providing NATO with situational awareness information shall be used in Finnish airspace is not yet clarified. However, in such situations, the norms mentioned in the previous section concerning aviation in the demilitarised zone apply. Similarly, in November 2016, the Finnish Government announced that changes are to be introduced in the system of granting diplomatic clearances, ie entry permissions for military aircraft, as well as for other military actors.66 The Government Regulation on Territorial Surveillance was then amended in order to allow for long-term diplomatic clearances, including a possibility for annual entry permissions with regard to countries in the European ­Economic Area (EEA) region (which includes EU Member States together

66. Regarding recent developments on diplomatic clearances, see Spiliopoulou Åkermark (n 28) 114.

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with N ­ orway, Iceland and Liechtenstein), as well as for states applying the Schengen Agreement.67 This means that it is not only European Union Member States, bound by the Common Foreign and Security Policy of the Union, which are potential beneficiaries of such long-term permissions. Permissions can also be granted on a yearly basis to Iceland, Lichtenstein, Norway and Switzerland. For the time being, the United Kingdom, although a member of the EU, is not participating in the Schengen cooperation. It remains to be seen how this aspect shall be accommodated in future.68 It is not yet clear whether such permits may also concern unmanned aircraft, nor how attention to the demilitarisation of the Åland Islands shall be handled in such decision-making. In addition to the time aspect, ie the length of permissions, which has been justified by considerations for simplification and efficiency by the Finnish Government, a more substantial broadening is included in the same revision of the Finnish Regulation on Territorial Surveillance. Earlier, entry permissions were granted only to aircraft that had no weapons and no surveillance equipment, thus, mainly for transporting persons and maintenance goals. Now, permissions are granted to military persons and military aircraft even if such an aircraft (or ship) carries weapons or has surveillance equipment.69 Following Section 18 of the Regulation, remotely piloted aircraft are always to be regarded as a military aircraft. However, following a further change in the same Regulation, ‘unauthorised’ state aircraft are to be warned and escorted out of Finnish airspace. In the previous wording of the Regulation, it was stated ‘state aircraft without permission’. This could mean that the Border Guards and the Air Force need to keep track of long-term permissions, which may include several aircraft with varying equipment and tasks. They need to, presumably, be able to direct such aircraft if conditions and instructions are not observed. Such direction of an aircraft may be cause for concern with reference to drones since a drone operator may be situated outside Finnish territory, or a drone may be fully

67. Finnish Government, ‘Statsrådets beslut om en ändring av territorialövervakningsförordningen’, Decision of 10 November 2016 and Regulation on Territorial Surveillance No 968/2016 amending the core Regulation 971/2000. The amendments entered into force in January 2017. 68. In July 2016 and during the NATO Top Meeting in Warsaw, Finland and the UK signed a framework agreement for cooperation in the field of defence. In September 2016, the UK Embassy in Helsinki re-opened its resident Defence Section and appointed a resident Defence Attaché. See the press releases on the issues: valtioneuvosto.fi/sv/artikeln/-/asset_ publisher/suomen-ja-iso-britannian-puolustusministerit-allekirjoittivat-puiteasiakirjan and www.gov.uk/government/world-location-news/british-embassy-helsinki-reopensthe-defence-section (last accessed 13 December 2018). 69. Finnish Government, Regulation on Territorial Surveillance (No 968/2016).

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autonomous. Added to these new complications is the new Finnish legislation concerning the receipt and provision of assistance, including military assistance.70

6. Conclusions The above analysis reveals that recent legal and political developments in the field of airspace regulation and including the multiple usages of drones for military purposes pose several questions concerning the interpretations and practices by Finland and other concerned states surrounding the rules of the demilitarisation and neutralisation of the Åland Islands. The registration and identification of state drones and the distinction between civil and military drones pose initial difficulties. Ensuring that foreign military drones, as well as any civil drones performing military activities remain outside the demilitarised and neutralised zone, is another set of empirical questions. This is particularly problematic when having to deal with remotely operated or autonomous systems. The use of drones accentuates even further the fusion of civil and military actors and activities, as well as the fusion between private actors and state authorities. The sharp distinction between civil aircraft and state aircraft, institutionalised in the 1919 and 1944 aviation conventions, becomes problematic when civil aircraft, including drones, are owned and/or operated by private contractors or mixed institutions of a privatepublic nature and when such actors are involved in the exercise of public tasks. Such tasks can include surveillance, situational awareness, border control, or defence. While the cost of high technological and heavy airplanes may be prohibitive for private interests, this is not a major obstacle for some types of drones, which is why the fusion of private and public responsibility and control is likely to intensify in the future. The more than 160-year-old rules on the demilitarisation and neutralisation of the Åland Islands rest upon a conceptualised distinction between what is civil and peaceful and what is military and for purposes of war. These rules still aim to ensure that the islands shall never become a military threat for any state, including Finland, as explained in the preamble of the 1921 Convention on the Non-Fortification and Neutralization. Finland shall, therefore, need to ensure, in the future too, a clear line of control and responsibility in observance of the d ­ emilitarisation

70. Act No 418(2017). For the background and implications of this new piece of legislation, see Spiliopoulou Åkermark (n 9) 271–73 and Sia Spiliopoulou Åkermark et als, Demilitarisation and International Law in Context – The Åland Islands (New York & London, Routledge, 2018) 69, 86, 99, 102.

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and neutralisation rules, together with a clear policy in the minimisation of military activity and use of force in and around the demilitarised zone. However, such a clear line is not visible now. Following the conclusions of the process concerning the ratification of the Open Skies Treaty (2002), the prohibition of foreign military aircraft in the demilitarised zone also covers foreign observation aircraft, thus, including drones. The demilitarised and neutralised zone of the Åland Islands cannot be used as a basis for the operation of military drones, or drones engaged in military activity even if such activity takes place outside the demilitarised zone as such. The Finnish Government’s decisions and outlines from 2005, concerning the management of the airspace of the demilitarised and neutralised zone of the Åland Islands, operationalised the demilitarisation rules as they apply in this airspace. These rules and decisions are in force today and apply to drones, but have not been discussed, at least publicly, with specific reference to the usage of drones, for instance, by the Finnish Border Guard. Such discussions are particularly important at a time when the European Union, under perceived pressures of the ‘refugee crisis’, has agreed on a common border guard organisation, which shall reportedly include drones.71 This also holds true for more recent decisions by the Finnish Government regarding the introduction of long-term diplomatic clearances, ie entry permissions, for military aircraft, perhaps even drones, even though this has not been clarified. Such permissions, for aircraft and drones, are, in principle, not legally acceptable within the demilitarised and neutralised zone of the Åland Islands. Technological development and new forms of cooperation and regional integration can be used by Finland and other states as an occasion to confirm and reinvigorate the demilitarisation and neutralisation regime, including as applied in the air. Finding ways to ensure that military drones and military operations of civil drones are kept outside the demilitarised and neutralised zone cannot be more difficult than planning for and programming any concrete action, if the political and diplomatic will is in place. However, such developments can also result in undermining the effectiveness and credibility of the legally valid rules of the demilitarisation and neutralisation of the Åland Islands. This would also mean erosion of the overall relevance of international law in Finnish foreign policy and in international affairs. International law is, 71. European Commission, Proposal for a Regulation … on the European Border and Coast Guard, COM(2015) 671 final and Press Release (22 June 2016) europa.eu/rapid/pressrelease_IP-16-2292_en.htm (last accessed 13 December 2018); and Justin Stares, ‘EU Plans Drone Fleet to Track Migrants’ www.politico.eu/article/european-union-fleet-ofdrones-to-track-migrants-refugees/ (last accessed 13 December 2018).

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after all, not any better – nor any worse – than it is made to be by the actors responsible for it. The regime of the demilitarisation and neutralisation of the Åland Islands has survived many challenging times, wars, revolutions, political transitions, etc and it has been able to accommodate technological and political developments over the years. There seems to be no good reason why this could not be done today, with reference to drones and other autonomous technologies. The main research question posed at the outset of this article was whether the demilitarisation and neutralisation regime of the Åland Islands, for which observance Finland holds the core responsibility, is legally prepared to deal with drone issues. There is no clear answer to this question. Legal rules concerning territorial surveillance, the border guard, the relation between military and civilian authorities and drones are evolving rapidly in Finland currently. The seduction of new technology seems, for the moment, to be stronger than the commitment to a restrictive use of force and to the clarification of rules. This, coupled with the great volatility of the relevant legal frameworks described above and with the priority given to budgetary efficiency, gives cause for concern about future trajectories and makes even more important the engagement of lawyers in such debates.

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Proving a State’s Involvement in a Cyber-Attack: Evidentiary Standards before the ICJ Isabella Brunner, Marija Dobrić and Verena Pirker* Abstract: In 2017, the Internet dominates a large part of the worldwide population. Despite its vast benefits, however, it has also been used to cause severe damage to states. Hostile cyber activities seem to have occurred more frequently over the past years. It is already recognised that international law – thus also the law on state responsibility – is applicable to cyber-related issues. However, particularly in the context of inter-state relations, the question of how states are able to seek reparation in front of the International Court of Justice for damage caused by a cyber-attack conducted by a state remains open to debate. This is primarily due to the fact that the cyber sphere enjoys a considerable amount of anonymity, which makes it hard to establish the main perpetrator behind an act. Therefore, calls have been made to shift the burden of proof or to lower the evidentiary standard required by the Court. In this article, the present authors will assess the relevant case law of the Court and apply it to two scenarios: a cyber-attack violating the prohibition of use of force and the non-intervention principle. The aim is to display the Court’s line of reasoning and assess whether the scholarly demands to ease evidentiary issues, by shifting the burden or lowering the standard of proof, are justified or not. Additionally, the present authors will address a yet in the cyber-context unexplored, but nevertheless, important tool in collecting sufficient evidence: the power of the Court to appoint experts. Keywords: cyber-attack, attribution, state responsibility, evidence, International Court of Justice, burden of proof, standard of proof

* Isabella Brunner works in the Office of the Legal Adviser (Department of Public International Law) at the Austrian Federal Ministry for Europe, Integration and Foreign Affairs. Marija Dobrić is a Researcher and Lecturer at the Section for International Law and International Human Rights Law at Bundeswehr University Munich. Verena Pirker is affiliated with the Section for Public International Law at the University of Vienna. The authors would like to thank Philipp Janig for his helpful advice during the drafting of this article.

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1. Introduction Since the emergence of the Internet in the 1980s, various actors – both private and governmental – became the target of foreign cyber operations.1 While thus being a ‘relatively’ new phenomenon in our society, it is unquestionable that their frequency and impact is rising with each year. This is owed to the fact that nowadays, individuals, private companies and governments increasingly and more intensely operate online.2 Cyber operations targeted against states themselves generally aim to bring down governmental infrastructures, such as computer systems of institutions and governmental web pages. This has occurred, for instance, in Estonia and Georgia, where several facilities were brought down through so-called Distributed Denial of Service (DDoS) attacks.3 Another operation that has created widespread interest among international lawyers and remains heavily debated is the cyber hack into the emails of the US Democratic National Committee during the 2016 US presidential elections. One of the most recent large-scale cyber operations was the so-called NotPetya attack on 27 June 2017, targeting primarily Ukraine.4 However, the most consequential cyber operation so far remains the 2010 attack on Iran’s Natanz nuclear facility plant, which is believed to have been carried out by Israel and the US. Through an infected USB device, it allegedly led to the physical damage of a significant number of centrifuges.5 As demonstrated above, the methods of launching a cyber-attack may vary in many ways (be it a DDoS attack or infiltration of malicious software). Nevertheless, all cyber-attacks so far have had one thing in common: the attacker was and remains fairly difficult to determine. As a consequence, it appears 1. For a general analysis on the history of cyber operations up until 2010, see Heather H ­ arrison Dinniss, Cyber Warfare and the Laws of War, 1st edn (Cambridge, Cambridge University Press, 2012) 281–92. One of the first cyber operations was the attack on the Trans-Siberian Pipeline in 1982, see Dinniss, ibid, 6. 2. Constantine Antonopoulos, ‘State Responsibility in Cyberspace’ in Nicholas Tsagourias and Russell Buchan (eds), Research Handbook on International Law and Cyberspace, 1st edn (Cheltenham, Edward Elgar Publishing, 2015) 55, 56. 3. For more details, see section 2. 4. Nicole Perlroth, Mark Scott and Sheera Frenkel, ‘Cyberattack Hits Ukraine Then Spreads Internationally’ The New York Times (27 June 2017) www.nytimes.com/2017/06/27/ technology/ransomware-hackers.html; References to online sources are accurate as of 30 July 2017. 5. Dinniss (n 1) 291–92; Richard Stiennon, ‘A Short History of Cyber Warfare’ in James A  Green (ed), Cyber Warfare: A Multidisciplinary Analysis, 1st edn (London/New York, Routledge, 2015) 7, 20ff; Michael N Schmitt and Liis Vihul, ‘Proxy Wars in Cyber Space’ (2014) 1 Fletcher Security Review 53, 54.

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that cyber operations may gradually be seen as a new and viable method through which states are able to inflict harm upon other states, enabling them to ‘hide behind their proxy servers’ while reaching their objectives.6 This results from the immense technical difficulties in attributing cyber operations to other states – also due to the possibility to conceal traces by methods such as IP spoofing – essentially giving states ‘impunity in cyberspace’.7 Therefore, victim states are often left unable to evince the origins of the act, making it impossible to persuasively attribute a wrongful act to another state. These factual difficulties, however, have significant legal consequences, especially because they will most certainly prevent state responsibility from being triggered, which thus gradually undermines the international legal order. Thus, although victim states often have at least an educated guess on the identity of the actual perpetrator, they remain reluctant to point fingers. And while some states have publicly accused other states for cyber operations in the past,8 so far none has resorted to international litigation in an attempt to pursue reparation. In fact, to date there has not been a single dispute on this issue brought before the International Court of Justice (ICJ). This contribution therefore explores how far the past case law of the ICJ gives guidance on how it might deal with a case concerning state responsibility for an injury arising out of a cyber-attack.9 For the purpose of this article, cyber-attacks shall be considered to constitute any state-operated hostile intrusion into the cyber facilities of another state.10 Thus, the focus lies solely on cyber activities conducted by a state 6. Marco Roscini, ‘Evidentiary Issues in International Disputes Related to State Responsibility for Cyber Operations’ in Jens David Ohlin, Kevin Govern and Claire Finkelstein (eds), Cyberwar: Law and Ethics for Virtual Conflicts, 1st edn (Oxford, Oxford University Press, 2015) 215; Joel Brenner, America the Vulnerable: Inside the New Threat Matrix of Digital Espionage, Crime, and Warfare, 1st edn (London, Penguin Press, 2011) 32. 7. David A Wheeler and Gregory N Larsen, ‘Techniques for Cyber Attack Attribution’, Institute for Defence Analyses, IDA Paper P-3792 (2003) 1, 2–3; Schmitt and Vihul (n 5) 54. 8. For instance, most recently, Ukrainian officials accused Russia of launching NotPetya, see Security Service of Ukraine, ‘SBU established involvement of the RF special services into Petya.A virus-extorter attack’, 1 July 2017 ssu.gov.ua/en/news/1/category/2/view/3660#. MJq3PmgP.dpbs. 9. See Articles 34-37 ILC, Articles on Responsibility of States for Internationally Wrongful Acts, UNGA Resolution 56/83, 12 December 2001, UN-Doc A/56/10 (ILC Articles on State Responsibility). 10. Note that this is only a non-legal, descriptive working definition for the purpose of this article. See for a similar definition, Oona A Hathaway and Rebecca Crootof, ‘The Law of Cyber-Attack’ (2012) 100 California Law Review 817, 826: ‘A cyber-attack consists of any action taken to undermine the functions of a computer network for a political or national security purpose.’

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t­argeting another state.11 This contribution, however, will not delve into issues that might arise out of the law of armed conflict.12 In section 2, this article starts with illustrating evidentiary difficulties relating to cyber operations exemplified by Estonia and Georgia – two states that have been suffering under relatively harmful DDoS attacks. Thereafter, in section 3, the contribution provides a general overview over the ICJ’s past jurisprudence on its evidentiary standards and clarifies the standards the Court has required in the past for the establishment of certain breaches of international law. In particular, two possible breaches, the violation of the use of force principle and the prohibition of non-intervention and their attribution to a state are of interest in the case of cyber-attacks. In this context, the present authors will also address the newest large-scale cyber operations and conclude if they could be considered a violation of these two principles (section 4). Thereafter, the specific standard of proof required by the Court when examining the violation of the prohibition of the threat or use of force and non-intervention principle, as well as the burden of proof, will be addressed in more detail. Finally, in section 5, already suggested solutions by legal scholars to overcome evidentiary difficulties related to cyber-attacks will be analysed: shifting the burden of proof and lowering the evidentiary standard used by the Court (sections 5.1 and 5.2). The present authors will additionally address a significant topic that has been disregarded so far, namely the extremely difficult task to collect sufficient evidence in the cyber-context. Thus, without the Court’s involvement, it is the authors’ contention that it would be almost impossible for states to meet the required evidentiary standard (section 5.3).

2. Cyber-Attacks and Evidentiary Difficulties: Estonia and Georgia In the current cyberspace era, where societies are more and more reliant on computer networks, cyber-attacks are becoming an ever-growing threat.13 As Roscini rightly pointed out: ‘The more digitally reliant a state is, the more 11. Non-state actors are omitted, unless they can be attributed to a specific state. The authors will, accordingly, focus on attribution pursuant to Articles 4-11 ILC Articles on State Responsibility. For a specific analysis on attribution of cyber-attacks, see section 4.3. 12. See generally, David Turns, ‘The Law of Armed Conflict (International Humanitarian Law)’ in Malcolm Evans (ed), International Law, 4th edn (Oxford, Oxford University Press, 2014) 821. 13. Dinniss (n 1) 12. This is especially true where governments operate in cyberspace, see Antonopoulos (n 2) 56.

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vulnerable to cyber attacks: if computer systems become the society’s ‘nerve system’, incapacitating them may mean paralyzing the country.’14 The weakness of a state, which is highly dependent on computer networks and electronic information, was best observed in Estonia, when it was the target of several DDoS attacks15 in 2007.16 In what was one of the most prominent cyber-attacks in history to date, several Estonian governmental web pages and services became victims of DDoS attacks.17 The series of attacks, which lasted about three weeks, also targeted the Estonian banking system and media, including newspapers and TV stations, as well as other companies.18 Interestingly, the operation occurred closely after the Estonian Government decided to remove a Soviet Second World War memorial from the Tallinn city centre, which led to protests of Russian youth groups and vocal opposition by the Russian Government itself.19 Due to the political circumstances and the fact that some of the attacks could be traced back to IP addresses of Russian state institutions, Estonia accused Russia of the operation.20 Russia, however, denied any involvement and responsibility for the attacks and eventually, Estonia backed away from its accusations.21 Similarly, the DDoS attacks conducted against Georgia in 2008 could, to some extent, be traced back to IP addresses belonging to Russian stateoperated companies.22 The attacks happened at the time where Georgia was already involved in an armed conflict with Russia over South Ossetia.23 14. Marco Roscini, Cyber Operations and the Use of Force in International Law, 1st edn (Oxford, Oxford University Press, 2014) 1. 15. Distributed Denial of Service attacks ‘[…] aim to crash a target site by bombarding it with bogus requests for information’. See Scott J Shackelford, ‘From Nuclear War to Net War: Analogizing Cyber Attacks in International Law’ (2008) 28 Berkeley Journal of International Law 192, 203. 16. See also Dinniss (n 1) 289: ‘[…] for a highly technology-dependant state like Estonia, that depends on the internet for everything from parking to banking to voting, the attacks caused serious disruption and damage estimated at tens of millions of euros.’ Estonia is one of the most wired countries in the world. Roscini (n 14) 4. 17. Eneken Tikk, Kadri Kaska and Liis Vihul, ‘International Cyber Incidents: Legal Considerations’ (CCD COE, 2010) ccdcoe.org/publications/books/legalconsiderations. pdf, 16, 18; Shackelford (n 15) 202, fn 57. 18. Dinniss (n 1) 289; Tikk, Kaska, Vihul (n 17) 16. 19. Dinniss (n 1) 289; Tikk, Kaska, Vihul (n 17) 15–16. 20. Dinniss (n 1) 289; Tikk, Kaska Vihul (n 17) 23. 21. Dinniss (n 1) 289; Roscini (n 6) 216; Roscini (n 14) 5; Ian Traynor, ‘Web attackers used a million computers, says Estonia’ The Guardian (18 May 2007) www.theguardian.com/ technology/2007/may/18/news.russia. 22. Roscini (n 6) 216; Tikk, Kaska, Vihul (n 17) 75. 23. NATO Review Magazine, ‘The History of Cyber Attacks – a Timeline’ www.nato.int/ docu/review/2013/cyber/timeline/EN/index.htm; Stiennon (n 5) 18.

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While Georgia tried to hold on to the region, Russia supported it in its aim to become independent.24 Both attacks were merely accompanied by circumstantial evidence.25 In order to successfully claim Russia’s involvement, the tense political climate between both Georgia and Russia as well as Estonia and Russia was brought forward in combination with the fact that the attack could be tracked back to Russian IP addresses.26 However, neither Estonia nor Georgia could provide essential evidence in order to attribute those cyber operations to Russia.27 What is more, many experts do not believe that Russian authorities were behind the Georgian attacks, but want to attribute them rather to Russian patriotic hackers.28 While technical attribution is very helpful in the determination of the originator of an attack, it cannot provide perfect accuracy.29 First, the actual attacker can make attribution30 very difficult and conceal his/her paths and traces through tactics like IP spoofing, botnets31 or ‘onion routing’.32 Through IP spoofing, for instance, individual hackers might try to feign

24. Tikk, Kaska and Vihul (n 17) 68. 25. Corfu Channel (United Kingdom v Albania), ICJ Reports (1949) 58, Dissenting Opinion of Judge Badawi, 59: ‘[…] [I]n international law, circumstantial evidence means facts which, while not supplying immediate proof of the charge, yet make the charge probable with the assistance of reasoning’; Chittharanjan F Amerasinghe, Evidence in International Litigation, 1st edn (Leiden, Martinus Nijhoff Publishers, 2005) 224. For more details on circumstantial evidence and its effect on the standard of proof, see section 3. 26. Christian Czosseck, ‘State Actors and their Proxies in Cyberspace’ in Katharina Ziolkowski (ed), Peacetime Regime for State Activities in Cyberspace (Tallinn, NATO Cooperative Cyber Defence Centre of Excellence, 2013) 1, 23–24. 27. Stiennon (n 5) 19. 28. Tikk, Kaska, Vihul (n 17) 75–76. 29. Nicholas Tsagourias, ‘Cyber Attacks, Self Defence and the Problem of Attribution’ (2012) 17 Journal of Conflict and Security Law 229, 234. 30. Regarding technical attribution of cyber-attacks in general, see Wheeler and Larsen (n 7) 2ff; Mauno Pihelgas, ‘Back Tracing and Anonymity in Cyberspace’ in Ziolkowski (n 26) 31, 35. 31. Czosseck (n 26) 3, fn 5: ‘A botnet, a network of robots, consists of a special malware used to infect victim systems, including the essential feature of enabling remote control over these systems via a so-called Command and Control (C&C) server maintained by the botnet’s creator. If done on a larger scale (and some of them are even counting tens of millions bots), a network of hijacked systems is formed and centrally controlled by the so-called botmaster, who possesses impressive power […].’ 32. See Pihelgas (n 30) 45, who pointed out that onion routing is the name of ‘[…] special anonymity applications that enable the user to access the internet anonymously. They make use of multiple public or private proxy servers that relay encrypted data across several randomly chosen nodes on the anonymity network.’

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their identity and erroneously attribute cyber-attacks to an innocent state.33 Hackers can also use computer networks over the whole world to launch an attack, and as data goes through various countries, it is even more difficult to identify one single state as responsible for the cyber operation.34 For instance, 85,000 computers from 178 different countries carried out the DDoS attacks against Estonia.35 If a state suffers damage from a cyber-attack like Estonia, where ­damage amounted to tens of millions of euros,36 and if it can be established that the attack constitutes an internationally wrongful act (eg an unlawful intervention),37 one would think that it might have an interest in invoking state responsibility for its injury before the ICJ. In this case, the victim state would have to provide evidence in support of its claim, namely that a specific state was behind the cyber-attack which is consequently obligated to make reparation under the ILC Articles on State Responsibility. Despite the fact that the Court has not dealt with a dispute concerning cyber-attacks yet, it was nevertheless already confronted with difficult fact-finding. Therefore, the next section will deal with a general analysis on the standard of proof which the ICJ will require in a proceeding to successfully attribute an internationally wrongful act to the perpetrator.

3. Evidentiary Standards before the International Court of Justice In order to invoke state responsibility, a victim state needs evidence to 1) establish the material elements of the wrongful act, as well as 2) a­ ttribute this act to the alleged perpetrator.38 In general, such evidence needs to be persuasive in order to satisfy the court/tribunal of the truthfulness of its allegation. 33. Michael N Schmitt, ‘Cyber Activities and the Law of Countermeasures’ in Ziolkowski (n 26) 659, 668. For details, see Benedikt Pirker, ‘Territorial Sovereignty and Integrity and the Challenges of Cyberspace’ in Ziolkowski (n 26) 189, 212. 34. Wheeler and Larsen (n 7) 4; Antonopoulos (n 2) 64; Tsagourias (n 29) 233. 35. Tsagourias (n 29); Roscini (n 6) 216. 36. Dinniss (n 1) 289; Traynor (n 21). 37. See section 4 for a specific analysis on internationally wrongful acts and their attribution to states under the ILC Articles on State Responsibility in the special context of cyber-attacks. 38. See accordingly, Article 2 ILC Articles on State Responsibility: ‘There is an internationally wrongful act of a State when conduct consisting of an action or omission: (a) is attributable to the State under international law; and (b) constitutes a breach of an international obligation of the State.’; Roscini (n 6) 220.

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This section will show that, concerning the responsibility of states, the ICJ’s case law indicates that three different types of standards can be distinguished. All of them will be explained below. Before examining the evidentiary standards, it is important to highlight that the Court generally enjoys wide discretion in matters of evidence.39 Neither the Statute nor the Rules of Court contain formal rules regarding the Court’s handling of evidence and in particular, the evaluation of the probative value of evidence submitted by the parties.40 Accordingly, Article 58(2) Rules of Court only stipulates that ‘[…] the method of handling the evidence […] shall be settled by the Court after the views of the parties have been ascertained […].’41 The Rules of the Court, equally, do not mention which standard of proof has to be applied by the Court nor which methods of proof (eg documentary evidence) are persuasive enough to the ICJ to meet a certain standard.42 This wide discretionary power, therefore, not only applies to fact-finding in general, but also to the Court’s choice of the appropriate evidentiary standard in a given case.43 39. Keith Highet, ‘Evidence, the Court and the Nicaragua Case’ (1987) 81 American ­Journal of International Law 1, 7; Ruth Teitelbaum, ‘Recent Fact-Finding Developments at the International Court of Justice’ (2007) 6 Law and Practice of International Courts and Tribunals 119, 122; Mojtaba Kazazi, Burden of Proof and Related Issues, 1st edn (The  Hague, Kluwer Law International, 1996) Vol I, 323; Anna Riddell and Brendan Plant (eds), Evidence before the International Court of Justice, 1st edn (London, British Institute of International and Comparative Law, 2009) 6; Markus Benzing, ‘Evidentiary Issues’ in Andreas Zimmermann, Christian Tomuschat, Karin Oellers-Frahm and ­Christian Tams (eds), The Statute of the International Court of Justice: A Commentary, 2nd edn (Oxford, Oxford University Press, 2012) 1234, 1264: Also other international tribunals enjoy wide flexibility in matters of evidence and are free to evaluate the evidence submitted to them, see eg with regard to the US-Iran Claims Tribunal, Article 25(6) Tribunal Rules of Procedure; see also GATT/WTO Dispute Settlement, Article 11 Dispute Settlement Understanding. This contribution, however, will only focus on the ICJ. 40. See Durward Sandifer, Evidence before International Tribunals (New York, Kraus Reprint Co, 1971) 10–11, 14: ‘The rule of the free evaluation of evidence has been applied by the Permanent Court of International Justice, although it is not set forth either in the Statute or in the Rules.’; Keith Highet (n 39) 10. 41. Article 58(2), ICJ, Rules of Court, 14 April 1978, 17 ILM 1286 (Rules of Court). For instance, the Court itself has confirmed numerous times that ‘within the limits of its Statute and Rules, [it has] freedom in estimating the value of the various elements of evidence’. See Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States) (Merits), ICJ Reports (1986) 14, para 60 (Nicaragua [Merits]); Benzing (n 39) 1264. 42. Roscini (n 6) 227; Sir Arthur Watts, ‘Burden of Proof, and Evidence before the ICJ’ in Friedl Weiss (ed), Improving WTO Dispute Settlement Procedures: Issues & Lessons from the Practice of Other International Court & Tribunals, 2nd edn (London, Cameron May, 2001) 289, 294. 43. Roscini (n 6) 227.

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When discussing the standard of proof, however, it is inevitable to discuss the issue of burden of proof beforehand.44 Most importantly, the two should not be confused. Burden of proof means that the party who asserts a fact in the proceeding is also the party who bears the burden of proving it,45 namely ‘to convince the Court of the truthfulness of its claim’.46 Only after it becomes clear which party bears the burden of proof, the Court is called upon to decide on the necessary standard.47 In this sense, the standard of proof stipulates which degree of probability has to be provided by the party to convince the Court48 or more specifically, the quantum of proof that has to be shown in order to ‘[…] discharge the burden of proof when that burden rests upon [that party]’.49 Looking at the rare amount of cases where the ICJ has touched upon the question of evidentiary standards, it becomes evident that there is not a single standard for all disputes arising before it.50 In cases concerning state responsibility,51 the actual standard of proof in a given case is determined by the substantive nature of the obligation, which was breached and is claimed by a party.52

44. Watts (n 42) 294. 45. Teitelbaum (n 39) 121. 46. Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States) (Jurisdiction and Admissibility), ICJ Reports (1984) 437, para 101. See section 4.4.a) for a detailed analysis on the burden of proof in the context of cyber-attacks. 47. Juan José Quintana, Litigation at the International Court of Justice, 1st edn (Leiden, Brill, 2015) Vol 10, 405. Chester Brown, A Common Law of International Adjudication, 1st edn (Oxford, Oxford University Press, 2007) 97. 48. Robert Kolb, ‘General Principles of Procedural Law’ in Andreas Zimmermann, Christian Tomuschat and Karin Oellers-Frahm (eds), The Statute of the International Court of Justice: A Commentary, 1st edn (Oxford, Oxford University Press, 2006) 793, 829. 49. Case Concerning Pulp Mills on the River of Uruguay (Argentina v Uruguay), ICJ Reports (2010) 221, Separate Opinion of Judge Greenwood, para 25 (Pulp Mills [Separate Opinion of Judge Greenwood]); Quintana (n 47) 405. 50. Corfu Channel (n 25) 4; Nicaragua (Merits) (n 41); Oil Platforms (Islamic Republic of Iran v United States), ICJ Reports (2003) 161; Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), ICJ Reports (2005) 168 (Armed Activities); Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), ICJ Reports (2007) 43 (Bosnian Genocide). 51. Other cases, such as boundary disputes, will not be discussed here. For a short analysis on the balance of probabilities standard which is applicable to boundary disputes, see Riddell and Plant (n 39) 133. 52. cf Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain), ICJ Reports (1995) 51, Dissenting Opinion of Judge Shahabuddeen, 63; Corfu Channel (n 25) 16–17; Benzing (n 39) 1266; Riddell and Plant (n 39) 132; Roscini (n 6) 232.

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The fact that the Court requires different evidentiary standards depending on the level of seriousness of the breach became most evident in its Bosnian Genocide judgment.53 In that case, the Court highlighted the difference between proving the commission of genocide and proving the failure to prevent genocide, as well as to punish and extradite persons charged with the crime of genocide.54 While the Court stated that it requires fully conclusive evidence for charges of exceptional gravity and has to be fully convinced that the act of genocide was committed by the respondent, it pointed out that it ‘only’ requires proof at a high level of certainty appropriate to the seriousness of the allegation for other charges than of exceptional ­gravity.55 This was the case with proving that the Federal Republic of Yugoslavia failed to prevent the commission of genocide,56 which is consequently a less severe violation of international law compared to the commission of genocide. Accordingly, Judge Greenwood pointed out that if cases exist where a state claims charges of exceptional gravity against another state, there have to be cases where a party claims less serious breaches and in those disputes, a lower standard of proof would be appropriate.57 While the Bosnian Genocide case clearly shows that the ICJ requires a higher degree of certainty for serious charges, it is more difficult to perceive the exact difference between – in what seems like – a variety of evidentiary standards mentioned in the Court’s other case law. This is exemplified by the Court’s approach to use terms such as ‘­convincing/convinced’,58 ‘conclusive’,59 ‘sufficient’60 and ‘insufficient/not sufficient ­evidence’61 rather confusable so far instead of explaining which

53. Bosnian Genocide (n 50); Quintana (n 47) 406. 54. Bosnian Genocide (n 50) para 209: ‘[…] The Court has long recognized that claims against a State involving charges of exceptional gravity must be proved by evidence that is fully conclusive […]. The Court requires that it be fully convinced that allegations made in the proceedings, that the crime of genocide or the other acts enumerated in Article III have been committed, have been clearly established. […].’; Quintana (n 47) 406. 55. Bosnian Genocide (n 50) para 210: ‘In respect of the Applicant’s claim that the Respondent has breached its undertakings to prevent genocide and to punish and extradite persons charged with genocide, the Court requires proof at a high level of certainty appropriate to the seriousness of the allegation.’; Tsagourias (n 29) 235. 56. Bosnia and Herzegovina claimed this to be a breach of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. 57. Quintana (n 47) 406; Pulp Mills (Separate Opinion of Judge Greenwood) (n 49) para 25. 58. Armed Activities (n 50) para 91; Oil Platforms (n 50) para 76. 59. Corfu Channel (n 25) 17; Bosnian Genocide (n 50) para 209. 60. Armed Activities (n 50) paras 246, 250; Nicaragua (Merits) (n 41) para 281. 61. See, eg, Corfu Channel (n 25) 16; Nicaragua (Merits) (n 41) paras 110, 216; Oil Platforms (n 50) para 57; Armed Activities (n 50) para 342.

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specific s­ tandard it applies to find the facts of an allegation established.62 The inconsistency in its method can also be seen in the fact that the ICJ mentions different standards in the same judgment, as can be seen in Corfu Channel.63 Nevertheless, it must be noted that this case is significant in the sense that it helps to identify two standards which are not appropriate in state responsibility cases. In his Dissenting Opinion in Corfu Channel, Judge Krylov, for instance, remarkably spoke out against a preponderance of evidence/balance of probabilities standard64 when state responsibility is invoked by a party: ‘One cannot condemn a State on the basis of probabilities. To establish international responsibility, one must have clear and indisputable facts.’65 In the authors’ opinion, this seems plausible. The application of a balance of probabilities standard essentially means that the truthfulness of an allegation has to be ‘more probable than not’66 compared to the evidence submitted by the alleged perpetrator. This, however, cannot suffice to establish international responsibility convincingly. Such a low standard might very easily lead to a false attribution of internationally wrongful acts, which ultimately were not committed by the state, although it might indeed seem this way.67 Accordingly, it is important to highlight that the Court itself never used a balance of probabilities standard with regard to a state responsibility case. The Corfu Channel case also indicates that proof beyond reasonable doubt, a standard applied in national and international cases concerning the criminal responsibility of individuals,68 is not an appropriate standard before

62. Benzing (n 39) 1265; see also Oil Platforms (n 50) 270, Separate Opinion of Judge Buergenthal, para 41: ‘One might ask, moreover, where the test of “insufficient” evidence comes from … and by reference to what standards the Court applies it? What is meant by “insufficient” evidence? Does the evidence have to be “convincing”, “preponderant”, “overwhelming” or “beyond a reasonable doubt” to be sufficient? The Court never spells out what the here relevant standard of proof is.’; Riddell and Plant (n 39) 129–30. 63. See Corfu Channel (n 25) 14, 16, 17, 18; Riddell and Plant (n 39) 126–27. 64. The preponderance of evidence standard is also known as balance of probabilities. ‘“Preponderance of evidence” generally means that there is evidence greater in weight in comparison with the evidence adduced by the other party on the basis of reasonable probability rather than possibility.’ See Amerasinghe (n 25) 242. 65. Corfu Channel (n 25) 68, Dissenting Opinion of Judge Krylov, 72; Riddell and Plant (n 39) 133. 66. See the well-known definition by Lord Denning with regards to the preponderance of evidence standard in Miller v Minister of Pensions [1947] 2 ALL ER 371, 373–74; Riddell and Plant (n 39) 124. 67. Roscini (n 6) 230. See more on this issue in section 4.3. 68. For further details, see at n 88.

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the ICJ, even if charges against a state are of exceptional gravity.69 However, where such a grave breach is alleged, the Court does require a relatively high degree of certainty, namely fully conclusive evidence. Consequently, in Corfu Channel, the Court has not found that the UK met this high standard when claiming that the minefield was laid with the connivance of Albania.70 This finding was later confirmed in Bosnian Genocide, where the Court equally refrained from applying the proof beyond reasonable doubt standard.71 However, the foregoing only applies to claims for which direct proof is available.72 Where mere circumstantial evidence is submitted by a party, the ICJ did require that proof must leave no room for reasonable doubt.73 Again, the ICJ determined the exact parameters in Corfu Channel, when it noted with regards to the claim brought forward by the UK that Albania knew about the minefield in its territorial waters: […] the fact of this exclusive territorial control exercised by a State within its frontiers has a bearing upon the methods of proof available to establish the knowledge of that State as to such events. By reason of this exclusive control, the other State, the victim of a breach of international law, is often unable to furnish direct proof of facts giving rise to responsibility. Such a State should be allowed a more liberal recourse to inferences of fact and circumstantial evidence. […] The proof may be drawn from inferences of fact, provided that they leave no room for reasonable doubt.74

Essentially, the ICJ held on the basis of circumstantial evidence – meaning facts which considered together lead ‘logically to a single conclusion’ – that

69. Corfu Channel (n 25) 17; Benzing (n 39) 1265; Riddell and Plant (n 39) 134–36; see also Amerasinghe (n 25) 235, who pointed out that the proof beyond reasonable doubt standard is too severe to be applied to non-criminal cases. One reason for this might be the fact that inter-state disputes are not criminal cases and in their very nature resemble civil cases, where parties stand on an equal footing. Cf Roscini (n 6) 227. 70. This was the second alternative argument of the UK Government. See Corfu Channel (n 25) 16–17. See also reference to Corfu Channel in Bosnian Genocide (n 50) para 209. 71. See Bosnian Genocide (n 50) para 209; Riddell and Plant (n 39) 135. At one point, however, the Court did apply a standard of proof close to the standard beyond reasonable doubt, when it required proof beyond any doubt in respect of the allegation that there was aid and assistance between the Government of the Federal Republic of Yugoslavia and VRS leaders, who carried out the acts of genocide. See Bosnian Genocide (n 50) para 422; Teitelbaum (n 39) 128. 72. Quintana (n 47) 407. 73. Corfu Channel (n 25) 18. For a definition on circumstantial evidence, see at n 26. 74. Corfu Channel (n 25) 18. Note that ‘[…] inferences are a tool of judicial reasoning employed to aid a court in determining whether the burden of proof has been met in cases where direct proof is not available on a particular fact.’; Riddell and Plant (n 39) 113.

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Albania must have known about the mines in the Corfu Channel.75 Where the Court allows recourse to indirect evidence, this only being the case where direct evidence is under the exclusive territorial control of the other party and circumstantial evidence does not ‘contradict’ any existing direct proof,76 the standard will be elevated to proof beyond reasonable doubt.77 In two other cases, Oil Platforms and Armed Activities, where the violation of the prohibition of the use of force was claimed respectively, the ICJ applied a clear and convincing standard.78 Additionally, the Court also mentioned several times that the submitted evidence was either sufficient79 or insufficient.80 In ­Nicaragua, the Court merely noted that there was insufficient evidence to prove ‘various points’ but abstained from establishing a certain standard of proof, which needed to be met by the parties.81 It is not clear, however, how the evidentiary standards mentioned by the ICJ in those cases exactly differ from each other and how, in the end, they are decisive for the Court in the determination of the amount of proof the party has to provide in order to discharge its burden.82 Consequently, commentators have tried to highlight the differences between those standards by, inter alia, referring to their ordinary meaning as referred to in the Oxford English Dictionary.83 In doing so, they established a hierarchy between the terms conclusive, convincing and sufficient, with conclusive being the highest of the three standards.84 What is more, the lack of precise definitions for the different evidentiary standards, and especially the reluctance of international courts from discussing the standards they use85 75. Corfu Channel (n 25) 18, 22; Riddell and Plant (n 39) 113–14; Michael P Sharp and Margaux Day, ‘The International Court of Justice’s Treatment of Circumstantial Evidence and Adverse Inferences’ (2012) 13 Chicago Journal of International Law 123, 129–130. 76. Sharp and Day, ibid, 131. 77. Corfu Channel (n 25) 18. 78. Armed Activities (n 50) para 91; Oil Platforms (n 50) para 58, 76; Note that the Court itself did not explicitly refer to the standard as clear and convincing, but used both terms to describe the necessary amount of proof which had to be met. See other commentators, who refer to the standard as clear and convincing, Teitelbaum (n 39) 125–26; Benzing (n 39) 1265. 79. Armed Activities (n 50) paras 246, 250; Riddell and Plant (n 39) 128. 80. Armed Activities (n 50) para 342; Oil Platforms (n 50) para 57; Riddell and Plant (n 39) 128. 81. Oil Platforms (Islamic Republic of Iran v United States), ICJ Reports (2003) 225, Separate Opinion of Judge Higgins, para 32 (Oil Platforms [Separate Opinion of Judge Higgins]). 82. Riddell and Plant (n 39) 129. 83. Riddell and Plant (n 39) 129. 84. Riddell and Plant (n 39) 129. 85. The restraint of international courts and tribunals to discuss evidentiary standards has also been criticised by international judges, see Markus Benzing, Das Beweisrecht vor

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may also be ascribed to the influence of the civil/continental law – as opposed to common law – tradition on inter-state dispute settlement.86 In the civil law system, judges determine the probative value of submitted evidence in both civil, and criminal law cases based on their internal conviction and are thus not required to apply a specific standard.87 In common law jurisdictions, however, judges generally apply the preponderance of evidence or reasonable degree of probability standard with regard to civil law cases, whereas in criminal law cases, a higher standard, namely proof beyond reasonable doubt, has to be met.88 Above all, many difficulties when determining evidentiary standards arise due to the simple fact that the evaluation of evidence is a subjective matter – ultimately leading to contradictions between judges on what kind of evidence suffices to be convincing to discharge the burden.89 However, it would still be important to know for parties what the ICJ itself exactly means by conclusive, convincing and sufficient evidence.90 What is more, the parties appearing before the Court should, already during the proceedings, have at least some clue as to which evidentiary standard will be applied to the case and not be taken by surprise by the Court’s final ­judgment.91 Particularly in Bosnian Genocide, however, the Court already went a step further by giving more detailed answers than in previous cases and hopefully will continue to develop the case law more consistently with regard to the question of evidentiary standards.92 In conclusion, legal scholars have identified three types of state responsibility cases before the ICJ when it comes to determining the relevant standard of proof.93 First, in regular cases, the ICJ demands proof at a high level of certainty appropriate to the seriousness of the allegation.94 The amount of

internationalen Gerichten und Schiedsgerichten in zwischenstaatlichen Streitigkeiten, 1st edn (Heidelberg, Springer, 2010) 27; Riddell and Plant (n 39) 130; see especially Oil Platforms (Separate Opinion of Judge Higgins) (n 81) para 33. 86. Kazazi (n 39) 325; Roscini (n 6) 227; see also Riddell and Plant (n 39) 123: ‘It appears however that the Court prefers not to provide a definitive standard, most probably because the Judges from the different legal traditions cannot agree.’ 87. Kazazi (n 39) 324; Amerasinghe (n 25) 233; Riddell and Plant (n 39) 130. 88. Kazazi (n 39) 324–25; Amerasinghe (n 25) 233. 89. Kazazi (n 39) 325; cf Amerasinghe (n 25) 233. 90. Riddell and Plant (n 39) 129. 91. See Oil Platforms (Separate Opinion of Judge Higgins) (n 81) para 33; Teitelbaum (n 39) 128–29. 92. Benzing (n 39) 1265; Riddell and Plant (n 39) 126. 93. Quintana (n 47) 408; cf Riddell and Plant (n 39) 132–36. 94. Quintana (n 47) 408; cf Riddell and Plant (n 39) 132.

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certainty the Court generally requires in those cases seems to be clear and convincing evidence by parties.95 Second, the Court requires a higher standard of proof/higher degree of certainty for cases where charges of exceptional gravity are claimed by a party against another state.96 Here, the Court needs to be fully convinced that a state has actually committed the breach of an obligation.97 In other words, the graver the charge, the more confidence there must be on the truthfulness of the claim.98 Third, where states are only able to provide circumstantial evidence, this being the case where direct evidence is absent and the Court draws inferences from facts, it ultimately requires the standard of proof beyond reasonable doubt.99 The ICJ’s case law so far clearly shows that it adopts the relevant standard of proof on a case-by-case basis, appropriate to the circumstances and seriousness of the allegation.100 The next step in this contribution is, therefore, to examine which internationally wrongful act states may want to attribute to other states before the ICJ, as far as cyber-attacks are concerned. This makes it then possible to explore the level of seriousness of the alleged breach in order to determine the evidentiary standard which has to be met by the parties in the dispute.

4.  Cyber-Attacks as Internationally Wrongful Acts Cyber-attacks may vary greatly in scale and form. However, only when these ‘hostile uses of cyberspace’101 amount to a violation of international law, the question of international adjudication arises.102 In the authors’ opinion, the international obligations most relevant for a cyber-attack to constitute an internationally wrongful act are those that most severely infringe a state’s sovereignty. Thus, the prohibition of the threat or use of force and the principle of non-intervention and their applicability to cyber operations are of special interest. Based on these two principles, the question of how to attribute these

95. Teitelbaum (n 39) 125–26; Roscini (n 6) 228. 96. Quintana (n 47) 408; cf Riddell and Plant (n 39) 132–36. 97. Quintana (n 47) 408; Riddell and Plant (n 39) 135. 98. Oil Platforms (Separate Opinion of Judge Higgins) (n 81) para 33. 99. Quintana (n 47) 408; Corfu Channel (n 25) 18. 100. See Benzing (n 39) 1266, who speaks of a so-called ‘sliding scale’. 101. Cf Michael N Schmitt (ed), Tallinn Manual on the International Law Applicable to Cyber Warfare, 1st edn (Cambridge, Cambridge University Press, 2013) 13. 102. More specifically, when they occur ‘in the “international relations” of member states’ and do not merely constitute a private act without a state’s involvement, Dinniss (n 1) 40.

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‘attacks’ to a state will be examined and the necessary standard of proof to be applied in those cases will be determined. It is also important to note that the term cyber-‘attack’, being a non-legal term, is not to be equated to the term ‘armed attack’, triggering the right of self-defence under Article 51 UN Charter.103

4.1.  The Threat or Use of Force Due to its severity, the first international obligation to be discussed here is the prohibition of the threat or use of force, enshrined in Article 2(4) UN Charter.104 This prohibition is considered to be a norm of customary international law105 and the overall consensus is that it is also applicable to cyber operations.106 This is in line with the ICJ’s Nuclear Weapons Advisory Opinion, where it noted that the prohibition to use force applies ‘regardless of the weapons employed’.107 It is more the effect of a weapon upon which a breach of Article 2(4) is determined.108 Traditionally, only physical damage to property, loss of life or injury of persons were thought to meet this requirement.109 Moreover, a state would need to prove that the cyber-attack has caused a severe effect, meaning that ‘its scale and effects are comparable to non-cyber operations rising to the level of a use of force’.110 Given the virtual (rather than physical) nature of cyber-attacks, this seems to be

103. Article 51 UN Charter, 24 October 1945, 1 UNTS 16: ‘Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.’ 104. Article 2(4) UN Charter: ‘Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.’ 105. Nicaragua (Merits) (n 41) paras 187–90. 106. Marco Roscini, ‘Cyber Operations as a Use of Force’ in Tsagourias and Buchan (n 2) 233–34; cf also Michael N Schmitt (ed), Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations, 2nd edn (Cambridge, Cambridge University Press, 2017) 328–29. 107. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports (1996) 226, para 39. 108. This so-called effects-based doctrine has found the most resonance with international scholars; cf Russell Buchan, ‘Cyber Attacks: Unlawful Uses of Force or Prohibited Interventions?’ (2012) 17 Journal of Conflict & Security Law 211, 212; Dinniss (n 1) 74; cf Roscini (n 106) 236; Schmitt (ed) (n 106) Rule 69, 331. 109. Buchan (n 108) 212; Roscini (n 106) 242; see however Tsagourias (n 29) 231, where it is noted that the destruction of critical state infrastructure, which itself does not cause human injury or physical damage, may also constitute an armed attack. 110. Schmitt (ed) (n 101) Rule 11, 45.

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the most ­difficult part.111 To give an example of such severity, the Stuxnet virus launched at the Iranian Natanz nuclear plant, supposedly leading to the physical damage of the plant’s centrifuges could be considered, if proven, to be of such gravity that it would constitute a use of force.112 Another attack worth mentioning in this regard is the recent NotPetya operation at the end of June this year. It was initially thought to be a ransomware attack,113 but then later qualified as being more than that, as the generation of revenue did not seem to be the primary goal of its operation.114 It also led to chaos on a large scale, with Ukraine seeming to be the main target.115 Despite the fact that physical damage did not occur, the NotPetya operation may nevertheless open up the discussion as to whether non-destructive cyber operations, which still massively disrupt the apparatus of the state, might be considered a violation of Article 2(4) in the future.116 To conclude, there seems to be a relatively high threshold of invoking the violation of Article 2(4), since the damage must be so severe it can be equated to a use of force in the traditional sense. Thus, in the case of less than forceful cyber-attacks or general lack of evidence, a state might have more success in claiming that the cyber intrusion constituted an unlawful intervention.117

111. On a side note, as the ICJ held in Nicaragua, the ‘most grave forms’ of the use of force amount to an ‘armed attack’, which would trigger the right of self-defence under Article 51 UN Charter, see Nicaragua (Merits) (n 41) para 191; Thus, by acknowledging that Article 51 UN Charter is also applicable in the cyber context, a cyber-attack of the ‘most grave form’ must also be one that enables the victim state to defend itself effectively. 112. Cf Buchan (n 108) 220–21; cf Roscini (n 106) 243; see also the so-called ‘Schmitt Analysis’ for states to assess a cyber operation, these being severity, immediacy, directness, invasiveness, measurability, presumptive legitimacy, and responsibility; Andrew C Foltz, ‘Stuxnet, Schmitt Analysis, and the Cyber “Use-of-Force” Debate’ (2012) 67 Joint Force Quarterly 40–48, 42. 113. ‘Ransomware is a type of malware that blocks access to a computer or its data and demands money to release it.’ See Olivia Solon and Alex Hern, ‘“Petya” Ransomware Attack: What is it and How Can it be Stopped?’ The Guardian (28 June 2017), www.theguardian.com/technology/2017/jun/27/petya-ransomware-cyber-attackwho-what-why-how. 114. Alex Hern, ‘Ransomware Attack “Not Designed to Make Money”, Researchers Claim’ The Guardian (28 June 2017) www.theguardian.com/technology/2017/jun/28/notpetyaransomware-attack-ukraine-russia. 115. Michael Schmitt and Jeffrey Biller, ‘The NotPetya Cyber Operation as a Case Study of International Law’ (Ejil:Talk!, 11 July 2017) www.ejiltalk.org/the-notpetya-cyberoperation-as-a-case-study-of-international-law/. 116. Cf ibid. 117. Cf    Schmitt (ed) (n 106) Rule 68, 330.

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4.2. Non-Intervention The principle of non-intervention derived out of the principle of the sovereign equality of states, which is enshrined in Article 2(1) UN ­Charter.118 It also reflects customary international law.119 It is widely seen to be equally applicable to cyber-attacks.120 According to the ICJ, a state’s c­oercive interference in another state’s internal affairs constitutes an unlawful intervention.121 The Court noted in the Nicaragua judgment, that the requirement of coercion is fulfilled, when a state is deprived of its free ‘choice of a political, economic, social and cultural system, and the formulation of foreign policy’.122 The most obvious form of such coercion, according to the ICJ, is an intervention that uses force.123 Being a much broader obligation than the prohibition of threat or use of force, it thus prohibits both forceful and less than forceful operations.124 Having determined previously that severe damage is needed to establish a use of force, less than forceful – but still coercive – cyber operations might thus still be unlawful. To give an example, the cyber-attack against Estonia in 2007 (if it is assumed that it was conducted by Russia) could be seen as an unlawful intervention in Estonia’s affairs, as it was a coercive attempt to influence Estonia not to relocate the Second World War memorial.125 More recently, the hack and release of a vast amount of internal emails of the US Democratic National Committee to WikiLeaks right before the US elections has sparked widespread media attention. It primarily led to the increased negative portrayal of candidate Clinton in the media and is widely believed to have been conducted by the Russian Government in order to help candidate Trump win the presidency.126 Another consequential hack was the attack against President Macron’s election campaign, which led to the

118. Article 2(1) UN Charter; Nicaragua (Merits) (n 41) para 202. 119. Nicaragua (Merits) (n 41) para 202. 120. Cf Buchan (n 108) 224; Schmitt and Vihul (n 5) 60; Antonopoulos (n 2) 65. 121. Nicaragua (Merits) (n 41) paras 202–209; Note, however, that there are also exceptions to the principle of non-intervention, such as a state’s consent, UN Security Council authorisation or when making use of the right of self-defence. 122. Nicaragua (Merits) (n 41) para 205. 123. Nicaragua (Merits) (n 41) para 205. 124. Cf Schmitt (ed) (n 106) Rule 68, 330. 125. Cf Buchan (n 108) 214. 126. Adam Entous, Ellen Nakashima and Greg Miller, ‘Secret CIA Assessment Says Russia Was Trying to Help Trump to Win White House’ The Washington Post (6 December 2016) www.washingtonpost.com/world/national-security/obama-orders-review-of-­russianhacking-during-presidential-campaign/2016/12/09/31d6b300-be2a-11e6-94ac3d324840106c_story.html?utm_term=.8654b5888c47.

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release of thousands of emails and documents related to the campaign.127 Some cybersecurity research firms linked the attack to the same Russianaffiliated hackers that were involved in the hack before the US elections.128 In this regard, the Tallinn Manual129 notes under Rule 10 that ‘the [coercive] manipulation by cyber means of elections or of public opinion on the eve of elections’ constitutes a prohibited intervention.130 It thus might be plausible to assume that these cyber operations – the US and France hacks – might constitute a violation of the principle of non-intervention.131 Note, however, that this remains a heavily debated issue, especially due to the fact that the necessary element of coercion to establish such a violation is very difficult to prove.

4.3. Attribution Eventually, for state responsibility to arise, the wrongful conduct must be attributable to a state. The ILC Articles on State Responsibility set out in Articles 4 to 11 the different activities by individuals which are attributable to a state. These include first and foremost the conduct of de jure and de facto state organs as well as persons/entities ‘exercising elements of governmental authority’.132 Particular notice shall be made to private hackers, whose expertise might be used by states to conduct a cyber-attack. Two provisions of the ILC Articles might be of relevance in this regard. First, the ICJ noted in Bosnian Genocide that Article 4 ILC Articles might enable the attribution of acts of private individuals that are not formally recognised as state organs to the state, if they are ‘in a relationship of complete dependence on the State’.133 127. Alex Hern, ‘Macron Hackers Linked to Russian-Affiliated Group behind US Attack’ The Guardian (8 May 2017) www.theguardian.com/world/2017/may/08/macronhackers-linked-to-russian-affiliated-group-behind-us-attack. 128. Ibid. 129. The Tallinn Manual is an academic analysis by an international group of experts on how international law applies to cyberspace. It was created at the invitation of the NATO Cooperative Cyber Defence Centre of Excellence. In 2017, Tallinn Manual 2.0 was published. 130. Schmitt (ed) (n 101) Rule 11, 45. 131. See, eg, Ellen Nakashima, ‘Russia’s Apparent Meddling in U.S. Election is not an Act of War, Cyber Expert Says’ The Washington Post (7 February 2017) www. washingtonpost.com/news/checkpoint/wp/2017/02/07/russias-apparent-meddling-inu-s-election-is-not-an-act-of-war-cyber-expert-says/?utm_term=.75ae9d9589bd, where Professor Schmitt notes that the act ‘reflected an intent to influence the election and amounted to unlawful intervention’. 132. Articles 4, 5 ILC Articles on State Responsibility; Tsagourias (n 29) 239. 133. Bosnian Genocide (n 50) para 391.

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Proving a complete dependence, however, might be very difficult. Thus, according to Article 8 of the ILC Articles on State Responsibility,134 the conduct of private individuals may still be attributable to a state if they are either acting under the instructions of that state or under their direction or ­control.135 In the Nicaragua judgment, the ICJ determined the degree of control to be one of effective control ‘in respect of each operation in which the alleged violations occurred’.136 The ICTY’s Appeals Chamber argued in Tadić that its ‘overall control’ test, which was a test to establish the internationality of a conflict, would be equally applicable to questions of state responsibility.137 This, however, was rejected by the ICJ in Bosnian ­Genocide, which considered the test to be too broad to apply it to the context of Article 8 and upheld its reasoning from Nicaragua.138 This stricter test, however, poses another difficulty for an injured state, since proving effective control is a much higher threshold than claiming overall control of a state over the activities of a non-state actor.139 Therefore, in order to attribute an act to a state, the ‘victim’ state would need to prove that the cyber-attack was launched from a device that belonged to someone who was either completely dependent on that state or his/her activities were somehow conducted under effective control of that state. Setting aside this high threshold of proving an individual’s affiliation with the state, the attribution to a specific territory itself proves already extremely difficult. To start with, one may have to identify the exact location of the device. In the simplest cases, this could be achieved by tracing back the IP address from which the attack was launched.140 Thus, if the IP address reveals a government-owned facility, the device can be identified as a government computer and thus, state responsibility may arise.141 However, as explained in section 2 in more detail, there are many ways to obscure the identity of the actual perpetrator, eg through IP spoofing, or computer hijacking. Moreover, the Tallinn Manual notes that ‘the fact that a cyber operation has been routed via the cyber infrastructure located in a State’ does not constitute ‘sufficient evidence’ that the cyber activity is attributable to 134. Article 8 ILC Articles on State Responsibility reflects customary international law; ­Bosnian Genocide (n 50) para 406. 135. Article 8 ILC Articles on State Responsibility; Schmitt and Vihul (n 5) 62. 136. Nicaragua (Merits) (n 41) para 115; see also Bosnian Genocide (n 50) para 406. 137. Prosecutor v Tadić, Case no IT-94-1-A, ICTY Appeals Chamber, Judgment (15 July 1999), para 117. 138. See Bosnian Genocide (n 50) paras 399–406. 139. Cf Bosnian Genocide (n 50) para 406. 140. Antonopoulos (n 2) 62. 141. Ibid.

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that state.142 And, even if an attack could be traced back to a specific governmental computer infrastructure, this is only an indication which government was behind the attack.143 Thus, attribution in the context of cyberspace proves extremely difficult.

4.4. Proving a State’s Breach of the Prohibition of Non-Intervention and Article 2(4) Having demonstrated the various hurdles of applying the principle of nonintervention and Article 2(4) to the cyber context, the question now remains whether the current regime of proving a state’s breach of these principles remains applicable. For the purpose of this article, it is assumed that the material elements of a breach (such as coercion or severe damage) are sufficiently proven. Of particular interest is the question of proving the attribution of the attack to a state. For that as well, however, two main elements of proof need to be considered: the burden and the standard of proof. 4.4.1.  Burden of Proof It is important to note that the formal status of the parties in the proceedings, whether applicant or respondent, has no bearing on the allocation of the burden.144 When asserting which party carries the burden of proof, the Court generally applies the onus probandi incumbit actori principle: It is the party asserting a fact that is responsible for providing the Court with proof thereof.145 The allocation of the burden of proof is of fundamental importance since there can only be a decision in favour of a party that has to prove a certain fact when it has successfully discharged the burden.146 Thus, if a state wants to successfully claim reparations for a state’s violations of the threat or use of force and non-intervention principle, it is up to the victim state to collect enough evidence to discharge the burden. The onus probandi rule, however, is not an absolute one, the determination of the burden of proof is in reality dependent on the subjectmatter and nature of each dispute brought before the Court; it varies according to

142. Schmitt (ed) (n 101) Rule 8. 143. Schmitt (ed) (n 101) Rule 7; Roscini (n 6) 243. 144. Quintana (n 47) 392. 145. Temple of Preah Vihear (Cambodia v Thailand), ICJ Reports (1962) 6, 16; Bosnian Genocide (n 50) para 204; Maritime Delimitation in the Black Sea (Romania v Ukraine), ICJ Reports (2009) 86, para 68; Case Concerning Pulp Mills on the River Uruguay (­Argentina v Uruguay), ICJ Reports (2010) 14, para 162 (Pulp Mills); Kazazi (n 39) 85. 146. Amerasinghe (n 25) 36; Kazazi (n 39) 36.

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the type of facts which it is necessary to establish for the purpose of the decision of this case.147

The question whether or not a state is under a general duty to disclose all relevant evidence that may be solely in its possession, is also closely linked to the burden of proof and to this date remains the subject of significant scholarly debate. Even if a state could successfully trace back IP addresses to another government’s computer infrastructures, it would not have access to these computers in the same way as the perpetrator state. While some argue for the general notion that states need to act in good faith when participating in a judicial procedure,148 with regard to the wording of Article 49 of the Court’s Statute (‘formal note shall be taken of any refusal’), this provision for the production of evidence does not seem to imply a binding legal obligation for states to comply with Article 49 requests.149 While the Court might be allowed to draw adverse inferences from not complying with such a request (even though it has been reluctant to do so in the past), this does not mean it could compel a party to produce evidence.150 It can therefore be assumed that an argument for the non-binding nature of Article 49 requests stands on stronger footing. 4.4.2.  Standard of Proof Due to the technical difficulty of attributing a cyber-attack, it might be argued that different standards of proof shall apply for the attribution on the one hand and claiming the substantive violation on the other. For attribution, certain scholars refer to the Yeager arbitration.151 There, the Iran-US Claims 147. Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo), ICJ Reports (2010) 639, para 54; Quintana (n 47) 393. Whether or not the burden could be potentially shifted when proving a cyber-attack will be discussed in the next section. 148. Amerasinghe (n 25) 96–117; Cf Andres Aguilar Mawdsley, ‘Evidence before the International Court of Justice’ in Ronald SJ MacDonald (ed), Essays in Honor of W Tieya (Dordrecht, Martinus Njhoff, 1994) 533, 539; Pulp Mills (n 145) para 163; Riddell and Plant (n 39) 98–99; Constanze Schulte, Compliance with Decisions of the International Court of Justice, 1st edn (Oxford, Oxford University Press, 2004) 33. 149. Christian Tams, ‘Article 49’ 1286 in Zimmermann, Tomuschat, Oellers-Frahm and Tams (n 39). 150. Corfu Channel (n 25) 32; Case Concerning United States Diplomatic and Consular Staff in Tehran (United States of America v Iran) (Provisional Measures), ICJ Reports (1979), 10; Brown (n 47) 105–106, 109. See however Land, Island and Maritime Frontier Dispute (El Salvador v Honduras; Nicaragua intervening), ICJ Reports (1992) 351, para 63, where the Court stated that it ‘cannot however apply a presumption that evidence which is unavailable would, if produced, have supported a particular party’s case; still less a presumption of the existence of evidence which has not been produced’. Riddell and Plant (n 39) 116. 151. See, eg Schmitt and Vihul (n 5) 65–66.

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Tribunal noted that the attribution of a wrongful conduct to a state must be proven with reasonable certainty.152 However, the ICJ noted in Bosnian Genocide that the same standard of proof applies to both the violation of the substantive rule as well as the attribution for such acts.153 In other words, rather than separating attribution and violation, both of them require the same standard of proof. Thus, since the standard of proof varies with the violation, the standard of reasonable certainty does not apply to all cases. In Armed Activities and Oil Platforms, the ICJ set the threshold of alleging an unlawful use of force to clear and convincing evidence.154 As noted in section 3, the Court demands the higher standard of fully conclusive evidence only in charges of exceptional gravity. This suggests that the violation of Article 2(4) is not considered to be of such grave nature, which – given that a non-forceful intervention is considered less harmful, must hold true for the principle of non-intervention as well. Consequently, the clear and convincing standard would most likely equally apply to prove an intervention. However, especially when alleging a cyber-attack that violated the prohibition of use of force or non-intervention, direct proof will often be missing and thus the only type of evidence the parties may be able to offer is circumstantial evidence.155 In that case, as we have seen before, the proof provided ‘must leave no room for reasonable doubt’.156 However, with current techniques, it is almost impossible to attribute an attack to a state beyond reasonable doubt, especially without giving away specific know-how that might be too delicate to share with the rest of the world.157 Therefore, without lowering the standard to give credit to the special circumstances of cyber-attacks, it will be almost impossible for states to prove the affiliation of a state to the attack. See section 5.2 on this issue.

5. Possible Means to Address the Evidentiary Dilemma in Cyberspace Cyber-attacks might to some extent be considered textbook examples of a scenario where one party has exclusive control over the evidence required and where direct proof is often not available.158 Section 5.1 thus seeks to 152. Yeager v Islamic Republic of Iran (1987) Iran-US Claims Tribunal, 82 ILR 179, para 37. 153. Bosnian Genocide (n 50) para 209. 154. Armed Activities (n 50) para 91; see also Oil Platforms (n 50) paras 58, 76. 155. Such as was the case with Estonia and Georgia, see above at section 2. 156. Corfu Channel (n 25) 18. 157. Due to eg national security interests; Heather Harrison Dinniss on Cyberwarfare, Helsinki Summer Law Seminar, 23 August 2016. 158. See similarly, Corfu Channel (n 25) 18.

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shine some light on whether or not the Court would be inclined to shift the burden of proof in the cyber context. Next, the question whether the ICJ might depart from its strict approach concerning circumstantial evidence will be addressed in section 5.2.159 For both questions, opinions of different legal scholars will be analysed. Finally, as a new way forward to resolve some of the evidentiary issues in the cyber context, the present authors suggest that – as an alternative solution – the Court should make more use of its inherent powers regarding the production of evidence (section 5.3).

5.1.  Reversing the Burden of Proof As attribution poses one of the biggest problems in the cyber context, some authors have called for a reversal of the burden of proof, even though the reasons for arriving at this conclusion are very different. One of them makes a case for not applying the ICJ’s findings in Corfu Channel, arguing that by their very nature computers are different to sea-mines.160 Therefore, the same standards cannot be applied in the cyber context; hence a reversal of the burden of proof is appropriate.161 For authors dealing with problems like identification or attribution, fairness and efficiency seem to be their focal point for arguing for a reversal of the burden, assuming that the party whose territory the attack has emanated from, has superior access to information.162 Consequently, the onus should be on the country where the attack had been launched from (allegedly).163 Proponents of this approach also put forward that, with a reversal of the burden, states would take their due diligence obligations of preventing cyber-attacks more seriously.164 This is closely linked to the claim that the precautionary principle originating from environmental law can be applied to cyberspace, which then automatically shifts the burden of proof.165 While the application of the precautionary principle might well 159. For the discussion on circumstantial evidence and its effect on the evidentiary standard before the ICJ, see section 3 above. 160. Antonopoulos (n 2) 64. 161. Antonopoulos (n 2) 64. 162. See, for instance, Peter Margulies, ‘Sovereignty and the Cyber Attacks, Technology’s Challenge to the Law of State Responsibility’ (2013) 14 Melbourne Journal of International Law 496, 517. 163. Ibid. 164. Richard A Clarke and Robert K Knake, Cyber War: The Next Threat to National Security and What to Do About it (New York, Ecco, 2010) 118. 165. Brendan Bateman and Trisha Cashmere, ‘Getting Connected with the Precautionary Principle’ www.claytonutz.com/knowledge/2006/july/getting-connected-with-theprecautionary-principle; for a critical analysis, see generally Thilo Marauhn, ‘Customary Rules of International Environmental Law – Can they Provide Guidance for Developing a Peacetime Regime for Cyberspace?’ in Ziolkowski (n 26) 465.

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be appropriate for the cyber context, the ICJ has decidedly rejected that its application would result in a reversal of the burden of proof.166 As already established, it depends on the subject matter and nature of each dispute how the burden of proof is allocated.167 While this could be taken as an argument for a potential reversal of the burden with regard to cyber-attacks, this seems highly unlikely. When looking at the ICJ’s case law, ever since its first decision, the Court has not been inclined to shift the burden, even when evidence was exclusively located in the territory of one state.168 This finding in Corfu Channel has so far not been overruled in any way.169 What is more, the Court reaffirmed its findings in the Nicaragua case, acknowledging that even in times of ongoing armed conflicts (as was the case in eg Georgia in 2008), where evidence might be hard to come by, this might affect the standard of proof, not however the burden.170 Even Judge Owada’s Separate Opinion to the Oil Platforms case dealt with difficulties arising from evidentiary imbalances between the applicant and the respondent in a self-defence scenario, as it was the US’s duty to establish that Iran had launched an armed attack against them, against which they defended themselves. While not wholeheartedly content with the situation, he stated that: Nevertheless, there is no denying the fact that there undoubtedly exists an asymmetry in the situation surrounding the case […]. I am prepared to accept that this asymmetry is inherent in the circumstances of the present case and there is little the Court can do under the circumstances. It is primarily the task incumbent upon the party which claims certain facts as the basis of its contention to establish them by producing sufficient evidence in accordance with the principle actori incumbit onus probandi.171

In light of the discussion above, it can be therefore concluded that it is highly unlikely that the ICJ would shift the burden of proof in the cyber context, not only because of the established case law but also because of certain

166. Thilo Marauhn, ibid, 475; Pulp Mills (n 145) para 164. 167. Diallo (n 147) para 54; Quintana (n 47) 393; see section 4.4.a) for more details on the burden of proof. 168. Corfu Channel (n 25) 18; Quintana (n 47) 398. 169. See Corfu Channel (n 25) 18: ‘But it cannot be concluded from the mere fact of the control exercised by a State over its territory and waters that that State necessarily knew, or ought to have known, of any unlawful act perpetrated therein, nor yet that it necessarily knew, or should have known, the authors. This fact, by itself and apart from other circumstances, neither involves prima facie responsibility nor shifts the burden of proof.’ 170. Nicaragua (Jurisdiction and Admissibility) (n 46) para 101; Riddell and Plant (n 39) 93. 171. Oil Platforms (Islamic Republic of Iran v United States), ICJ Reports (2003) 189, Separate Opinion of Judge Owada, para 46 (Oil Platforms [Separate Opinion of Judge Owada]).

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c­ haracteristics of cyber-attacks. Cyber operations are often routed through numerous countries,172 thus a reversal could place the burden of proof on a wholly uninvolved party.173 It is, however, important to note that the Court has always been concerned with a level playing field for the parties, which could not be facilitated by a reversal of the burden. What may however be considered, might be lowering the evidentiary standard to facilitate the discharge of the burden.174

5.2. Lowering the Evidentiary Standard – The Indirect Evidence Dilemma As was already explained above, the ICJ seems to have a case-to-case approach for the evidentiary standard to be applied. This makes it incredibly difficult for the parties to assess how much evidence is needed to successfully discharge the burden. However, there are certain signpost judgments shining light on an expected standard to be met (such as Armed Activities or Oil Platforms in the case of claiming use of force).175 As was already ­mentioned in section 4.4.b), it only seems logical to assume that the party alleging such violations in the form of a cyber-attack would need to meet the same clear and convincing evidentiary standard.176 Some authors regard this standard as still too high, deeming it as too strict and advocating for the lower balance of probabilities standard.177 However, looking at the ICJ’s previous case law, it is very unlikely that the Court would apply a lower standard than clear and convincing. In fact, as noted above, the ICJ might even set the standard to proof beyond reasonable doubt, since direct proof will often be missing.178 This, however, would set

172. As was for example illustrated by the attacks against Estonia, discussed in section 2; Tsagourias (n 29) 233; Roscini (n 6) 226. 173. Robin Geiß and Henning Lahmann, ‘Freedom and Security in Cyberspace: Shifting the Focus away from Military Responses Towards Non-Forcible Countermeasures and Collective Threat-Prevention’ in Ziolkowski (n 26) 621, 642. 174. This will be discussed in greater detail in the next section. 175. Oil Platforms (n 50) paras 58, 76; Armed Activities (n 50) para 91; Teitelbaum (n 39) 126; James A Green, ‘Fluctuating Evidentiary Standards for Self-Defence in the International Court of Justice’ (2009) 58 The International and Comparative Law Quarterly 163–79, 167. 176. The ICJ uses the same standard for the commission and attribution of an act, see section 4.4.b). 177. See, inter alia, David E Graham, ‘Cyber Threats and the Law of War’ (2010) 4 Journal of National Security Law and Policy 87, 93. 178. See section 3.

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the standard for cyber-attacks incredibly high. On the other hand, it would do away with concerns that a lower evidentiary standard would make it easier to blame a state for conduct it had nothing to do with. Protecting the respondent from false attribution, be it through IP spoofing, botnets or onion routing,179 is an argument that should not be left out of the debate concerning a lower evidentiary standard.180 However, applying a beyond reasonable doubt standard in the cyber context might also be too far reaching: With regard to cyber-attacks, collecting evidence will always remain extremely hard and it would be (at least at the moment) impossible to collect information that reaches a higher level than clear and convincing.181 The victim state would be left with the impossible task to meet a standard which is ‘unreachable’, which could potentially result in perpetrator states evading their responsibility under international law. As Judge Owada held in his Separate Opinion to Oil Platforms: As a court of justice whose primary function is the proper administration of justice, should see to it that this problem relating to evidence be dealt with in such a way that utmost justice is brought to bear on the final finding of the Court […] It would seem to me that the only way to achieve this would have been for the Court to take a more proactive stance on the issue of evidence and that of fact-finding in the present case. This brings me to the standard of proof to be required for discharging the burden of proof in a case where the party who carries the burden of proof, though responsible for discharging that burden, finds itself in an extremely difficult situation as seen from an objective point of view.182

These opinions, however, clearly show that the ICJ itself would not be interested in applying a standard that would be impossible to meet for the parties involved and that the paramount principle underlying the ICJ’s assessment of evidence is the proper administration of justice.183 Such is unlikely when the Court would require parties to prove their allegations beyond reasonable doubt, even when direct proof is not available.

179. For a more detailed account of ways to conceal one’s identity in cyberspace, see section 2. 180. Roscini (n 6) 229. 181. See sections 2 and 4.3 on difficulties arising from attribution in the cyber context. 182. Oil Platforms (Separate Opinion of Judge Owada) (n 171) paras 47–48. See a similar argument by Judge Lauterpacht in his Separate Opinion to Certain Norwegian Loans, stating that ‘[…] the degree of burden of proof […] adduced ought not to be so stringent as to render the proof unduly exacting.’, see Certain Norwegian Loans (France v Norway), ICJ Reports (1957) 9, Separate Opinion of Judge Sir Hersch Lauterpacht, 39. 183. Hugh Thirlway, The Law and Procedure of the International Court of Justice (Oxford, Oxford University Press, 2013) 10; Amerasinghe (n 25) 13–18.

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This leaves us with the still relatively high clear and convincing standard that effectively protects states from false attribution, while at the same time making it possible to discharge the burden of proof successfully.184 However, it is nevertheless unrealistic to assume that states themselves are able to collect sufficient evidence in order to meet the clear and convincing standard without the Court’s involvement. This, particularly due to the fact that evidence is often located in the exclusive territory of the alleged perpetrator and obtaining said evidence one-sidedly would constitute a violation of that state’s sovereignty.185 The present authors therefore suggest combining the clear and convincing standard with a more enhanced use of the Court’s inherent fact-finding powers. This new approach will be discussed below.

5.3.  The Court’s Powers for the Production of Evidence As discussed above, the present authors propose that the clear and convincing standard would be the best way to aptly deal with the evidentiary difficulties relating to cyber-attacks. Authors such as Roscini and Schmitt have already illustrated quite convincingly why this standard, being still significantly high, would be appropriate.186 However, little has been said so far on how exactly the Court could be furnished with evidence that would satisfy the demands of a clear and convincing standard. Therefore, this section seeks to shine light on how to overcome certain evidentiary hurdles through the Court’s more active usage of its powers to produce evidence. More specifically, it will do so by focusing on the evidentiary power that might become indispensable in these highly scientific and technical matters: the use of court-appointed experts. Before analysing those in detail, however, this section will start with a more general overview on ways to collect evidence in an ICJ proceeding. First, in theory, the Court has the inherent power to request additional documents, call its own witnesses, appoint own experts, or make on site visits. This has rarely happened in the past, as the Court has always been of the opinion that parties to the dispute should first and foremost furnish the Court with evidence themselves.187 However, the extremely cautious approach as an intermediary not making use of its powers has been widely criticised.188

184. Roscini (n 6) 230–31; Michael N Schmitt, ‘Cyber Operations and the Jus ad Bellum Revisited’ (2011) 56 Villanova Law Review 569, 595. 185. See the Court’s decision in Corfu Channel (n 25) 34–35 with regard to the UK’s unlawful collection of evidence through ‘Operation Retail’. 186. See section 5.2 on this issue. 187. Benzing (n 39) 1266; Tams (n 149) 1282–83. 188. Regarding the power of the Court to call experts, see, eg, Benzing (n 39) 1256–57.

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For example, in Bosnian Genocide, the Court did not grant an evidentiary request by Bosnia (as according to the Court, they already had extensive evidence in their possession) but then ultimately found that it had not successfully discharged its burden.189 The backlash created by this finding might open up the road to a more proactive stance in the future, particularly in the cyber context. Second, the parties can appoint experts according to Articles 57 and 64 Rules of the Court.190 It happened before that scientific experts appeared as counsel for one of the parties, which, however, due to not having been appointed as experts according to the ICJ’s Statute, barred the other party to the proceeding from cross-examining this counsel.191 The Court criticised this approach in Pulp Mills of having limited value.192 This critique seems to have been successful, as in recent cases, such as Whaling, the parties appointed experts according to the Rules, that could be cross-examined by both the Court and other parties.193 Lastly, the Court may appoint experts itself. Pursuant to Article 50 of the Statute, ‘[t]he 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’.194 The advantages of using court-appointed experts are manifold, aside from the fact that a potential bias plays less of a role as opposed to party-appointed experts.195 Therefore, the present authors argue that making better usage of the Court’s own powers to appoint experts under Article 50 would help resolve attribution issues in the cyber context.

189. Bosnian Genocide (Bosnia and Herzegovina v Serbia and Montenegro), ICJ Reports (2007) 241, Dissenting Opinion of Judge Al-Khasawneh, para 35; Bosnian Genocide (n 50) para 241; Tams (n 149) 1283; Teitelbaum (n 39) 130–34. 190. Articles 57, 63, 65(b) Rules of Court; Benzing (n 39) 1255–57; Persons testifying in front of the ICJ are separated out into three categories: witnesses, experts and witnessexperts. While witnesses give evidence on a matter of fact, experts express an opinion based on their special knowledge. Riddell and Plant (n 39) 320. 191. Pulp Mills (n 145) para 167; Whaling in the Antarctic (Australia v Japan; New Zealand intervening), ICJ Reports (2014) 226, paras 20–21; Quintana (n 47) 443–45. 192. Pulp Mills (n 145) para 167. 193. Watts (n 42) 299–300; Lucas Carlos Lima, ‘The Evidential Weight of Experts before the ICJ: Reflections on the Whaling in the Antarctic Case’ (2015) 6 Journal of International Dispute Settlement 621–35. 194. Article 50, Statute of the International Court of Justice, 14 October 1945, 33 UNTS 993. Quintana (n 47) 452–53. 195. James Gerard Devaney, Fact-Finding before the International Court of Justice (Cambridge, Cambridge University Press, 2016) 23; Giorgio Gaja, ‘Assessing Expert Evidence in the ICJ’ (2016) 15 The Law and Practice of International Courts and Tribunals 409, 415.

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It is important to note that the Court’s summoning of experts includes significant difficulties (those of a financial nature, among others).196 However, the increasing case load of international tribunals and the growing number of cases of a highly technical nature warrant for a wider use of this device.197 So far, the ICJ and its predecessor have been reluctant to use their powers under Article 50. Only in the Chorzow Factory case in front of the Permanent Court of International Justice (PCIJ), as well as the Corfu Channel and the Gulf of Maine case in front of the ICJ, experts have been appointed under this procedure.198 This reluctance has been widely criticised not only by ­doctrine199 but also within the Court.200 One explanation for the neglect of Article 50 might be the fact that court-appointed experts almost exclusively appear in civil law jurisdictions and that to jurists from common law backgrounds, this appointment might seem like an undue interference, especially with regard to the burden of proof of the parties.201 It has also been the Court’s contention that the use of experts was just not necessary, as the parties involved in the proceedings seldom disagreed on matters of fact but rather on matters of law.202 This, however, 196. Jens Evensen, ‘Evidence before International Courts’ (1955) 25 Acta Scandinavica Juris Gentium 44, 54. 197. Quintana (n 47) 453; Case Concerning Pulp Mills on the River of Uruguay (Argentina v Uruguay), ICJ Reports (2010) 216, Declaration of Judge Yusuf, para 10 (Pulp Mills [Declaration of Judge Yusuf ]). 198. Daniel Peat, ‘The Use of Court-Appointed Experts by the International Court of Justice’ (2014) 84 British Yearbook of International Law 271, 277. 199. Riddell and Plant (n 39) 73–75; Gillian White, ‘The Use of Experts before the ICJ’ in Vaughan Lowe and Malgosia Fitzmaurice (eds), Fifty Years of the International Court of Justice: Essays in Honour of Sir Robert Jennings (Cambridge, Cambridge University Press, 1996) 528, 534–37; Christian Tams, ‘Article 50’ in Zimmermann, Tomuschat, OellersFrahm and Tams (n 39)1287, 1291–93. 200. Oscar Chinn (United Kingdom v Belgium) (Merits) PCIJ Series A/B, No 63 (1934), Individual Opinion of Judge Anzilotti 107–109; Temple of Preah Vihear (Cambodia v Thailand), ICJ Reports (1962) 75, Dissenting Opinion of Judge Wellington Koo, 100, para 55; Kasikili/Sedudu Island (Botswana v Namibia), ICJ Reports (1999) 1045, Separate Opinion of Judge Oda, 1118–19; Maritime Delimitation and Territorial Questions (Qatar v Bahrain), ICJ Reports (2001) 257, Dissenting Opinion of Judge Torres Bernardez, 275; Pulp Mills (Declaration of Judge Yusuf ) (n 197) para 10; Case Concerning Pulp Mills on the River of Uruguay (Argentina v Uruguay), ICJ Reports (2010) 108, Joint Dissenting Opinion of Judges Al-Khasawneh and Simma, 216–20. 201. Gaja (n 195) 409, 415; José E Alvarez, ‘Are International Judges Afraid of Science?: A Comment on Mbengue’ (2011–12) 34 Loyola of Los Angeles International and Comparative Law Review 81, 93–94. 202. Riddell and Plant (n 39) 70; Hugh Thirlway, ‘Evidence Before International Courts and Tribunals’ in Rudolf Bernhardt (ed), Encyclopedia of Public International Law, Instalment 1 (Amsterdam, North Holland Publishing, 1981) 58.

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is an outdated notion, as proceedings seem to gradually focus more on scientific and technical questions and the Court is increasingly involved in extensive fact-finding.203 Consequently, particularly due to the specific technical and scientific knowledge required in cyber-related proceedings, judges will not be able to obtain such expertise easily by themselves and reliance on party-appointed experts will likely not yield a satisfactory outcome due to the uncertainty resulting out of their potential bias. Another argument in favour of court-appointed experts is that particularly in the cyber context, one party may have superior access to information, or might even be the only one able to access specific documents.204 Also, it is hard to imagine that the decision in a proceeding involving cyber-attacks would not to a large part hinge on the establishment of factual circumstances, as traces can be erased so easily, computers hijacked and so forth. Gaining that kind of knowledge through court-appointed experts seems to be one of the best ways to establish those facts.205 Legal scholar Roscini proposes that the ICJ should use the fact-finding powers mentioned above to counterbalance evidentiary difficulties in cases where an exceptionally high standard has to be met (such as for example ‘fully conclusive’ in the case of genocide).206 However, the present authors argue that – in the cyber context – not even a more proactive stance on fact-finding could produce evidence that meets the requirements of a fully conclusive or beyond reasonable doubt standard. These evidentiary difficulties in the cyber context become clear when comparing a typical cyber scenario to a state responsibility case, where the Court made use of its fact-finding powers. In Corfu Channel, the Court concluded that the exceptionally high standard of beyond reasonable doubt to decide on Albania’s international responsibility was met due to the tests run by court-appointed experts. It might thus be possible for experts to arrive at a single logical conclusion on whether an Albanian coastguard would have been able to see a ship passing through in the dark.207 This, however, cannot be said for experts having to determine whether an attack, which was routed through multiple countries, was caused

203. Riddell and Plant (n 39) 70; Rosalyn Higgins, ‘Respecting Sovereign States and Running a Tight Courtroom’ (2001) 50 The International and Comparative Law Quarterly 121, 129. 204. Corfu Channel (n 25) 20–22; Gaja (n 195) 415. 205. Quintana (n 47) 453; Tams (n 199) 1292–93; These experts would, however, still need the parties’ consent to obtain such evidence; Devaney (n 195) 24; Christian Tams, ‘Article 51’ in Zimmermann, Tomuschat, Oellers-Frahm and Tams (n 39) 1300, 1310. 206. Roscini (n 6) 232. 207. Corfu Channel (n 25) 21.

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by a specific state. Not even the biggest team of experts could furnish the Court with evidence that simply does not exist. This is why the present authors propose that the best way to overcome evidentiary problems in the cyber context would be a more active use of the Court’s fact-finding powers to reach the lower, but still satisfying clear and convincing standard. The fact that the Court has recently appointed experts in the Maritime Delimitation in the Caribbean Sea and the Pacific Ocean case between Costa Rica and Nicaragua – the first appointment in over 30 years – might be an indicator that the Court is about to change its reluctant stance on Article 50.208

6. Conclusion It is probably only a matter of time until a state lodges an application before the ICJ, claiming that it suffered damage arising out of a cyber-attack. It is almost certain that the Court will then be faced with several new questions, starting with whether a specific cyber-attack amounts to a violation of international law, to whether the current regime of evidentiary standards employed by the Court so far gives credit to the specific technical difficulties of proving cyber-attacks. As demonstrated by Estonia and Georgia, this contribution displayed the severe evidentiary troubles victim states have faced so far when trying to prove a state’s involvement and thus, arguably, a reluctance to address international tribunals in this matter. First, the present authors started with analysing the current evidentiary regime of the Court to shine light on this delicate topic. It became clear that when dealing with state responsibility, the Court has applied three different standards. These vary according to the seriousness of the claim. Thus, for charges of exceptional gravity, for example, it found that it must be convinced by fully conclusive evidence. Therefore, there must be a breach of an international obligation first, in order to assess what standard of proof the Court will most likely apply in the cyber context. Consequently, the present authors analysed two principles of international law that are most probable to be violated in the case of a cyberattack against a state: the prohibition of the threat or use of force and the non-intervention principle: two principles, that by their very nature want to protect a state’s territorial integrity.

208. Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v Nicaragua), ICJ Order (31 May 2016); see Order of 16 June 2016; Gaja (n 195) 416–17.

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Although the Court already held that it will require clear and convincing evidence when a breach of Article 2(4) – and most likely also an unlawful intervention – is claimed, this only applies when direct proof is available. Nowadays, where technical difficulties hinder states to gather evidence linking a state directly to a cyber-attack, only indirect evidence can be submitted. In such a case, however, the Court established that it will require proof beyond reasonable doubt to let international responsibility arise. It is very likely that the ICJ will face various problems with this standard. Above all, a victim state would be left having to prove beyond reasonable doubt that a state is the originator of an attack. This is something that is obviously impossible with our current technical expertise. Thus, scholars have proposed to shift the burden of proof to the perpetrator state, which now has to prove that it had not been involved in a cyberattack. This seems to be an unsatisfying solution: Not only did the Court itself refuse such an approach in the past; a shift would also put too much responsibility on the respondent state. Therefore, a more plausible approach would be to lower the evidentiary standard to clear and convincing, even in cases where direct proof is missing. Additionally, the present authors have pointed out how the inability of the parties to produce sufficient evidence can be overcome through the usage of the Court’s power to appoint experts. This makes it possible to meet the clear and convincing standard and thus establish international responsibility. To conclude, the relevant case law so far suggests that the Court will remain flexible in its application of evidentiary standards. It will be seen whether it may be open to lowering the standard in cases of exceptional difficulty. In this way, it could ensure that in each individual case, the appropriate standard to enable attribution is applied, but still protects states from wrongful conviction.

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Legal Review of New Weapons: Origins of ­Article 36 of AP I Natalia Jevglevskaja Abstract: This a­rticle  examines the origins of the requirement placed on states by A ­ rticle 36 of Additional Protocol I (‘AP I’) to the Geneva Conventions to review the legality of a new weapon, means or method of warfare. It does so by first testing the possibility that ­Article 36 represents either a restatement or a revised version of some similar provision found elsewhere in the law of armed conflict. To that end, it explores 13 international instruments which regulate the use of weapons in war and were adopted prior to the 1974–1977 Diplomatic Conference where A ­ rticle 36 was negotiated. The ­article argues that ­Article 36 is not a product of continuous historical evolution of states’ views on how particular prohibitions or restrains on the weapons use should be put into effect at the domestic level. In fact, none of the pre-existing international mechanisms resemble the AP I weapons review provision. The ­article then examines the drafting materials. Whilst no unequivocal evidence on the motives for adopting a provision on weapons review can be found in the Official Records of the 1974–1977 Diplomatic Conference, there is enough evidence to conclude that the key states behind ­Article 36 were Germany and the UK. The General Legal Provisions relating to the Conduct of Hostilities and War on Land, operative in Germany since 1961 and mandating that weapons be developed in accordance with the requirements of the existing legal regulations, might well be a predecessor to ­Article 36. Keywords: weapons review, ­Article 36 of AP I, means and methods of warfare, compliance, historical origins ‘Even without an ­article of this kind, it is incumbent upon a State to determine whether the means or methods of warfare it might employ are legal.’ –Hans Blix1

1. Introduction For as long as there are wars to fight, the development and sophistication of arms will continue. In an ongoing race to better protect one’s own armed 1. Hans Blix, ‘Means and Methods of Combat’ in International Dimensions of Humanitarian Law (Geneva, UNESCO, 1988) 135, 140.

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forces and to efficiently overpower the enemy, states are adopting military technology that just a few decades ago was in the realm of science fiction. Offensive cyber capabilities, the expansion of intelligent robotic systems, directed energy weapons, as well as bio- and nanotechnological enhancements incorporated or assimilated into a human body, are just a few examples of the technologies currently being used or developed by states for battlefield deployment. Simultaneously with arms developments, continuous attempts have been made to limit the use and possession of particular weapons. States have regularly addressed the question of the legality of weapons on a multilateral level. As a result, under international treaty and customary law some weapons are prohibited2 and others subjected to restrictions on their use.3 Although efforts taken to regulate weapons on the international level so far are commendable, they are not sufficient. For the law to remain relevant despite the ever-increasing pace of scientific advancement, states also need to review new weapons on their compliance with international law domestically, as required by ­Article 36 of the 1977 Additional Protocol I to the Geneva Conventions (‘AP I’).4 Specifically, ­Article 36 states: In the study, development, acquisition or adoption of a new weapon, means or method of warfare, a High Contracting Party is under an obligation to determine whether its employment would, in some or all circumstances, be prohibited by this Protocol or by any other rule of international law applicable to [it].

While academic commentary on the scope and significance of ­Article  36 slowly yet steadily grows,5 the question of origins of the provision has attracted

2. For example, biological and chemical weapons. See Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and of their Destruction (‘CWC’), adopted 13 January 1993, 1974 UNTS 45 (entered into force 29 April 1997). See also Jean-Marie Henckaerts and Louise Doswald-Beck (eds), Customary International Humanitarian Law (Cambridge, Cambridge University Press, 2005) vol 1, Rules 73, 256 and 259 (in the following ‘ICRC Customary Law Study’). On biological weapons see also section 3.5 below. 3. For example, land mines under 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 (and Protocols) (as amended on 21 December 2001), adopted 10 October 1980, 1342 UNTS 137 (entered into force 2 December 1983). 4. Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, adopted 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978). 5. See, eg, Isabelle Daoust, Robin Coupland and Rikke Ishoey, ‘New Wars, New Weapons? The Obligation of States to Assess the Legality of Means and Methods of Warfare’ (2002) 84 International Review of the Red Cross 345; W Hays Parks, ‘Conventional Weapons and

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relatively little attention in scholarship. And yet, knowing and understanding history is not only helpful for establishing the context and purpose of a certain legal rule, it is also important for recognising potential limits to its interpretation. This ­article therefore seeks to bridge this gap and illuminate historical roots of the weapons review obligation. However, identifying the underlying rationale for the inclusion of ­Article 36 in AP I is also imperative for the following reason. ­Article 36 does not prohibit any specific weapon per se but seeks to ensure that, as a result of the review procedure, certain weapons will not be used at all or the conditions of their employment will be constrained in accordance with AP I or other rules of international law applicable to the reviewing state. Put differently, ­Article 36 does not establish new substantive rules on the legality of weapons but aims to ensure that weapons law obligations found elsewhere – in AP I or international law more generally – are duly implemented by a reviewing state. As observed by Dr Hans Blix, Head of the Swedish Delegation to the 1974–77 Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflict where ­Article 36 was elaborated, ‘[e]ven without an ­article of this kind, it is incumbent upon a State to determine whether the means or methods of warfare it might employ are legal. The a­ rticle serves to underline this duty’.6 Indeed, given that permeating all treaty obligations is the duty imposed by customary international law that agreements must be performed by the parties in good faith – pacta sunt servanda7 – the question arises as to why reaffirm what appears obvious? In other words, why reiterate in a separate provision of AP I that the States Parties should comply with its provisions or other law of Weapons Reviews’ (2005) 8 Yearbook of International Humanitarian Law 55; ­Kathleen Lawand, ‘Reviewing the Legality of New Weapons, Means and Methods of Warfare’ (2006) 88 International Review of the Red Cross 925; Marie Jacobsson, ‘Modern Weaponry and Warfare: The Application of A ­ rticle 36 of Additional Protocol I by Governments’ in Anthony M Helm (ed), The Law of War in the 21st Century: Weaponry and the Use of Force (­Newport, Rhode Island, US Naval War College, 2006); Stuart Casey-Maslen (ed), Weapons under International Human Rights Law (Cambridge, Cambridge University Press, 2014); Gary D Brown and Andrew O Metcalf, ‘Easier Said Than Done: Legal Reviews of Cyber Weapons’ (2014) 7 Journal of National Security Law and Policy 115; William H Boothby, Weapons and the Law of Armed Conflict, 2nd edn (Oxford, Oxford University Press, 2016) 343. 6. Blix (n  1) 140. See also Louise Doswald-Beck and Gerald C Cauderay, ‘The Development of New Anti-Personnel Weapons’ (1990) 279 International Review of the Red Cross 565, 565. 7. GIAD Draper, ‘The Implementation of the Geneva Conventions of 1949 and the Additional Protocols of 1977’ in Michael A Meyer and Hilaire McCoubrey (eds), Reflections on Law and Armed Conflicts (The Hague, Kluwer, 1998) 102, 103.

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armed conflict (‘LOAC’)8 treaties they chose to adhere to, if such an obligation already flows from those provisions and treaties? A search for a response to this question proceeds as follows. First, given that ­Article  36 is an implementation regulation in the sense that is seeks to ensure that states’ obligations stipulated elsewhere are duly executed, one possibility could be to assume that A ­ rticle 36 represents either a restatement or a revised version of some similar provision found elsewhere in LOAC. To prove or, conversely, disprove this assumption one would have to trace the relevant earlier weapons law treaties and examine whether they include provisions analogous or comparable in their essence to ­Article 36. If they do, the next logical step would be to analyse how, if at all, these provisions evolved or changed over time and what additional information can be gleaned from the drafting records on the decision of choosing the wording of A ­ rticle 36 as it stands today. Should the assumption, however, be disproved and the result of the analysis reveal that ­Article 36 was a novel provision at the time when AP I was adopted, the drafting materials would become a focal point of the inquiry as to the rational for ­Article 36. To that end, having first clarified the relevant terminology (section 2), this ­article will scrutinise all international law instruments regulating the use of weapons in war and adopted prior to the 1974–1977 Diplomatic Conference where A ­ rticle 36 was negotiated. There are altogether 13 such instruments (section 3). It will thereafter look into the drafting materials with the aim to identify what motivated the sponsors of its draft and what the view of other delegates was on the exigency and relevance of a provision on weapons reviews (section 4). Whilst historical records appear mostly silent on the issue with hardly any unequivocal evidence available, they nevertheless allow for certain conclusions which will be presented in the final section of this paper (section 5).

2. Compliance with Weapons Law: Clarifying Terminology Before analysing how weapons law instruments that predated AP I addressed the question of implementation, it is important to establish clarity on the relevant terminology. To that end, this section purports to elucidate which measures fall under ‘implementation’ and how it differs from ‘compliance’ and ‘enforcement’. 8. LOAC is understood here as comprising both international humanitarian law and arms control treaties.

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Despite their significance, no uniform definition of these terms exists. In this ­article ‘compliance’ is understood as suggested by GIAD Draper and Frits Kalshoven, that is as an umbrella term covering measures directed at ‘implementation’ and ‘enforcement’, where ‘implementation’ refers to measures seeking to insure that legal provisions are correctly applied and ‘enforcement’ to measures taken in reaction to a violation of law.9 Other terminological approaches suggested in the literature include that of Goldstein who speaks exclusively of ‘implementation’ but interprets the term as ‘observance of a body of law or its enforcement in case of violations’;10 in a similar vein, Sassòli prefers the term ‘implementation’ to ‘compliance’ and describes the former as embracing ‘the preventive measures to be taken in peace-time, those ensuring respect during armed conflicts, and those repressing violations’.11 Kolb shares the latter approach, qualifying it as a three-tiered system of ‘implementation’ consisting of measures directed at prevention, control, and suppression.12 To that, Sandoz adds the fourth tier of ‘other means’ which cannot be classified under the previous headings, or at least one of them (for example the Fact Finding Commission under ­Article 90 of AP I).13 Despite a considerable difference in opinion regarding the most appropriate way of qualifying various compliance measures, a distinction is generally maintained between the measures of prevention of violations and those taken in reaction to violations. Of interest to the present inquiry are those measures intended to prevent violations of LOAC in relation to weapons, ie procedural mechanisms or other legal arrangements adopted by states in weapons law treaties to guide their implementation.14 On a national level, such measures may consist of

9. GIAD Draper, ‘Implementation and Enforcement’ in Michael A Meyer and Hilaire McCoubrey (eds), Reflections on Law and Armed Conflicts (The Hague: Kluwer, 1998) 81, 81; see also Frits Kalshoven, ‘Implementation and Enforcement of International Humanitarian Law’ in Frits Kalshoven (ed), Reflections on the Law of War (Leiden, Martinus Nijhoff, 2007) 595–620. 10. Bohunka O Goldstein, ‘Implementation of International Humanitarian Law by Diplomacy, Official and Non-Governmental’ in John Carey, William V Dunlap and R John Pritchard (eds), International Humanitarian Law: Origins (Ardsley, New York, Transnational Publishers, 2003) 161, 163. 11. Marco Sassòli, ‘The Implementation of International Humanitarian Law: Current and Inherent Challenges’ (2007) 10 Yearbook of International Humanitarian Law 45, 46. 12. Robert Kolb, Advanced Introduction to International Humanitarian Law (Cheltenham, Edward Elgar, 2014) 187–97. 13. Yves Sandoz, ‘Implementing International Humanitarian Law’ in International Dimensions of Humanitarian Law (n 1) 259, 259. 14. See also Draper (n 7) 102, 103.

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domestic legislation (including relevant regulations and instructions for the armed forces)15 and reciprocal communication of any translations of such legislation,16 or providing legal advisors for the armed forces,17 establishing programmes for the dissemination of the knowledge of LOAC to the general public18 and marking protected objects, such as cultural property.19 This list is certainly non-exhaustive and other implementation measures may be found across the wide range of LOAC treaties including a few mechanisms that can be relied upon on the international level. Such measures embrace, for example, the system of Protecting Powers which dates back to the FrancoPrussian War of 1870.20 Common to all these implementation arrangements is their focus on promoting respect for LOAC and forestalling any activity which will be in breach thereof. AP I regulates implementation measures as part of a larger set of compliance rules in its Part V on the ‘Execution of the [Geneva Conventions] and of its Protocols’. While Articles 80–84 are predominantly concerned with implementing measures, Articles 85–91 deal with questions of enforcement. An important point in relation to the present discussion is that even though it was not incorporated in Part V, the obligation to carry out a legal review of new weapons equally belongs to the category of implementation measures.21 It requires states to assess the legality of weapons, means and methods of warfare prior to their deployment. It thus aims to ensure that weapons which fail

15. See, eg, ­Article 80 AP I. 16. See, eg, ­Article 84 AP I. 17. See, eg, ­Article 82 AP I. 18. An express requirement of dissemination was first formulated in the Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, signed 6 July 1906, in Dietrich Schindler and Jieri Toman (eds), The Laws of Armed Conflicts (Leiden, Brill, 2004) 385 (entered into force 9 August 1907) (‘1906 Convention for the Amelioration of the Condition of the Wounded and Sick’), ­Article  26. This requirement was later reiterated in the subsequent Geneva Conventions of 1929 and 1949, Hague Convention for the Protection of Cultural Property and ­Article 83 AP I. 19. 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict and its Annex, signed 14 May 1954, 249 UNTS 240 (entered into force 7 August 1956) (‘1954 Convention for the Protection of Cultural Property’), Articles 6 and 16; Draper (n 7) 102, 103; Kolb (n 12) 187–97. 20. Protecting Powers are neutral states designated by a belligerent party to protect its interests vis-à-vis the adverse party and accepted in this role by the latter, see Articles 5 and 6 AP I, Articles 8–11 Geneva Conventions (GCs) I-III and Articles 9–12 GC IV. 21. See also Boothby (n  5) 334. See also Yves Sandoz, Christophe Swinarski and Bruno Zimmermann (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Geneva, Martinus Nijhoff, 1987) ­Article 80, para 3297 (‘1987 ICRC Commentary’).

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to comply with the principles of LOAC will not reach the battlefield and, as a result, trigger state responsibility for the violation of LOAC. Enforcement action, on the contrary, comes into play when the implementation action has failed. It seeks to secure reparation for the injury or inflicted damages and administer respective sanctions on those who have committed violations. Enforcement measures may include, for example, national legislation criminalising conduct that breaches the international law rule; domestic and international trials; or mutual assistance in criminal matters, ­Article 88 of AP I.22 Regrettably, the question of enforcement is frequently given a false priority over the implementation.23 Certainly, war crimes and trials of war crimes rightly attract much public attention. But the proliferation of international criminal tribunals, such as the International Military Tribunals at  Nurnberg and Far East, International Criminal Tribunals for Former Yugoslavia and Rwanda, and the International Criminal Court, serve as a reminder of the failure to ensure timely and proper respect for LOAC. Although not the focus of the present discussion, some of the enforcement regulations will be touched upon where necessary below to inform our understanding on how the issue of implementation has been approached in the weapons law treaties.

3. Implementing Regulations in the Pre-1977 Weapons Law Treaties In the following, all the international instruments which specifically regulate the use of weapons in war and preceded the final session of the Diplomatic Conference will be discussed. These instruments are not limited to those which became formally adopted as treaties; in light of their influence on the formation of LOAC, a number of non-binding arrangements are equally included in the analysis. There are altogether 13 such instruments.

3.1.  1868 St Petersburg Declaration The 1868 St Petersburg Declaration24 is the first major international agreement outlawing the use of a particular weapon in warfare.25 Its operational 22. See also Kolb (n 12) 914. 23. Draper (n 9) 81. 24. Declaration Renouncing the Use, in Time of War, of Explosive Projectiles under 400 Grams Weight, signed 29 November, in Schindler and Toman (n  18) (entered into force 11 December 1868). 25. Adam Roberts and Richard Guelff, Documents on the Laws of War, 3rd edn (Oxford, Oxford University Press, 2000) 53.

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part prohibited employment by the Contracting States of any projectile weighing under 400 grams, which is either explosive or charged with fulminating or inflammable substances. In view of that, the practical application of the Declaration would have required a state to assess which projectiles would run counter the agreed parameters and, accordingly, abstain from their use on the battlefield.26 The Declaration, however, did not include any guidance as to how this should be done. Neither did it include any implementation mechanism resembling that of A ­ rticle 36. It did, however, recognise the importance of reviewing the legality of new weapons.27 Undertaking to apply the Declaration ‘in view of future improvements which science may effect in the armaments of troops’, signatories admitted that the developments of means of warfare must take place within the boundaries of the law. These boundaries were then outlined in the preamble of the Declaration which, as a statement of fundamental principles, has exerted significant influence on the shaping of modern LOAC. There, recognising that there are circumstances in which ‘the necessities of war ought to yield to the requirements of humanity’, the drafters articulated the existence of limits to the choice of means and methods of warfare and fashioned an early formulation of the notion of military necessity. Accordingly, to alleviate its calamities as much as possible, the only legitimate purpose which states should endeavour in war was ‘to weaken the military forces of the enemy’. To that end, it was regarded as ‘sufficient to disable the greatest possible number of men’. This object ‘would be exceeded by the employment of arms which uselessly aggravate [human] sufferings’. Such arms ‘would, therefore, be contrary to the laws of humanity’. The latter statement contains an early articulation of the principle prohibiting superfluous injury and unnecessary suffering. Compliance with the principle would require a state to evaluate whether a weapon intended for the introduction into the state’s arsenal is permissible in light of comparable, lawful weapons or munitions already in use on the battlefield.28 Although

26. On the rational of the prohibition, see Natalia Jevglevskaja, ‘St Petersburg, 1868: First International Agreement Prohibiting the Use of Certain Weapons’ in Fabian Klose et al (eds), Online Atlas on the History of Humanitarianism and Human Rights (December 2015) http://wiki.ieg-mainz.de/ghra/index.php?title=St_Petersburg,_1868:_ First_International_Agreement_Prohibiting_the_Use_of_Certain_Weapons (last accessed 18 December 2018). 27. Daoust, Coupland and Ishoey (n 5) 346. 28. See Derek I Grimes, John Rawcliffe and Jeannine Smith (eds), Operational Law Handbook (Charlottesville, Virginia, International and Operational Law Department, TJAGLCS, 2006) 17–18.

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included in the preamble – a section occasionally considered non-binding29 – it nevertheless articulated states’ understanding at the time that their right to choose means and methods of warfare is not unlimited and can be regarded as foundational for the establishment of weapons reviews in that it formally spelled out principles which are still governing the legal assessment of weapons. To illustrate, the principle prohibiting the use of weapons which cause superfluous injury or unnecessary suffering is now not only codified in a number of international treaties which will be discussed below, but is also viewed as reflective of customary international law.30

3.2.  1874 Brussels Declaration and 1880 Oxford Manual In the years following the adoption of the St Petersburg Declaration, developments in weapons technology continued to cause concern which, it was then felt by international jurists and military experts, was best addressed by new legal rules.31 The two documents discussed in this section, though never formally adopted as treaties, were influential in the development of legal opinion on the subject of permissible weapons. The 1874 Brussels Declaration was the first document to expressly proclaim what had already been implied in the 1868 St Petersburg Declaration, namely that ‘[t]he laws of war do not recognize in belligerents an unlimited power in the adoption of means of injuring the enemy’.32 The Brussels Declaration sought to reach beyond the operative provision of the St Petersburg Declaration and this time explicitly spell out a ban on the employment of arms, projectiles or material calculated to cause unnecessary suffering.33 Notably, however, it remained silent on the matter of 29. See Nguyen Quoc Dinh, Patrick Daillier and Alain Pellet, Droit International Public, 7th edn (Paris, La Librairie générale de droit et de jurisprudence, 2002) 131. 30. See ­Article  23 (e) Annex to the 1899/1907 Hague Regulations; A ­ rticle  35 (2) AP I; Rule 70 ICRC Customary Law Study, 237. 31. See also Boothby (n 5) 13. 32. Project of an International Declaration Concerning the Laws and Customs of War, signed 27 August 1874, in Schindler and Toman (n 18) 21 (not in force) (‘Brussels Declaration’), ­Article 12. 33. ­Article 13 Brussels Declaration stated: [e]specially ‘forbidden’ [are]: (a) Employment of poison or poisoned weapons; […] (e) The employment of arms, projectiles or material calculated to cause unnecessary suffering, as well as the use of projectiles prohibited by the Declaration of St. Petersburg of 1868; Note, that the employment of poison and poisonous weapons has been prohibited under customary international law prior to the adoption of the Brussels Declaration, see Boothby (n 5) 104. See also Leslie C Green, The Contemporary Law of Armed Conflict, 3rd edn (Manchester, Manchester University Press, 2008) 167–68.

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implementation with absolutely no guidance provided as to which measures a state should take to ensure that the aforementioned weapons will not be issued for the use by its armed forces. The Brussels Declaration failed to find the formal support by states, though, and the Institute of International Law – an association founded in 1873 comprising members of different nations to further the study and development of international law – appointed a committee of experts to study and revise the text of the Brussels Declaration.34 The efforts of the committee led to the adoption of the Manual on the Laws of War on Land (‘1880 Oxford Manual’)35 which was intended to serve as a basis for national legislation.36 With some non-substantive alterations, it repeated the abovementioned sentiments expressed in the Brussels Declaration, namely that ‘[t]he laws of war do not recognize in belligerents an unlimited liberty as to the means of injuring the enemy’, A ­ rticle 4, and that it is therefore forbidden ‘[t]o make use of poison, in any form whatever’, ­Article 8 (a), as well as ‘employ arms, projectiles and materials of any kind calculated to cause superfluous suffering, or to aggravate wounds’, ­Article 9. A noticeable difference was, however, the inclusion of ‘penal sanctions’ in the final Articles 84 to 86 of the Manual for the violation of ‘any of [its] foregoing rules’. Qualifying as enforcement measures these sanctions would have extended to those members of a state’s armed forces who, for example, decided to use poison on the battlefield. Still, the Oxford Manual provided no guidance as to what preparatory arrangements a state ought to take to determine that certain substances qualified as ‘poison’ or a particular weapon was ‘calculated to cause superfluous suffering’. Thus, in this document too, the question of what legal mechanisms were necessary to ensure proper implementation of the prohibitions on certain weapons was left to the discretion of states.

3.3.  1899 and 1907 Hague Conferences Together with the St Petersburg Declaration, the Brussels Declaration and the Oxford Manual paved the way for the work of the Hague Conferences of 1899 and 1907. The latter marked the culminating achievement in the half-century of movement seeking to systematise, define, and codify the laws of war. Thus, the Conference of 1899 adopted three conventions, three declarations, a resolution and six voeux on different subjects. The Conference of

34. Schindler and Toman (n 18) 29. 35. Manual Published by the Institute of International Law, adopted 9 September 1880, in Schindler and Toman (n 18) 29 (‘Oxford Manual’). 36. Roberts and Guelff (n 25) 68.

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1907 adopted 13 conventions and one declaration, all covering a wide range of issues relative to the conduct of war.37 The most important instruments for the purposes of the present discussion are the Hague Regulations on the Laws and Customs of War on Land laid down in the Annex to the 1899 Hague Convention II and subsequently revised in the Annex to the 1907 Hague Convention IV.38 This time, it was in a legally binding form that both regulations proclaimed that the right of belligerents to adopt means of injuring the enemy is not unlimited39 and proscribed the employment of poison or poisoned weapons40 along with the arms, projectiles, or material of a nature to cause superfluous injury.41 Still, none of the conventions incorporated any regulations as to how the respective assessment of the weapons should be carried out, leaving this decision to the individual States Parties. As far as the compliance framework is concerned, the conventions did not go any further than to obligate states to issue instructions to their armed land forces to comply with the convention.42 States have in practice met this obligation by issuing official manuals, based upon those regulations, to guide the commanders and staff officers in their decisions.43 If compared to the preceding weapons law instruments discussed above, this provision was certainly a novelty at the time of its introduction. Yet, it did not reach beyond the requirement to ensure that necessary instructions concerning certain prohibitions or restrictions on particular types of weapons would be brought to the attention of the relevant personnel within the state’s military. It did not inform on how these restrictions and prohibitions were supposed to be put into force. One can also observe that, based on another

37. See James Wilford Garner, International Law and the World War (New York, Longmans, Green and Co, 1920) vol 1, 17 et seq. 38. Convention (II) with Respect to the Laws and Customs of War on Land and its Annex, signed 29 July 1899, in Schindler and Toman (n 18) 55 (entered into force 4 September 1900) (‘1899 Hague Convention II’); Convention (IV) with Respect to the Laws and Customs of War on Land and its Annex, signed 18 October 1907, in Schindler and Toman (n 18) 55 (entered into force 26 January 1910) (‘1907 Hague Convention IV’). The 1907 text of the regulations superseded the 1899 text for those states that participated in both. 39. ­Article 22 Annex to the 1899 Hague Convention II and also A ­ rticle 22 Annex to the 1907 Hague Convention IV. 40. ­Article 23 (a) Annex to the 1907 Hague Convention IV; A ­ rticle 23 (a) Annex to the 1899 Hague Convention II spoke of ‘poison or poisoned arms’. 41. Both annexes to the conventions adopted the same text in their ­Article 23 (e). 42. ­Article 1 1899 Hague Convention II and 1907 Hague Convention IV. 43. GIAD Draper, ‘The Place of the Laws of War in Military Instruction’ in Michael A Meyer and Hilaire McCoubrey (eds), Reflections of Law and Armed Conflicts (The Hague, Kluwer, 1998) 111, 111.

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novel provision, states were ready to accept the obligation to compensate for the breaches of the Convention. Thus, A ­ rticle  3 of the 1907 Hague Convention IV stipulated that: ‘A belligerent party which violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces.’ This was the first law of armed conflict treaty that provided for specific consequences if a state were to fail to abide by its treaty obligations.44 Whilst such a breach could have resulted, for example, from the use of poisonous weapons, the fact that no model weapons review procedure was laid down at the time suggests that states did not regard it necessary and were ready to take the risk that States Parties to the same international conventions could reach conflicting decisions with respect to the legality of a certain weapon or ammunition. A number of further important declarations were elaborated and adopted at both conferences. Thus, according to the 1899 Hague D ­ eclaration (IV, 2) the Contracting Powers agreed to abstain from the use of projectiles, the sole object of which is the diffusion of asphyxiating or deleterious gases.45 The Hague Declaration (IV, 3) prohibited the use of bullets which expand or flatten easily in the human body.46 Finally, the 1899 Hague Declaration (VI, 1)47/ (1907 Declaration XIV)48 proscribed the launching of projectiles and explosives from balloons or by other new methods of a similar nature. None of the declarations had any dedicated arrangements to address compliance. And yet, a good faith implementation of the 1899 Hague Declaration (IV, 1) would have required states to assess the nature of the released gases and whether the gas diffusion was the exclusive purpose of the projectiles or merely a side effect. Similarly, to meet the requirements of the 1899 Declaration (IV, 3) a state would have to carry out tests and, judging by the performance of 44. See Boothby (n 5) 336. 45. Declaration (IV, 2) Concerning Asphyxiating Gases, signed 29 July 1899, in Schindler and Toman (n 18) 95 (entered into force 4 September 1900) (‘1899 Hague Declaration (IV, 2)’). 46. Declaration (IV, 3) Concerning Expanding Bullets, signed 29 July 1899, in Schindler and Toman (n  18) 99 (entered into force 4 September 1900) (‘1899 Hague Declaration (IV, 3)’). 47. Declaration (IV, 1) to Prohibit, for the Term of Five Years, the Launching of Projectiles and Explosives from Balloons, and Other Methods of a Similar Nature, signed 29 July 1899, in Schindler and Toman (n 18) 309 (entered into force 4 September 1900) (‘1899 Hague Declaration (IV, 1)’). 48. Declaration (IV, 1) to Prohibit, for the Term of Five Years, the Launching of Projectiles and Explosives from Balloons, and Other Methods of a Similar Nature, signed 29 July 1899, in Schindler and Toman (n 18) 309 (entered into force 4 September 1900) (‘1907 Hague Declaration XIV’).

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the bullet in a substance similar to human tissue, decide whether such a bullet falls under the prohibited type of expanding projectiles. Lastly, to abide by the terms of the 1899 Hague Declaration (IV, 1)/1907 Hague ­Declaration XIV a state would have to examine which methods of warfare would be comparable to the method of launching projectiles and explosives from balloons and consequently outlawed. One can thus observe that again, details relative to the necessary procedures to ensure due implementation of the declarations were left to the discretion of states.

3.4. The 1922 Washington Treaty and the 1925 Geneva Gas Protocol A horrendous number of 1.3 million gas casualties, including 91,000 deaths, were reported as a result of gas attacks in the trenches during the First World War.49 These statistics made clear that, in order to avoid the repetition of such atrocities, additional efforts were required to address the use of gas weapons in warfare.50 In an attempt to strengthen the existing international legal framework, A ­ rticle 5 of the 1922 Washington Treaty Relating to the Use of Submarines and Noxious Gases in Warfare reiterated the prohibition on ‘the use in war of asphyxiating, poisonous or other gases, and all analogues liquids, material or devices’.51 It partially replicates the wording of A ­ rticle 171 Treaty of Versailles which referred to ‘[t]he use of asphyxiating, poisonous or other gases and all analogues liquids, material or devices being prohibited’.52 However, since the latter was a peace Treaty and not an instrument designed to address the legality of the use of certain weapons in warfare, it is excluded from the scope of the current analysis. An enforcement obligation incorporated in ­Article 3 of the Washington Treaty sought to establish that anyone committing an attack on a merchant vessel by recourse to noxious gases would be ‘liable to trial and punishment as if for an act of piracy and may be brought to trial before the civil or military

49. Michael N Schmitt, ‘War, Technology, and International Humanitarian Law’ (2005) Program on Humanitarian Policy and Conflict Research, Occasional Paper Series, 6, fn 6. See also Jean-Louis Rolland, ‘Chemical Weapons Convention and the Verification Process’ in Wybo P Heere (ed), International Law and The Hague’s 750th Anniversary (The Hague, TMC Asser Press, 1989) 393, 393. 50. Boothby (n 5) 16; GIAD Draper, ‘The Development of International Humanitarian Law’ in International Dimensions of Humanitarian Law (n 1) 69, 75. 51. Treaty Relating to the Use of Submarines and Noxious Gases in Warfare, signed 6 February 1922, in Schindler and Toman (n 18) 1139 (not in force) (‘Washington Treaty’). 52. Treaty of Peace between the Allied and Associated Powers and Germany, signed 28 June 1919, [1919] 225 CTS 188 (entered into force 10 January 1920) (‘Versailles Peace Treaty’).

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authorities of any Power within the jurisdiction of which he may be found’. In contrast, no provisions dedicated to implementation, such as measures to be taken by states to identify what gases, liquids, material and devices fall under the scope of the Treaty, were included. The Washington Treaty never entered into force but, in 1925, under the auspices of the League of Nations and with the encouragement of the International Committee of the Red Cross (ICRC), the Geneva Gas Protocol was concluded.53 Relying on the language of ­Article  5 of the Washington Treaty, the Protocol extended the application of the 1899 Hague Declaration (VI, 2) ‘to the use of bacteriological methods of warfare’. In line with the Hague Declarations, the Protocol adopted a rather concise style and did not include any regulations on how it should be implemented. With the sole exception of ­Article 1 of the 1899 Hague Convention II/ 1907 Hague Convention IV requiring a State Party to issue instructions to its armed land forces to comply with the respective Convention, none of the instruments discussed so far had included any provisions on implementation (­Article  3 of the 1907 Hague Convention IV, providing that a belligerent State which violates the Convention may be liable to pay compensation dealt with the issue of enforcement. The non-binding provisions of the Oxford Manual on penal sanctions equally qualify as enforcement, not implementation measures).54 These instruments consisted of undertakings given by states, subject to any declared reservations and, in all but one instance,55 the applicability of the si omnes clause (or ‘General Participation Clause’). The latter commanded that the application of a treaty is subject to the condition that all states concerned are parties to it. Restated, a treaty ceased to apply in relation to all the States Parties if one of the belligerents did not subscribe to the terms of that treaty.56 The Geneva Gas Protocol represented a step forward in comparison to all preceding weapons law instruments in that it no longer contained the si omnes provision.57 Still, a number of states included a si omnes clause in their reservations to the Protocol and/or stated that it shall 53. Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, signed on 17 June 1925, in Schindler and Toman (n 18) 105 (entered into force 8 February 1928) (‘Geneva Gas Protocol’). 54. See above sections 3.2 and 3.3. 55. The Geneva Gas Protocol no longer included the si omnes clause. See also Yves Sandoz, ‘Penal Aspects of International Humanitarian Law’ in M Cherif Bassiouni (ed), International Criminal Law, 3rd edn (Leiden, Martinus Nijhoff, 2008) vol 1, 293, 299. 56. Examples of the si omnes clause can be found in the 1868 St Petersburg Declaration; ­Article 2 1899 Hague Convention II/1907 Hague Convention IV; 1899 Hague Declarations (IV, 1-3); 1907 Hague Declaration XIV. See also Draper (n 50) 69, 74. 57. Roberts and Guelff (n 25) 154.

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cease to be binding if an enemy or ally fails to respect the prohibitions contained therein. In the latter case, the Protocol was regarded as an agreement not to use the prohibited weapons first. The important point in relation to the present discussion is that, up until that time, a reserving state was formally under an obligation and could have duly reviewed weapons on their compatibility with, for example, prohibition on means of warfare causing superfluous injury.58 And yet, this labour would have served no purpose if that state engaged in warfare with a belligerent not party to the Convention, since the former would not be bound to abstain from the use of weapons it otherwise may have deemed illegal.

3.5.  1972 Biological Weapons Convention After a gap of nearly half a century, deficiencies of the 1925 Geneva Gas Protocol and the desire to prohibit not only the employment but, above all, the production and stockpiling of biological and chemical weapons, induced the UN General Assembly and the UN Committee on Disarmament to prioritise the latter issue on their agendas.59 As a result of the joint efforts, the 1972 Biological Weapons Convention, continuing and expanding the prohibitions of the 1925 Geneva Gas Protocol, laid down a comprehensive ban on bacteriological and toxin weapons.60 States Parties undertook to never, under any circumstances, develop, produce, stockpile or otherwise acquire or retain such weapons.61 With its focus on ‘achieving effective progress towards general disarmament’62 – and in noticeable difference to the earlier weapons law treaties – this undertaking did not explicitly extend to the prohibition of the use of biological weapons in war other than indirectly under the aforementioned phrase ‘never in any circumstances’.63 However, during the Fourth Review Conference in 1996, the States Parties to the Convention confirmed that its ­Article 1 equally covers the employment of such weapons in armed conflict.64 To ensure that no violation of the Convention

58. ­Article 23 (e) 1907 Hague Convention IV. 59. Schindler and Toman (n 18) 135. 60. Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, signed 10 April 1972, 1015 UNTS 163 (entered into force 26 March 1975) (‘BWC’). 61. ­Article 1 BWC. 62. Preamble BWC. 63. Karin Hjertonsson, ‘A Study on the Prospects of Compliance with the Convention on Biological Weapons’ (1973) Instant Research on Peace and Violence 211, 213. 64. ‘Final document of the Fourth Review Conference of the Parties to the Convention on the Prohibition of the Development, Production and Stockpiling of ­Bacteriological

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occurs, states agreed to take any necessary measures within their territory and under their respective jurisdictions and control to prohibit and prevent the development, production, stockpiling, acquisition or retention of biological weapons.65 It is hardly surprising that the Convention left it to states’ discretion to determine what measures were necessary to satisfy this requirement. To solve any problems relative to the implementation of the Convention, the treaty regime mandates that states consult one another and cooperate with each other, including through the appropriate international procedures within the United Nations.66 One can observe here that the implementation provisions agreed upon by states in 1972 were almost exclusively nonintrusive in nature. Although Articles 6 and 7 of the Convention laid down enforcement measures allowing any state which finds another state to be in breach of its obligations under the Convention to lodge a complaint with the UN Security Council, the latter is under no clear-cut obligation to initiate such an investigation or take any other action; notably, no such formal complaint addressed to the Security Council has ever been launched.67 Regardless of the uncontrollable effects and overall destructive power of biological weapons, no international organisation to oversee the application and implementation of the Convention was established by the States Parties.68

3.6.  1976 ENMOD Convention The last weapons law treaty to address for the purposes of the present analysis is the ENMOD Convention.69 It was negotiated in reaction to the environmental modification techniques relied upon by the US during the Vietnam War, such as massive spraying of chemical herbicides resulting in widespread forest and crop destruction in Vietnam, as well as attempts to manipulate (­Biological) and Toxin Weapons and on their Destruction’, BWC/CONF.IV/9 (25 November–6 December 1996) Part II, ­Article 4. States may however continue to use biological agents in a way which is prophylactic, protective or for other peaceful purposes, ­Article 1 BWC. 65. ­Article 4 BWC. 66. ­Article 5 BWC. 67. See Allan Rosas, ‘Reactions to Non-Compliance with the Chemical Weapons Convention’ in Michael Bothe, Natalino Ronzitti and Allan Rosas (eds), The New Chemical Weapons Convention – Implementation and Prospects (The Hague, Kluwer, 1998) 415, 473. See also Arms Control Association, ‘Chemical/Biological Arms Control’ (September 2012) www.armscontrol.org/factsheets/bwc (last accessed 18 December 2018). 68. For a detailed account see Boothby (n 5) 132. 69. Convention on the Prohibition of Military or Any Hostile Use of Environmental Modification Techniques, signed 10 December 1976, 1108 UNTS 151 (entered into force 5 October 1978) (‘ENMOD Convention’).

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weather in Indo-China with a view to muddying or flooding the routes from North Vietnam.70 As a result of negotiations, deliberate and large scale misuse of the environment for military purposes became prohibited under the Convention.71 Subject to their national constitutional arrangements, each State Party undertook ‘to take any measures it considers necessary’ to prohibit and prevent any activity in violation of the Convention.72 Similar to the BWC framework, the ENMOD Convention left it to states to decide what measures they deemed necessary to adopt to secure its proper implementation. Equally akin to the BWC regime, states agreed to consult and cooperate with each other in regards to the questions of implementation of the Convention, including through the appropriate international procedures within the framework of the United Nations as well as of the Consultative Committee of Experts.73 Thus, similar to the BWC regime, ­Article 5(3) of the ENMOD Convention stipulates that a State Party, which has reason to believe that any other State Party is acting contrary to its obligations under the Convention, may lodge a complaint with the UN Security Council. ­Article 5(1) of the ENMOD Convention offers a supplement to the UN Security Council complaints procedure which the BWC does not. Accordingly, States Parties may use services of the Consultative Committee of Experts, whose functions and rules of procedure are set out in the Annex to the ENMOD Convention. Such a procedure is, however, not obligatory and the concept of the Consultative Committee of Experts is yet to be tested. It thus remains to be concluded that, similarly to the preceding weapons law treaties, the ENMOD Convention does not provide instruction as to how an assessment of weapons falling under its scope shall happen.

3.7. Evaluation The foregoing account sought to test the possibility of ­Article 36 being an outcome of some continuous historical development of states’ views on how particular prohibitions or restraints on the weapons use shall be put into

70. Roberts and Guelff (n  25) 407; UNEP, Protecting the Environment During Armed ­Conflict (Nairobi, UNEP, 2009) 12; UC Jha, Armed Conflict and Environmental Damage (New Delhi, Vij Books India, 2014) 190. 71. ­Article 1 ENMOD Convention. See also Roberts and Guelff (n 25) 408; Robert Kolb and Katherine Del Mar, ‘Treaties for Armed Conflict’ in Andrew Clapham and Paola Gaeta (eds), The Oxford Handbook of International Law in Armed Conflict (Oxford, Oxford University Press, 2014) 50, 63. 72. ­Article 4 ENMOD Convention. 73. ­Article 5 ENMOD Convention. See also Guido Den Dekker, The Law of Arms Control: International Supervision and Enforcement (The Hague, Martinus Nijhoff, 2001) 179–81.

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effect at the domestic level. However, an analysis of international law instruments that preceded the adoption of AP I illustrates that this assumption would be incorrect, as no gradual evolution of a weapons review obligation has occurred. To begin with, it is true that in 1868 the St Petersburg Declaration pointed at the significance of reviewing the legality of new weapons. Back then, Prussia even sought to extend the scope of enquiry to the application of scientific discoveries to armed conflict more generally.74 However, nowhere in its final text does the Declaration speak of the establishment of national mechanisms to that effect. The States Parties agreed ‘to come […] to an understanding’ whenever developments in armaments will necessitate ‘a precise proposition [i.e. regulation]’ on their use. If anything, this passage of the document is indicative of an acknowledgment that future international arrangements similar to those laid down in the Declaration might prove reasonable and desirable. In no way, however, does it point at, let alone impose, an individual duty on states to review weapons for their compatibility with the principles of LOAC, particularly those proclaimed in the Declaration. Although a century later these principles came to be regarded as foundational for the establishment of the weapons review obligation, the Declaration itself cannot be regarded as a precursor to an implementation mechanism under ­Article 36. One can further observe that the two treaties shortly preceding the adoption of the Protocol – the 1972 BWC and the 1977 ENMOD Convention – have much more sophisticated implementation arrangements in place, whilst other treaties and instruments elaborated between 1868 and 1925 contain hardly any provisions dedicated to implementation. With the sole exception of ­Article 1 of the 1899 Hague Convention II/1907 Hague Convention IV which obligates states to issue instructions to their armed forces to comply with the provisions of the Convention, no specific rules on implementation can be found in the pre-1977 weapons law instruments. While states were ready to assume certain obligations relative to the use of weapons in warfare, it was for them alone to see that – and, above all, how – they discharge these obligations. If anything, one can speak of a gradual evolution of the aforementioned requirement to issue instructions to the armed forces to ensure observance of a given LOAC treaty: the obligation has been reiterated as a constituent part of the obligation to disseminate knowledge of LOAC and has now passed into customary international law.75 One can also speak of 74. Roberts and Guelff (n 25) 53. 75. An obligation of states to provide instructions in LOAC to their armed forces has been reiterated as a constituent part of the obligation to disseminate knowledge of LOAC

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an increasing acceptance to pay compensation for violations of LOAC, if the case so demands.76 The same cannot be contended in regards to the weapons review obligation laid down in A ­ rticle  36. Comparison with the weapons law treaties pre-dating AP I reveals that none of them had an arrangement in place which would resemble the current wording of ­Article 36. The furthest the states were ready to go before 1977 was to agree on taking ‘necessary measures’ to ensure due implementation of a given treaty.77 The content and reach of such measures remained at states’ discretion. Against this background, one wonders whether it was considered unnecessary to spell out a weapons review obligation at the time of the earlier weapons law treaties. Perhaps the need for an ­Article 36 process became apparent only as the body of law grew in size and complexity, and weapons systems became more complex and their effects more difficult to predict. Or could it be that faithful and effective implementation was considered to be implied in a prohibition? One answer to that question appears obvious. Given that the codification movement had begun around the time of the 1899/1907 Hague Conventions and Declarations, the drafters of those instruments were primarily concerned with codifying the existing customary rules on the conduct of warfare.78 Being predominantly occupied with the substantive law, they did not see fit to codify the methods of implementing that law.79 An additional possible explanation may be found in the states’ firm belief in the virtue of the maxim pacta sunt servanda. In those days, to suggest that states might violate their obligations was audacious.80 Thus, during the Hague Conference of 1907, it was considered essential to stress that ­Article 3 of the Hague Convention IV stipulating the States Parties’ obligation to pay compensation for the violation of the Convention in no way ‘puts in doubt the good faith of governments’; nonetheless, it was also regarded necessary to regulate the responsibility of states even if there had been no ‘lack of care or good will’.81 Over time, however, as states’ international commitments became and has now passed into customary international law. See, eg, A ­ rticle 26 1906 Geneva Convention, ­Article 27 1929 Geneva Convention, ­Article 47 GC I, ­Article 48 GC II, ­Article 127 GC III, ­Article 144 GC IV, Articles 80 (2) and 83 AP I and ­Article 19 AP II. See also ICRC Customary Law Study, Rule 142, 501. 76. See ICRC Customary Law Study, Rule 150, 537. 77. See, eg, ­Article 4 BWC and ­Article 4 ENMOD Convention speaks of ‘measures it [a State Party] considers necessary’. 78. GIAD Draper, The Implementation of the Modern Law of Armed Conflicts (Jerusalem, At the Magnes Press, 1973) 10. 79. Ibid. 80. Yves Sandoz (n 55) 293, 296. 81. Yves Sandoz (n 55) 296.

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more numerous and complex, states felt it wise to impose on themselves, in any given agreement, certain measures they believed had to be taken if the objectives of those agreements were to be met. So, binding objectives, increasing in number, began to be accompanied by obligatory measures to achieve them.82 Last, one of the major reasons for the adoption of AP I and thus also A ­ rticle 36 lay in the fact that the regulations on the means and methods of warfare had not been duly updated since the 1899/1907 Hague Peace Conferences. This temporal gap in the development of the law of weaponry explains why there was little opportunity to advance respective implementing mechanisms either. In view of an apparent reticence to accept any detailed implementation measures, the states’ commitment in ­Article  36 of AP I to determine ‘in the study, development, acquisition or adoption of a new weapon, means of method of warfare, […] whether its employment would, in some or all circumstances, be prohibited by [AP I] or any other rule international law applicable [to a State Party to that Protocol]’ is strikingly lengthy. Moreover, to some, ­Article 36 came as ‘a novelty’ at the time.83 Others even called it ‘revolutionary’.84 In any case, and regardless of the label, the provision has also been seen to represent a logical consequence of an older rule, restated in A ­ rticle 35 of AP I, namely that the right of the parties to the conflict to choose methods or means of warfare is not unlimited.85 Reflecting on the suggestion of A ­ rticle 36’s revolutionary nature, one cannot miss the fact that the vast majority of the instruments discussed above date back to the period between 1868 and 1925. They all outlaw certain types of weapons and/or incorporate general principles, such as the prohibition on inflicting superfluous injury and unnecessary suffering, reiterated in ­Article 35 (2) of AP I. Compliance with these instruments would have hardly been possible without an adequate legal review. And yet, the official 1987 ICRC Commentary to AP I seems to suggest that it was not until 1977 that states suddenly realised ‘a need for a link’ between the general principles laid down in A ­ rticle 35 and the introduction of a new weapon by states.86 In other 82. Yves Sandoz (n 55) 303. 83. Christopher Greenwood, ‘Customary Law Status of the 1977 Geneva Protocols’ in Astrid J M Delissen and Gerard J Tanja (eds), Humanitarian Law of Armed Conflict: Challenges Ahead (The Hague, TMC Asser Instituut, 1991) 193, 105. 84. James D Fry, ‘Contextualized Legal Reviews for the Methods and Means of Warfare: Cave Combat and International Humanitarian Law’ (2005) 44 Columbia Journal of Transnational Law 453, 469. 85. ­Article 35 (1) AP I; See also above, St Petersburg Declaration, 1874 Brussels Declaration, and the later treaties. 86. 1987 ICRC Commentary, A ­ rticle 36, para 1466.

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words, while none of the LOAC instruments which came into existence after the St Petersburg Declaration mention the significance of carrying out weapons reviews, not one of them would be capable of implementation without at least a basic legal analysis. Such an analysis would be focused on determining whether the means or methods of warfare a state is contemplating employing would comply with a given LOAC treaty (for example, 1899 Hague Declaration (IV, 3) prohibiting the use of bullets which expand or flatten easily in the human body, discussed above). Such an obligation, however, would already follow from that treaty. To summarise, the main question of why there was a need for ­Article 36, posed at the beginning of this article, cannot be answered by reference to the weapons law treaties that preceded the adoption of AP I. Given that none of those instruments included a provision in any way resembling ­Article 36, the latter indeed appears to be ‘a novelty’ in international weapons law. It is therefore necessary to turn to the drafting materials to see if they offer any insight on this issue.

4.  Drafting History of ­Article 36 The examination of the drafting history of ­Article 36 will focus on the following questions: what is the origin of A ­ rticle 36 and what did its sponsors intend to achieve? What was the view of other delegates attending the Diplomatic Conference on the exigency and relevance of a provision on weapons reviews? Finally, was it a deliberate and a thoroughly thought through proposal or, rather, an accidental by-product of a heated debate on some different, even if related, issue? For the purposes of the current analysis, the drafting materials include the Official Records of the Diplomatic Conference, personal interviews with the former delegates to, experts and observers at the Conference,87 as well as related archival material in the possession of the ICRC, the Australian Red Cross, and the Australian Department of Foreign Affairs and Trade. The following section will look at the major events and milestones leading up to the adoption of A ­ rticle 36. It will first explain the need to address the changing realities of war subsequent to the 1949 Diplomatic Conference ­(section 4.1.). It will then consider the 1972 Conference of G ­ overnment

87. In 2015 the author of this a­ rticle interviewed a number of former delegates to, experts and observers at the 1974–77 Diplomatic Conference. She is especially grateful for the insights on the proceedings at the Conference to Sir Kenneth Keith, Wynford Connick, Richard Rowe, Michael Bothe, Dieter Fleck, Georges Abi-Saab, Yves Sandoz, Hans-Peter Gasser and Hans Blix.

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experts where the proposal for A ­ rticle 36 was first drafted (section 4.2.) and how it later became incorporated in the 1973 Draft AP I (section 4.3.). The examination of the work accomplished during the 1974–77 Diplomatic Conference (section 4.4.) will allow certain conclusions to be drawn as to the origins of the weapons review obligation under ­Article 36 (section 4.5.).

4.1.  Aftermath of the 1949 Diplomatic Conference Despite the significant achievements of the 1949 Diplomatic Conference which led to the adoption of the four Geneva conventions – the core of modern LOAC – a number of important issues were left unresolved. Above all, the regulation of the choice and use of weapons in warfare remained unchanged since the 1899 and 1907 Hague Peace Conferences. Protection of the civilian population against the ever-increasing effects of continuously advancing armaments and military tactics also remained largely inadequate. Moreover, none of the conventions addressed the need to protect both movable and immovable cultural property in armed conflict. Whilst, following the initiative of UNESCO, the 1954 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict88 dealt with immovable cultural property, such as monuments, and thus helped to close that particular regulatory gap, the legal instruments regulating recourse to means and methods of warfare were yet to be developed. With new types of armed conflicts emerging in the second half of the twentieth century, a series of conferences and consultative meetings was initiated to identify legal rules in need of adaptation to the changing realities of war. Significant efforts were directed towards identifying issues with a decent prospect of settlement by new international instruments reaffirming and developing the 1949 Geneva Conventions. These included: —— the 1965 International Red Cross Conference in Vienna;89 —— the 1968 International Conference on Human Rights in Teheran;90

88. 1954 Convention for the Protection of Cultural Property. 89. Resolution XXVIII, Protection of Civilian Populations Against the Dangers of Indiscriminate Warfare, XXth International Conference of the Red Cross, Vienna, 1965, CE/8b (Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva 24 May–12 June 1971, CE/8b, Annex XV). 90. Resolution XXIII of the International Conference on Human Rights, Teheran, April–May 1968 (‘Human Rights in Armed Conflict’) (Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva 24 May–12 June 1971, CE/8b, Annex VI).

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—— the 1969 XXI International Red Cross Conference in Istanbul;91 —— regular reports of the Secretary-General on attendant issues of International Humanitarian Law (IHL);92 —— the 1971–1972 Conferences of Red Cross Experts;93 and —— the two Conferences of Government Experts.94 Important as they are, not all of these preparatory developments have a bearing on A ­ rticle 36. The most relevant development was the second Conference of Government Experts on the Reaffirmation and Development of International Law Applicable in Armed Conflicts – the forum in which a formal proposition to establish an individual duty of states to legally review weapons was first tabled.

4.2.  1972 Conference of Government Experts The Conference convened by the ICRC in 1972 was fundamental to the subsequent adoption of ­Article 36. Seventy-seven states were represented by more than 400 experts deliberating on the final session on reaffirmation and development of neglected areas of LOAC. Extensive documentary materials were submitted for the attention of participants, comprising a draft additional Protocol to the four Geneva conventions and a draft additional Protocol to ­Article 3 common to these four conventions (each in its turn accompanied by a commentary), as well as other ICRC, UN and non-governmental organisation (NGO)-initiated documents.95 The list of main issues on the agenda included new methods and means of warfare. At the outset, some support was expressed for including concrete

91. ‘XXIst International Conference of the Red Cross’ (1969) 9 International Review of the Red Cross 32–35 and 599–607. 92. Respect for Human Rights in Armed Conflicts: [First] Report of the Secretary-General, UN Doc A/7720 (1969); Respect for Human Rights in Armed Conflicts: [Second] Report of the Secretary-General, UN Doc A/8052 (1970); Respect for Human Rights in Armed Conflicts: [Third] Report of the Secretary-General, UN Doc A/8370 (1971). 93. ICRC, Conference of Red Cross Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts: Report on the Works of the Conference (Geneva, ICRC, 1971); ICRC, Conference of Red Cross Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts: Report on the Works of the Conference (Geneva, ICRC, 1972). 94. ICRC, Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts: Report on the Work of the Conference (Geneva, ICRC, 1971–72). 95. ICRC, Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts: Report on the Work of the Conference (Geneva, ICRC, 1972) vol 1, 1.

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prohibitions or restrictions in the Protocol on certain conventional weapons that cause unnecessary suffering or have indiscriminate effects.96 Yet, the ICRC preferred to limit its proposal to general principles on methods and means of warfare. The organisation explained its reluctance to include specific restraints in Draft Protocol I by reference to other more suitable fora concerned specifically with problems of arms limitations and disarmament.97 The ICRC expounded that there had never been an attempt to include prohibitions against specific weapons in the 1949 conventions, as prohibitions of weapons were then regarded liable to be subject to reprisals and reciprocity. In view of that, the ICRC favoured restrictions on specific weapons – if so desired and agreed upon by states – in a separate legal instrument.98 The ICRC’s preferred position prevailed but with a number of adjustments to basic rules governing the means of warfare in Draft Protocol I. In response to ICRC’s Draft A ­ rticle  on ‘Means of Combat’99 – which reaffirmed the principles expressed in Articles 22 and 23 (e) of the 1899 Hague ­Regulation Convention II/1907 Hague Convention IV100 – several states submitted the amendment CE/COMIII/C59. The text of that proposed amendment included a paragraph stipulating that: [i]n the development of new weapons or methods of warfare States have an obligation to determine whether the use of a particular new weapon or method of warfare will be compatible with the principle that methods and means of

96. Frits Kalshoven, ‘Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts: The Conference of Government Experts (Second ­Session), 3 May–2 June 1972’ (1972) 3 Netherlands Yearbook of International Law 18, 28–29. 97. Ibid. 98. Ibid. See also Michael Bothe, Karl J Partsch and Waldemar A Solf (eds), New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Additional Protocol to the Geneva Conventions of 1949 (Leiden, Martinus Nijhoff, 2013) ­Article 35, 227. 99. ­Article 30, ICRC Draft reads as follows: Means of combat 1. Combatants’ choice of means of combat is not unlimited. 2. It is forbidden to use weapons, projectiles or substances calculated to cause unnecessary suffering, or particularly cruel methods and means. 3. In cases for which no provision is made in the present Protocol, the principle of humanity and the dictates of the public conscience shall continue to safeguard populations and combatants pending the adoption of fuller regulations. See ICRC, Draft Additional Protocols to the Geneva Conventions of August 12, 1949 (Geneva, ICRC, 1973) (‘ICRC 1973 Draft Additional Protocols’). 100. That is that belligerents have no unlimited choice of means of warfare and that it is forbidden to use weapons calculated to cause unnecessary suffering.

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armed conflict shall not be employed in a manner calculated to cause unnecessary suffering.101

It was expected that this clause would have the positive effect of transferring considerations of the legality of certain means of warfare ‘from the courtrooms to the drawing table’: in other words, from assessing the legality of weapons ex post facto to ante facto – whether to develop them in the first place or whether to otherwise acquire them at all.102 It was also believed that [a]n important side-effect would be that the clause would settle once and for all [sic] the argument used even at the time of the nuclear attacks on Hiroshima and Nagasaki, that new weapons are not covered by pre-existing rules of the law of war.103

But one searches in vain in the ICRC archives for more detail on the precise motives for the amendment. Nor would one find which governments were the driving force behind it. Whilst all of the states which joined the amendment in 1972 – Australia, Belgium, Canada, the Federal Republic of Germany, the UK and the USA – currently have a weapons review procedure in place, little knowledge of the amendment has been preserved in the institutional memory of these states. Interviews with the officers in charge of the weapons reviewed revealed that most of them were not aware of the fact that their government stood behind the proposition for what later became ­Article 36.104 With the amendment being submitted for further consideration, preparatory discussions and expert consultations continued throughout the first half of 1973. Meetings of the Advisory Group of Government Experts reviewed the draft articles elaborated by the ICRC for consideration at the upcoming diplomatic conference, focusing on their potential acceptability by the participating states. The outcome of this preparatory work – the final text of the

101. Proposal submitted by the experts of Australia, Belgium, Canada, the Federal Republic of Germany, the United Kingdom and the United States of America, ICRC, Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (Geneva, ICRC, 1972) vol 2, 61 (CE/COM III/C59). 102. Kalshoven (n 96) 18, 29. 103. Kalshoven (n 96) 18, 29. 104. In 2015 the author of this a­rticle  personally interviewed state officials in charge of weapons reviews in all the above listed states which stood behind the amendment CE/COMIII/C59. In Australia, she also had an opportunity to examine the records of the Australian Department of Foreign Affairs and Trade on the proceedings at the Conference. The records, however, revealed no information as to the origins of ­Article 36.

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two Draft Additional Protocols to the Geneva Conventions of 1949 – was published in June 1973.105 A Commentary to the Draft Protocols followed in October the same year.

4.3.  1973 ICRC Draft and Commentary The amendment CE/COMIII/C59 on legal reviews of weapons and methods of warfare appeared to be welcomed by the experts as evidenced by the following fact. Its paragraph 3 was adopted with its essentials intact as ­Article 34 of the Draft Additional Protocol I (‘DAP I’), which read as follows: ‘In the study and development of new weapons or methods of warfare, the High Contracting Parties shall determine whether their use will cause unnecessary injury.’ A commentary accompanying this ­ Article  consisted of a single short passage. It took note of the last paragraph of the 1868 Declaration of St Petersburg,106 whereby states reserve to themselves to come hereafter to an understanding whenever a precise proposition shall be drawn up in view of future improvements which science may effect in the armament of troops in order to maintain the principles which they have established, and to conciliate the necessities of war with the laws of humanity.

The commentary branded the provision as ‘something new in international treaty law’.107 Remarkably, whilst asserting that A ­ rticle  34 of DAP I by then formed part of the internal ordinances of some states, the commentary confined itself to providing a single example of the Federal Republic of Germany whose domestic rule of March 1961 – Allgemeine Bestimmungen des Kriegsführungsrechts und Landkriegsrechts (General Legal Provisions relating to the Conduct of Hostilities and War on Land) (‘1961 General Legal Provisions’) – mandated that weapons be developed in accordance with the requirements of the existing legal regulations.108 At the time, it was believed that the new ­Article 34 of DAP I ‘might prove a powerful instrument in the hands of those who want to prevent ­undesirable 105. ICRC 1973 Draft Additional Protocols. 106. St. Petersburg Declaration Renouncing the Use, in Time of War, of Explosive Projectiles under 400 Grammes Weight (29 November/11 December 1868) 138 CTS 297–99 (reprinted in Roberts and Guelff (n 25) 54–55 (‘St Petersburg Declaration’). 107. ICRC, Draft Additional Protocols to the Geneva Conventions of August 12, 1949: Commentary (Geneva, ICRC, 1973) 42. 108. Ministry of Defence, Kriegsvölkerrecht: Leitfaden für den Unterricht, Teil 7: Allgemeine Bestimmungen des Kriegsführungsrecht und Landkriegsrecht [‘Law of Armed Conflict: Guidelines for Teaching, Part 7: General Legal Provisions relating to the Conduct of Hostilities and War on Land’] (ZDv 15/10, March 1961), A ­ rticle 86. See also Dieter Fleck statement at the Ad Hoc Committee, CDDH/IV/SR.1.

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developments in the field of weapons’.109 As noted by Frits Kalshoven, who closely followed and comprehensively reported on both the Diplomatic Conference as well as on its preparatory phases, it was gradually dawning on an increasing number of those involved in the design and production planning of new weapons that an assessment of the human suffering which the use of new weapon is likely to entail should constitute an important, if not a dominant, factor in the decision whether the armed forces should be equipped with it at all.110

Again, the ICRC Commentary to the draft was conspicuously silent as to the potential motives behind the amendment. Given that five of the six states sponsoring the amendment established their weapons review process only in or after 1974,111 it seems likely that the idea was proposed by the state which already had a national implementation measure resembling the provision of ­Article  36. That state was the Federal Republic of Germany. In view of quite a significant opposition to include specific prohibitions on weapons in DAP I, the readiness of the experts to accept a legal norm which, if duly implemented by the governments, promised to achieve the same effect, ie, outlaw or restrict the use of certain weapons, is understandable. As the following section illustrates, the time was soon ripe for the proposition on domestic weapons reviews to become an internationally binding provision.

4.4.  1974–1977 Diplomatic Conference Convened by Switzerland at the request of the ICRC in February 1974, the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflict was, at the ­outset, planned to extend over two sessions (the first, from 20th February to 29th March 1974 and the second at a date to be fixed in 1975112). Despite all the efforts and enormous resources directed to that end, it took two further terms until the final text of the Additional Protocols was adopted.

109. Frits Kalshoven, ‘The First Session of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva, 20 February–29 March 1974’ in Frits Kalshoven (ed), Reflections on the Law of War: Collected Essays (Leiden, Martinus Nijhoff, 2007) 101, 111. 110. Ibid, 101, 111–12. 111. The US in 1974, UK in 1998, Belgium in 2002, Australia in 2005, Canada began reviewing weapons ad hoc, without a formal review procedure in place, around the year 2000. 112. Noreen Minogue, Australian Red Cross, Report on the Second Session of the Diplomatic Conference (1975) 1.

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Altogether, the formal sessions of the Conference spanned eight months, with a number of inter-sessional meetings for special purposes. As per the Official Records, only four days in total were devoted to the deliberations on the substance of ­Article 36. An account of these few days, along with the amendments submitted prior to the beginning of the official debates, covers, in an environmentally friendly manner, only nine out of over 7,800 pages in the 17 volumes of the Official Records. Whilst throughout the deliberative process the weapons review obligation formed ­Article 34 of DAP I, in the final version of the Additional Protocol it became ­Article  36. A basic understanding of the organisational structure of the Conference helps to understand the progress of negotiations on the weapons review obligation and its significance for the attending delegates. A few words should therefore be spent on this in the next step. 4.4.1.  Organisation of the Conference In 1974, the Conference was divided into three main committees. Articles dealing with matters requiring policy decisions by governments were allocated to Committee I and provisions concerned with the care of the sick and wounded were assigned to Committee II. The articles affecting the means and methods of warfare and the law relating to such matters – the focus of the current a­ rticle – were mandated to Committee III.113 To facilitate negotiations, a General Committee (the steering body of the whole Conference), a Credentials Committee and a Drafting Committee were established. The latter body was in charge of coordinating and reviewing the drafting of all the texts adopted by the main committees.114 In the last weeks of the final fourth session of 1977, the results of the work of the main committees, as revised by the Drafting Committee, were submitted for decision by the Conference Plenary.115 The Conference further decided to set up an Ad Hoc Committee to ‘examine the question of prohibition or restriction of use of specific categories of conventional weapons which may cause unnecessary suffering or have indiscriminate effects, and to consider all proposals which are submitted to the

113. Ibid. 114. Final Act of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva, 1974–1977 (Bern, Federal Political Department, 1978) vol 1, 1 (‘Final Act’). 115. Bothe, Partsch, Solf (n 98) 5.

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Conference relating to such weapons’.116 Despite disclosing a great deal of remarkable facts and data on conventional weapons, deliberations of the Ad Hoc Committee led to no direct results by the time the Conference had concluded its proceedings. The main committees formed working groups where the bulk of the deliberative work was conducted and most decisions were taken.117 Unfortunately, these working groups, and the subgroups they had formed, did not meet in public and so no verbatim records of the work accomplished during these meetings exist.118 Frustratingly, the crucial part of the decision-making process of the Conference remained thus undocumented with obvious consequences for our understanding of the origins and scope of ­Article 36. 4.4.2.  Changes to the Wording of ­Article 36 at the Conference Analysing the developments at the Conference in their chronological order, the following can be observed. Having opened on 20 February 1974, the greater part of the first session of the Conference was absorbed by political debates with few constructive results. One member of the Australian delegation to the Conference observed that, despite many areas of disagreement, Committee III made the most substantive progress, especially in comparison to the first and the second committees.119 Yet, apart from two amendments120 submitted in response to the ICRC draft,121 no substantive work on A ­ rticle 36 was accomplished by the end of that session. In contrast, much greater and indeed valuable progress was recorded during the second session of the Conference in 1975, where the most noteworthy amendments were introduced and comprehensive explanations relative to their interpretation presented in Committee III and its Working Group. Introducing A ­ rticle  34 of DAP I to the Conference, Mr de Preux (ICRC), stated that, unless account was taken of the last paragraph of the 1868 St Petersburg Declaration, ‘which was somewhat broader in scope’, the ­Article ‘appeared for the first time in international law’.122 One could, perhaps, take this reference to the 1868 St Petersburg Declaration as an

116. CDDH/23, 4 March 1974. 117. Bothe, Partsch, Solf (n 98) 5. 118. Bothe, Partsch, Solf (n 98) 5. 119. Minogue (n 112) 1. 120. CDDH/III/28 (Ghana), 14 March 1974; CDDH/III/32 (Brazil), 14 March 1974. 121. Particularly influential on the choice of wording of A ­ rticle 36 was the joint amendment submitted by the Netherlands, Norway and Sweden, CDDH/III/226 (25 February 1975). 122. CDDH/III/SR.27 (ICRC), para 31.

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indication of the origin of the weapons review obligation. Apart from this statement, however, the 1975 record of the proceedings remains silent as to the intentions behind ­Article 36. The reactions to the proposal by the attending delegates differed. While some of the states supported the suggestion and further sought to extend its scope or add more precision to its wording,123 others, on the contrary, remained skeptical. Since the study and development of new weapons were generally carried out in secret, making any supervision difficult, the provision, such was the view of the Finnish delegate, ‘could be of no great practical value’.124 Although no further progress on the A ­ rticle was documented in the Official Records in 1976, proceedings and statements delivered in plenary in 1977 compensated for the silence of the preceding year. Remarkable in that respect is the statement made by the representative of the UK: In the past provisions of international law had [in his country] been taken into account informally during the process of weapons development. As a result, no weapons were in service with the British Armed Forces which would infringe international obligations on the design and use of weapons in armed conflict. The codification and development of international law in that field, which would come out of the Additional Protocols, had provided an opportunity for the codification of existing practice and his country was therefore at present establishing a formal review procedure to ensure that future weapons would meet the requirements of international law.125

If this statement truthfully reflected the reality of the time and the UK indeed had a record of informally reviewing weapons on their compliance with LOAC prior to the opening of the Conference, then it appears possible that the driving force behind the amendment CE/COMIII/C59 was not only Germany. Rather, the shared experience of these two states and their advocacy for the benefits of domestic reviews also helped to get Belgium, Australia and the USA on board. In fact, the latter established a formal review mechanism as early as 1974. The Union of Soviet Socialist Republics whose delegation ‘attached great importance to ­Article  34’ welcomed the provision for different reasons:126 specifically, the decision of the Conference ‘to strengthen humanitarian law in the matter of sovereignty of States, which were not obliged to apply to a supranational control organisation’.127 As a matter of fact, an attempt made 123. For eg, Ghana, Poland, Brazil and Romania. 124. CDDH/III/SR.27 (Finland), para 46. 125. CDDH/IV/SR.39 (UK), para 58. 126. CDDH/IV/SR.39 (Union of Soviet Socialist Republics), para 57. 127. Ibid, para 56.

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by Mexico to propose an international mechanism for reviewing weapons did not find due support at the Conference and never materialised.128 A desire to see the Protocol supplemented with concrete prohibitions and restrictions on the use of specific types of conventional weapons did not find sufficient support either.129 The proposal for domestic reviews under A ­ rticle  36 for determining whether a weapon fell under certain restrictions or prohibitions of LOAC was thus considered adequate. After all, the provision left much room for discretion and could hardly be seen as intrusive in character.

4.5.  The Legacy of Four Years, Four Days and Nine Pages By the time the decision on the fate of A ­ rticle 36 was taken by the plenary in 1977, the provision had been duly framed and adopted by Committee III. The Drafting Committee, whose role was to screen the texts adopted by the main committees from a linguistic point of view,130 painstakingly observed these boundaries of its mandate in regards to ­Article 36. The Drafting Committee made no further adjustments to the text adopted by Committee III other than deleting a comma following the term ‘acquisition’, and substituting ‘under some or all circumstances’ with ‘in some or all circumstances’. On 25 May 1977, at the 39th Plenary Meeting, the weapons review obligation – in the shape and structure as we know it today – was adopted by consensus. The most apparent observation from the preceding account is how conspicuously little time and energy the Diplomatic Conference spent on ­Article 36. With no verbatim records on the deliberations within the Working Group of Committee III available, the significant part of the decisionmaking process on A ­ rticle  36 can be considered forever lost. One can see from the Archives and Official Records that the interest of the governments represented at the Conference in relation to ­Article 36 was rather reduced to a minimum and that precious little information remained for inspection of the possible motives.

5. Conclusion The analysis of the weapons law instruments predating the adoption of AP I shows that the issue of implementation was of only marginal importance. None of the pre-existing international mechanisms resemble the AP I weapons review provision and so the provision does not constitute a revised 128. Art 86bis, CDDH/1/SR.77, paras 13–30, 45; see also CDDH/I/340 and Add. 1-3. 129. CDDH/IV/SR.1 (Finland). 130. Final Act, 11.

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v­ ersion of an earlier rule. Indeed, the 1868 St Petersburg Declaration was the first instrument which pronounced a number of principles foundational for modern-day weapons reviews. The Declaration as such, however, did not include any implementation arrangements that could be regarded as a precursor for ­Article 36. Thus, in its current shape and wording, ­Article 36 comes for the first time in international law. Whilst no unequivocal evidence on the motives for conceptualising a provision on weapons review can be found in historical records, there is sufficient evidence to conclude that the key states behind ­Article  36 were Germany and the UK. The 1961 General Legal Provisions mandating that weapons be developed in accordance with the requirements of the existing legal regulations might well be a predecessor to ­Article 36. Today, rapid progress continues to be made in weapons technologies. Deplorably, even 40 years after ­Article 36 was adopted, the number of states consciously and conscientiously carrying out weapons reviews remains insignificant, perhaps around 30 at best. With the exception of the United States and Israel, which are known to have weapons review mechanisms in place, 22 states are yet to ratify AP I. This group includes such advanced military powers as India, Indonesia, Iran, Malaysia, Pakistan, Singapore and Turkey. It is hoped that the efforts currently underway in understanding and possibly developing regulations on the development of lethal autonomous weapons systems will increasingly bring to the fore the need for proper implementation of national weapons review programmes. While such multilateral forum as the Conference of the States Parties to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons131 offers a respectable venue for the best practices in weapons reviews to be shared and common concerns addressed, states should be mindful that partaking at the international discussions alone is not enough. Respect for law always begins at the national level, the case of the 1961 General Legal Provisions in Germany serving as a good example of that.

131. The United Nations Office at Geneva, ‘Background – Lethal Autonomous Weapons Systems’ www.unog.ch/80256EE600585943/(httpPages)/8FA3C2562A60FF81C1257 CE600393DF6?OpenDocument (last accessed 20 December 2018).

Classification of Cyber Operations under International Law Kenneth Kraszewski1 Abstract: A variety of dramatically different cyber operations are routinely lumped together under the term ‘cyber attack’ in media and academic sources. This article proposes a tripartite scale for classifying and regulating operations in cyberspace more conducive to rigorous legal analysis. The term ‘cyber attack’ should be reserved for the more severe cyber operations that are intended to cause a malfunction on a target computer system for a political or national security purpose and can be attributed to a state actor. Acts of cyber espionage are carried out for similar purposes by state actors but are undertaken clandestinely to obtain information. Causing malfunctions or damage akin to a cyber attack would alert victims of the cyber operation, defeating its purpose. Finally, cyber crime often involves the same tools and techniques as cyber attacks and cyber espionage, but it cannot be attributed to a state actor and is not undertaken for political or national security purposes. This article considers cyber attacks, cyber espionage and cyber crime in depth and details the various approaches to each present in international law policy-making and scholarship. Keywords: cyber operations, cyber attack, cyber espionage, cyber crime, cyber warfare, International law

1. Introduction Nearly every week discovery of a major new ‘cyber attack’ is announced in newspapers and on television. In 2017, the media has been dominated by news of Russia’s ‘cyber intrusion’ in the United States’ 2016 presidential ­election2

1. LLD candidate, University of Helsinki; MICL, University of Helsinki, 2013; JD, University of Notre Dame, 2010; AB, University of Chicago, 2006. 2. See Office of the Director of National Intelligence, National Intelligence Council, ‘Assessing Russian Activities and Intentions in Recent US Elections’, ICA 2017-01D (6 ­January 2017), www.dni.gov/files/documents/ICA_2017_01.pdf (United States (‘US’) Central Intelligence Agency (‘CIA’), Federal Bureau of Investigation (‘FBI’), National Security Agency (‘NSA’) express high confidence in the assessment that the Russian president ‘ordered an influence campaign in 2016 aimed at the US presidential election’); see also Greg Miller and Adam Entous, ‘Report: Putin Ordered Cyber-Intrusion’ Washington Post

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and further interference in national elections in Europe,3 the ­WannaCry worm that infected hundreds of thousands of computers in a largely thwarted attempt to extort money during the summer of 2017,4 and the breach of Equifax’s databases, resulting in the theft of vital credit information of half of US citizens.5 Everywhere from Atlanta6 to Qatar,7 from Saudi Arabia8 to Ukraine,9 seems to have been targeted. Even the Olympics were hit.10 Such events are routinely described as ‘cyber attacks’. In recent years, the focus of the press coverage and political denunciation of cyber attacks was the alleged threat posed to US business by cyber economic espionage.11

(7 January 2017) A01; Amy Chozick, ‘Clinton Says “Personal Beef ” by Putin Led to ­Hacking Attacks’ New York Times (16 December 2016) http://nyti.ms/2hOUodt; David E Sanger and Scott Shane, ‘Russian Hackers Acted to Aid Trump in Election, U.S. Says’ New York Times (9 December 2016), http://nyti.ms/2h5Xpoi; Alan Rappeport, ‘New Documents Released From Hack of Democratic Party’ New York Times (13 September 2016), http://nyti.ms/2cDhO2o; Helene Cooper, ‘Defense Secretary Warns Russia to Stay Out of U.S. Elections’ New York Times (7 September 2016), http://nyti.ms/2ctqxkV; David E Sanger and Eric Schmitt, ‘Spy Agency Consensus Grows That Russia Hacked D.N.C.’ New York Times (26 July 2016), http://nyti.ms/2asxxjG. References to online sources are accurate as of 4 December 2017. 3. Rick Noack, ‘Cyberattack on French Presidential Front-Runner Bears Russian “Fingerprints,” Research Group Says’ Washington Post (25 April 2017), available at 2017 WLNR 12713606. But see Griff Witte, ‘German Campaign Mystery: A Lack of Russian Meddling’ Washington Post (11 September 2017), available at 2017 WLNR 27941211. 4. Ellen Nakashima, ‘U.S. Publicly Blames North Korea for Cyberattack’ Washington Post (19 December 2017), available at 2017 WLNR 39203949; David Filipov, et al, ‘Companies Struggle to Recover After Massive Cyberattack with Ransom Demands’ Washington Post (28 June 2017), available at 2017 WLNR 19838279. 5. Karen DeYoung and Ellen Nakashima, ‘UAE Tied to Hack Targeting Qatar’ Washington Post (17 July 2017), available at 2017 WLNR 217300632. 6. Alan Binder and Nicole Perlroth, ‘A Cyberattack Hobbles Atlanta, and Security Experts Shudder’ New York Times (27 March 2018), https://nyti.ms/2Gf7oRX. 7. Craig Timberg and Elizabeth Dwoskin, ‘Hackers Access Database That Has Personal Data for 143 Million Americans from Credit Reporting Agency Equifax’ Washington Post (7 September 2017), available at 2017 WLNR 27637742. 8. Nicole Perlroth and Clifford Krauss, ‘A Cyberattack in Saudi Arabia Had a Deadly Goal. Experts Fear Another Try’ International New York Times (15 March 2018), available at 2018 WLNR 8050810. 9. Paul Merrion, ‘NATO Experts Say Nation-State Hackers Likely Behind NotPetya Cyberattack’, Congressional Quarterly Roll Call (30 June 2017), available at 2017 WL 2819920. 10. Ellen Nakashima, ‘Russian Spies Hacked the Olympics and Tried to Make It Look Like North Korea Did, U.S. Officials Say’ Washington Post (24 February 2018), available at 2018 WLNR 5816034. 11. See, eg, Franz-Stefan Gady, ‘Top US Spy Chief: China Still Successful in Cyber Espionage Against US’ The Diplomat (16 February 2016), http://thediplomat.com/2016/02/top-usspy-chief-china-still-successful-in-cyber-espionage-against-us; Paul Mozur, ‘­Cybersecurity

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This article investigates whether such cyber intrusions may be accurately classified and regulated under existing international law and whether the discrete categories of cyber crime, cyber espionage, and cyber attack suffice to comprehensively encompass the nuances and variations of these modern and evolving phenomena. In the academic literature, it is something of a cliché at this point to criticise politicians and the news media for their imprecise language (to put it charitably) when discussing all manner of events occurring in cyberspace.12 Before considering the types of operations occurring in ‘cyberspace’, a demystification of that term is in order. Coined by the science fiction author William Gibson,13 cyberspace is neither a libertarian utopia nor a dystopian surveillance society.14 But nor can cyberspace be reduced to simply a communications infrastructure. Cyberspace is sophisticated and evolving. Perhaps most challenging to legal regulation are cyberspace’s contradictory traits of instantaneity and persistence. A prominent military definition of cyberspace is a ‘[d]omain characterized by the use of electronics and the electromagnetic spectrum to store, modify, and exchange data via networked systems and associated physical infrastructures’.15 From a military perspective, cyberspace

Firm Says Chinese Hackers Keep Attacking U.S. Companies’ New York Times (19 October 2015), http://nyti.ms/1ODAw6F; David E Sanger, ‘Limiting Security Breaches May Be Impossible Task for U.S. and China’ New York Times (25 September 2015), http://nyti.ms/1LchlQD; David E Sanger, et al, ‘Chinese Army Unit is Seen as Tied to Hacking Against U.S.’ New York Times (18 February 2013), http://nyti.ms/XZRMHn. But see David E Sanger, ‘Chinese Curb Cyberattacks on U.S. Interests, Report Finds’ New York Times (20 June 2016), http://nyti.ms/28J9fyW. See also Randolph A Kahn, ‘Economic Espionage in 2017 and Beyond’ (Business Law Today, May 2017) 1. 12. James E McGhee, ‘Hack, Attack or Whack; the Politics of Imprecision in Cyber Law’ (2014) 4 Journal of Law and Cyber Warfare 13, 15. 13. Nicholas Tsagourias, ‘The Legal Status of Cyberspace’ in Nicholas Tsagourias and Russell Buchan (eds), Research Handbook on International Law and Cyberspace (­ Cheltenham, Edward Elgar Publishing Ltd, 2015) 22; see also William Gibson, ­Neuromancer (New York, Berkley Publishing Group, 1989) 128 (describing cyberspace as ‘[a] consensual hallucination experienced daily by billions of legitimate operators … A graphic representation of data abstracted from the banks of every computer in the human system. Unthinkable complexity. Lines of light ranged in the nonspace of the mind, clusters and constellations of data.’). 14. See Thomas Rid, ‘Preface’ in Rise of the Machines: A Cybernetic History (WW Norton & Company, 2016) (discussing the different meanings attributed to the term ‘cyber’ by politicians, military officers, academics, engineers, executives and ‘aging hippies in San Francisco’). 15. Gen James E Cartwright, ‘Memorandum for Chiefs of the Military Services, Commanders of the Combatant Commands, Directors of the Joint Staff Directories on

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is an additional domain to be fought over and within – like land, sea, air and outer space. Considerable ink has been spilled over ‘cyber war’ and ‘cyber warfare’ in an attempt to determine whether and when the first true cyber war was or will be fought. Estonia 2006 and Stuxnet are the most frequently identified origin points.16 A better term is ‘cyber conflict’ because ‘[f ]or there to be war, there needs to be violence and death’17 – neither of which fortunately can plausibly be said to characterise cyber conflict. A more critical view was famously put forth by Thomas Rid: ‘Cyber war has never happened in the past. Cyber war does not take place in the present. And it is highly unlikely that cyber war will occur in the future.’18 Not even Rid, however, denies that cyber operations are a serious concern. In this article, the author proposes a tripartite scale for classifying and regulating operations in cyberspace. The most severe operations are labeled cyberattacks, and their regulation under international law – under jus ad bellum in particular – is without controversy. Cyber attacks are defined more fully in section 2.1 below. Within the category of cyber attacks are, first, those operations that are equivalent to armed attacks and trigger the right of states to respond in self-defence under Article 51 of the United Nations Charter (‘UN Charter’).19 Second, cyber operations that are equivalent to threats or uses of force prohibited by Article 2(4) of the UN Charter are also cyber attacks, though they do not trigger a state’s right to respond in self-defence. The regulation of cyber espionage under international law is less certain. Cyber espionage operations are defined in section 2.2 below. The most serious Joint Terminology for Cyberspace Operations’ (11 November 2011) www.nsci-va. org/CyberReferenceLib/2010-11-joint%20Terminology%20for%20Cyberspace%20 Operations.pdf. 16. See, eg, Michael N Schmitt, ‘The Law of Cyber Warfare: Quo Vadis?’ (2014) 25 Stanford Law and Policy Review 269, 269; John Richardson, ‘Stuxnet as Cyberwarfare: Applying the Law of War to the Virtual Battlefield’ (2011) 29 John Marshall Journal of Computer and Information Law Review 1, 8; see also David Kushner, ‘The Real Story of Stuxnet’ (IEEE Spectrum, 26 February 2013), https://perma.cc/8VE8-83N4. 17. Statement of Brandon Valeriano, PhD, ‘The International Cyber Conflict Threat Landscape’, Cyber Threats Facing America, Testimony before the United States Senate Committee on Homeland Security and Government Affairs, 10 May 2017, www.hsgac. senate.gov/download/05/08/2017/testimony-valeriano-2017-05-12. 18. Thomas Rid, ‘Cyber War Will Not Take Place’ (2012) 35 Journal of Strategic Studies 5, 6. No act in cyberspace, Rid argues, is comparable to an act of warfare because no single incident has possessed the key attributes of war identified by Clausewitz: violence, instrumentality – that it is undertaken as a means to an end – and political attribution. Ibid, 29. 19. Article 2(4), Charter of the United Nations, 24 October 1945, 1 UNTS 16.

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acts of cyber espionage – those that involve coercive interference in a state’s sovereign affairs – may amount to prohibited interventions under the principle of non-intervention. Those that violate a state’s territorial sovereignty may likewise be internationally unlawful acts. Numerous other proposals have been put forward regarding the legality, illegality or non-justiciability of cyber espionage, and examples of these are explored in this article. Finally, cyber operations that are not carried by states or state-actors are best considered as cyber crimes, as defined in section 2.3 below. How and if international law regulates each of these three categories is explored in detailed in section 3 of this article.

2. Defining Cyber Attacks, Cyber Espionage and Cyber Crime 2.1.  Cyber Attacks While ‘cyber attack’ is colloquially used as a catch-all term to describe all manner of events occurring in cyberspace, this article will attempt to more rigorously establish its parameters.20 Cyber attacks have the objective of disrupting or destroying a computer system. Implicit in that statement is that cyber attacks target computer systems. Additionally, cyber attacks have a political or national security purpose. Finally, for a cyber operation to be classified as a cyber attack it must be attributable to a state. The objective of a cyber attack is to, simply put, cause a malfunction on a target computer system. For example, the first official military definition of cyber attack, published in a memorandum for the United States Joint Chiefs of Staff shortly after the founding of the United States Cyber Command, states that a cyber attack is ‘[a] hostile act using a computer or related networks or systems, and intended to disrupt and/or destroy an adversary’s critical cyber systems, assets or function’.21 Perhaps the most well-known definition of cyber attack is that adopted by the International Group of Experts during the Tallinn Manual process, published in the 2013 Tallinn Manual and left unaltered in the second version. This definition adds to the requirements present in the Joint Chiefs’

20. The indeterminacy surrounding the term ‘cyber attack’ extends even to its proper spelling: it is alternately written as ‘cyber-attack’ and, less often, ‘cyberattack’. In this article, the author chooses to forgo the hyphen but retain the space in the terms ‘cyber attack’, ‘cyber espionage’ and ‘cyber crime’. 21. Cartwright (n 15) 5.

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definition that the cyber operation ‘is reasonably expected to cause injury or death to persons or damage or destruction to objects’.22 The definition of a cyber attack proposed in the Tallinn Manual reflects such understanding: ‘a cyber operation, whether offensive or defensive, that is reasonably expected to cause injury or death to persons or damage or destruction to objects’.23 Cyber crime and cyber espionage are unlikely to ever constitute a cyber attack as so defined.24 And by this definition, nearly all operations in cyberspace decried by the news media and politicians are not actually cyber attacks, but acts of espionage conducted in cyberspace.25 A somewhat broader definition of cyber attack removes the requirement that persons or objects are injured or damaged. Instead, it includes within the definition operations that are ‘intended to alter, delete, corrupt, or deny access to computer data or software for the purposes of … partly or totally disrupting the functioning [of a computer system]’.26 Another pertinent factor to the classification of a cyber operation as a cyber attack is that the operation has a political or national security purpose.27 State attribution is the final element of a cyber attack. Attribution within cyberspace is a particularly complicated and debated issue within international law applicable to cyber operations.28 The confines of this article do not allow for sufficient discussion of this topic. For the present purposes, the possibility of attribution must simply be assumed.

22. Michael N Schmitt (ed), Tallinn Manual on the International Law Applicable to Cyber Warfare (Cambridge, Cambridge University Press, 2013) 106; Michael N Schmitt and Liis Vihul (eds), Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations (Cambridge, Cambridge University Press, 2017) 415. 23. Schmitt (ed) (n 22) 106; but see Oona A Hathaway, Rebecca Crootof, Philip Levitz, Haley Nix, Aileen Nowlan, William Perdue and Julia Spiegel, ‘The Law of Cyber-Attack’ (2012) 100 California Law Review 817, 826 (‘a cyber-attack consists of any action taken to undermine the functions of a computer network for a political or national security purpose’). 24. David Weissbrodt, ‘Cyber-Conflict, Cyber-Crime, and Cyber-Espionage’ (2013) 22 Minnesota Journal of International Law 347, 383. 25. Schmitt (ed) (n 22) 106 (noting that non-violent operations, such as psychological operations or cyber espionage, are not ‘attacks’). 26. Marco Roscini, ‘Cyber Operations and the Use of Force in International Law’ (Oxford, Oxford University Press, 2014) 17. 27. Hathaway, et al (n 23) 825. 28. See, eg, William Banks, ‘State Responsibility and Attribution of Cyber Intrusions After Tallinn 2.0’ (2017) 95 Texas Law Review 1487; Christian Payne and Lorraine Finlay, ‘Addressing Obstacles to Cyber-Attribution: A Model Based on State Response to CyberAttack’ (2017) 49 George Washington International Law Review 535; Neil C Rowe, ‘The Attribution of Cyber Warfare’ in James A Green (ed), Cyber Warfare: A Multidisciplinary Analysis (New York, Routledge, 2015) 61.

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2.2.  Cyber Espionage Cyber espionage has the objective of penetrating a computer system to gather information. An act of cyber espionage is ‘undertaken clandestinely or under false pretenses that uses cyber capabilities to gather, or attempt to gather, information’.29 Similar to a cyber attack, an act of cyber espionage must have a computer or computer system as its target.30 But unlike a cyber attack, an act of cyber espionage does not have the objective of damaging or destroying that target system. Nor does cyber espionage ‘involve altering computer networks in a way that affects their current or future ability to function’.31 Instead, a successful act of cyber espionage occurs secretly, without leaving any evidence of its occurrence on the target system. Like cyber attacks, acts of cyber espionage have political or national security purposes, and, also like cyber attacks, for purposes of regulation under international law, acts of cyber espionage must be attributed to a state actor.32

2.3.  Cyber Crime Broadly speaking, cyber crimes are crimes committed against computers or computer systems or crimes committed by means of a computer.33 Like traditional crimes, cyber crimes could theoretically result in harm to property or persons. Cyber crimes may also simply be traditional content-based crimes, such as possession and dissemination of child pornography facilitated through use of a computer. They also include the infringement of copyright and related rights and the commission of forgery and fraud, again through the use of computer systems. A final category of cyber crimes consists of offences against the confidentiality, integrity and availability of computer data and systems, such as illegal access and interception. Unlike cyber attacks and acts of cyber espionage, cyber crimes are not carried out for political or national security purposes.34 Instead, as the term 29. Schmitt and Vihul (eds) (n 22)168. 30. William C Banks, ‘Cyber Espionage and Electronic Surveillance’ (2017) 66 Emory Law Journal 513, 513 (‘[Cyber espionage] involves deliberate activities to penetrate computer systems or networks used by an adversary for obtaining information resident on or transiting through these systems or networks’). 31. Hathaway, et al (n 23) 829. 32. Schmitt and Vihul (eds) (n 22) 168 (limiting its rule applicable to cyber espionage to espionage conducted ‘by or otherwise attributable to States’). 33. Philipp Kastner and Frédéric Mégret, ‘International Legal Dimensions of Cybercrime’ in Nicholas Tsagourias and Russell Buchan (eds), Research Handbook on International Law and Cyberspace (Cheltenham, Edward Elgar Publishing Ltd, 2015) 190. 34. Cyber espionage does not constitute a cyber attack because it does not ‘involve altering computer networks in a way that affects their current or future ability to ­function’. Hathaway, et al (n 23) 829.

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would suggest, cyber crimes are criminal in nature. While cyber crimes may target a computer system, as is the case with cyber attacks and acts of cyber espionage, they may also be simply crimes committed by means of a computer. The key feature differentiating cyber crimes from cyber attacks and acts of cyber espionage is that cyber crimes are not attributable to a state actor. Thus, if a criminal were to perpetrate a cyber crime that caused damage to property or persons, that act could not be accurately described as a cyber attack if it were not attributable to a state actor.

2.4.  Difficulties in Real-World Application While teasing out the difference between cyber crime, cyber attack and cyber espionage is crucial for considering the appropriate legal framework to apply, the variable terminology should not overshadow the fact that these operations make use of largely the same tools and methodologies. In each case, a target system is identified, the system is penetrated, a presence is established on the system, and the presence is exploited to gain information.35 Whether the perpetrator then decides to inflict harm on the system may be the only factor distinguishing espionage from attack. Sniffers and key loggers record state military secrets, private business plans and personal data through the same technical mechanism. Both criminal and state actors, who in practice are not readily differentiable, are interested in such information. Rootkits delivered through automatically propagating worms or human-directed spear-phishing attacks can be used to gain unauthorised access for mere intelligence collection or to cause malfunctions resulting in actual damage or injury. Because of the practical difficulties in distinguishing between the three categories, it is useful to focus on the attributes that set them apart from one another conceptually: the perpetrator’s identity and aim and the operation’s consequences.

3.  Regulation of Cyber Operations This part of the article details the current international law approaches to the regulation of cyber attacks, cyber espionage and cyber crime. Due to the limited scope of this article, the primary focus with regard to cyber attacks and cyber espionage is the application of international law to occurrences of each occurring outside situations of armed conflict. As is discussed briefly in

35. Gary Brown, ‘Spying and Fighting in Cyberspace: What is Which?’ (2016) 8 Journal of National Security and Policy 621, 627–28.

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subsections 3.1.1 and 3.2.1, international law is more settled regarding cyber operations occurring within the context of an armed conflict.

3.1.  Regulation of Cyber Attacks under International Law 3.1.1. Regulation of Cyber Attacks Occurring during Armed Conflict under International Law Operations conducted in cyberspace during an armed conflict are governed by jus in bello, commonly referred to as international humanitarian law. The application of jus in bello requires the existence of an armed conflict. Jus in bello does not apply to the activities of private individuals or entitles unrelated to that armed conflict.36 While cyber attacks have yet to materialise unambiguously in an armed conflict, commentators agree that the traditional jus in bello rules mandating the principle of distinction amongst combatants and protected classes and the prohibition of unnecessary suffering would apply just as forcefully to cyber warfare characterised by such attacks as it does to traditional warfare.37 3.1.2. Regulation of Cyber Attacks Occurring outside of Armed Conflict under International Law Military operations in cyberspace are governed by two main branches of international law applicable to armed conflict: jus ad bellum and jus in bello.38 Jus ad bellum determines when states may lawfully resort to the use of force. Cyber operations, when meeting the definition of cyber attack, are uses of force which violate the UN Charter and the customary international law prohibition on the use of force.39 Article 2(4) of the UN Charter prohibits the threat or use of force against the territorial integrity or political independence of any state. The UN Charter itself does not define use of force, but 36. Schmitt (ed) (n 22) 75–77. 37. See Heather A Harrison Dinniss, ‘Regulation of Cyber Warfare Under the Jus In Bello’ in James A Green (ed), Cyber Warfare: A Multidisciplinary Analysis (New York, Routledge, 2015) 126 (‘Despite the lack of any international law instruments specifically addressing cyber operations, it is indisputable that the law applies to all cyber operations that are taken in the context of and related to an armed conflict.’); see also Michael N Schmitt, ‘“Below the Threshold” Cyber Operations: The Countermeasures Response Option and International Law’ (2014) 54 Virginia Journal of International Law 697. 38. Other legal frameworks apply, including the customary international law of countermeasures and international legal regimes directly and indirectly concerning cyber-attacks. See Hathaway, et al (n 23) 856–74. 39. James A Green, ‘The Regulation of Cyber Warfare under the Jus Ad Bellum’ in James A Green (ed), Cyber Warfare: A Multidisciplinary Analysis (New York, Routledge, 2015) 98.

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outside of the cyber context, there is agreement amongst commentators that ‘force’ does not include political or economic coercion,40 and state practice indicates that ‘force’ in Article 2(4) is equivalent to ‘armed force’.41 The International Court of Justice (ICJ) further clarified the use of force threshold in its famous Nicaragua judgment, holding that mere funding of guerrillas engaged in operations against the state was not a use of force, whereas arming and training such guerrillas would be.42 Armed force, in turn, can be interpreted by the kinetic nature of the attack and its effects. In other words, if force involves conventional arms and explosives and results in damage to property and death to persons, it could be easily labeled ‘armed force’. However, a distinction that relies on the kinetic nature of the attack is of little use when applied to cyber operations, which are not of a strictly physical, kinetic nature. For the purpose of classifying cyber operations, a better approach for distinguishing between ‘armed force’ and ‘force’ is to consider the effects of an attack.43 By this method, cyber operations having ‘notably injurious consequences would constitute “force”, and thus would be a breach of Article 2(4); interstate cyber aggression resulting in less severe damage would not’.44 The effects-based approach is not without its shortcomings: whether a breach of Article 2(4) occurred would be largely determined by the ability of the target state to withstand a cyber operation. The approach is reactive to uses of force rather than proscriptive; and it remains unclear what effects a cyber operation should be analogised to.45 The model proposed by Michael N Schmitt for determining whether a cyber operation is a prohibited use of force is among the most highly cited. Schmitt suggests that an operation be analysed on the basis of its severity, immediacy, directness, invasiveness, measurability, military character, state 40. See, eg, Schmitt (n 16) 280; Banks (n 30) 520–21 (noting that legislative history of the UN Charter confirms that ‘force’ in Article 2(4) does not include economic or political pressure). 41. Green (n 39) at 102. 42. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States), ICJ Reports (1984) 202. The Nicaragua case concerned assistance provided by the US to Nicaraguan guerillas known as ‘contras’. 43. Green (n 39) at 103. (‘Instead of analogizing cyber warfare to the nature of an existing action […], one can instead look to the results of a cyber-attack and compare this to the results of other types of action’.) 44. Green (n 39) at 103. 45. Green (n 39) at 104 (quoting Jack Goldsmith, ‘How Cyber Changes the Laws of War’ (2013) 24 European Journal of International Law 129, 133. (‘For example, a cyber-attack that ‘corrupts data on a stock exchange and which in turn causes widespread economic harm but not direct physical damage’ would have devastating effects but would not be considered a breach of Article 2(4).’))

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involvement and presumptive legality.46 However, severity – causing greater than de minimis damage or injury – alone qualifies an operation taken in cyberspace as a use of force.47 The Schmitt criteria – as his proposed factors have become known – allow for cyber operations having severe, but not physical consequences to qualify as breaches of the Article 2(4) prohibition of the use of force.48 Ido Kilovaty offers another novel approach that likewise allows for cyber operations with severe consequences to be considered prohibited uses of force.49 Kilovaty seeks to ensure that cyber operations that cause economic effects that are as serious as kinetic effects are similarly prohibited. He proposes a test whereby an operation is judged on its effects, the essentiality of the economic activity targeted, whether state economic infrastructure is targeted, the intention for the operation to have an economic nexus, and the absence of alternative explanations that would be permissible measures under international law, such as economic sanctions or international trade limitations.50 Even if an operation is found to be a use of force under jus ad bellum, that in and of itself is not sufficient to justify a state invoking the self-defence exception to Article 2(4).51 For that, a state must have suffered or be about to suffer an ‘armed attack’, and only grave uses of force – those that kill or injure persons or damage or destroy property – are considered armed attacks.52 A state’s right to invoke the self-defence exception is subject to rules on necessity, proportionality, imminence and immediacy. First, the use of force in self-defence must be necessary to repel an imminent armed attack or defeat one already under way, and, second, the amount of force must be proportional to that required to end the situation of imminent or already ­underway attack.53 Third, the necessity of using force in self-defence must 46. Schmitt (ed) (n 22) 47–52. The approach was first articulated in Michael N Schmitt, ‘Computer Network Attack and the Use of Force in International Law’ (1999) 37 ­Columbia Journal of Transnational Law 885. 47. Schmitt (n 16) 281. 48. Green (n 39) 106. 49. Ido Kilovaty, ‘Rethinking the Prohibition on the Use of Force in the Light of Economic Cyber Warfare: Towards A Broader Scope of Article 2(4) of the UN Charter’ (2015) 4 Journal of Law and Cyber Warfare 210. 50. Ibid, 237–42. 51. UN Charter Art 51; but see McGhee (n 12) 25 (noting that the US position has consistently been that any use of force is an armed attack). 52. Military and Paramilitary Activities in and against Nicaragua (n 42) para 95. 53. Military and Paramilitary Activities in and against Nicaragua (n 42) para 194. (‘[W]hether the response to the attack is lawful depends on observance of the criteria of the necessity and the proportionality of the measures taken in self-defense.’)

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be imminent.54 Finally, a use of force in self-defence must be carried out with immediacy, taking into consideration the temporal proximity between attack and response, the period necessary for the attacked state to identify the attacker, and the time required to prepare the response.55 While much of the Article 51 discussion is of only theoretical interest in relation to cyber operations, which have predominantly remained far below the use of force threshold, let alone qualifying as armed attacks, it is not entirely inapplicable to cyberspace. For instance, the ICJ has held that the means of attack is immaterial to a determination of whether an operation qualifies as an armed attack.56 Thus, if a cyber attack were to cause grave damage or injury, no argument could be made that the fact that it happened in cyberspace would prevent a state from responding under Article 51. Commentators have criticised the application of jus ad bellum to operations in cyberspace. Mary Ellen O’Connell has stated that the jus ad b­ ellum paradigm is so often applied to cyber security in part due to ‘the fact that most of the international law scholars working on cyber security questions from the early days of the internet were in the military or had close ties to it’.57 That trend has certainly continued with the Tallinn Manual projects, which Rebecca Ingber has noted, cemented the jus ad bellum as the legal paradigm to which problems in cyberspace are now automatically assigned.58 Other states have criticised how the discussion has been dominated by predominantly, at least with respect to the first Tallinn Manual, Western military thinkers.59 Finally, James A Green has proposed a number of advantages that would spring from abandoning the approach focused on jus ad bellum: ending the inevitable difficulty arising from trying to fit cyber operations into the use of force framework; lessening the escalation risk posed by too liberally equating cyber operations with military operations; and minimising the inherent attribution problems.60 54. Schmitt (ed) (n 22) 63–66. Different approaches have been proposed that range from allowing anticipatory self-defence if an armed attack is temporally proximate to denying states the right to act anticipatorily in self-defence. Schmitt (ed) (n 22) 64. 55. Schmitt (ed) (n 22) 66. 56. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports (1996) 226. 57. Mary Ellen O’Connell, ‘Cyber Security Without Cyber War’ (2012) 17 Journal of Conflict and Security Law 187, 199. 58. Rebecca Ingber, ‘Interpretation Catalysts in Cyberspace’ (2017) 95 Texas Law Review 1531. 59. Zhixiong Huang and Kubo Mačak, ‘Towards the International Rule of Law in Cyberspace: Contrasting Chinese and Western Approaches’ (2017) 16 Chinese Journal of International Law 271. 60. Green (n 39) 118.

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3.2.  Cyber Espionage If causing injury or death to persons or destruction to objects is the criteria by which a cyber operation may be deemed a cyber attack, then nearly all ‘cyber attacks’ that have been the subject of media attention lately – ­hacking, breaches of personal data, surveillance programs, theft of trade secrets and intellectual property – fail to qualify. Instead, even incidents such as the alleged Russian theft and subsequent release of compromising personal emails in an effort to sway the United States 2016 presidential election; or the more peculiar interference with Sony Pictures, allegedly perpetrated by a group of hackers sponsored by North Korea in retaliation for the cinematic assassination of its leader, all fall short of the injury to persons or damage to objects threshold set to qualify as a cyber attack.61 Instead, these incidents are better considered as acts of cyber espionage. This section considers how international law currently regulates cyber espionage. 3.2.1. Regulation under International Law of Traditional Espionage during Armed Conflict According to the Tallinn Manual, cyber espionage is not prohibited in the context of an armed conflict.62 The laws of armed conflict – the Hague Regulations, the Geneva Convention IV and Additional Protocol I – govern the conduct of espionage during an armed conflict.63 Indeed, there is little reason to suggest that the traditional distinction between ‘scouts’ – ie, uniformed, sufficiently designated combatants caught behind enemy lines and mandatorily afforded prisoner of war status – and ‘spies’ – ie, not-uniformed, not sufficiently designated enemies caught behind enemy lines and not entitled to

61. See, eg, Rhea Siers, ‘North Korea: The Cyber Wild Card 2.0’ (2017) 6 Journal of Law and Cyber Warfare 155; Jens David Ohlin, ‘Did Russian Cyber Interference in the 2016 Election Violate International Law?’ (2017) 95 Texas Law Review 1579; Claire Sullivan, ‘The 2014 Sony Hack and the Role of International Law’ (2016) 8 Journal of National Security Law and Policy 437. For a description of numerous cyber espionage events from the last decade, including Titan Rain, Operation X, Gh0stnet, Shadow Network, Project Aurora, Duqu, Stuxnet, Flame and Gauss, and details as to how they were conducted, detected, and – in some cases – attributed to state actors, see Paulo Shakarian, Jana Shakarian and Andrew Ruff, Introduction to Cyber-Warfare: A Multidisciplinary Approach (Boston, Elsevier, Inc, 2013) 123–69. 62. Schmitt (ed) (n 22) 106, 195. 63. See Nicolas Juppilat, ‘From the Cuckoo’s Egg to Global Surveillance: Cyber Espionage that Becomes Prohibited Intervention’ (2017) 42 North Carolina Journal of International Law 933, 953 (‘the legality of espionage in times of war derives from the lack of obligation to respect the territory or government of an opponent state party to a conflict’).

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prisoner of war status64 – is inapplicable to intelligence operations conducted in cyberspace during an armed conflict. However, the question of how international law treats intelligence operations in peacetime is less easily answered. Indeed, it is an open question whether international law, the core of which is ‘decency and common humanity’, has or should have anything to say at all about espionage, the core of which is ‘treachery and deceit’.65 That concern remains unchanged in regard to cyber espionage. 3.2.2. Cyber Espionage is Equivalent to Traditional Espionage and should be Regulated Analogously under International Law during Peacetime Many scholars and states apply the same legal framework to intelligence operations conducted in cyberspace as is applied to traditional espionage.66 According to this view, cyber espionage, put simply, is ‘nothing more than espionage via cyber means’.67 For the purposes of this subsection 3.2.2, this article will accept that proposition. The alternative view – that cyber espionage is fundamentally different and requires a correspondingly different regulatory framework from traditional espionage – will be examined in subsection 3.2.3. Naturally, the question then arises: how does international law treat espionage? Typically, the question concerns situations in which the laws of war apply.68 Indeed, the scout or spy dichotomy discussed above is only applicable in such situations. The Tallinn Manual, a soft law collection of proposed international legal rules already applicable to cyber warfare, for example, only examines the legality of cyber espionage as it ‘relate[s] to the jus ad bellum notions of “use of force” and “armed attack”, or as relevant in the context of an armed conflict governed by jus in bello’.69 It is less clear whether espionage is permitted by international law in peacetime,70 even if all states practice peacetime espionage but rarely admit it publicly.71 64. A John Radsan, ‘The Unresolved Equation of Espionage and International Law’ (2007) 28 Michigan Journal of International Law 595, 601–602. 65. Ibid, 596. 66. Weissbrodt (n 24) 372. 67. McGhee (n 12) 22. 68. Radsan (n 64) 601. 69. Schmitt (ed) (n 22) 372. 70. See, eg, Luke Pelican, ‘Peacetime Cyber-Espionage: A Dangerous but Necessary Game’ (2012) 20 CommLaw Conspectus 363, 369–70 (commenting that ‘[d]isagreement abounds as to whether peacetime espionage is permissible under international law’); Catherine Lotrionte, ‘Countering State-Sponsored Cyber Economic Espionage Under International Law’ (2015) 40 North Carolina Journal of International Law and Commercial Regulation 443, 473 (‘Peacetime intelligence collection is effectively ignored by traditional international law’). 71. Lotrionte, ibid, 484.

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Among those often cited in favour of the proposition that peacetime espionage is considered as legal under international law is Grotius, who commented that spies are ‘beyond doubt permitted by the law of nations’, though nearly always subject to execution.72 Grotius exemplifies the contradictory position of those arguing that peacetime espionage is legal under international law: how can a practice be recognised and permitted under international law, but illegal and subject to the most severe punishment under the domestic law of all states? One modern proponent, recognising this peculiarity, argues that peacetime espionage is an ‘unfriendly act’, but not illegal under international law and should be ‘narrowly defined to exclude acts of technical intelligence gathering’.73 Doing so would thus avoid labeling students, reporters and nongovernmental organisation members who are collecting information within the scope of their express identities as spies.74 Another scholar has sought to explain the permissibility of peacetime espionage under international law by the fact that ‘it does not violate a principle of jus cogens’75 and is, in fact, justifiable under the right of self-defence.76 The argument can also be made that peacetime espionage is legal on the basis of the customary international law principle that the existence of an international rule may be based on evidence of a ‘general practice accepted as law’.77 Evidence of such practice is found in the fact that all states participate in peacetime espionage, and most even have domestic legislation in force providing legal authority for their clandestine activities.78 Several scholars reject the idea that peacetime espionage is legal under international law. Manuel R Garcia-Mora describes the practice as ‘an international delinquency and violation of international law’.79 Quincy Wright 72. Lt Col Geoffrey B Demarest, ‘Espionage in International Law’ (1996) 24 Denver Journal of International Law and Policy 321, 331. 73. Ibid, 347. 74. Ibid. 75. Commander Roger D Scott, ‘Territorially Intrusive Intelligence Collection and International Law’ (1999) 46 Air Force Law Review 217, 218. 76. Ibid, 225. But see Katharina Ziolkowski, ‘Peacetime Cyber Espionage – New Tendencies in Public International Law’ in Katharina Ziolkowski (ed), Peacetime Regimes for State Activities in Cyberspace. International Law, International Relations and Diplomacy (Tallinn, NATO CCD COE Publications, 2013) 456 (noting that the legality of espionage cannot be derived before the right to self-defence, which is triggered by an actual or imminent armed attack). 77. Lotrionte (n 70) 486. 78. Lotrionte (n 70) 487–88. But see Ziolkowski (n 76) 438 (noting that the creation of customary international law requires both uniform and consistent state practice and opinio juris, which is conspicuously absent). 79. Manuel R. Garcia-Mora, ‘Treason, Sedition and Espionage as Political Offenses Under the Law of Extradition’ (1964) 26 University of Pittsburgh Law Review 65, 79–80

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labels peacetime espionage an ‘illegitimate enterprise[] because [it] manifest[s] a lack of respect for foreign territory’.80 Wright is further concerned that peacetime espionage disrespects the ‘political independence’ of other states.81 Lack of respect of foreign territory is also essential to Ingrid Delupis’ determination that peacetime espionage is illegal under international law if it involves ‘agents sent clandestinely by a foreign power into the territory of another state’.82 Perhaps the approach best suited to the shadowy, indeterminate world of espionage is that peacetime espionage is ‘neither condoned nor condemned under international law’.83 By neither explicitly endorsing nor prohibiting the practice, international law preserves it as ‘a tool to facilitate international cooperation’.84 This functionalist approach sees peacetime espionage as beneficial to the international community because it facilitates international cooperation, allows for the peaceful achievement of mutually shared interests,85 and provides decision-makers with necessary data to make informed decisions.86 Peacetime espionage offers ‘reciprocal benefits’ to both spying and spied-on states.87 The practice is indispensable for presenting the case for military action, justifying targeted sanctions, and supporting international criminal prosecutions.88 Under this approach, peacetime espionage is ‘necessary to maintain world public order’ and would only be unjustified if ‘so intrusive or offensive as to threaten the internal order of a state’ in which it is used.89

80. Quincy Wright, ‘Legal Aspects of the U2 Incident’ (1960) 54 American Journal of International Law 836, 849. 81. Quincy Wright, ‘Espionage and the Doctrine of Non-Intervention in Internal Affairs’ in Roland J. Stanger (ed.), Essays on Espionage and International Law (Columbus: Ohio State University Press, 1962) 12. 82. Ingrid Delupis, ‘Foreign Warships and Immunity for Espionage’ (1984) 78 American Journal of International Law 53, 67; but see Ziolkowski, ‘Peacetime Cyber Espionage – New Tendencies in Public International Law’, 432–33 (arguing that Delupis conflates the illegal act of trespass with the not illegal act of espionage). 83. Radsan (n 64) 605–606. 84. Christopher D Baker, ‘Tolerance of International Espionage: A Functional Approach’ (2004) 19 American University International Law Review 1091, 1092. 85. Ibid. 86. Ibid, 1107. 87. Lotrionte (n 70) 482. 88. Simon Chesterman, ‘The Spy Who Came in from the Cold War: Intelligence and International Law’ (2006) 27 Michigan Journal of International Law 1071, 1099. 89. Scott (n 75) 223.

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3.2.3.  Cyber Espionage is Fundamentally Different from Traditional Espionage Several commentators reject the claim that cyber espionage is no more than traditional espionage by cyber means. Instead, the argument goes, cyber espionage is the product of a distortion of the traditional cost-benefit equation applied to spying: the benefits have increased massively, while the costs have decreased dramatically.90 The sheer volume of information that may be gathered by intelligence operatives has exponentially grown.91 Accessing and exfiltrating information over the Internet is unquestionably easier and faster than traveling to a foreign state and spiriting away physical files.92 And the scale of information syphoned by intelligence agencies is unprecedented.93 Traditional spies would not have been able to exfiltrate millions of physical records even if they somehow had had access to them, let alone do it both instantaneously and whilst maintaining that access and ability for potentially years to come in the manner of an advanced persistent threat.94 Even for less advanced cyber operators, cyber espionage has multiple benefits. It exploits modern states’ reliance on cyber infrastructure and ubiquitous international communication.95 It is also considerably less expensive that traditional espionage, making it a plausible foreign policy option for any state and even non-state actors.96 Not only does cyber espionage allow for unprecedented exfiltration of information, but also dissemination of it on a scale never seen before.97 Even if a state had been privy to the communications of politicians in the past, they would have had no way to efficiently and with plausible deniability publish tens of thousands of letters, as Russia is alleged to have done during the 2016 United States presidential election. For the spy, not only are the potential benefits of cyber espionage much greater than those of traditional espionage, the risks are significantly lesser as well. Whereas traditional espionage required a spy to be physically present in the target state, the modern cyber spy may operate remotely and anonymously. If caught, the traditional spy would already be within the target state’s 90. Darien Pun, ‘Rethinking Espionage in the Modern Era’ (2017) 18 Chicago Journal of International Law 353, 376. 91. Ibid, 376. 92. Brown (n 35) 631. 93. Juppilat (n 63) 976. 94. Shakarian, Shakarian and Ruff (n 61) 132 (describing advanced persistent threats in the context of the Gh0stnet incident). 95. Brown (n 35) 631. 96. Pun (n 90) 376. 97. Ido Kilovaty, ‘World Wide Web of Exploitations – The Case of Peacetime Cyber Espionage Operations Under International Law’ (2016) 18 Columbia Science and Technology Law Review 42, 69.

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jurisdiction and immediately subject to harsh, if not lethal, punishment. For the spy, the fact that cyber espionage removes the necessity of actually physically entering enemy territory surely makes it preferable to traditional espionage.98 The cyber spy is safely in his or her own country (or at least out of reach of the target state’s prosecutors).99 Lacking even the ability to prosecute discovered spies or being forced to prosecute them in absentia, the victim state is left with no clear way to respond to cyber espionage, further skewing the calculus in favour of the spying state. Instead of treating cyber espionage as if it were equivalent to traditional espionage, it should be recognised as ‘truly sui generis, requiring a new approach that tackles its distinctiveness directly’, argues Ido Kilovaty.100 Kilovaty proposes placing cyber operations along a spectrum from ‘unfriendly acts’ – low intensity, non-politically motivated cyber operations, which are subject to domestic law enforcement as cyber crimes – to politically motivated acts that collect military intelligence and could escalate into cyber attacks.101 According to Kilovaty, acts of cyber espionage could be placed on the spectrum on the basis of the target’s identity – ‘whether such target is essential to the national security and proper functioning of the state’ – and the actual or intended use of the information gathered.102 Until such time as a proposal like Kilovaty’s is adopted internationally, it remains simply a compelling suggestion. 3.2.4. Current Treatment of Acts of Cyber Espionage outside of Armed Conflict under International Law Cyber operations that fall below the use of force threshold of Article 2(4) of the UN Charter and the analogous customary international law prohibition of the use of force may still be considered violations of international law. First, such operations, which include acts of cyber espionage, may be violations of territorial integrity – a ‘state’s right to be free of ­interference’.103 As discussed above, one state’s territorial integrity is violated when another state uses force against it (unless such force is otherwise exempt from

98. Radsan (n 64) 609 (noting that ‘the spy’s physical location makes a huge difference when he is revealed, compromised, or outed’) (internal quotes omitted). 99. Pun (n 90) 376. 100. Kilovaty (n 97) at 69. 101. Kilovaty (n 97) 73. 102. Kilovaty (n 97) 75. 103. Benedikt Pirker, ‘Territorial Sovereignty and Integrity and the Challenges of Cyberspace’ in Ziolkowski (ed) (n 76) 191.

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the ­prohibition), but territorial integrity is also violated by other interference in its sovereign affairs having a requisite level of coerciveness. Interference in a state that does not utilise force in the sense of ‘armed force’ may still qualify as an internationally wrongful act because it is an unlawful intervention. An unlawful intervention, such that it violates a state’s territorial integrity, requires that, first, the act committed intervenes in the state’s sovereign affairs, and, second, that the act is coercive in nature.104 Thus, for an act of cyber espionage to constitute an unlawful intervention, it must satisfy both the sovereign affairs and coerciveness prongs. Russel Buchan proposes that a state’s political integrity is a key component of its sovereign affairs and that a breach of a state’s political integrity arises where its authority and control are undermined.105 Where such conduct is coercive, it amounts to an unlawful intervention.106 Buchan argues that states regard information as being part of this political integrity,107 and that states retain sovereignty over such information even when it is located on cyber infrastructure located on the territory of another state.108 Michael N Schmitt 104. See Russell Buchan, ‘The International Legal Regulation of State-Sponsored Cyber Espionage’ in Anna-Maria Osula and Henry Rõigas (eds), International Cyber Norms: Legal, Policy & Industry Perspectives (Tallinn, NATO CCD COE Publications, 2016) 73; See also Military and Paramilitary Activities in and against Nicaragua (n 42) para 205 (‘A prohibited intervention must accordingly be one bearing on matters in which each State is permitted, by the principle of State sovereignty, to decide freely. One of these is the choice of a political, economic, social and cultural system, and the formulation of foreign policy. Intervention is wrongful when it uses methods of coercion in regard to such choices, which must remain free ones.’); Declaration on Principles of International Law concerning Friendly Relations, GA Res 2625 (XXV), at 123 (24 October 1970) (‘No State may use or encourage the use of economic, political or any other type of measures to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights and to secure for it advantages of any kind.’); Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty, GA Res 2131 (XX) (21 December 1965), UN Doc A/RES/20/2131 (same); Convention on Rights and Duties of States adopted by the Seventh International Conference of American States Art 8, 26 December 1933, 65 LNTS 19; 49 Stat 3097 (‘No state has the right to intervene in the internal or external affairs of another.’); Green (n 39) 108 (describing the prohibition of unlawful intervention as stipulating that ‘one State cannot intervene in the domestic affairs of another State, so as to coerce it to act in a certain way’). 105. Russel Buchan, ‘Cyber Espionage and International Law’ in Nicholas Tsagourias and Russell Buchan (eds), Research Handbook on International Law and Cyberspace (Cheltenham, Edward Elgar Publishing Ltd, 2015) 182. 106. Ibid, 182. 107. Ibid, 189 (‘States regard information in cyberspace which belongs to entities and individuals which fall under their jurisdiction as representing an important element of their political integrity.’). 108. Buchan (n 104) 75.

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takes a less expansive view of states’ sovereign affairs, pointing out that international law is ambiguous as to what exactly falls within it: political activities such as elections do, but purely commercial activities usually do not.109 Even if a state’s sovereign affairs are interfered with, such interference must be sufficiently coercive to be considered an unlawful intervention violating the territorial integrity of the victim state. In the famous Nicaragua case, the ICJ states that the element of coercion ‘forms the very essence of prohibited intervention’.110 A coercive act is one that ‘compels a state to act, or to refrain from acting, in a manner that it would not have voluntarily chosen’.111 A coercive act is intentional – and situations with merely a de facto coercive effect must be distinguished from those in which a state intends to compel another to act or to refrain from acting.112 There is debate regarding whether coercion requires the imposition of pressure. If so, acts of cyber espionage, which occur often without even the target being aware of their existence, would be difficult to label as coercive.113 While a narrow reading of coercion is supported by the ICJ’s holding in Nicaragua, Buchan argues that in the Nicaragua judgment, the ICJ was defining the non-intervention principle in regard to the resolution of a dispute primarily focused on the prohibition of the use of force. Thus, the judgment is not determinative as to ‘whether conduct not involving the use of force (such as cyber espionage) offends the prohibition against intervention’.114 In his reading, a narrow interpretation of coercion that requires the imposition of pressure is ‘undesirable as a matter of policy and incorrect as a matter of law.’115 As policy, the principle of non-intervention protects a state’s political/ territorial integrity, and the principle of territorial sovereignty protects a state’s territory. Territorial sovereignty is broadly defined to afford maximum protection of a state’s territory, and Buchan argues, the non-intervention principle  – and thus the concept of coercion – should be likewise broadly defined to enable a corresponding level of protection for states’ political integrity. Thus, ‘conduct which compromises or undermines the authority of the state should be regarded as coercive’.116 109. Michael N Schmitt, ‘Grey Zones in the International Law of Cyberspace’ (2017) 42 Yale Journal of International Law Online 1, 7 (‘[U]sing cyber means to frustrate [elections] would raise issues of intervention … [But] a State’s cyber operations that are intended to afford business advantages to its national companies would not amount to intervention. Between these extremes, the scope of domaine réservé is indistinct.’). 110. Military and Paramilitary Activities in and against Nicaragua (n 42) para 205. 111. Buchan (n 104) 77. 112. Schmitt and Vihul (n 22) 321. 113. Terry D Gill, ‘Non-Intervention in the Cyber Context’ in Ziolkowski (ed) (n 76) 217. 114. Buchan (n 104) 78. 115. Buchan (n 104) 78. 116. Buchan (n 104) 78.

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While Buchan argues that a broad understanding of coercion would be preferable, Schmitt is correct to note that currently the law is unresolved around the exact parameters of coercion, especially with regard to cyber operations.117 Directly threatening or employing military force surely would qualify as coercion, and analogous to the ICJ’s judgment in Nicaragua where the funding of insurgent forces was held to constitute a prohibited intervention, funding a hacker group to engage in destructive cyber operations could qualify as intervention.118 At the other extreme, cyber operations simply distributing propaganda within a targeted state would not qualify because the target state would retain the ability to make choices regarding its sovereign affairs.119 Between these two poles, argues Schmitt, is a legal ‘grey zone’.120 While coercive intervention is prohibited by the principle of non-­ intervention, non-coercive intervention in another state may still constitute an internationally unlawful act if the offending state violates the territorial sovereignty of the target state. The majority view holds that territorial sovereignty is a primary rule of international law and is supported by international treaties,121 the decisions of international tribunals,122 the commentary of 117. Schmitt (n 109) 7–8. 118. Schmitt (n 109) 8; but see Gary P Corn and Colonel Robert Taylor, ‘Sovereignty in the Age of Cyber’ (2017) 111 American Journal of International Law Unbound 207, 208 (arguing that there is a lack of State practice and opinio juris supporting the principle of non-intervention’s applicability to cyberspace). 119. Schmitt (n 109) 7. 120. Schmitt (n 109) 8. 121. See eg, UN Charter, Art 2(1) (stating that the United Nations ‘is based on the principle of the sovereign equality of all its Members’); Declaration on Principles of International Law concerning Friendly Relations, GA Res. 2625 (XXV) (24 October 1970) (beginning its enumeration with the ‘principle concerning the duty not to intervene in matters within the domestic jurisdiction of any State’); Final Act of the Conference on Security and Cooperation in Europe, 1 August 1975, 14 ILM. 1292 (requiring participating states to ‘respect each other’s sovereign equality … as well as the rights inherent in and encompassed by its sovereignty’); Convention on International Civil Aviation, Art 1, 7 December 1944, 61 Stat 1180; 15 UNTS 295 (‘The contracting States recognize that every State has complete and exclusive sovereignty over the airspace above its territory.’); United Nations Convention on the Law of the Sea, Art 2(1), 10 December 1982, 1833 UNTS 397 (describing ‘the sovereignty’ of coastal and archipelagic states as extending to their territorial seas); see also Report of the Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security, para 28(b), UN Doc A/70/174, 22 July 2015 (‘In their use of ICTs, States must observe, among other principles of international law, State sovereignty, sovereign equality, the settlement of disputes by peaceful means and nonintervention in the internal affairs of other States. Existing obligations under international law are applicable to State use of ICTs.’). 122. See, eg, Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua) and Construction of a Road in Costa Rica along the San Juan River

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international law scholars,123 and the foundational elements of a primary rule of customary international law: state practice and opinio juris.124 A minority view, espoused by a group of former US military officers, is that territorial sovereignty is ‘a principle, subject to adjustment depending on the domain and the practical imperatives of states rather than a hard and fast rule’.125 According to the majority view, the traditional international law principle of sovereignty extends to cyberspace.126 States are sovereign over the ‘cyber infrastructure, persons, and cyber activities’ within their territories.127 By the

(Nicaragua v Costa Rica), ICJ Reports (2015) 665, paras 65–93, paras 96–97 (holding that Nicaragua had violated the ‘territorial sovereignty’ of Costa Rica by conducting certain activities related to the dredging of a river on its territory); Military and Paramilitary Activities in and Against Nicaragua (n 42) para 213 (identifying the ‘duty of every State to respect the territorial sovereignty of others’); Nuclear Tests (Australia v France), Memorial of Australia, ICJ Pleadings (1974) 249 (Australia argued it had the legal right to allege that France violated its sovereignty by depositing radioactive fallout on its territory and in its airspace without consent); Corfu Channel Case (United Kingdom v Albania) (1949) ICJ Reports 4, 35 (‘Between independent States, respect for territorial sovereignty is an essential foundation of international relations.’); Island of Palmas Case (Netherlands v United States) 2 RIAA (1928) 829, 839 (‘Territorial sovereignty … involves the exclusive right to display the activities of a State.’); The Case of the SS Lotus (France/Turkey), PCIJ Series A, No 10 (1927) 18 (‘Now the first and foremost restriction imposed by international law upon a State is that – failing the existence of a permissive rule to the contrary – it may not exercise its power in any form in the territory of another State’). See also Michael N Schmitt and Liis Vihul, ‘Respect for Sovereignty in Cyberspace’ (2017) 95 Texas Law Review 1639, 1954 (commenting that in the Military and Paramilitary Activities in and Against Nicaragua judgment, the ICJ ‘treated violation of territorial sovereignty as a self-standing primary norm with no less normative force that the [norms of non-intervention and non-use of force]’). 123. See, eg, Phil Spector, ‘In Defense of Sovereignty, In the Wake of Tallinn 2.0’ (2017) 111 American Journal of International Law Unbound 219, 222 (‘an overwhelming and unavoidable body of treaties, jurisprudence, and scholarly opinion stands for the proposition that there is a primary rule of international law that requires one state to refrain from taking a public act or exercising authority in the territory of another state, in the absence of consent or another provision of international law to the contrary’). 124. See the statements of Eric Holder, Harold Koh and Brian Egan detailed in Schmitt and Vihul (n 122) 1661–65 and the statements of Dilma Rousseff detailed in Buchan (n 104) 72 and Juppilat (n 63) 979. 125. Corn and Taylor (n 118) 210. 126. See Schmitt and Vihul (n 22) 11 (‘The principle of State sovereignty applies in cyberspace.’); The International Group of Experts which authored the Tallinn Manual reasoned that the principle of sovereignty encompassed the physical, logical, and social components of cyberspace, agreeing that no state could claim sovereignty over cyberspace per se because the cyber infrastructure upon which cyberspace is built is in the sovereign territory of multiple states. Schmitt and Vihul (n 22) 12. 127. Schmitt and Vihul (n 22) 13.

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same token, a state ‘may not conduct cyber operations that violate the sovereignty of another state’.128 The minority view disputes the notion that sovereignty is a rule, the application of which by necessity is analogous in cyberspace to its application on land, in the air, at sea, and in outer space. Instead, proponents of the minority view argue that the application of sovereignty ‘to the unique particularities of the cyberspace domain remains for states to determine through state practice and/or the development of treaty rules’.129 However, in the opinion of the majority, what the minority view proposes would lead to a ‘cyber “wild west” below the intervention threshold’ because operations that did not affect a state’s sovereign affairs or were not sufficiently coercive would fail to qualify as internationally wrongful acts, meaning a state would not be entitled to take countermeasures in response.130 The minority view has only been very recently articulated, and it remains to be seen whether it will grow or be abandoned in light of the criticism it has received. Several scholars have proposed that there are situations in which an act of cyber espionage itself may constitute a prohibited threat or use of force under Article 2(4) of the UN Charter. For example, the penetration of a computer system controlling the security system of a military facility immediately preceding an armed attack on that facility could be viewed as a threat to use force. Because the personnel within the facility would be unaware whether the armed attack would materialise, the reasoning goes, the penetration itself ought to be considered as a threat to use force. To support this argument, an analogy is made to the shooting down of aircraft suspected of spying during the Cold War. Though the aircraft were only conducting espionage activities, their presence was deemed sufficient to trigger the right to self-defence justifying their downing.131 An even stronger argument can be made when the intrusion is detected and prior intelligence exists showing the likelihood of future attack.132 However, even absent such prior intelligence, a plausible case can be made that an intrusion is a threat to use force. For example, suppose that an advanced persistent threat is found resident on a SCADA system regulating a nuclear power plant or other piece of critical infrastructure. Because such systems only contain information about the utilities themselves, and

128. Schmitt and Vihul (n 22) 17. 129. Corn and Taylor (n 118) 210. 130. Schmitt and Vihul (n 22) 1670. 131. Kilovaty (n 97) 61. 132. See Anna Wortham, ‘Should Cyber Exploitation Ever Constitute A Demonstration of Hostile Intent That May Violate UN Charter Provisions Prohibiting the Threat or Use of Force?’ (2012) 64 Federal Communications Law Journal 643, 656.

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that information would only be useful as reconnaissance for a future attack, one could reasonably infer that an attack was imminent or threatened.133 A further reason proposed for the illegality of at least one form of cyber espionage is that it violates the human right to privacy under Article 17 of the International Covenant on Civil and Political Rights (ICCPR).134 This claim is put forward most often in relation to state-sponsored mass surveillance programmes.135 The Group of Experts involved in the Tallinn Manual process agreed that espionage in cyberspace is subject to states’ human rights obligation to respect the right to privacy.136 Some scholars have argued, however, that while the ICCPR may be implicated by surveillance of individuals, the ICCPR fails to provide a fully satisfactory framework for dealing with cyber espionage in general. First, because Article 17 of the ICCPR prohibits ‘arbitrary or unlawful interference’ with an individual’s right to privacy, states will argue that whatever interference they exact is lawful and not arbitrary, and thus not a violation of the individual’s right to privacy.137 Second, Article 4(2) of the ICCPR allows states to derogate from Article 17 in an officially declared ‘time of public emergency which threatens the life of the nation’.138 Finally, a minority of states holds that the ICCPR does not apply extraterritorially.139 For instance, the United States reads Article 2(1) of the ICCPR – which states, ‘Each State Party to the present Covenant undertakes to respect and ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant …’140 – to limit the treaty to activity conducted on US territory.141

133. See Brown (n 35) 633; see also Weissbrodt (n 24) 384 (proposing that under the Caroline criteria, cyber espionage combined with computer network vulnerability may trigger the ability to use anticipatory self-defence). 134. International Covenant on Civil and Political Rights Art 17, 16 December 1966, 999 UNTS 171 (1967) (‘No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.’). 135. Craig Forcese, ‘Spies Without Borders: International Law and Intelligence Collection’ (2011) 5 Journal of National Security Law and Policy 179, 193–95. 136. Schmitt and Vihul (n 22) 187 (‘Individuals enjoy the same international human rights with respect to cyber-related activities that they otherwise enjoy.’). 137. Kilovaty (n 97) 77. 138. International Covenant on Civil and Political Rights, Art 4(2). 139. Ashley S Deeks, ‘An International Legal Framework for Surveillance’ (2015) 55 Virginia Journal International Law 291, 307. 140. International Covenant on Civil and Political Rights, Art 2(1). 141. Deeks (n 139) 307; Ashley S Deeks, ‘Confronting and Adapting: Intelligence Agencies and International Law’ (2016) 102 Virginia Law Review 599, 652–53.

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The US position is a minority one, and it has been called into question by human rights scholars and the Human Rights Commission, who argue, in accordance with the case law of the European Court of Human Rights, that any interference with an individual’s right to privacy must be necessary in the specific circumstances of the case, proportional to the ends sought and conducted in accordance with clearly defined laws.142 The ongoing debate between those arguing that both domestic and foreign mass surveillance implicate the right to privacy protected by the ICCPR143 and the smaller number of states and scholars promoting a territorially limited view of the right to privacy is beyond the scope of this article. However, even strong proponents of the view that an extraterritorial individual right to privacy exists concede that such a right ‘would emphatically not mean the end of all traditional (and novel) methods of foreign espionage’.144 Instead, such a right would call into the question the acceptability of mass surveillance of foreign individuals under international law, but would not address directly whether cyber espionage infringes on the rights of states generally.145 The previous paragraphs of this section on cyber espionage considered different legal arguments for the practice’s illegality. But the claim is also made that cyber espionage is, in fact, legal under international law – or at least is not prohibited per se. The claim of legality rests on the premise that absent an express prohibition, a state is free to act under international law.146 The same justification is often given for the legality of espionage is general, and if accepted there, why should cyber espionage be treated any differently.147 142. Deeks (n 139) 305–306; see Marko Milanovic, ‘Human Rights Treaties and Foreign Surveillance: Privacy in the Digital Age’ (2015) 56 Harvard International Law Journal 81, 136–37; UN Human Rights Committee (HRC), Concluding Observations on the Fourth Periodic Report of the United States of America, para 22, UN Doc CCPR/C/ USA/CO/4, 23 April 2014 (addressing National Security Agency surveillance). 143. There is also debate as to whether the right to privacy is differently implicated in foreign surveillance than in domestic surveillance. See, eg, Asaf Lubin, ‘We Only Spy on Foreigners: The Myth of a Universal Right to Privacy and the Practice of Foreign Mass Surveillance’ (2018) 18 Chicago Journal of International Law 502. 144. Milanovic (n 142) 139. 145. See eg, Deeks,‘Confronting and Adapting’(n 141) 635–45 (comparing and contrasting the pressures on intelligence agencies to respect the rights of individuals versus the pressures to respect the rights of states). 146. Kilovaty (n 97) 63 (‘Because international law is a legal system that requires a breach of definitive norms to assume state responsibility, it appears cyber espionage is legal, unless expressly prohibited in the future.’); Pun (n 90) 382; Deeks, ‘Confronting and Adapting’ (n 141) 608. 147. David P Fidler, ‘Economic Cyber Espionage and International Law: Controversies Involving Government Acquisition of Trade Secrets Through Cyber Technologies’ (2013) American Society of International Law Insights 1, 1.

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The counter to this position is that the establishment of a rule of customary international law requires both state practice and opinio juris – neither of which is present for the practice of cyber espionage.148 By the same measure, there is little to support the proposition that a customary international law norm has crystallised prohibiting cyber espionage. Thus, the more feasible position is that ‘cyber espionage is not per se unlawful’.149 3.2.5. Cyber Economic Espionage is Unique and Requires Different Regulatory Framework than National Security Espionage A specific subset of cyber espionage has received a great deal of attention: cyber economic espionage. This is because a large proportion of cyber espionage involves the theft of economic information ‘to secure comparative economic advantage in trade negotiations, other deals, or for particular companies’.150 Two strains of thought have developed regarding cyber economic espionage. The first, which is the dominant international position, sees no reason to ‘single[] out economic espionage for denunciation’.151 The second, predominately American, viewpoint views cyber economic espionage as the embodiment of a fundamental shift in the nature of espionage: economic espionage is no longer auxiliary to military and foreign policy espionage; it is the predominant form of espionage.152 According to the second viewpoint, whereas traditional espionage comprises a state’s efforts to acquire secret or otherwise protected information from a foreign government, economic espionage is a state’s efforts to collect protected information from a foreign corporate entity or individual and to provide that information to a private or state-owned enterprise within its own territory.153 States actively pursuing economic espionage are doing so in order to provide advantages to their own private sector, to eliminate the need to invest in research and development programmes, to increase their competitiveness on the international trade market, and to disadvantage the state from where the information is taken by preventing that state from c­ apitalising on

148. Buchan (n 104) 81–84. 149. Schmitt and Vihul (n 22) 170. 150. Banks (n 30) 514. 151. Brown (n 35) 624. 152. Rochelle Cooper Dreyfuss and Orly Lobel, ‘Economic Espionage as Reality or Rhetoric: Equating Trade Secrecy with National Security’ (2016) 20 Lewis and Clark Law Review 419; see also Lotrionte (n 70) 444 (designating the primary purpose of espionage today to be ‘conducting, or guarding against, economic espionage’). 153. Fidler (n 147) 1.

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its innovation and by denying it access to the global ­marketplace.154 Unlike traditional espionage, for which there is reciprocal acceptance and benefits between states, the only outcome for economic espionage, according to this view, is ‘economic benefits for one state alone and economic losses to another’.155 While traditional espionage was the benign collection of an adversary’s secret information in order to inform the making of policy, modern economic espionage is simply the theft of property and information to give advantage to domestic companies.156 The international response to the American position on cyber economic espionage has been muted. The US’s most significant economic rival, China, rejects even the premise that economic espionage is somehow intrinsically different from national security espionage.157 The Chinese view holds that a state’s economy is an essential part of its national security.158 It has also been noted that while US scholars and news media have spoken of an economic war and other inflammatory rhetoric about the pillaging and theft, the US itself ‘still does not assert that a violation of international law has occurred’.159 Commentators, if they are willing to accept the distinction between economic and national security espionage at all, rightly see the US position that economic espionage is more grave as ‘counterintuitive’.160 Domestic responses within developed states to counter economic espionage by developing states may be less about preventing theft than about protecting technological dominance.161 Developing states may be motivated

154. Lotrionte (n 70) 469. 155. Lotrionte (n 70) 470. 156. Lotrionte (n 70) 473. 157. Huang and Mačak (n 59) 307. 158. Brown (n 35) 629; see also Melanie Reid, ‘A Comparative Approach to Economic Espionage: Is Any Nation Effectively Dealing with This Global Threat?’ (2016) 70 University of Miami Law Review 757, 792 (‘[In China,] theft of trade secrets is not only promoted by government policies and state-backed companies, but it also reflects the societal attitude towards intellectual property.’). 159. Pirker (n 103) 202. 160. Brown (n 35) 623; Kilovaty (n 97) 58 (‘Cyber espionage for the purposes of national security is far more hostile than the collection of trade secrets because while trade secrets are usually relevant only to commercial competition, snooping for military secrets suggests intent beyond mere spying.’). 161. Dreyfuss and Lobel (n 152) 445; see also Dr Anna Kingsbury, ‘Trade Secret Crime in New Zealand Law: What Was the Problem and is Criminalisation the Solution?’ (2015) 37 European Intellectual Property Review 147 (arguing that draconian trade secret protection and anti-economic espionage measures would undermine innovation and competitiveness).

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more by the desire to improve domestic living conditions162 than by a specific policy aimed at reducing prosperity and innovation within developed states.163

3.3.  Cyber Crime Cyber crimes are acts carried out by means of a computer or targeting a computer system. The existence of cyberspace has made possible a new range of opportunities for criminals, which throw into doubt the traditional approaches of state-based jurisdiction and law enforcement.164 Crimes having effects in one state may be carried out by perpetrators in a second state using proxy computers in third, fourth and fifth states. Cyber crimes are subject to regulation under the most significant treaty regulating cyber operations under international law, the 2001 Convention on Cybercrime of the Council of Europe (the ‘Convention on Cybercrime’).165 The Convention on Cybercrime entered into force in 2004. While it principally applies in Europe, several non-European states have elected to join. Though the Convention is far from universal, it is the most far-reaching international treaty applicable to cyber crime – and to activities in cyberspace in general. The Convention obligates States Parties to criminalise four categories of offences. The first category consists of offences against the confidentiality, integrity and availability of computer data and systems. These offences include illegal access,166 illegal interception,167 data interference,168 system interference,169 and production, sale, procurement for use, import, distribution or otherwise making available of devices designed or adapted for 162. Karen Sepura, ‘Economic Espionage: The Front Line of a New World Economic War’ (1998) 26 Syracuse Journal of International Law and Commerce 127. 163. Lotrionte (n 70) 473. 164. Kastner and Mégret (n 33) 190; Ahmed Ghappour, ‘Searching Places Unknown: Law Enforcement Jurisdiction on the Dark Web’ (2017) 69 Stanford Law Review 1075. 165. See Council of Europe, Convention on Cybercrime, European Treaty Series, No 185 (Budapest, opened for signature 23 November 2001, entered into force 1 July 2004). 166. Ibid, Art 2 (defining illegal access as ‘access to the whole or any part of a computer system without right’). 167. Ibid, Art 3 (defining illegal interception as ‘interception without right, made by technical means, of non-public transmissions of computer data to, from or within a computer system, including electromagnetic emissions from a computer system carrying such computer data’). 168. Ibid, Art 4 (defining data interference as ‘damaging, deletion, deterioration, alteration or suppression of computer data without right’). 169. Ibid, Art 5 (defining system interference as ‘the serious hindering without right of the functioning of a computer system by inputting, transmitting, damaging, deleting, deteriorating, altering or suppressing computer data’).

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committing illegal access, illegal interception, data interference, or system interference.170 The second category consists of computer-related offences, such as computer-related forgery and fraud. The third category includes content-related offences – predominantly ‘production, offering, distribution, procurement or possession of child pornography’.171 The final category of offences that the Convention obligates States Parties to criminalise is offences related to the infringement of copyright and related rights, which are committed willfully and on a commercial scale.172 It should be clear that the first category of offences bears a great deal of similarity to cyber attacks and acts of cyber espionage. The fourth category, of course, overlaps with cyber economic espionage, as discussed above. Illegal access and illegal interception describe precisely the nature of cyber espionage activities. Data interference and system interference, if damage or destruction to data is considered analogous to damage or destructive of property, would be considered cyber attacks. The missing factor in the case of cyber crime is the presence of a state actor. The Convention on Cybercrime is limited to harmonising national criminal laws, improving investigation techniques and furthering international cooperation between national prosecuting authorities.173 It only requires states to enact domestic law penalties for private actors who commit cyber crimes within their territories. It bases jurisdiction on the principle of nationality and objective territoriality, according to which a state may exercise jurisdiction over conduct having a substantial effect in its territory, although the conduct occurred outside its territory, which allows states to both prosecute and to seek to protect their own nationals.174 Basing jurisdiction on nationality and objective territoriality creates a dilemma when conduct is criminalised in one state but not in another. For example, the computer virus Lovebug was released in 2000, causing extensive damage and drawing the world’s attention to the dangers posed by malicious software.175 However, the virus was discovered to be the creation of a Philippine national and the Philippines had no legislation in place prohibiting computer crimes. While the incident garnered worldwide attention and states are far more likely today to have legislation regulating computer crimes, jurisdiction remains an unresolved concern with

170. Ibid, Art 6. 171. Ibid, Art 9. 172. Ibid, Art 10. 173. Pirker (n 103) 202. 174. Kastner and Mégret (n 33) 202. 175. Marc Goodman, ‘International Dimensions of Cybercrime’ in Sumit Ghosh and Elliot Turrini (eds), Cybercrimes: A Multidisciplinary Analysis (Berlin, Spring, 2010) 317–20.

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the Convention on Cybercrime. Not only is this the case with criminal activities such as the thefts attributed to North Korean hackers, but might one day be a problem with attaining justice for an ‘internet war crime’. If a cyber crime is committed by a state actor entitled to sovereign immunity, the Convention on Cybercrime may be of no use whatsoever – and keep in mind, all cyber attacks and acts of cyber espionage are surely at least one of the crimes falling into the first category of offences which states are obligated under the Convention on Cybercrime to criminalise. A radical proposal to remedy this gap in enforcement is to use international criminal tribunals to try state actors who commit ‘internet war crimes’.176 For example, imagine the systematic erasure of the personal data of the citizens of another state. The erasure would not result in permanent damage to cyber infrastructure or to direct loss of life – but would profoundly affect the citizens of that state. Surely this would be popularly decried as a cyber attack, but the predominant view is that under international law data itself is not protected in the sense that its destruction would be a prohibited use of force. Would the mass erasure be a crime? The state whose citizens were affected would certainly make that claim, but international law would have little application if the act of erasing data was not proscribed in the state from which the operation was launched. Recall that most states are not parties to the Convention on Cybercrime. And even assuming the states were party to the Convention on Cybercrime, it would only be of use if the act had been committed by private actors, as state actors would be entitled to sovereign immunity. Had the cyber operation been the work of an intelligence agency, for example, the Convention on Cybercrime could compel the launching state to extradite that actor to the victim state for purposes of prosecution. To effectively prosecute an ‘internet war crime’ of this sort, states would require the authority to validly exercise universal jurisdiction and to allow prosecution without the restraints of sovereign immunity.177 The international community would have to create a new set of rules that apply specifically to cyber crimes of this sort, and those rules would be enforced by a mechanism that uses universal jurisdiction that is not limited by sovereign immunity principles. Stevens proposes that only international ad hoc tribunals satisfy these requirements.178 It is clear, in any case, that the Convention on Cybercrime alone will not suffice.

176. Sharon R Stevens, ‘Internet War Crimes Tribunals and Security in an Interconnected World’ (2009) 18 Transnational Law and Contemporary Problems 657, 697–704. 177. Ibid. 178. Ibid.

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4. Conclusions The article has sought to distinguish between cyber attacks, cyber espionage, and cyber crime under international law. In reality, the three types of cyber operations identified herein easily bleed over into each other. North Korea utilises the same type of cyber operations to extort money over the Internet as criminal syndicates, but because state actors are responsible, the operations cannot be legally classified as cyber crimes. Instead, they must be addressed as cyber attacks or cyber espionage, neither of which are suitable either. Cyber attack is likewise a limited designator in practice, as few if any cyber operations cause physical damage or harm to persons. Thus, cyber espionage is the category that most cyber operations carried out by state actors fall into. And it is the category with the most uncertain legal regulation. It is no wonder that states have seen fit to take advantage of the current uncertainty by aggressively utilising new technologies for purposes of surveillance, economic espionage, political influence and propaganda. Until the uncertainties surrounding cyber espionage are resolved, the international community can expect to witness a steady stream of cyber operations carried out by states or state actors that assiduously refrain from causing outright damage to property or harm to human, but nevertheless bring real world effects to citizens’ privacy rights, political expression and economic prosperity. Without the crystallisation of new international law norms applicable to cyber espionage, international law can do little to mitigate these effects.

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The Rise of Nationalism and Populism in Liberal Democracies as a Challenge for Public International Law Nikolay Marin* and Bilyana Manova** Abstract: The present article focuses on the manifest growth of the support for nationalist and populist politicians in Western states in recent years, as well as on the ever increasing number of strong separatist and pro-independence movements. It attempts to explain these political shifts with the challenges that Western politicians have had to deal with recently: the large influx of migrants from different religions and cultures, the frequent terrorist attacks, the disillusionment of voters with traditional political forces – both left and right, and the public anxiety over the contemporary economic challenges resulting from globalisation. The impact of these changes on international law and relations as well as on the European integration is examined. The noticeable erosion of the public belief in the principles of tolerance, cooperation and humanitarianism, which underlie international law, is regarded as the most disturbing effect of this development since it indicates a shift away from the value-based international legal order that has been dominant in liberal democracies ever since the end of the Second World War. It is asserted that the current trends are nonetheless surmountable, and that international law may provide some useful tools to that effect. Keywords: nationalism, populism, separatism, pro-independence movements, elections, self-determination

1. Introduction Over the last few years, a great deal has been said and written about the growing influence of nationalist and/or populist political movements that has been perceptible in numerous states. Examples of this shift abound: the election of Donald Trump for President of the United States of America (USA); the strong pro-independence movement in Catalonia; the increase in the

* Associate Professor at South-West University ‘Neofit Rilski’ in Blagoevgrad, Bulgaria; Member of the Bulgarian Association for European Law. ** PhD Student at South-West University ‘Neofit Rilski’ in Blagoevgrad, Bulgaria.

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support for the French National Front (NF) whose leader Marine Le Pen reached the second round of the 2017 French presidential elections; the electoral success of the German nationalist party Alternative for Germany (AfD) which became the third largest party in the 2017 federal election; and the decision of the United Kingdom (UK) to withdraw from the European Union (EU). Although it is traditionally conceived that the internal political processes are to be independently determined by each sovereign state, history has proven time and again that they may have a considerable and lasting effect on international peace and public international law (PIL). This is all the more so in the current era of global challenges and threats such as climate change, overpopulation, large migration flows, nuclear proliferation, international conflicts and terrorism that may only be addressed effectively through the concerted efforts of states. That being said, mistrust for multinational institutions and multilateral treaties, as well as Euroscepticism within the EU are increasing.1 This noticeable return to nationalism at the expense of international cooperation is closely linked to the question whether internationalism, which has been the predominant ideology in international relations since the Second World War, benefits the people any longer.2 The repercussions that this political course may have on international politics and security, as well as, in a narrower context, on the future of the EU (with the French NF and the German AfD being both Eurosceptic parties) cause great concern, and rightfully so.3 It is therefore necessary to look into this political trend, to explore what has brought it about and what its effects may be both from a political and from a legal perspective, as well as to outline the mechanisms through which international solidarity and cooperation may be safeguarded in spite of it. The question of the compliance of the activities of nationalist, populist and separatist political movements with international law should also be examined. With these objectives in mind, the current article addresses first, in ­section 2, the nature of nationalism and populism and their legality under international law. Then, in section 3, it deals with the reasons for and the legal aspect of separatist movements. Section 4 analyses the effects of these trends on international law and section 5 suggests possible strategies through which 1. Lauren McLaren, ‘Explaining Mass-Level Euroskepticism: Identity, Interests, and Institutional Distrust’ (University of Glasgow, 2007) http://eprints.gla.ac.uk/81180/ (last accessed 7 January 2019). 2. Ibid. 3. Stijn van Kessel, Populist Parties in Europe: Agents of Discontent? (Basingstoke, Palgrave Macmillan UK, 2015) 61–62.

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international law could be able to reverse the anti-internationalism trend and overcome the challenges caused by it.

2.  The Rise of Nationalism and Populism 2.1.  What is Meant by the Terms ‘Nationalism’ and ‘Populism’? Nationalism and populism are political movements that emerged in Europe respectively in the nineteenth and twentieth centuries. When discussing their growing influence, it is essential at the outset to underline that although they often go hand in hand, they do not necessarily overlap. 2.1.1. Nationalism Nationalism is a phenomenon of which ‘it is almost impossible to come up with a uniform definition’,4 encompassing a vast array of distinct social, cultural and political movements generally characterised by a sense of belonging to a certain nation, a pride in it, a desire to ensure its greatness, prosperity and independence and a pursuit of national unification within a single state.5 Nationalism strives to maintain a national identity based on shared characteristics such as culture, language, religion, political goals or a belief in a common ancestry.6 Depending on the circumstances, it may be ‘ethnocentric or primarily civic in focus’.7 Nationalism, understood as the realisation of the belonging to a nation and the attempt of unifying it, first blossomed in the eighteenth and nineteenth centuries all over Europe, bringing together ‘people of diverse backgrounds at the price of subordinating their ethnic identities to the larger territorial unit dominated by the secular state’.8 This idea crystallised during the so-called national ‘Renaissances’ of European peoples when the view of the nation as a cultural and linguistic community acquired specifically political dimensions 4. Peri Pamir, ‘Nationalism, Ethnicity And Democracy: Contemporary Manifestations’ (1997) 2 The International Journal of Peace Studies, 1, 1. 5. Ibid, 1. 6. Anna Triandafyllidou, ‘National Identity and the Other’ (1998) 21-4 Ethnic and Racial Studies 593–612, www.tandfonline.com/doi/abs/10.1080/014198798329784 (last accessed 7 January 2019); Anthony D Smith, The Ethnic Revival in the Modern World (New York, Cambridge University Press, 1981) www.tandfonline.com/doi/abs/ 10.1080/014198798329784 (last accessed 7 January 2019). 7. Christina Pazzanese, ‘In Europe, Nationalism Rising’ The Harvard Gazette (27 February 2017) https://news.harvard.edu/gazette/story/2017/02/in-europe-nationalisms-rising/ (last accessed 7 January 2019). 8. Ibid, ff.

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and demanded an alignment between nation and state.9 This resulted from various factors including the ideas of the Enlightenment, the decline of feudalism and the industrial progress. Nowadays in the West, nation states have long attained their independence and primacy. Therefore, nationalism has acquired different manifestations and the term ‘nationalist’ is used to describe political movements and parties which prioritise the prosperity of their states over international cooperation. Parties that are described as ‘nationalist’ are often characterised by reactionary, anti-internationalist and Eurosceptic positions. The French NF and the German AfD, whose political platforms are protectionist, anti-EU and antimigration, may be pointed out as typical examples of such contemporary nationalist parties.10 2.1.2. Fascism Fascism is an ideology which includes nationalism as one of its central ingredients, but it is a form of radical nationalism that rejects individualism in the name of the collective interest,11 and is characterised by dictatorial power, forcible suppression of opposition and control of industry and commerce. It came to prominence in Italy in the early twentieth century12 before spreading to other European states.13 Nationalism has often been associated with fascism and the opinion that fascism is reviving in Europe is, therefore,

9. Matthew Craven, ‘Statehood, Self-Determination and Recognition’ in Malcolm D Evans (ed) International Law, 3rd edn (New York, Oxford University Press, 2010) 203, 212. 10. Amanda Taub and Max Fisher, ‘Germany’s Extreme Right Challenges Guilt Over Nazi Past’ The New York Times (18 January 2017) (last accessed 7 January 2019); Rachel A Epstein and Donald Abenheim, ‘Understanding the “Alternative for Germany”: ­Origins, Aims and Consequences’, Political Violence @ a Glance (22 November 2016) www.politicalviolenceataglance.org/2016/11/22/understanding-the-alternative-forgermany-origins-aims-and-consequences/ (last accessed 11 January 2019); van Kessel (n  3) 61–62; Salim Lamrani, ‘L’immigration en France: De la rhétorique xénophobe à la réalité des chiffres’, Le Grand Soir (12 June 2012) https://www.legrandsoir.info/ l-immigration-en-france-de-la-rhetorique-xenophobe-a-la-realite-des-chiffres.html (last accessed 11 January 2019). 11. Zeev Sternhell, with Mario Sznajder and Maia Asheri, ‘Introduction: Fascism as an Alternative Political Culture’ in Zeev Sternhell, with Mario Sznajder and Maia Asheri, The Birth of Fascist Ideology: From Cultural Rebellion to Political Revolution (first published 1989) (David Maisel translator, Princeton, Princeton University Press, 1994) 6, 12. 12. Peter Davies and Derek Lynch, The Routledge Companion to Fascism and the Far Right (New York, Routledge, 2002) 1–5 https://marxismo21.org/wp-content/uploads/2015/04/ Fascism-and-the-Far_Right.pdf (last accessed 7 January 2019). 13. Ibid.

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not uncommon.14 Nevertheless, there are significant differences between nationalism and fascism. While nationalism generally accepts that the right to hold power should be subject to a periodic selection of the leaders by the people and allows for free speech and opposition, fascists believe that the defence of the state and the promotion of its influence require a government characterised by order, discipline and dictatorship.15 For these reasons, only very few of the contemporary large European nationalist parties may be regarded as fascist. 2.1.3. Populism The term ‘populism’ is used to describe the ideology and political platforms of politicians who seek to find political support by mobilising the animosity of ‘the people’ against some ‘privileged elites’ and some ‘establishments’ that are allegedly neglecting the needs of ordinary citizens. Populists may fall anywhere on the traditional left–right political spectrum and be advocates for a democratic or an authoritarian rule.16 Some have attributed this to the fact that populism is ‘less an ideology than a form of political discourse’17 and may therefore be ‘attached to a variety of political ideologies’.18 Populism is often associated with the political style and goals of a number of leaders who arose in Latin America during the 1930s such as Perón in Argentina, Vargas in Brazil, Cárdenas in Mexico, and, more recently, Chávez in Venezuela.19 A current example of a politician regarded as a populist is the 45th and current President of the USA, Donald Trump, in office since 20 January 2017, who won the 2016 presidential election under the populist slogans that he would ‘drain the swamp’ of political elites and ‘make America Great Again’.20 14. Roger Eatwell, ‘Why are Fascism and Racism Reviving in Western Europe?’ (1994) The Political Quarterly 313 www.academia.edu/2415379/WHY_ARE_FASCISM_AND_ RACISM_REVIVING_IN_WESTERN_EUROPE (last accessed 7 January 2019); Rick Lyman, ‘Once in the Shadows, Europe’s Neo-Fascists Are Re-emerging’ New York Times (19 March 2017) www.nytimes.com/2017/03/19/world/europe/europe-neo-fascistrevival-slovakia.html (last accessed visited 7 January 2019). 15. Zeev Sternhell, with Mario Sznajder and Maia Asheri, ‘Chapter Five: The ­Mussolini Crossroads: From the Critique of Marxism to National Socialism and Fascism’ in Sternhell, with Sznajder and Asheri, The Birth of Fascist Ideology: From Cultural Rebellion to Political Revolution (n 11) 220. 16. André Munro, ‘Populism’ Encyclopædia Britannica www.britannica.com/topic/populism (last visited 7 January 2019). 17. Pazzanese (n 7). 18. Pazzanese (n 7). 19. Benjamin Keen and Keith Haynes, A History of Latin America, 7th edn (New York, Houghton Mifflin, 2004) 300–303, 329–34, 364–76. 20. Pazzanese (n 7).

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2.2.  The Current Rise of Nationalism and Populism A revival of nationalist and populist political movements, both old and new, is currently taking place in numerous Western states, while the support for their traditionally most influential parties, both on the right and left side of the political spectrum, has been decreasing.21 Several Western states, including the USA, Germany, Austria, Italy, France and the Netherlands, have in the course of the last two years experienced turbulent elections characterised by increased social tensions, polarisation of the public opinions and strong support for nationalist and populist politicians. The fact ‘that it took 208 days to form a coalition government in the Netherlands’,22 and nearly six months for Germany and almost three months for Italy to form one as well, is an indication of the political destabilisation experienced by these states. 2.2.1. USA Perhaps the brightest example of this trend has been the election of Trump for President of the USA which has largely been regarded as a victory for populism. While support for populist and nationalist parties has grown in many places, the number of states where such parties have actually managed to come into power is much smaller, and this is why Trump’s recent success is noteworthy, especially given the fact that it took place in such an important political player as the USA. Trump’s protectionist and anti-globalisation positions on issues such as free trade, security and immigration are widely deemed populist.23 Since his election, Trump has been putting these views into practice even at the expense of them being sometimes inconsistent with the policies of his own Republican Party.24

21. Adina Trunk and Gary Klaukka, ‘The Rise of Populist and Nationalist Parties in Europe: How to Break the Trend’ (International Idea (Institute for Democracy and Electoral Assistance), 25 October 2017) www.idea.int/news-media/news/rise-populist-and-nationalistparties-europe-how-break-trend (last accessed 7 January 2019). 22. Matthew Goodwin, ‘In 2018, Europe’s Populist Challenges Will Continue’ (­Chattam House (The Royal Institute of International Affairs), 14 December 2017), www. chathamhouse.org/expert/comment/2018-europe-s-populist-challenges-will-continue (last accessed 7 January 2019). 23. Bernie Becker, ‘Trump’s 6 Populist Positions’ (Politico, 13 February 2016) www.politico. com/story/2016/02/donald-trump-working-class-voters-219231 (last accessed 9 January 2019. 24. Michael Kazin, ‘How Can Donald Trump and Bernie Sanders Both Be “Populist”?’ The  New York Times Magazine (22 March 2016) www.nytimes.com/2016/03/27/­ magazine/how-can-donald-trump-and-bernie-sanders-both-be-populist.html (last accessed 7 ­January 2019); Becker (n 23).

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2.2.2. France In May 2017, the leader of the French NF, Marine Le Pen, reached the second round of the 2017 French presidential elections although she eventually lost to Emmanuel Macron.25 Much like Trump, Le Pen had been campaigning to bring back jobs from abroad, on a return to the Franc instead of the Euro for a national currency, and on an exit from the EU. Her ­party’s political platform also called for an enhanced border security and heavy restrictions on immigration, which it blamed for terror attacks. 2.2.3. Germany The nationalist AfD achieved a remarkable electoral success in the recent federal election in Germany by becoming the third largest party and for the first time winning seats in the Bundestag. The elections held in September 2017 witnessed a decrease in the vote for the two parties that have traditionally enjoyed the greatest support – the Christian Democratic Union/Christian Social Union (CDU/CSU) and the Social Democratic Party of Germany (SPD). The conservative CDU/CSU, led by Angela Merkel, won only 33 per cent of the vote, a drop of more than eight per cent and its lowest share of the vote since 1949, while the SPD achieved its worst result since the Second World War. The AfD, for its part, became the third largest party in the state acquiring 94 seats in the Bundestag – a success all the more striking in view of the fact that Germany has long treated nationalism warily because of its Nazi history.26 The elections caused a political crisis and it took nearly half a year (171 days) for Germany to form a new government.27 Eventually, the CDU/CSU managed to agree with the SPD on a Grand Coalition government in March 2018 and the Bundestag once again elected Merkel as ­Chancellor.28 This new government will soon have to face numerous challenges. Both governing parties will need to improve their public profiles which have been

25. Loulla-Mae Eleftheriou-Smith, ‘French Election Results: The Case for Saying Marine Le Pen Actually Came Third’ Independent (8 May 2017) www.independent.co.uk/ news/world/europe/french-election-results-2017-marine-le-pen-third-spoiled-ballotsabstentions-emmanuel-macron-a7723711.html (last accessed 7 January 2019). 26. Patrick Kingsley and Raphael Minder, ‘Catalonia Separatism Revives Spanish Nationalism’ The New York Times (5 October 2017) www.nytimes.com/2017/10/05/world/ europe/catalan-independence-referendum.html (last accessed 7 January 2019). 27. Sasan Abdi-Herrle and Monika Pilath, 14 March 2018, ‘Das komplette Team ­Merkel’ (ZeitOnline 14 March 2018) (last accessed 11 January 2019). 28. Ibid.

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compromised, mostly because of their inability to adequately respond to the predominant concerns of German (and, generally, European) voters – security and identity.29 It is widely expected that this will be Merkel’s last mandate as Chancellor and by far the most difficult30 as she will have to deal with the problems related to migration, terrorism, Brexit and the uncertain future of the EU, and all that in an international atmosphere in which tensions grow by the day and where anything may be expected of the USA President.31 On top of that, the recent period of relevant political instability experienced by Germany right after the elections has naturally also had a somewhat destabilising impact on the EU because of Germany’s leading role in it, and has caused doubts as to whether Germany would manage to agree with France on a reform of the Eurozone,32 a plan of ‘huge importance’, in Merkel’s words, for the euro’s future.33 2.2.4. Austria Nationalists in Austria also achieved a considerable electoral success in the 2017 legislative elections, managing to become a part of the current Austrian Government. In the elections held on 15 October 2017 the nationalist Freedom Party (FP) of Austria finished third, receiving 27.4 per cent of the vote34 and 51 seats in the National Council preceded by the Austrian People’s Party and the Social Democratic Party. The cabinet is led by Sebastian Kurz, the leader of the Austrian People’s Party – a Christian democratic35 and conservative36 party, but it is a coalition cabinet with the right-wing FP. The FP, currently led by Heinz-Christian Strache, was founded as long ago

29. McLaren (n 1) 5–6, 24; Wolfram Weimer, ‘Die Quittung für Merkels ­Migrationspolitik’ (The European, 27 September 2017) www.theeuropean.de/wolfram-weimer/12833deutschland-hat-politische-stabilitaet-verloren (last accessed 7 January 2019). 30. Gordon Repinski, ‘Eine Regierung! Es wurde aber auch Zeit’ (Hannoverische Allgemeine, 14 March 2018) www.haz.de/Nachrichten/Politik/Deutschland-Welt/Deutschland-hatendlich-eine-neue-Regierung (last accessed 7 January 2019). 31. Ibid. 32. Guy Chazan, ‘Berlin Political Deadlock Stymies Macron’s Eurozone Plans’ Financial Times (3 January 2018) www.ft.com/content/6e7a1846-e5b2-11e7-97e2-916d4fbac0da (last accessed 7 January 2019). 33. Ibid. 34. Trunk and Klaukka (n 21). 35. Wolfram Nordsieck, ‘Parties and Elections in Europe’ www.parties-and-elections.eu (last accessed 7 January 2019). 36. Terri E Givens, Voting Radical Right in Western Europe (Cambridge, Cambridge University Press, 2005) 23.

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as 1956 and represents the so-called ‘Third Camp’ of Austrian politics opposing both socialism and Catholic clericalism. 2.2.5. Italy In the very recent elections in Italy no political party received enough votes to form a government alone.37 However, the outcome of the vote may be regarded as a triumph of the populist and right-wing political movements and ‘a stinging rejection of traditional parties’.38 The elections were particularly successful for the anti-establishment Five Star Movement which won around 32.7 per cent of the votes and thus became the largest party in parliament.39 Its campaign was strongly based on the promise to introduce a universal basic income which appealed to many voters, especially in the south of Italy where the unemployment rate is very high. A considerable share of the votes, nearly 17.4 per cent, went for the League, a right-wing and manifestly Eurosceptic party. The party’s leader, Matteo Salvini, is strongly opposed to the euro and expects that it will soon come to an end. He has described himself as ‘proudly populist, because the populists listen to the people, unlike the “radical chic” that despise the workers’.40 The League has won many votes by deftly seizing on the dissatisfaction of Italians with the inability of the previous governments to cope with the unprecedented migration, stagnation and unemployment within the country. Following almost three months of negotiations, Italy eventually managed to avoid the risk of immediate new elections and to form a government headed by Giuseppe Conte who had not run for the Italian Parliament but who was supported by the League and the Five Star Movement. Matteo Salvini of the League and Luigi Di Maio of the Five Star Movement were appointed as vice premiers. These triumphant results for Eurosceptic politicians give cause for concern for the stability of the EU as Italy is the eurozone’s third-largest economy. 37. Lauren Said-Moorhouse, Hilary Clarke and Euan McKirdy, ‘Italy’s Voters Choose Populists, Deliver Stinging Rebuke to Europe’ (CNN, 5 March 2018) https://edition.cnn. com/2018/03/05/europe/italy-elections-intl/index.html (last accessed 7 January 2019). 38. James Bennet, Kathleen Kingsbury, Nick Fox, Vikas Bajaj, Carol Giacomo, Serge Schmemann, Brent Staples, Jesse Wegman, John Broder and Lauren Kelley, ‘Demagogues Win as Europe’s Populist Tide Sweeps Italy’ The New York Times (5 March 2018) www. nytimes.com/2018/03/05/opinion/italy-election-populist.html (last accessed 7 January 2019). 39. Said-Moorhouse, Clarke and McKirdy (n 37). 40. Said-Moorhouse, Clarke and McKirdy (n 37).

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2.2.6. Poland Similar nationalist trends have been noticeable in numerous Eastern European states among which Poland, Hungary, Slovakia, Croatia, the Czech Republic, Greece and Bulgaria may be named. In 2015, Hungary and Poland both installed right-wing, anti-globalisation governments, followed by the Czech Republic where the nationalist Freedom and Direct Democracy party won over 10 per cent of the votes in the 2017 legislative elections.41 Recently both Poland and Hungary have by and large re-elected these same governments that put a great emphasis on protecting national identity and combatting the mass influx of migrants. Poland is currently ruled by the Eurosceptic Law and Justice (PiS) party.42 The newly elected Prime Minister Morawiecki, sworn into office in ­December 2017, has appointed the same ministers as in the previous government and has stated that his politics would focus on family values, the economy, safety, work, housing and, in general, ‘the good of Poland and its ­citizens’.43 PiS  focuses on distinguishing the Polish national interests from some EU priorities such as the acceptance of Muslim migrants and maintains that Poland ‘can reach a level of economic development on par with the West while keeping so-called traditional Polish values and maintaining its homo­ genous, Catholic, white’ population.44 Yet the party has also underlined that the values it stands for have nothing to do with racism.45 As for the downsides to the PiS Government, Poland has been experiencing a ‘growing pressure from the European Commission (EC) over worries that the country is backsliding on its commitment to democracy’46 and it has been widely criticised for its authoritarian and illiberal policies 41. Ashley Kirk, ‘How the Rise of the Populist Far-Right has Swept through Europe in 2017’ The Telegraph (24 October 2017) www.telegraph.co.uk/news/2017/10/24/rise-populistfar-right-has-swept-europe-2017/ (last accessed 7 January 2019). 42. Ginger Hervey, ‘Polish Government Could Drive the Country out of the EU, Tusk Warns’ (Politico, 9 January 2018) www.politico.eu/article/polish-government-could-drive-thecountry-out-of-the-eu-tusk-warns/ (last accessed 7 January 2019). 43. Andrew Rettman, ‘New Polish PM Brings Same Old Government’ (EU Observer, 12  December 2017) https://euobserver.com/political/140242 (last accessed 7 January 2019). 44. Remi Adekoya, ‘Why Poland’s Law and Justice Party Remains So Popular’ (Foreign Affairs, 3 November 2017) www.foreignaffairs.com/articles/central-europe/2017-11-03/whypolands-law-and-justice-party-remains-so-popular (last accessed 7 January 2019). 45. Lidia Kelly and Justyna Pawlak, ‘Poland’s Far-Right: Opportunity and Threat for Ruling PiS’ (Reuters, 3 January 2018) www.reuters.com/article/us-poland-politics-farright/ polands-far-right-opportunity-and-threat-for-ruling-pis-idUSKBN1ES0BK (last accessed 7 January 2019). 46. Hervey (n 42).

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intended to compromise ‘judicial independence, weaken civil liberties, politicize the civil service, and exert control over media’.47 The EC has, for the first time ever, triggered the procedure envisaged in Art 7 of the Treaty of the EU48 in a response to a recent reform regarded as an attempt by the Polish Government to seize control of the courts. This procedure could lead to the suspension of Poland’s voting right in the Council of Ministers of the EU and is invoked where there is a ‘clear risk of a serious breach by a Member State of the values referred to in Article 2’49 – respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights.50 In addition to that, the EC has also initiated proceedings against Poland for not complying with the migrant relocation scheme.51 2.2.7. Hungary As for Hungary, the national conservative Fidesz party led by Victor Orban once again managed to win the elections on 8 April 2018. Prime Minister Orban, ‘a strong Eurosceptic who campaigned on an anti-immigration platform’, has secured a third consecutive term in office by reminding voters that their vote would determine the kind of future they would like to have: a nationalist government allowing Hungary to remain a Hungarian country, or an internationalist government and an immigrant country.52 In a similar vein, Orban has stated that the victory has given his people an ‘opportunity to defend themselves’.53 2.2.8. Bulgaria In Bulgaria, the Government formed in May 2017, following the parliamentary elections, consists of GERB (the most influential, right-wing party) and a coalition of parties that are to different degrees nationalist (and many of them EU-sceptic) called the Obedineni Patrioti (Allied Patriots)54 47. Adekoya (n 44). 48. Consolidated Version of the Treaty on European Union [2010] OJ C83/01. 49. TEU post-Lisbon, Art 7, para 1. 50. TEU post-Lisbon, Art 2. 51. Rettman (n 43). 52. ‘Hungary’s Election Decision will also be for its Future’ (Website of the Hungarian Government, 30 March 2018) www.kormany.hu/en/the-prime-minister/news/hungary-selection-decision-will-also-be-for-its-future (last accessed 7 January 2019). 53. ‘Viktor Orban: Hungary PM Re-Elected for Third Term’ (BBC News, 9 April 2018) www. bbc.com/news/world-europe-43693663 (last accessed 11 January 2019). 54. Konstantin Mravov, ‘Ofitsialno: Tova e novotopravitelstvo na Borisov’ (Vesti.bg, 3  May 2017) www.vesti.bg/bulgaria/politika/oficialno-tova-e-novoto-pravitelstvo-naborisov-6068679 (last accessed 7 January 2019).

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who hold the minsters seats of economic policy and demography as well as of defence.55

2.3. Reasons Behind the Growing Support for Nationalist and Populist Politicians The aforementioned political shifts are an expression of a larger issue – the fact that around the world, political parties are among the least trusted institutions in society and their ability to adequately represent citizens is questioned by many,56 which constitutes a direct challenge to the core of representative democracy itself.57 This is particularly true of the traditional left- and right-wing parties which lose voters to the benefit of new, antiestablishment political movements. The reasons for these processes are extremely complex. They are partially due to dissatisfaction of voters with the politicians whose inability to cope with the negative effects of globalisation, migration, stagnation, unemployment, and, within the EU – integration, has been more and more apparent in the last few decades. Many states have, to a large extent, failed to effectively integrate the minorities living in them – both the old and the new ones – which has allowed for the emergence of social, ethnic and religious tension and discriminative practices. In addition to this list of issues, the authors would also like to draw attention to another problem – the fact that members of many minorities in European states find themselves in vicious circles where they are not being given the chance to improve their living conditions due to prejudices that in turn have been caused by the inability or unwillingness of the rest of the representatives of the same group to be integrated. This leaves even those individuals striving to be better accepted no choice but to remain marginalised. Another explanation for the loss of trust in traditional political parties is the global nature of the current challenges such as increased migration and influx of refugees, climate change, changes in the labour market due to technological advancements and increased socio-economic inequalities.58 These issues require international cooperation on a regional or even a global scale in

55. List of the members of the Bulgarian Government officially published by the Government (Website of the Bulgarian Government) www.gov.bg/bg/pravitelstvo/sastavna-pravitelstvoto/biografii/krasimir-karakachanov-zamestnik-ministar-predsedatel-poobshtestveniya-red-i-sigurnostta-i-ministar-na-otbranata (last accessed 7 January 2019). 56. McLaren (n 1) 4. 57. Trunk and Klaukka (n 21). 58. Trunk and Klaukka (n 21).

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order to be efficiently dealt with, and have therefore left the traditional parties with little policy control on a national level.59 At the same time, certain problems that previously could be solved by a single state are now more difficult to overcome due to the slower, more complicated and interdependent decision-making systems that currently exist between nations60 and are governed by international organisations, international law and tribunals. As a result, many political parties ‘are seen by the public as being unable or unwilling to solve the pressing problems of the day’.61 In the light of all these circumstances, it is understandable that the antiestablishment language of populists appeals to voters as it offers an alternative to the older, already compromised politicians. For instance, PiS is regarded by many Polish citizens as a ‘party representing the Polish people against corrupt liberal elites’.62 The Government has managed to put across the message that it is at least attempting to be more responsive to the needs of ordinary citizens and to restore justice. Another big advantage of its policy is that it resonates with the yearnings of the population for security: ‘The fact that, unlike in many West European cities, there have been no Islamist terrorist attacks in Poland has increased Poles’ sense that they live in a relatively safe country and they fear that EU-imposed multi-culturalism threatens their security.’63 Like PiS, many other nationalists and populists have managed to turn to their great advantage the fears of migration and the anxiety over economic inequalities.64 Especially in times of economic distress, newcomers are inevitably resented. Following the latest financial and economic crisis, there has been a rise in both the perceived and the real social inequalities related to the outsourcing of manufacturing jobs to low-wage countries.65 As explained by Gabriela Belova and Nikolay Marin, there are legitimate and pressing causes for concern resulting, in particular, from the large amount of ‘illegal

59. Trunk and Klaukka (n 21). 60. Trunk and Klaukka (n 21). 61. Trunk and Klaukka (n 21). 62. Adekoya (n 44). 63. Aleks Szczerbiak, ‘Explaining the Popularity of Poland’s Law and Justice ­Government’ (The London School of Economics and Political Science) http://blogs.lse.ac.uk/­ europpblog/2017/10/26/explaining-the-popularity-of-polands-law-and-justice-­ government/ (last accessed 7 January 2019). 64. Simon Shuster, ‘European Politics Are Swinging to the Right’ (Time, 22 September 2016) http://time.com/4504010/europe-politics-swing-right/ (last accessed 7 January 2019). 65. Trunk and Klaukka (n 21).

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labor migration’66 in Europe and ‘the economic crisis, which reduced significantly the opportunity to find work in the EU Member States’.67 Certain political parties such as the nationalist Sweden Democrats and the FN have been quick to capitalise on these sentiments in order to attract new voters. The rise of Islamic fundamentalism and the numerous terrorist attacks that have recently occurred in Europe have additionally increased the support for politicians who promise to erect walls and send back the immigrants.68 The success of nationalist parties in Western states may, to a certain extent, be also attributed to the political disorientation that resulted from the end of the Cold War and the concomitant subconscious need to redirect the ‘enemy’ image to new sources of dangers such as the migrants.69 Yet another factor that contributed is the wide-spread dissatisfaction with EU policies, legal instruments and institutions.70 EU institutions are perceived by citizens as ‘distant and difficult to understand’71 as well as as ­under-representative and not sufficiently democratic.72 The EU is largely regarded as being too bureaucratic and overregulated; its decision-making processes are considered to be too slow, complicated and inflexible. Consequently, many voters consider the EU to be just as incapable as traditional parties of coping with the contemporary challenges. Another reason for the support enjoyed by nationalist and populist politicians has been the simple fact that, for all the political incorrectness of their discourse, certain measures they have implemented have had a palpable positive influence on citizens. The Polish Government is a case in point as the social welfare measures it has introduced (eg the implementation of a system of unconditional cash payments for parents with more than one child) have been beneficial to the population. At the same time, this step has not been detrimental to the Polish economy which ‘is performing much better than expected’ with the lowest unemployment levels for the last 25 years.73 PiS has thus managed to combine ‘social conservatism and nationalism with welfarism’.74

66. Gabriela Belova and Nikolay Marin, ‘Some Issues Related to the Irregular or Undocumented Migrants’ (2017) 4:2 Kutafin University Law Review 554, 563. 67. Ibid 563. 68. Pazzanese (n 7). 69. Pamir (n 4) ff. 70. McLaren (n 1) 5. 71. McLaren (n 1) 5. 72. McLaren (n 1) 5. 73. Szczerbiak (n 63). 74. Adekoya (n 44).

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All that being said, the international order and international law have also played a certain role in these political processes, although their influence may not be as easily discernible as the concrete political choices of a nation state’s leaders. The present international order has largely been determined by the system introduced in the aftermath of the Second World War with the adoption of the Charter of the United Nations (‘the UN Charter’) in 1945 which proclaimed as one of its main objectives the maintenance of international peace and security.75 Even though the international community, organisations and legal instruments have indeed achieved a lot for the maintenance of international peace and security during the last seven decades, the fact remains that they have failed to prevent numerous conflicts that have occurred since the adoption of the UN Charter. In the authors’ opinion, by not managing to avoid these violent wars, the international community and international law have also failed to avert the creation of migrant and refugee waves towards Western states. These migrant and refugee waves and the social tensions they have brought about have, in turn, created conditions which are very favourable to the revival of xenophobic and anti-immigration sentiment.76 Similarly, despite the considerable economic growth of many third-world states, in particular in Asia, during the last decades, the international community has not yet fully managed to eradicate world poverty. The still present ‘severe socio-economic imbalances’77 and the desire for an increased chance of survival and better living conditions are the main drivers of numerous economic migrants leaving their homelands.78

2.4.  Nationalism and Populism from a Political Perspective The political processes described in this article may be regarded from two completely different perspectives – from the point of view of what is legal

75. Art 1 (1), Charter of the United Nations, 26 June 1945, in force 24 October 1945, 1 UNTS XVI. 76. Paul Taggart and Aleks Szczerbiak, ‘Putting Brexit into Perspective: The Effect of the Eurozone and Migration Crises and Brexit on Euroscepticism in European states’ (2018) 25:8 Journal of European Public Policy 1194–1214, 1200 https://doi.org/10.1080/ 13501763.2018.1467955 (last accessed 7 January 2019); Peter Höhmann, ‘Unsichere ­Lebenslagen, Unsicherheitsbewältigung und Einstellung zu den Zuwanderungen nach Deutschland’ (2018) 35 Zeitschrift des Duisburger Instituts für Sprach- und Sozialforschung, 25, 25. 77. Maries Hesselman, ‘Sharing International Responsibility for Poor Migrants?’ (2013) 15:2 European Journal of Social Security 187, 188. 78. Ibid 188; International Law Commission, Second report on the expulsion of aliens, by Mr Maurice Kamto, Special Rapporteur, UN Doc A/CN.4/573 (2006), 20 July 2006, para 30.

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according to a certain legal system or from the point of view of what is politically or morally desirable. While the former perspective offers at least some possibility for objectivity, the latter requires a value-based assessment and is therefore strictly subjective. As for the political aspects of the rise of nationalism and populism, there is no easy answer to the question whether these trends are positive or negative. Nationalism and populism may thrive in both democratic and authoritarian states. Depending on the particular circumstances, they may both be beneficial or detrimental to the population, progressive or reactionary. Paradoxically, nationalism may be cited to justify aspirations as conflicting as the preservation of existing boundaries and territorial sovereignty and the suppression of revolts so as to hold ‘the nation’ together, on the one hand, and the attempts of certain groups or territories to break away from existing states to achieve national liberation, on the other.79 Patriotism may be a positive phenomenon mobilising the creative, constructive power of a nation. However, as many historical examples have proved, nationalist sentiments may also be employed to serve destructive ends such as the generation of racial, ethnic or religious discrimination and apartheid, xenophobia, anti-Semitism, civil war and international armed conflict, ethnic cleansing and genocide. In terms of political discourse, nationalism may be the ‘manifestation of democratic pluralism taken to its extreme in the negative sense, by leading to intolerance and exclusivity’.80 The same goes for the populism which in itself is neither good nor bad; to say that a political party is populist is merely to state that it tries to present itself as anti-establishment-oriented. Its effect on a state will depend on the exact policies and actions of such a party. While the negative attitude of nationalist and populist politicians towards the influx of migrants in Europe is understandable because of their wellfounded concerns relating to cultural and developmental differences, increasing threats of Islamic fundamentalism and terrorism and the social and economic burdens inherent to immigration, such politicians seem to completely disregard some strong arguments in favour of immigration relating to the fact that the migrants may help European states to slow down the demographic decline they are experiencing due to low birth rates. An interesting opinion relating to other possible positive effects of immigration in Europe has been expressed by Boris Manov. In his article

79. Pamir (n 4). 80. Pamir (n 4) ff.

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‘The  Migrational Motif ’,81 Manov argued that the persons who choose to migrate are the most vital, ambitious, daring, innovative and creative representatives of their respective societies, the engines of human progress, determined to ensure for themselves better living conditions. For that reason, he considers that migrants not only ‘do not endanger the future of European nations’ but actually are a ‘powerful tool’ that may ensure ‘a better future’ as they possess ‘the necessary genetic, emotional and intellectual potential to bring some fresh air into’ the aging Continent,82 to make it more competitive and to increase its endurance of European nations.83 The author bases this opinion on the theory of the Soviet historian and ethnologist Lev Gumilyov of the so-called ‘passionarity’ – a quality used to characterise the individuals with exceptional energy and strength of will who strive to change their surrounding environment by purposeful actions.84 It is exactly by the presence or lack of that ‘passionarity’ that Gumilyov explains why, when faced with the same conditions, only some people choose to migrate while others do not. To sum up, just as nationalism and populism are in themselves neither positive nor negative occurrences, so is also their recent revival. In a pluralistic society, the view that international cooperation is worth sacrificing for the sake of other priorities such as national security, improved employment rates or rapid economic growth is perfectly acceptable. However, the authors of this article firmly believe that these political developments have so far had a predominantly negative effect on the functioning of international law, as will be demonstrated in the final section of this article.

2.5. The Legality of Nationalism and Populism under International Law As for the legal aspects of the growth in nationalist and populist sentiments, the recent trends are for the most part themselves not in contradiction with the rules of international law. The ‘spread of nationalism is not necessarily inconsistent with respect for international law: it is perfectly feasible for a state to shun multilateralism without violating its existing international legal obligations’.85 Yet, as it will be discussed below in section 5, there is

81. Boris Manov, ‘The Migrational Motive’ (2016) 6 (3) Postmodernism Problems 195 http:// ppm.swu.bg/volume-collection/volume-6-3.aspx (last accessed 7 January 2018). 82. Ibid 200. 83. Ibid 201. 84. Ibid 197. 85. Alison Pert, ‘International Law in a Post‐Post‐Cold War World – Can It Survive?’ (2017) 4 (2) Asia & the Pacific Policy Studies 362, 369 https://doi.org/10.1002/app5.174 (last accessed 7 January 2019).

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nonetheless a risk that they may affect the international community in a negative manner. The formation, existence and activities of nationalist and populist parties are subject to the constitutions and laws of each state. If a certain political party (whose formation and objectives are in conformity with national law) wins seats in parliament by elections that have been performed in accordance with the national rules, this is perfectly legal from the point of view of international law as well, as the right to determine the parties represented in parliament is the exclusive prerogative of a state’s citizens, and the international actors principally have no say in these internal matters. In this respect, the principle of international law of non-intervention in the internal affairs of states which ‘signifies that a State should not … intervene in a dictatorial way in the internal affairs of other States’86 should be strictly observed. This principle is contained in the UN Charter87 and has also been proclaimed by the United Nations General Assembly (UNGA).88 Its customary status has been affirmed by the International Court of Justice (ICJ) in its judgment in the Nicaragua case where the Court stated that ‘[t]he principle … involves the right of every sovereign State to conduct its affairs without outside interference’89 and that ‘international law requires political integrity […] to be respected’.90 The Court has underlined that ‘the principle forbids all States or groups of States to intervene directly or indirectly in the internal or external affairs of other States’ and that a prohibited intervention must accordingly be one bearing on matters in which each State is permitted, by the principle of State sovereignty, to decide freely. One of these is the choice of a political, economic, social and cultural system, and the formulation of foreign policy.91

86. Michael Wood, ‘Non-Intervention (Non-Interference in Domestic Affairs)’, Encyclopedia Princetoniensis (The Princeton Encyclopedia of Self-Determination) https://pesd.princeton. edu/?q=node/258 (last accessed 7 January 2019). 87. Art 2 (4, 7), UN Charter. 88. Declaration on Principles of International Law concerning Friendly Relations and Co-­ operation among States of the UN, GA Res 2625 (XXV), 24 October 1970, UNGAOR, 25th Sess, Supp No 28, UN Doc A/8028 (1970); Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty of the UN, GA Res 2131/1965, UNGAOR, 20th Sess, Supp No 14, UN Doc A/RES/20/2131 (1965). 89. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Merits, ICJ Reports 14 (1986) 106, para 202. 90. Ibid. 91. Ibid 106, para 205.

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The constitutions and laws of many states forbid the formation of political parties that are solely based on ethnic, racial or religious grounds or that sanction racial or national hatred.92 Similarly, a large number of national constitutions prohibit political parties that do not respect the principles of national sovereignty and democracy, whose objective is to forcibly and violently overtake the state power or whose programmes are based upon the totalitarian methods of Nazism, fascism and communism.93 Accordingly, if and when the platform or actions of nationalist or populist parties breach the respective requirements of their national legal systems, they shall be subject to the sanctions provided for by national law. However, even that in itself does not constitute a breach of international law. Breaches of PIL are most likely to occur in relation to the actions of states as they are the main subjects of international legal obligations. Such violations may occur for example if a state does not fully comply with the provisions of human rights instruments requiring that State Parties do not allow discriminative practices on the part of public institutions, officials or private entities, that they impose penalties or take certain active actions, eg actions for the reception of refugees if the conditions envisaged in a treaty are met. If nationalist or populist governments breach their international obligations, their international responsibility may and must be effectively engaged by the means provided for under international law.

3.  The Growing Support for Separatist Movements 3.1. Separatist and Pro-Independence Movements and Local Nationalism The separatist movements in Catalonia and elsewhere in Europe are another manifestation of the trend towards a growing ethno-nationalism. The Catalan independence referendum held on 1 October 2017 in the Spanish autonomous community of Catalonia94 took place irrespective of the fact that the Constitutional Court of Spain had earlier, in September 2017, suspended

92. Art 1 (2) Constitution of the Republic of Bulgaria; Art 13 Constitution of The Republic of Poland of 2nd April 1997. 93. Art 4 (1) Constitution of 4 October 1958 of the French Republic; Art 11 (2) Constitution of the Republic of Bulgaria; Art 11(1) and Art 13 of the Constitution of The Republic of Poland. 94. ‘Catalonia Referendum: 90% Voted for Independence, say Officials – as it Happened’ The Guardian (26 October 2017) www.theguardian.com/world/live/2017/oct/01/catalanindependence-referendum-spain-catalonia-vote-live (last accessed 8 January 2019).

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a referendum law (passed by the Catalan parliament to hold the vote on independence) in order to examine its conformity with the Spanish Constitution of 1978 after a request from the Spanish Government, which had declared the referendum law to be a breach of the Constitution.95 In the referendum, the voters were asked whether they wanted Catalonia to become an independent state. Out of the participants, 90 per cent voted for independence while a mere 7.99 per cent voted against, on a turnout of 43.03 per cent.96 Based on this, on 27 October 2017 the Parliament of Catalonia approved a resolution ‘creating an independent Republic unilaterally, by a vote considered illegal by the lawyers of the Parliament of Catalonia for violating the decisions of the Constitutional Court’.97 Catalonia’s desire to form an independent state has given Spain great cause for concern, particularly due to the fact that the state is a composite of regional identities and languages – including Basque and Galician as well as Catalan. Furthermore, it has fuelled a counter-nationalism on the part of Spain98 and has revived pride in a unified Spanish identity. ​Numerous other pro-independence movements in Europe have been gaining influence during the last years such as those in the wealthy Italian regions of Lombardy and Veneto that want more say on how to spend the budget and a significantly greater autonomy from Rome (though not full independence).99 The nationalist movement in the French island of Corsica has also been seeking greater autonomy since the 1960s and recently a proautonomy coalition won 24 of the Corsican assembly’s 51 seats in the 2015 regional elections.100 Perhaps the best known separatist movements are those

95. ‘Spain Catalonia: Court Blocks Independence Referendum’ (BBC News, 8 September 2017) www.bbc.com/news/world-europe-41196677 (last accessed 8 January 2019). 96. Jon Stone, ‘Catalonia Independence Referendum: Final Results Show 90% Backed Secession from Spain’ Independent (6 October 2017) www.independent.co.uk/news/ world/europe/catalonia-independence-referendum-final-results-90-spain-madridbarcelona-catalan-latest-a7987026.html (last accessed 8 January 2019). 97. Raphael Minder and Patrick Kingsley, ‘Spain Dismisses Catalonia Government After Region Declares Independence’ The New York Times (27 October 2017) www.nytimes. com/2017/10/27/world/europe/spain-catalonia-puigdemont.html (last visited 8 J­ anuary 2019). 98. Kingsley and Minder (n 26). 99. Jon Henley, Finbarr Sheehy, Glenn Swann and Chris Finn, ‘Beyond Catalonia: ProIndependence Movements in Europe’ The Guardian (27 October 2017) www. theguardian.com/world/ng-interactive/2017/oct/27/beyond-catalonia-proindependence-movements-in-europe-map (last accessed 8 January 2019). 100. Ibid.

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in the more prosperous and mainly Dutch-speaking Flanders region in the north of Belgium, which has long sought secession, and Scotland in the UK where pro-independence feelings are strong despite the results of the independence referendum held in 2014 where only 44.7 per cent of the voters voted in favour of secession.101 Another referendum is highly likely in Scotland since the UK’s Brexit vote was not met with strong support by the Scots.102 Unlike the Catalan referendum, however, the Scottish one was performed in complete compliance with the applicable laws of the UK.

3.2. Reasons for the Revival of Numerous Separatist and Pro-Independence Movements Just as nationalist and populist parties have been present in European politics for quite some time, the same goes for many of the separatist movements in Europe. The beginnings of the Catalan independence movement can be traced back to as long ago as the mid-nineteenth century when a wave of Romantic nationalism spread across almost the entire Continent. The Catalan Renaixença (cultural renaissance), aimed at the revival of the Catalan language and traditions, led to the development of a Catalan nationalism and a desire for independence.103 Later, in 1922, Francesc Macià founded the political party Estat Català (Catalan State) with the aim of obtaining independence from Spain. One of the reasons for the Spanish civil war in the 1930s was the question of Catalan autonomy. Macià proclaimed a Catalan Republic in 1931, subsequently accepting autonomy within the Spanish state after negotiations with the leaders of the Second Spanish Republic. However, this autonomy was abolished by Franco during the Spanish Civil War (1936–1939). The independence movement revived in 2010 when the Constitutional Court ruled that some of the articles of the 2006 Statute of Autonomy were unconstitutional, and others were to be interpreted restrictively. Popular protest against this decision quickly turned into demands for independence. The concrete causes for Catalan’s current desire for independence are related both to economic complaints such as that the Catalans are richer than their fellow citizens, and thus contribute more to the national budget than they

101. Ibid. 102. Ibid. 103. Joseph R Llobera, ‘The Role of Commemorations in (Ethno)Nation-Building. The Case of Catalonia’ in Clare Mar-Molinero and Angel Smith (eds), Nationalism and the Nation in the Iberian Peninsula: Competing and Conflicting Identities (Oxford, Berg, 1996) 194.

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receive back,104 and to Spain’s relative suppression of regional diversity105 and self-rule – both before and after106 the referendum. As for the reasons behind the resurgence of separatist movements in general, it should be emphasised at the outset that such movements are inherent to the contemporary political map of the world and have very deep historic roots. The main reason why separatist movements are inevitable is that while there are around 8,000–10,000 identifiably separate ethnic groups in the world, currently approximately 200 independent states (193 UN members) exist. Consequently, thousands of peoples all over the world do not have their own nation states.107 During the formation of the national states in Europe in the nineteenth century a belief came to prominence, under the influence of the emergent nationalist thought in the face of Herder, Fichte, Mazzini, etc that every nation understood as a particular ethno-linguistic group should have its own state. This idea has been referred to again numerous times over the course of the twentieth century in relation to the formation of new states from the old multinational empires, and then once again – in relation to the decolonisation process in the second half of the twentieth century. The principle of self-determination, as articulated in Art 1, para 2 and Art 55 of the UN Charter and as reiterated in the famous ‘Declaration on the Granting of Independence to Colonial Countries and Peoples’, signifies the right of a people to freely decide its own political, economic and social regime.108 It ‘obtained its most concrete institutional expression in the reconstruction of Europe in the Aftermath of World War I’ in relation to the idea that ‘the boundaries of Europe should be configured so far as possible by reference to “historically established relations of nationality and allegiance”’.109

104. David Frum, ‘Catalan Nationalism Means More European Division’ The Atlantic (30 September 2017) www.theatlantic.com/international/archive/2017/09/trumpspain-catalonia-referendum-independence/541572/ (last accessed 8 January 2019). 105. Kingsley and Minder (n 26). 106. Luke Stobart, ‘Catalonia: Past and Future’ Jacobin (10 October 2017) www.jacobinmag. com/2017/10/catalonia-independence-franco-spain-nationalism (last accessed 8 January 2019). 107. Pamir (n 4). 108. Susanna Mancini, ‘Rethinking the Boundaries of Democratic Secession: Liberalism, Nationalism, and the Right of Minorities to Self-Determination’ (2008) 6: 3–4 International Journal of Constitutional Law 553, 554 https://doi.org/10.1093/icon/mon022 (last accessed 8 January 2019). 109. Craven (n 9) 231.

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However, in reality the frontiers of the states that emerged in the twentieth century left millions of people outside the states of their nationality. Following the collapse of the Russian, Austro-Hungarian and Ottoman empires new states were created with often ‘little or no regard for the rights and aspirations of the substantial ethnic groups trapped within their borders’.110 In determining the new borders of Europe and the Middle East, the victorious powers were much less driven by a desire to ensure national unity for these peoples than they were with preserving the newly established and fragile balance of powers. The new nation states themselves became largely preoccupied with the conservation of their territorial sovereignty and, hence, proved to be just as unconcerned ‘with the demands for self determination of dissatisfied groups’111 as the Great Powers. Later on, during the decolonisation, the principle of self-determination was strictly interpreted so as ‘to accommodate the legitimacy of the struggle of the colonial peoples’ to acquire ‘sovereign statehood’112 and great efforts were made to avoid ‘any formulation … which might be interpreted as widening its scope and making it applicable to peoples who already formed part of an independent state’.113 Therefore, it was conceived that the principle of self-determination did not apply to any of the peoples within the already existing European nation state such as the Irish, Scots, Basques or Catalonians.114 This fact explains the existence of a large amount of proindependence movements lurking in Europe. Additionally, international law recognised and consistently applied in relation to the independence movements in the newly emerged states in South America and Africa the principle of uti possidetis. It was proclaimed in a separate resolution from the Charter of the Organization of African Unity (OAU) adopted by the OAU on the eve of its creation in 1963 and has also been recognised by the ICJ. This principle defends the ‘intangibility of frontiers’115 and provides that the national frontiers formed as a result of the decolonisation (which themselves respected the administrative boundaries established by the colonial powers), once determined, should be respected116 and should not be changed irrespective of any national ­liberation aspirations. In its decision in the Frontier dispute case, the ICJ stated that uti possidetis was ‘a general 110. Pamir (n 4). 111. Pamir (n 4) ff. 112. Pamir (n 4). 113. Pamir (n 4). 114. Craven (n 9) 230. 115. Case Concerning the Frontier Dispute (Burkina Faso v Republic of Mali), ICJ Reports (1986) 554, para 20. 116. Ibid para 23.

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principle … logically connected with the phenomenon of the obtaining of independence, wherever it occurs’.117 The ICJ attempted to reconcile uti possidetis with the right of self-determination by stating that: … the maintenance of the territorial status quo in Africa is often seen as the wisest course, to preserve what has been achieved by peoples who have struggled for their independence, and to avoid a disruption which would deprive the continent of the gains achieved by much sacrifice. The essential requirement of stability in order to survive, to develop … has induced African States … to consent to the respecting of colonial frontiers, and to take account of it in the interpretation of the principle of self-determination …118

This explanation of the reasons for the recognition of the principle of uti possidetis seems to a certain extent to mix up law with reality. The pursuit of stability and progress are commendable goals indeed. What is more, from a political perspective they may prevail over the right to self-determination if the only way to ensure the former was by scarifying the latter, but the Court has not proved that this was indeed the case. However, while the ICJ may have been right in stating that the maintenance of the territorial status quo in Africa was the ‘wisest course’, this in no way may be equated to a realisation of the right and aspirations to self-determination of the African peoples, nor does it explain why the first determination of the borders of the African states should be deemed as fully corresponding to the de-facto territorial distribution of the African peoples which may sometimes differ from the political map thus drawn. As noted by Susanna Mancini, the principle of uti possidetis clashed with the individual dimension of self-determination, where each individual may decide to which polity he or she wants to belong. It also clashed with the nationalistic dimension of self-determination, since the decolonization process certainly did not accord ethnic and national groups ‘the utmost satisfaction’.119

The national boundaries thus drawn are of course a constant cause of political instability and social and ethnic tensions all over the world. In situations of economic, political and natural hardships or repressive government policies, these dormant problems aggravate and lead to protests, demands for more rights and better treatment and, in the most serious cases, to attempts of secession. In addition, many states in Eastern Europe, the Balkans and the Middle East still ‘harbor revisionist claims against one another’ and ­minorities

117. Ibid para 20. 118. Ibid para 25. 119. Mancini (n 108) 556.

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living  in one country often feel ‘a greater affinity for their fellow countrymen across the border’.120 This is yet another demonstration of the relation between the international order, politics and law, (naturally, in the form in which they existed at the time the current boundaries were determined) and the present political trends. Nationalistic sentiments are the perfect ‘vehicle for disaffected ethnic or cultural communities to voice their dissatisfaction with the status quo’.121 The rise of nationalistic feelings is often a response by certain ethnic groups to their perceived mistreatment when they believe they are discriminated against by the state they inhabit or its prevailing population. An explanation for the current resurgence of ethno-nationalism in numerous European states may thus ‘be sought in the failure or inability of the modern nation state … to meet the needs of its minority populations in terms of an equitable distribution of resources and opportunities’.122 The precise roots of the discontent may vary from a denial of cultural, ethnic or religious identity to political discrimination, repression or economic deprivation.123 In the case of Catalonians, their disappointment is related to the Spanish fiscal policy which they believe does not take due account of their immense economic contribution. Another explanation for the recent growth in pro-independence sentiments may be sought in the changes in the international legal order related to the end of the Cold War and the ‘subsequent disintegration of the socialist federations’124 and ‘worldwide “ethnic revival”’.125 This is evident from the fact that while between ‘1947 and 1991, secession occurred only in one case (Bangladesh)’,126 the number of such struggles has been constantly increasing during the last three decades. It is nowadays clear that such a creation of a national state for each nation is unachievable and impractical in reality. On the one hand, this is due to the fact that the map of the world has already been drawn and the existing states are for the most part interested in its remaining intact so as to ensure peace and stability as well as their own influence and prosperity. In all states, there are minorities consisting of people of a different race, ethnicity, ­language or religion. On the other hand, multi-ethnicity and plurilinguality are only likely to intensify in the foreseeable future given the immense migration, 120. Pamir (n 4). 121. Pamir (n 4) ff. 122. Pamir (n 4). 123. Pamir (n 4). 124. Mancini (n 108) 567. 125. Mancini (n 108) 567. 126. Mancini (n 108) 566.

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globalisation and improved means of transportation. With them, more and more demands for rights and autonomy by the minorities are to be expected.

3.3. The Legality of Separatist and Pro-Independence Movements under International Law As for the legality of pro-independence movements and the states they attempt to establish, PIL does not grant any and all groups desiring to form a new state an unconditional right to do so. Two interrelated, yet separate questions should be addressed here – on the one hand, the requirements of PIL for independent statehood, and, on the other, the content of the right to self-determination. 3.3.1.  The Requirements for Statehood under International Law If a certain group manages to establish control over a certain territory and to tear itself apart from an existing state, the rules of PIL regarding the recognition of states would come into play. The connection between international law and statehood is complex as the existence of independent states is a precondition for the functioning of international law understood as a system of norms regulating the relations between states but ‘statehood is also … produced through international law following from a need to determine which political communities can rightfully claim to enjoy … sovereignty’.127 Yet PIL does not provide stringent and uniform criteria as to when a political community has a right to be recognised as a state. As Matthew Craven has pointed out, ‘it depends’ … because as much as a community might be able to ground its claims to independence in a sense of ethnic, cultural, or historic sense of self-identity … there are still broader matters of stability or security to be addressed.128

In reality the legality under PIL of the attempts to establish independent states has often been determined based on geopolitical considerations rather than legal definitions129 and the UN practice in that regard ‘seemed to speak of pragmatism rather than principle’.130 Still, international law does provide some guidance as to the criteria by which the presence of statehood could be measured. The understanding of these criteria has evolved as the preoccupation of PIL with them gradually increased through the ages.131 127. Craven (n 9) 203. 128. Craven (n 9) 203. 129. Pamir (n 4) ff. 130. Craven (n 9) 232. 131. Craven (n 9) 217.

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A very important step was the adoption in 1933 of the Montevideo Convention132 which sets out a basic definition of the state as an organisation which must possess: a permanent population; a defined territory; a government; and a capacity to enter into relations with other states.133 As this definition sets a rather low threshold for statehood, the international legal thought has had to come up with two main suggestions on how it may qualify. The first (quantitative test) suggests that in order for an organisation to be a state, some (or all) of the aforementioned characteristics should be present to a certain degree; the second – that a state must not only meet these formal criteria but also some qualitative requirements such as whether it ‘is capable of substantiation without impinging upon the rights and duties of other … states or it is justified on the basis of … self-determination’.134 It seems that the latter solution has been favoured over the former by international law which appears not to apply any minimum population or territory requirements. What rather seems to matter in determining whether a claim to statehood is well-founded is ‘the ability to rightfully claim the territory as a domain of exclusive authority’.135 In the famous Island of Palmas case, Arbitrator Humer expressed the view that sovereignty signifies the independence ‘in regard to a portion of the globe … to exercise therein, to the exclusion of any other State, the function of a state’.136 This definition, however, has also been narrowed ‘since it became gradually recognized during the 20th century that the use of force was no longer a legitimate means of acquiring territory’137 which lead to the denial of recognition of states created by unlawful military interventions. 3.3.2. The Conditions for and the Content of the Right to Self-Determination under International Law The notion of the right of nations to self-determination has greatly influenced the modern understanding of sovereign statehood: one of the key characteristics of the idea of the State as it was to emerge in social and political thought from the time of Grotius onwards was that it was never solely reducible to the … government of the time. The State embraced, ­simultaneously,

132. Montevideo Convention on the Rights and Duties of States, 26 December 1933, in force 26 December 1934, 165 LNTS 19; 49 Stat 3097. 133. Ibid Art 1. 134. Craven (n 9) 220–21. 135. Craven (n 9) 222–23. 136. Craven (n 9) 222–23. 137. Craven (n 9) 227.

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the idea of a nation or a society in relation to which governmental authority was related.138

Yet, notwithstanding the importance of the right of self-determination, PIL has not yet provided very clear and unequivocal criteria as to which groups may exercise it and in what situation, nor as to what exactly the content of this right is. Nowadays it is predominantly accepted that the right to self-determination does not under all circumstances provide for a right to form an independent state. On the contrary, the situations where it is understood that a group may legitimately secede by invoking its right to self-determination are very limited and are for the most part related to the peoples of the former colonies. In the rest of the cases, even though PIL does not recognise all ethnic groups within nation states have an automatic right to secede, it is understood that such groups nonetheless enjoy a right of self-determination, but of a different nature, which has a democratic rather than a nationalistic focus. Thus, the distinction is made between a nationalistic dimension of the right to self-determination (which does include a right of the group to secede and to form a state and mostly applies to former colonies), and a democratic dimension of self-determination (which is limited in scope and does not a priori allow the group to secede but does include other democratic rights). The democratic right to self-determination is conceived as requiring states to provide appropriate guarantees that the individuals belonging to minorities may participate in the internal decision-making processes to the same degree as the predominant population, and that they may freely exercise their ethnic, cultural or religious traditions. When treating non-colonial minorities, states may ‘meet the obligations associated with … self-determination … by safeguarding their linguistic, ethnic, and cultural heritage and by guaranteeing both their enjoyment of fundamental rights and the possibility of access to government’.139 As for the situations in which PIL does recognise that the right to selfdetermination would give rise to legitimate claims for secession, some useful guidance has been provided by the Canadian Supreme Court in its decision on the legality of a secession of Quebec.140 The Court noted that there exists a right to self-determination in situations of former colonies; where a people is oppressed as for example under foreign military occupation; or where a definable

138. Craven (n 9) 230. 139. Mancini (n 108) 554. 140. Reference Re Secession of Quebec, Canadian Supreme Court (1998) 37 ILM 1340, para 138.

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group is denied meaningful access to government to pursue their political, economic, social and cultural development.141

The last scenario refers to the already discussed democratic dimension of the right to self-determination. Neither ‘international law nor the overwhelming majority of constitutions accord’ non-colonial minorities an automatic ‘right to secede’,142 unless either statehood is voluntarily granted to them by the state,143 or the state has failed to ensure the full enjoyment of the aforementioned democratic rights, and thus has made it impossible for the internal, democratic dimension of the right to self-determination to be realised, in which case, if the deprivation is very severe, even non-colonial minorities may lawfully secede. The currently dominant understanding of the right to self-determination thus described has, in the authors’ view, the important advantage of attempting to reconcile the imperatives of the contemporary political realities with the legitimate aspirations for minimum democratic involvement of all groups in the decision making. Yet, in order for this idea to be implemented in practice, international law would need to clearly determine the minimum standards for minority rights which, if not met by states, would give rise to a right of non-colonial minorities to external self-determination and to secession. Notwithstanding any national laws, the legitimacy under international law of the contemporary pro-independence movements in Scotland, Catalonia and elsewhere in Europe would have to be measured according to this threshold.

4. The Challenges for International Law Caused by the Growing Popularity of Nationalist, Populist and Separatist Political Movements 4.1. The Influence Exercised by Nationalist and Populist Parties on the Traditional Parties As a consequence of the resurgence of nationalism, many mainstream parties have been forced to embrace some of the ideas, or at least the rhetoric, of their more radical adversaries, in order to appeal to voters, and have somewhat retreated from their core principles of tolerance and open borders.144

141. Ibid, para 138. 142. Mancini (n 108) 554. 143. Pamir (n 4) ff. 144. Shuster (n 64).

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Thus, the Polish National Radical Front (ONR) which embraces outright xenophobic slogans is considered to have influenced the rhetoric of the PiS, for example in the manner of referring to Muslim migrants.145

4.2.  Donald Trump’s ‘America First’ Isolationist Policy The recent shift towards protectionism and decreased international cooperation that has manifested itself in the US foreign policy since the election of Trump, is a strong indication of the global threats that internationalism is faced with. Trump’s promised ‘America First’ isolationist foreign policy emphasising American nationalism in international relations has culminated in the disturbing decision of the USA to cease all participation in the 2015 Paris Agreement on climate change mitigation – a global international agreement within the UN Framework Convention on Climate Change (UNFCCC) dealing with greenhouse gas emissions mitigation, adaptation and finance that was negotiated by representatives of 196146 parties at the 21st Conference of the Parties of the UNFCCC in Paris.147 The Agreement aims to respond to the global climate change threat by Holding the increase in the global average temperature to well below 2°C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels, recognizing that this would significantly reduce the risks and impacts of climate change.148

The President has cited what he calls the huge economic cost149 as the reason behind the USA’s withdrawal. In accordance with Art 28 of the A ­ greement, the earliest possible effective withdrawal date by the USA could be after 4 November 2020.150

145. Kelly and Pawlak (n 45). 146. See https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVII-7d&chapter=27&lang=_en&clang=_en (last accessed 8 January 2019). 147. John D Sutter and Joshua Berlinger, ‘Final Draft of Climate Deal Formally Accepted in Paris’ (CNN Cable News Network, Turner Broadcasting System, Inc, 12 December 2015) http://edition.cnn.com/videos/world/2015/12/12/climate-change-agreementapproved-paris-nr-sot.cnn (last accessed 8 January 2019). 148. Article 2(1)(a), Paris Agreement on Climate Change, 12 December 2015, in force 4 November 2016, FCCC/CP/2015/10/Add.1. 149. Emily Flitter, ‘Residents of Shrinking US Island Reject “Climate Victim” label’ (Reuters, 20 October 2017) (last accessed 8 ­January 2019). 150. Hiroko Tabuchi and Henry Fountain, ‘Bucking Trump, These Cities, States and Companies Commit to Paris Accord’ The New York Times (1 June 2017)

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Other examples of Trump’s anti-solidarity positions have been the opinion expressed by the President that the USA has ‘foolishly’ handed Pakistan more than $33 billion in aid over the last 15 years while getting nothing in return and his pledge to withhold the aid,151 as well as his attempts to overhaul immigration rules for extended families.152 The recent decision of the USA, one of the co-founders of the United Nations Educational, Scientific and Cultural Organization (UNESCO) to withdraw from the organisation, is yet another regrettable example of the same tendency.

4.3. The Shift Away from International Cooperation Brought About by Populist Slogans The increasing nationalist sentiments have had (and are likely to continue to have) as a natural consequence a downturn in international cooperation not only in the USA, as nationalist politicians tend to look inwards rather than outwards. Governed by nationalistic leaders with anti-globalisation and Eurosceptic platforms, Western states would be less and less willing to make new international commitments by signing treaties; instead, they may be expected to withdraw from the ones they are party to.153 Rather than a readiness to compromise a part of their sovereignty for the sake of international cooperation in the fields of the protection of human rights or the environment, such governments would prioritise short-term national interests such as the enhancement of national industry. This trend is already evident from the formal notification sent by Russia to the UN Secretary-General that the state ‘will not ratify the Rome Statute establishing the International Criminal Court’154 and the decisions of the governments of Poland and Hungary to disregard their obligations under EU law imposing migration quotas. The failure of these European leaders to

www.nytimes.com/2017/06/01/climate/american-cities-climate-standards.html? mtrref=www.google.bg&gwh=C75BDB0C95AA6276C455BE7F1E9E3667&gwt=pay (last accessed 8 January 2019). 151. David Shepardson, ‘Trump says U.S. has Gotten “Nothing” from Pakistan Aid’ R ­ euters (1 January 2018) www.reuters.com/article/us-trump-pakistan/trump-says-u-s-hasgotten-nothing-from-pakistan-aid-idUSKBN1EQ112 (last accessed 8 January 2019). 152. Roberta Rampton and Susan Heavey, ‘UPDATE 1 – White House, Congress Prepare for Talks on Spending, Immigration’ Reuters (29 December 2017) https://uk.reuters. com/article/usa-trump-immigration/update-1-white-house-congress-prepare-for-talkson-spending-immigration-idUKL1N1OT12X (last accessed 8 January 2019). 153. Pert (n 85) 369–70. 154. Pert (n 85) 369.

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prove solidarity by voluntarily taking in refugees generated a huge pressure on the few countries such as Greece and Italy that had no other choice but to accept them. This prospect of decreasing international cooperation is frightening in view of global challenges relating to the protection of human rights and democratic values, the eradication of poverty, overpopulation, terrorism, environmental degradation and the destruction of cultural heritage through military operations or terrorist attacks, all of which require rapid collective action. An illustration of this tendency were the polemics in several Eastern European states relating to the ratification of the Convention on preventing and combating violence against women and domestic violence (Istanbul Convention).155 Bulgaria, for instance, signed this international instrument on 21st April 2016.156 However, when its ratification was voted by the Bulgarian Parliament, numerous politicians from both patriotic and socialist parties, joined by the Bulgarian Orthodox Church, expressed a concern that the Istanbul Convention advocated for the rights of the third gender, thus pursuing purposes other than those proclaimed (to protect women from violence), and that it may undermine the core Bulgarian traditional family values and national morals.157 Eventually, the Constitutional Court was seized with a question concerning the conformity of the Convention with the Bulgarian Constitution and found it to contradict the Constitution.158 Almost identical events occurred in Croatia and Slovakia where virtually the same populist slogans about the threat to ‘traditional morals’ and ‘traditional values’ have been circulating the media and mass protests against the Istanbul Convention were organised.159 In Croatia it was the Catholic Church which stated that those who support the Convention would no

155. Council of Europe, The Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence, November 2014, ISBN 978-92-871-7990-6 www.refworld.org/docid/548165c94.html (last accessed 8 January 2019). 156. See www.coe.int/en/web/conventions/full-list/-/conventions/treaty/210/signatures (last accessed 8 January 2019). 157. Elena Bonkova, ‘SvetiatSinod: Istanbulskata ­konvetsiaotvaryavratitekammoralenrazpad’ Dariknews (22 January 2018) https://dariknews.bg/novini/bylgariia/svetiiat-sinodistanbulskata-konvenciia-otvaria-vratite-kym-moralen-razpad-2073924 (last accessed 8 January 2019). 158. Reshenie No 13 of the Constitutional Court of the Republic of Bulgaria, Sofia, 27 July 2018. 159. Igor Ilic, Daria Sito-Sucic and Mark Potter, ‘Croatians Protest against European Treaty they say Threatens Traditional Family’ Reuters (24 March 2018) www.reuters.com/ article/us-croatia-protests/croatians-protest-against-european-treaty-they-say-threatenstraditional-family-idUSKBN1H00GW (last accessed 8 January 2019).

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longer be considered as belonging to the Church.160 The protests in Zagreb in which nearly 10 thousand people participated were characterised by a highly nationalistic flavour with participants holding the Croatian flag and singing patriotic songs apparently demonstrating their readiness to protect their homeland from the dangerous instrument ‘imposed from outside, from Brussels’.161 Still, the Government insisted upon the ratification of the instrument by the Parliament. The issues relating to these ratifications are a flagrant example of the risks that populism may pose for the effective protection of human rights. A treaty dealing with as serious a societal problem as the violence against women that might have been a major step towards the reduction of such violence, has been misinterpreted and used by politicians as a tool to undermine the profile of their opponents. Due to populist slogans, the focus has been shifted away from the actual objectives and effects of the Istanbul Convention. Apart from being discriminative and offensive, many of the comments concerning the Convention have not at all been based on its actual provisions. However, largely thanks to the media, these slogans have acquired large popularity, appealed to many citizens with conservative, EU-sceptic convictions and have, at the very least, delayed its ratification in several states.

4.4. Growing Distrust for the EU, Brexit and Impediments to Future Integration The prevailing shift away from international cooperation, sharing sovereignty and international organisations may also be inferred from the considerable decline of trust in the EU. ‘The values always invoked as pillars of the European project – open borders and … minds’162 – have steadily been losing ground during the last few years.163 One of the ideas behind the EU has always been to absorb the nationalist impulses that had led to two destructive World Wars, and thus to ensure a lasting peace.164 This is the core reason why the revival of nationalism in so many European states is regarded with anxiety.

160. Margarita Koleva, ‘Hilyadi hurvatiprotestiraga sreshtu Istanbulskata konvetsia’ (Dariknews 25 March 2018) https://dariknews.bg/novini/sviat/hiliadi-hyrvatiprotestiraha-sreshtu-istanbulskata-konvenciia-2086873 (last accessed 8 January 2019). 161. Ilic, Sito-Sucic and Potter (n 159). 162. Shuster (n 64). 163. Shuster (n 64). 164. Kingsley and Minder (n 26).

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The most flagrant example of the decreasing public support for the European integration is the decision of the UK to leave the EU that was voted for in June 2016. The scheduled date for the withdrawal is March 2019. Currently, the UK is negotiating the conditions for Brexit while at the same time attempting to incorporate the EU rules into British law.165 The UK and the EU must reach an agreement on how to divide assets, resolve EU budget issues and set out the future rights of EU nationals in the UK.166 The Brexit settlement will have to be approved by a majority of the EU Members States as well as by both the European Parliament (as envisaged in the TEU)167 and by the Parliament of the UK (as required by the relevant UK EU Withdrawal Bill).168 Beyond this immediate issue and perhaps far more disturbing is the prevailing scepticism about how the EU is managing not only immigration and refugees but also the integration in general, and the differences between the Member States.169 Nationalist parties in France, the Netherlands, etc have called for their own Brexit-style plebiscites.170 Many states have opposed the EU refugees’ distribution plan,171 while officials in Slovakia, Estonia and Poland have stated that they would only accept refugees who are Christians.172

4.5. The Erosion of the Belief in Shared Principles and the Shift Away from a Value-Based International Legal Order All that being said, the biggest cause for concern, as regards the future of international law and cooperation in the context of the rising nationalism, populism and separatism, lies, in the authors’ opinion, elsewhere – in the

165. Elizabeth Piper, ‘Britain’s May Sees off Challenges to Brexit Plan, so Far’ Reuters (14 November 2017) www.reuters.com/article/us-britain-eu-bill/britains-may-sees-offchallenges-to-brexit-plan-so-far-idUSKBN1DE2I1 (last accessed 8 January 2019). 166. Peter Laurence, ‘Brexit: Five Challenges for the UK when Leaving the EU’ BBC News (24 June 2016) http://www.bbc.com/news/uk-politics-eu-referendum-36575186 (last accessed 8 January 2019). 167. TEU post-Lisbon, Art 50, para 2. 168. European Union (Withdrawal) Bill 2017–19, Clause 10; Laurence (n 165). 169. Paschal Donohoe, Minister for Public Expenditure and Reform of Ireland, ‘Brexit and the Challenges Facing the European Union (Speech to the Institute of International and European Affairs)’ (30 January 2017), www.iiea.com/ftp/Transcripts/2017/Paschal_ Donohoe_IIEA_January_2017.pdf (last accessed 8 January 2019). 170. Shuster (n 64). 171. Robert Schwartz, ‘Eastern Europe Opposed to EU Refugee Plan’ DW (16 March 2016) www.dw.com/en/eastern-europe-opposed-to-eu-refugee-plan/a-19121054 (last accessed 8 January 2019). 172. Shuster (n 64).

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noticeable trend in many Western democracies towards an erosion of the shared norms and beliefs.173 Values such as pluralism, tolerance and humanitarianism have consistently been losing ground. Instead, immigration and terrorism have been regarded as the key priorities that must be addressed by politicians.174 This is hardly a surprise given that one of the main criticisms against nationalism has always been that it tends to oppose m ­ ulticulturalism175 176 and serves to marginalise minorities. The principles of solidarity and humanitarianism have been challenged by the attitude of the governments of the USA, UK, Hungary, Poland, etc towards the aliens from non-European cultures, be they refugees or migrants. Protecting the borders at all costs has become a top priority for Orban, Trump and their supporters. Russia and Turkey have also demonstrated through their actions a retreat from multilateralism and a firm intention to place the national interest above all else. Disregarding any considerations for religious tolerance or pluralism, Orban has openly expressed the view that Europe’s Christian heritage is under threat as most of the migrants are Muslims. This is a troublesome trend indeed since it constitutes a shift away from the solidarist view of international law ‘characterized by an emphasis on substantive norms and values to govern international society, rather than mere coexistence’177 and prioritising humanitarianism over sovereignty. It is a move towards an older, pre-Second World War ‘minimalist rules vision of international law … often associated with the Westphalian order’ which purports ‘the primacy of the territorial integrity and sovereignty of states’.178 In other words, this trend may be regarded as a step backwards for international law.

5. Possible Responses to the Challenges Posed for International Law by the Current Political Trends The current political developments in Western states examined so far, which pose a threat to the rule of international law, are, as has been stated above,

173. Pazzanese (n 7). 174. Donohoe (n 169). 175. Andrew Heywood, Political Theory: An Introduction, 2nd edn (London, Macmillan Press, 1999) 97–98. 176. Joseph Aguettant, ‘Impact of Population Registration on Hill Tribe Development in Thailand’ (1996) 11 (4) Asia-Pacific Population Journal 47–72. 177. Margaret Moore, ‘Sub-State Nationalism and International Law’ (2004) 25(4) Michigan Journal of International Law https://repository.law.umich.edu/mjil/vol25/iss4/28/ (last accessed 8 January 2019). 178. Ibid.

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to a large extent attributable to objective historical, societal and economic factors. Despite that, they are still reversible and surmountable. The popular support for the core European democratic values of pluralism, tolerance and multiculturalism may still be re-established. For the trend to be reversed, the belief in democracy, the liberal political order, European integration and international organisations would need to be reaffirmed. In this process, the EU would have to play the leading role in Europe, first because of the fact that it embodies the centuries-old ideal of a united, peaceful and prosperous Europe, which values and respects human rights, and second, because it has the necessary financial, institutional and organisational capacity to overcome the current challenges. Further integration of the EU may be one way to achieve these objectives. This view is supported by the French President Macron who has been pushing for greater fiscal integration of the Eurozone as a way to address at least some of the shortcomings of the EU.179 Another goal that the EU leaders should strive to accomplish is a Brexit with and not without a deal with the UK, so that the transition for both the withdrawing Member State and the EU could go more smoothly. Furthermore, the public anxiety and vocal hostility towards Muslim minorities point to the need for a more comprehensive integration strategy. In order to decrease the support for populist anti-immigration slogans, Western states would have to resolve the underlying, very widespread and deeply rooted fears over borders and security.180 As for separatist aspirations, it may reasonably be expected that only a very small part of the current movements would result in secessions and the formation of states. The existing states are, on the contrary, likely to become less and less national and more and more international. A possible solution to the problems relating to pro-independence movements may be sought in the so-called ‘civic’ nationalism. This idea of ‘civic’ nationalism is not a new one; Kant has been one of its advocates.181 It contemplates self-determination not in terms of the pursuit of national independence but rather in terms of representative self-governance. This idea is closely linked to the ‘social c­ ontract’ theories and regards the nation as a group of citizens who are equal before the

179. Viktoria Dendrinou, ‘The Euro Area Is Due for a Reboot. Here’s What Is Proposed’ Bloomberg (13 August 2017, updated on 14 August 2017) www.bloomberg.com/news/ articles/2017-08-13/the-euro-area-is-due-for-a-reboot-here-s-what-is-being-proposed (last accessed 8 January 2019). 180. Donohoe (n 169). 181. Craven (n 9) 230.

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law and have the same rights and obligations irrespective of their ethnicity or religion, and who are unified by a desire to live together to pursue personal happiness. In order for states to give rise to a sense of ‘civic’ nationalism of their citizens, they must work to create guarantees that all individuals are being treated equally, irrespective of their ethnicity or religion, but also implement policies that hold due account of the specific needs of minorities. Beyond this desire to live together, the authors of the present article consider that a further unifying factor for the contemporary multi-ethnic, multireligious societies may and should be the shared belief in certain political or moral values common to all citizens whatever the differences between them may be. ‘In today’s democracy – regarded as a way of life for the national community – it is necessary to achieve the so-called fundamental consensus in society on a minimum of fundamental values’.182 This objective has to a large extent already been achieved, at least as regards the law, since, just like the UN and EU systems, ‘most modern constitutions are clearly and unequivocally value orientated, they are built around a certain notion of the common good that ultimately reflects the objective value order’.183 The conception of nations as value-centered communities and sources of values rather than as ethno-linguistic, racial or religious groups is more beneficial to international cooperation and to the maintenance of international peace and security; it is also in harmony with the current value-based international legal order embodied by the UN Charter, which, for all its shortcomings, is nonetheless still worth protecting.

6. Conclusion The last decade has seen an indisputable growth in the votes for populist and nationalist political parties in Europe and the USA and a resurgence of many dormant pro-independence aspirations, which have posed grave challenges before internationalism, the primacy of international law and the protection of human rights. The ability of traditional parties to respond to the needs of the people has been disputed, as well as the relevance of values such as humanitarianism and tolerance. In some ways, these developments have questioned the very future of the EU, and the desirability of European integration.

182. Georzi Blizhashki, ‘Suvremennata konstitutsia kato tsennostna harta’ in Konstitutsionalizam i demokratsia (Sofia, Universitetsko Isdatelstvo ‘Sv. KlimentOhdirski’, 2009) 114. 183. Ibid 109.

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The current article argued that many of these developments may be explained by objective factors relating to the historical background, the formation of frontiers, the economic difficulties and cultural tensions caused by the globalisation and the mass migration towards Western states. It was suggested that traditional political parties may need to rethink their strategies for coping with these problems in order to remain competitive and to win back the voters that they have recently lost to more radical political movements. The authors of the present article consider that it will be of crucial importance how the international community will respond to these political changes in the years to come. The conviction was expressed that international cooperation is not only worthy of safeguarding, but in fact provides the only meaningful tool for solving the global environmental, economic and security problems of the day. The issues explored are surmountable for both the system of international law and for the EU, but this would require the concerted efforts of many actors: political parties, non-governmental organisations, media, international organisations and human rights bodies, and, most importantly, each individual exercising their voting rights and thus determining the future political course of their state. To this end, numerous tools may be employed, such as active political dialogue, improved political education, measures aimed at the better integration of minorities, coordinated strategies for cooperation within and outside of the EU. Last but not least, it may prove useful to look back at and learn from the lessons that the twentieth century has taught the Western World about the dangers that nationalism and populism pose to the peace and prosperity of humankind.

Book Reviews

Edited by

Tuomas Tiittala

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International Law and Empire. Historical Explorations edited by Martti Koskenniemi, Walter Rech and Manuel Jiménez Fonseca. Oxford: Oxford University Press, 2016. xvi + 395pp. ISBN 9780198795575 Each story in the book under review has its own knowledge or memory of what we call international law. The authors have made choices and the chapters are concerned with different objects – institutions generally, colonial administrations, international legal rules and diplomatic practices, covering subjects from the Roman idea of the ‘law of nations’ to the Western understanding of inter-state law, to which Jeremy Bentham gave the name ‘international law’. The stories introduce different empires in Europe, North and South America, China, the Malay Archipelago, and Maghreb Africa and the Ottoman regions, discussing issues relating to questions of sovereignty. Some aspects are omitted or covered in less detail, while other aspects are analysed in more depth, although throughout the book the reader does not feel that anything is missing because all the stories fall within the same broader context. The context in question in this book is the relationship between international law and the historical development and foundations of empires, structured into four parts covering epistemology, ideology/discourse, practice/institutions and normativity. The stories in the book detail historical precedents as different events in ­European and colonial contexts linked by the authors through a rationale that brings an understanding of the concepts of ‘international law’ and ‘empire’. By the end of the book, when the reader has enough information to reflect on the meaning, s/he will be able to recognise mainly two explanatory structures: events (different embodiments of power and techniques of empire, included theories) and time (historical dimension), as well as how the different authors raise concerns about the involvement of the law of nations in imperial projects from early to late modernity. The concept of ‘empire’ has been defined broadly as a ‘form of political and economic power potentially encompassing influence and legal authority as well as military control over foreign populations, subject to different degrees of negotiation’ (p viii). Power appears in the book as colonialism, occupation by settlers, diplomatic and economic pressure, etc, usually justified by a legitimising narrative. Referring to Heinrich Triepel’s theory of hegemony, the book distinguishes between empire and hegemony. Kroll defines empire as ‘the incorporation of new territories into an existing administration’ (p 41), and hegemony as ‘the extension of state authority beyond territorial borders’, while one state or a small group of states remain factually ‘in a leading position’ (pp 41–42), or as a structural element of law (p 42), or as international legal techniques (p 44), which appear in the book in various forms from unequal treaties (p 45) to filling the ‘empty box’ of jus cogens. (One can find more

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techniques in, for example, Lassa Oppenheim’s Methodology of International Law,1 in Hersch Lauterpacht’s2 and Martti Koskenniemi’s3 writings.) The book’s introduction, ‘International Law and Empire – Aspects and Approaches’, written by Martti Koskenniemi, first creates an image of some larger ethos or teleology that might be described as an ‘empire’ linking institutions and other legal subjects. Following Ronald Dworkin’s and Hans Kelsen’s thought, Koskenniemi pragmatically approaches the troublesome questions on how all pluralities can be linked and understood,4 and what links power and law. He constructs the idea of the legal empire based on both values and power closely connected with the idea of the secular empire (that can be named the secular legal empire) situated at the top of the world’s political hierarchy, and research in the history of international law. Part I of the book, ‘Epistemologies of Empire and International Law’, consists of three stories. The first is Arthur Weststeijn’s ‘Provincializing Grotius: International Law and Empire in a Seventeenth-Century Malay Mirror’; the second is Stefan Kroll’s ‘Indirect Hegemonies in International Legal Relations: The Debate of Religious Tolerance in Early Republican China’; and the third is Walter Rech’s ‘International Law, Empire, and the Relative Indeterminacy of Narrative’. By examining non-Western sources and non-Western readings of Western thought in this way, all three theorise historical events in ways that widen the circle of research objects by introducing new research questions and new research material to traditional Western international law research. This part of the book is a good example of how the use of particular dimensions helps achieve innovation in research. For example, Weststeijn compares one of the few surviving indigenous sources, the 1603 treatise Taj al-Salatin, with the idea of treatises known in the Western tradition. The first part of the book also discusses Christianity, Confucianism, Islam, Islamic political ideas and unequal (legal) treaties as events that assist in understanding structures and types of foreign influence, while at the same time viewing external and internal influence as two-way processes. Reading Kroll, and perhaps because the editors are connected with the University of Helsinki, it occurred to me that the Evangelical Lutheran Church of Finland and the Finnish Orthodox Church enjoy a specific legal status; consequently it is perhaps more common that lawyers discuss questions of religion as part of virtue ethics, for example the relationship between the state and freedom of religion. For example, Kroll cites the text of the 1923 Constitution of the Republic of China as the result of a conscious ‘internalization of external expectations’ (pp 40, 43): ‘A citizen of the

1. Lassa Oppenheim, ‘The Science of International Law: Its Task and Method’ (1908) American Journal of International Law 2, 313–56. 2. eg, Hersch Lauterpacht, The Function of Law in the International Community (The Lawbook Exchange, Ltd, 2000). 3. eg, Martti Koskenniemi, The Politics of International Law (Oxford, Hart Publishing, 2011). 4. An excellent introduction to the topic could be René Descartes’ Discours de la méthode. Avec des aperçus sur le mouvement des idées avant Descartes, une biographie chronologique, une introduction à l’œuvre, une analyse méthodique du Discours, des notes, des questions, des sujets de devoirs et des documents par Jean-Marie Fataud (Paris, Les Éditions Bordas, 1970).

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Republic of China shall be free to honor Confucius and to profess any religion’. Kroll explains how this illustrates the decision not to re-conceptualise C ­ onfucianism as a (state) religion in order to allow it a distinct place in the Constitution, thus satisfying both local and global normative expectations (p 53). Rech explains how ideological justifications have emerged, for example the wellknown divides of civilised–uncivilised, liberal–illiberal, and reminds the reader how Aristotle opposed the irrational barbarians and masters, how Darwinian and Christian worldviews have been used for purposes of legitimisation, and how Europe had a ‘duty’ to aid the ‘backward quarters of the globe’ (p 58). Books bringing together law and the history of international law are important because writing memories down enables conscious participation in history. Because absolute historical memory is impossible (as it was even prior to the post-truth era), written history is selective. Rech, too, questions the possibility of ‘history proper’ (p 69) and refers to the relativity of knowledge, the impossibility of universal normativity, and the priority of particular contextual analysis of grand narratives (such as Christianity and Communism) (p 71). I would add that there is also a competition between different social memories for the right to be recognised, or the right to write ‘correct’ history. I would also distinguish between the role of international lawyers and other social and humanitarian scientists within historical contexts because lawyers cannot directly transplant history into today in place of legally binding rules. Saint Augustine discussed in his Confessions5 how some eras allowed righteous men things not allowed to righteous men of other eras, or how God commanded one thing at one time, and other things at other times, although at all times obeying him brought the same righteousness: In one man, and one day, and one house, different things to be fit for different members, and a thing formerly lawful, after a certain time not so; in one corner permitted or commanded, but in another rightly forbidden and punished.6

Augustine asks: ‘Is justice therefore various or mutable?’ and answers: ‘No, but the times, over which it presides’,7 explaining that men ‘whose days are few upon the earth’,8 cannot harmonise the causes of things in former ages and other nations, which they had not experienced of, with these which they have experience of […] Justice […] prescribed not every thing at once, but apportioned and enjoined what was fit for each.9

Law is an object that only exists through its naming and conceptualisation, and thus its claims and claims against it in international legal argument are worded through the language of international law. In that sense, the book also explains how international law has been bound by the Eurocentric framework within which it 5. 6. 7. 8. 9.

Saint Augustine, Confessions (US, Penguin Classics, 2008). Ibid. Ibid. Ibid. Ibid

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was conceptualised. Introducing new vocabularies therefore somehow provincialises the West. In trying to link the important issues raised in the book, I would mention Hatsue Shinohara’s chapter, which explains the separation of international law from international relations during the Cold War period’s confrontation between East and West, when both sides tried to justify their decisions (including legal decisions) based on their interest. In doing so the two sides used political and other social sciences largely as tools of propaganda, changing them in the process. Shinohara shows that the historical context was still of help when policy makers wished to change or abrogate a law, for example when the United States needed legitimacy for its use of force. To explain the mechanisms of international law using theories that explain how law works,10 it could be relevant to recall that although it is generally impossible for a lawyer to directly use history as an argument to justify an act, Article 38(1) of the Statute of the International Court of Justice gives theoreticians of international law the possibility of law-giving through the law-applying judge, ie it allows lawyers to treat theorists of international law as other ‘generators of norms, such as courts or legislatures’.11 This builds a formal bridge that allows morals to enter as a legitimising argument, which is especially useful during times of change or political transformation.12 However, there is still a distinction between an international lawyer dealing with a question of history, and a historian researching public international law (otherwise the teachings of the most highly qualified publicists of various nations could be directly enforceable by coercive power). Such distinction means that a legal historical approach needs not necessarily mean interdisciplinarity because legal theory allows a lawyer to consult morals. Lassa Oppenheim, who sees a judge’s task as finding, interpreting, developing and shaping the law, and who excludes from the list legislative activity by judges, acknowledged the teachings of the most highly qualified publicists of various nations. However, Oppenheim distinguishes between the teachings based on the method, and does not consider every piece of international law research or scientific monograph highly qualified teaching: but only those that significantly affected, for example, national practice, think-tanks or customs, and were exact, comprehensive and reliable sources. Part II of the book ‘Legal Discourses of Empire’ consists of five stories. In the fourth story, ‘The Concepts of Universal Monarchy and Balance of Power in the First Half of the Seventeenth Century – A Case Study’, Peter Schröder discusses the shift in the power relations as they move from papacy and empire to alliances between states. Schröder also discusses the Grand Designs, such as peace, as tools of propaganda for legitimising empire. He brings an example: ‘the balance of power

10. See, eg, HLA Hart, The Concept of Law (Oxford, Oxford University Press, 2012). 11. See, eg, Anne Orford/Florian Hoffmann, The Oxford Handbook of the Theory of International Law (Oxford, Oxford University Press, 2016) 8. 12. Recent discussions concerning change in international law can also be found in Jan Klabbers/Touko Piiparinen (eds), Normative Pluralism: An Exploration (Cambridge, Cambridge University Press, 2013).

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was […] intended to provide peace and security, while at the same time advancing France’s position of power and influence within this system’ (p 91). In the fifth story, ‘Between Faith and Empire: The Justification of the Spanish Intervention in the French Wars of Religion in the 1590s’, Randall Lesaffer examines legitimations of intervention, searching those from religion to humanitarian intervention, and legitimations of war, looking at the doctrines of just war, equitable and lasting peace, etc. Lesaffer refers to Saint Thomas Aquinatus’s ‘list’ of what constitutes a just war: a belligerent’s authority (sovereignty), just cause and righteous intention (p 103). The list has expanded over time. In the sixth story, ‘Jus gentium and the Transformation of Latin American Nature: One More Reading of Vitoria?’, Manuel Jiménez Fonseca shows that the process of global ideological and legal homogenisation/ universalisation began with the conquest of Latin America. In the seventh story, ‘Cerberus: Rethinking Grotius and the Westphalian System’, José-Manuel Barreto challenges the state-centred system of modern international order, under which order only states can be full subjects of international law. Under this system all the other subjects are only secondary or derivative, owing their international legal subjectivity to the primary subjects. Barreto adds empire and company to modern legal subjectivity. In the eighth story, ‘Revolution, Empire, and Utopia: Tocqueville and the Intellectual Background of International Law’, Julie Saada introduces Alexis de Tocqueville’s ideas of liberal conservatism, and Edgar Quinet’s anti-clerical republicanism, to ideology battles, where the theory of liberalism used to dominate. Claiming that the relationship between imperialism and liberalism are ambivalent because despite liberal criticism of European imperialism the roots of imperialism reach liberalism, she shows how liberal ideas were used as strategic arguments by the theorists and politicians who built liberal imperialism in the 1780s and 1830s. Part III of the book, ‘Managing Empire: Imperial Administration and Diplomacy’, continues with institutional issues such as imperial administrations and diplomacies in historical context. Part III consists of three chapters. Chapter 9, by Christian Windler, ‘Towards the Empire of a “Civilizing Nation”: The French Revolution and Its Impact on Relations with the Ottoman Regencies in the Maghreb’, on French relations with Maghreb from early to late modernity; chapter 10, by PG McHugh, ‘A Comporting Sovereign, Tribes, and the Ordering of Imperial Authority in Colonial Upper Canada of the 1830s’, on British imperialism in the North American colonies; and chapter 11, by Luigi Nuzzo, ‘Territory, Sovereignty, and the Construction of the Colonial Space’, on spatial dimensions of power. Nuzzo discusses ideas from territorial sovereignty to state power situated in the legal conscience of nations, touching on different techniques of coexistence. The central question – how, in the context of a paradigmatic shift in power, legitimacy that operates between ‘state, Volk, and the exercise of state’s imperium over the people living within’ (p 264), reaches the international level and starts governing the relations between states and other international actors. Nuzzo partly answers this question by referring to assignments in treaties that created a new space committed to the economic and political decisions of the owner state’s influence, but in which the indigenous people lost their political subjectivity (pp 283–84).

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The book concludes with Part IV, ‘A Legal Critique Of Empire’, containing four chapters. In the twelfth chapter, ‘An Anti-Imperialist Universalism? Jus Cogens and the Politics of International Law’, Umut Özzu points out, with reference to the development of jus cogens during the Cold War, that a universal international legal language may have grown out of contradiction. He explains that although Article 53 of the Vienna Convention on the Law of Treaties forbids treaties conflicting with a peremptory norm of international law, this is a broad regulation because one can find a ‘patchwork of competing ideological and institutional pressures’ (p 297) in international law instead of a clear catalogue of peremptory norms. Özzu points to the anxiety that a clear catalogue of jus cogens could constrain state power (p 302) similarly to the empire of law (p 309). Some solidarity-related problems raised in the thirteenth chapter, ‘Drift towards an Empire? The Trajectory of American Reformers in the Cold War’, by Hatsue Shinohara, have been covered above in the review article. In the fourteenth chapter, ‘Imperium sine fine: Carneades, the Splendid Vice of Glory, and the Justice of Empire’, Benjamin Straumann is concerned with competition of views of the state and the international community through the history of rhetoric, trying to treat the ‘moral problem of imperialism’ (p 336) and find justification for the responsibility to protect. Andrew Fitzmaurice, the author of the 15th story, ‘Scepticism of the Civilizing Mission in International Law’, has tried to reconstruct the inconsistencies in Western legitimation that have been based on cultural superiority. The deconstruction of the postmodern era left unanswered the questions of how to achieve global governance and one (scientific) international law. For this reason, a common agreement legitimising world power is still absent, and international law still greatly involves a horizontal dimension. What is understood as reconstruction today has its roots in the intellectual argument that legitimised international law as ‘the legal conscience of the civilized world’. Perhaps precisely because of the inability to end the civilised–uncivilised dichotomy, post-Second World War liberalism failed to develop one philosophy of science that could connect international law and international relations. It seems that the most important aspect of development so far has been finding legitimate justifications for empirical or hegemonic aspiration. To end this book review with such an understanding is somehow sad, although on the other hand, challenging. Jaanika Erne University of Tartu, Faculty of Law

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China and International Investment Law: Twenty Years of ICSID Membership edited by Wenhua Shan and Jinyuan Su. Brill: Nijhoff, 2014. XIV + 435 pp. ISBN 978-9-004-27964-3 (hardback) China became a member to the Convention on the Settlement of Investment Dispute between States and Nationals of Other States (the ICSID Convention) in 1993. Since then, China’s position in the international investment system has been evolving continuously with the development of Chinese inward and outward foreign direct investment. By successfully attracting sustained inflow of foreign direct investment, China has cemented its position as one of the world’s largest recipients of foreign direct investment. In addition, the internationalisation of Chinese companies has been gaining momentum, with strong strategic support from the Chinese government since the early 2000s. By the end of 2016, China has emerged as the world’s second largest source of outward foreign direct investment.1 These developments have prompted scholars to look into China’s relationship with the international investment law regime. While the subtitle of the book may suggest that the book would have a specific focus on China’s participation or engagement with the International Centre for Settlement of Investment Disputes (ICSID), many articles in this edited volume deal with general issues in international investment law, with some reference to China’s Bilateral Investment Treaties (BITs). The book mainly collects articles from a workshop held at Xian Jiaotong University in 2012. Most of the contributors are scholars, whose research focuses on World Trade Organisation (WTO) law, international investment law and arbitration. However, it is notable that contributors to the volume also include an official working at the People’s Republic of China (PRC) Ministry of Commerce and a practitioner in international arbitration and dispute resolution. The book has three parts. Chapters 1 to 5 in Part I discuss overarching issues in international investment law. Part II explores several aspects of China’s investment treaties in chapters 6 to 9. Chapters 10 to 13, which comprise Part III, analyse issues related to the negotiations of international investment treaties. The first two chapters in Part I provide a general background of discussions about international investment law. Chapter 1, ‘ICSID and International Investment Treaty Arbitration: Progress and Prospects’ by Meg Kinnear gives an introduction of ICSID and considers challenges in investor-state dispute settlement (ISDS). The author’s statistical analysis of ICSID cases shows a significant increase in investor-state arbitration cases, which, she suggests, could be attributed to an increasing amount of foreign direct investment and investment treaties. At the same time, the author notes that investor-state arbitration cases are still rare in comparison to other types of commercial arbitration cases. The chapter identifies several challenges of investor-state

1. World Investment Report 2017, United Nations Conference on Trade and Development, (Geneva, United Nations Publication, 2017) https://unctad.org/en/PublicationsLibrary/wir2017_en.pdf (last accessed 9 January 2019).

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arbitration, including the interrelation between ISDS case law and investment treaties, the use of dispute avoidance, issues with the predictability and consistency of case law, and the procedural aspects of investor-state arbitration. Chapter 2, ‘The Past, Present and Future of the International Law on Foreign Investment’ by Muthucumaraswamy Sornarajah offers a review of the historical origins of the laws on international investment, the present ideological and substantive development of the area, as well as future concerns. Sornarajah argues that the practice of inflexible investment protection and expansionary interpretation of investment treaties in investor-state arbitration have their ideological origin in neoliberalism, which has come under scrutiny since a succession of economic crises in the world. Sornarajah predicts that developed and developing states may reassert state sovereignty and regulatory control over foreign investment, while ideological and other conflicts will continuously reshape the field of international investment law. Chapter 3, ‘Judicial Administration of Justice in Multilevel Commercial, Trade and Investment Adjudication?’ by Ernst-Ulrich Petersmann argues that national and international courts should interpret international trade law from the democratic perspectives of protecting citizens’ human rights, transnational rule of law, and social and economic justice. Petersmann argues for justifying WTO law and institutions by the right-based ‘cosmopolitan principles of justice’ which underlie international economic law. In Petersmann’s view, conceptions that are promoted by ‘the cosmopolitan principles of justice’, such as citizens’ ‘cosmopolitan rights’, ‘constitutional justice’, democratic decision-making, and judicial accountability of governments, are important for the judicial balancing of public and private interests. Thus, Petersmann advocates for domestic courts interpreting domestic laws in conformity with the multilateral trading system as defined by the WTO law, and recognising citizens and non-governmental actors as legal subjects of WTO law that are entitled to protection from market and government failures. Chapter 4, ‘The Development by States of Model Bilateral Investment Treaties’ by Chester Brown provides a historical review of the development of Model Bilateral Investment Treaties (Model BITs). Brown begins by describing general features of Model BITs. In his view, the most important novelty of BITs is that they allow an investor to make a claim against the host state without petitioning to the investor’s own state for diplomatic protection. Brown analyses an early case before the Permanent Court of International Justice Mavrommatis Palestine Concessions,2 to illustrate the traditional position in international law prior to the emergence of BITs. Then, Brown provides a historical overview of how the regime of international investment agreement has evolved. The Treaty of Peace and Friendship between Great Britain and Spain of 1667 is used as an example of the earliest treaties for the protection of

2. Mavrommatis Palestine Concessions, Greece v United Kingdom, Judgment of 30 August 1924 (Objection to the Jurisdiction of the Court), Permanent Court of International Justice Series A no 2, available at www.icj-cij.org/files/permanent-court-of-international-justice/serie_A/A_02/06_Mavrommatis_en_ Palestine_Arret.pdf (last accessed 9 January 2019).

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the property rights of their respective nationals. Such early treaties were followed by Friendship, Commerce and Navigation Treaties (the ‘FCN’ treaties) entered into by European states since the early 1800s. The FCN treaties, despite their large number, did not provide for investor-state dispute settlement or protection against arbitrary or unreasonable interference with an investment. This deficiency in the FCN treaties partly gave rise to various multilateral efforts to reach international agreement on protection of foreign investment, which resulted in the ICSID Convention. At the same time as these various multilateral initiatives were in progress, states also engaged in intense negotiations on bilateral treaties that protect foreign investment. Many states have Model BITs that are revised and updated over time. Brown ends his historical review of the development of Model BITs by briefly mentioning some challenges faced by the investment treaty regime, including for example, the decisions of some countries to terminate a number of their BITs. Chapter 5, ‘Protection of the Investor’s Legitimate Expectations: Intersection of a Treaty Obligation and a General Principle of Law’ by Shotaro Hamamoto investigates the legal basis of the obligation to protect investors’ legitimate expectations. Hamamoto first surveys a number of arbitral decisions which clarifies the conception of investors’ legitimate expectations, as well as the host states’ conduct and contractual conditions that create such expectations. He then briefly analyses the legal systems of Japan and some common law jurisdictions, such as that of Australia, to argue that a general principle of law protecting investors’ legitimate expectations exists. He concludes by calling for comparative studies that analyse the interpretation of international investment treaties by domestic courts. The four chapters in Part II focus on the evolvement and features of China’s investment treaties. Chapter 6, ‘Factors to be Considered for China’s Future Investment Treaties’ by Yongjie Li is a short essay that reflects on factors that China should consider when formulating its new generation of BITs. Li draws from her experience in working on WTO dispute settlement and investment issues at the Department of Treaty and Law, Ministry of Commerce. Li begins by providing a short summary of the three generations of China’s BITs. She then briefly analyses the changing global context, China’s domestic circumstances, and the enforcement mechanisms of the investor-state dispute settlement system. All this lead her to conclude that in a new generation of BITs, China should balance the protection of investors with the right to regulate capital-importing interests with capital-exporting interests, and should provide an improved dispute settlement mechanism. However, Li does not go into detail on how China could achieve such balance and what constitutes an improved dispute settlement mechanism. Chapter 7, ‘China’s BIT’s and Arbitration Practice: Progress and Problems’ by Norah Gallagher analyses China’s approach and practice relating to investment treaties. Gallagher first observes China’s changing position on BITs, stressing that China’s BIT negotiations with the US and the EU, respectively, should be watched closely. She then examines China’s Free Trade Agreement policy, developments in international investment law since China signed the ICSID Convention, and international investment arbitration cases that involve China. Gallagher concludes by suggesting

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that China should carefully consider the type of treaties as well as the merits of the distinctive features of different BITs when developing its investment regime in the future. Chapter 8, ‘China and International Investment Law: An Evolving Relationship’ by Martin Endicott traces the development of China’s relationship with international investment law and its underlying policy motivations. Endicott begins by observing China’s reform and opening up policy and its effects on the development of China’s domestic legal environment. After noticing that international investment agreements which improve investment protection help countries like China to attract inward investment flows, Endicott analyses the factors driving China’s investment treaty programme, including China’s strategy of ‘Peaceful Rise’, stabilisation of the domestic legal environment, protecting outward investment, and the strive to be recognised as a market economy. In conclusion, Endicott predicts that China will become an increasingly important actor in the development of international investment law. Chapter 9, ‘The Chinese Investment Treaty Programme, Jurisdictional Challenges and Investment Planning: The Example of Chinese Outbound Investments in the Natural Resources Sector’ by Nils Eliasson discusses China’s BITs from the perspective of Chinese outbound investment in the natural resources sector. Eliasson, who works in international arbitration, first provides a concise overview of China’s outbound investment in natural resources, which has been spread over Africa, Australia, Central Asia and South America. Then, Eliasson analyses whether China’s BITs offer satisfactory protection to these strategically important investments and concludes that the BITs, which China has concluded with countries receiving Chinese investment in the natural resources sector, have not kept up with Chinese investment strategies in the natural resources sector. His analysis is based on a survey of 52 countries that have been targeted for Chinese natural resources investment. He notices that around 80 per cent of these BITs are first generation BITs that either do not include any or contain only very restricted investor-state arbitration clauses. Eliasson also addresses protective measures that could be used by Chinese companies investing in the natural resources sector, including ‘investment planning’, reviews conducted by domestic regulatory authorities and investment structure. The four chapters in Part III discuss various investment treaties. Chapter 10, ‘The Chinese Investment Regime and the US-China BIT Negotiations’ by Eric Pekar reviews the Chinese and the US investment treaty regimes, as well as analysing potential substantive law issues and justifications for a US–China BIT. Pekar begins with an overview of China’s legal, political and economic history and notices that China’s attitude towards foreign investment has moved past the legal system’s Marxist roots. Such a pragmatic attitude has allowed China to conclude investment treaties while retaining bureaucratic controls over foreign investment. Then Pekar moves on to explore the role of BITs in China’s legal system. Pekar finds that the treatment of BITs in the domestic legal system is ambiguous and China’s approval process for foreign direct investment could arguably further limit BITs’ role in domestic law. Pekar also introduces the role of the Committee on Foreign Investment in the United States in approving foreign direct investment and uses proposed deals by

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CNOOC, H ­ uawei, and ZTE Corp as examples. In the fifth part of the article, Pekar compares the US Model BIT with several Chinese BITs in order to analyse possible difficulties in negotiating a US–China BIT. Key differences that he focuses on include: pre-establishment rights, most favoured nation treatment, and national treatment; domestic regulations and market access; fair and equitable treatment; transparency and the rule of law. Pekar delivers his conclusion by analysing factors that may hinder or facilitate the signing of a BIT between the US and China. Chapter 11, ‘The Evolution of EU Investment Law and the Future of EU-China Investment Relations’ by Marc Bungenberg and Catharine Titi explores the evolution of EU-China investment relations and reflects on a possible EU–China BIT. Part 1 of the chapter examines investment policy-making in the EU before and after the entry-into-force of the Treaty of Lisbon. The chapter goes into great detail when explaining the EU competence in the field of investment policy‑making, including the scope of EU competence over foreign investment; the powers of EU parliament; the EU’s future investment policy; intra-EU BITs; the EU’s directives for the negotiation of investment treaties; public policy considerations and the right to regulate; calls for a future investor-state dispute settlement system; challenges to transparency, consistency and predictability in the design of the investor-state dispute settlement system. Then, the chapter considers in the second part Chinese investment policymaking and investment treaty-making, and comments on arbitration cases based on Chinese BITs. In the third part of the chapter, Bungenberg and Titi discuss issues related to a prospective EU-China investment agreement, including, the treatment of state-owned enterprises and state sovereign funds; pre-establishment protection and market access; standards of investment protection and public policy considerations; human rights and sustainability; investor-state dispute settlement system. Although this part covers lots of different issues, the discussion only scratches the surface of some of these issues and is mainly made from the perspective of EU regulations or policies. In the fourth part, the authors briefly comment on the EU-US-China triangle as a broader context in the development of a China-EU investment agreement. The conclusion consists of cursory comments on the prospects of a future EU-China investment agreement. Chapter 12, ‘Instituting Investment Claims under the Trans-Pacific Partnership Agreement’ by Leon E Trakman examines investor-state dispute resolution under the Trans-Pacific Partnership (the TPP), based on a leaked draft version of the TPP Investment Chapter, which was posted on the website of Public Citizen’s Global Trade Watch in 2012. Trakman’s analysis begins with definitions of key concepts, including investor, investment, expropriation and compensation. It then considers different standards of treatment of foreign investors in both customary international and treaty law and in relation to the TPP process, including national treatment, most favoured nation treatment and fair and equitable treatment. After analysing key definitions and different standards of treatment, Trakman explores three possible methods of dispute resolution applicable under the TPP, including diplomatic protection, consultations and negotiations and investor-state arbitration. Then, he looks into the potential consequences of the exemption that Australia was seeking

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from investor-state arbitration within the TPP Investment Chapter. Finally, Trakman concludes with remarks on investor-state arbitration under the TPP, noticing that other dispute resolution methods may be applicable to the TPP parties, in addition to investor-state arbitration. Chapter 13, ‘Joint Interpretations under a Divided TPP Investment Chapter’ by Mark Feldman makes two recommendations in addressing challenges related to the functioning of joint interpretation mechanisms under a TPP investment chapter. Feldman begins with a brief review of the origin of the TPP negotiations and its status until April 2013, when Japan began to participate in the negotiations. Given that many of the free trade agreements previously negotiated by the US include joint interpretation mechanisms, Feldman considers that one or more joint interpretation mechanisms are likely to be included in a TPP investment chapter. To illustrate previous joint interpretation mechanisms, he uses some of the BITs negotiated by the US, the North American Free Trade Agreement (NAFTA), and the US Free Trade Agreements with Association of Southeast Asian Nations (ASEAN) agreements as examples. Feldman then explores how Australia’s position on a TPP investment chapter affects the operation of the joint interpretation mechanisms in the TPP agreement. In the conclusion, Feldman summarises his recommendations on the joint interpretation mechanisms and stresses the importance of the proper operation of a TPP investment chapter. To conclude, while this edited volume provides some general knowledge of international investment law and the Chinese approach to international investment treaties, it does not offer thorough and unconventional insights on China’s role in the international investment law regime as both a capital-importer and a capital-exporter. Most of the articles in the volume (with the exception of chapter 9 by Eliasson and chapter 10 by Pekar) lack rigorous, in-depth empirical or theoretical analysis that would allow the readers to contemplate the more fundamental and philosophical questions related to Chinese international investment practice and policy. Instead, the articles either focus on general issues in international investment law or provide only a broad overview of the Chinese international investment treaty regime. As a result, it is not surprising that the content or scope of a few articles in the volume overlap, which also reflects the introductory nature of this volume. Because the book is mainly based on contributions to a conference held in 2013, there is reason to believe that some discussion, especially the chapters on the TPP need to be updated. It is certainly not an easy task to combine the analysis of fundamental issues of international investment law, Chinese investment treaties and arbitration cases and the latest negotiation of BITs and other types of international investment treaties in one single volume. If the editors of this volume have an opportunity to update the volume or edit a new volume on similar topics, they should consider concentrating on a more defined aspect and delignating more precisely the scope and depth of the discussion. Yihong Zhang University of Helsinki

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Research Handbook on the Politics of International Law edited by Wayne Sandholtz and Christopher A Whytock. Cheltenham: Edward Elgar Publishing, 2017. ISBN 978-1-78347-397-7* To begin with a trite observation: international law is a complex, multi-staged process. Nevertheless, the oversimplification of its various perspectives, contexts, actors and fora into univocal monoliths is a trap scholars all too often fall for. One need look no further than the debate on human rights to find academics hailing the regime as the ordained future of the international legal project1 or excoriating it as a simple handmaiden to capital,2 no grey space in between.3 To reduce the nuance of international law in this way is to lose sight of the reality of its processes, to condemn oneself to a distortedly optimistic or pessimistic view, and to, frankly, miss the point. Enter Sandholtz and Whytock’s Research Handbook on the Politics of International Law (hereafter ‘Handbook’), which sets out to provide a new, ‘mid-range’ theory for capturing the complexity of international law and politics today.4 Their focus is intended to move us away from what they term the familiar perspectives of ‘general theorising’ – realism, liberalism, and constructivism – to place greater focus on the particular sites where politics and law intersect. The lead here is taken from the study of comparative politics: In comparative politics, the challenge is to draw general conclusions about states that vary wildly in terms of their social, economic and political structures. What is the general theory that can explain politics in Brazil, Belgium and Burkina Faso? In the politics of international law, the same kind of challenge confronts efforts to account broadly for behaviors and outcomes in highly diverse domains and institutional arrangements – at different stages of the

* My thanks to Philip Burton, GC McBain, Ukri Soirila and Eve-Anne Travers for helpful comments on the argument developed in the latter half of the review. The standard disclaimer applies. 1. Anne Peters, ‘Humanity as the A and Ω of Sovereignty’ (2009) 20 European Journal of International Law 513. 2. Costas Douzinas, Human Rights and Empire: The Political Philosophy of Cosmopolitanism (Abingdon, Routledge-Cavendish, 2007); and, in a less legal context, Slavoj Žižek, ‘Against Human Rights’ (2005) 34 New Left Review 115. 3. For more nuanced takes, discussing the ways flawed international law and human rights regimes can still be effectively harnessed by social movements, see Balakrishnan Rajagopal, ‘The Role of Law in Counter-Hegemonic Globalization and Global Legal Pluralism: Lessons from the Narmada Valley Struggle in India’ (2005) 18 Leiden Journal of International Law 345; Catherine O’Rourke, ‘Feminist Strategy in International Law: Understanding Its Legal, Normative and Political Dimensions’ (2017) 28 European Journal of International Law 1019; Paul O’Connell, ‘Human Rights: Contesting the Displacement Thesis’ (2018) 69 Northern Ireland Legal Quarterly 19. 4. It is worth noting that the editors do not directly engage with the work of Martti Koskenniemi, considering the similarity of the Handbook’s title to his own work: see Martti Koskenniemi, ‘The Politics of International Law’ (1990) 1 European Journal of International Law 4; Martti Koskenniemi, ‘The Politics of International Law – 20 Years Later’ (2009) 20 European Journal of International Law 7. Whether their distinction between law and politics is defensible is not a point I take up further in this review, but for critical remarks within the Handbook itself see Mikael Rask Radsen, ‘The European Court of Human Rights and the Politics of International Law’ [227–30].

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governance process or in different systems of governance. No general theory could explain the politics of international law in the WTO and with respect to drone strikes: indeed, no general theory is possible. [19]

How far can this claim be taken? In this review I want to tease out the implications of this mid-range theorising and suggest some ways to develop the Handbook’s insights, in particular by challenging the editors’ understanding and rejection of ­‘general theorising’. In so doing I do not seek to undermine the Handbook’s approach, but rather demonstrate how a nuanced appreciation of general theorising can both reinforce and be reinforced by the editors’ mid-range framework.

1.  The Structure of the Handbook Sandholtz and Whytock identify two ‘units of analysis’ for their study. First, there are five stages of governance: initial processes of rulemaking, both formal and informal; interpretation, understood as contestations over the bindingness, legitimacy and meaning of legal rules; decision-making by the subjects of those rules; implementation, covering formal and informal sanctions, adjudication and alternative dispute resolution mechanisms; and finally processes of legal change once the norms and institutions are in place. These stages are then laid out across governance systems – the ‘social mechanisms for constructing rules and for applying them to concrete situations’, broadly understood here as distinct legal regimes governing different subject matters or jurisdictions.5 The Handbook’s contributions are grouped around these two units. Part I of the book focuses on the stages of governance: how we understand compliance (Courtney Hillebrecht) and effectiveness (Rachel Brewster) at different institutional stages; the influence of domestic actors, be it courts (David L Sloss and Michael P Van Alstine), legislatures (Kevin L Cope), or acts of domestic incorporation (Pierre-Hughes ­Verdier and Mila Versteeg); and cross-institutional ‘regime complexes’ (Benjamin Faude and Thomas Gehring), the relations within the ‘overlapping and non-hierarchical institutions that govern a particular issue-area’ [176]. Part II then moves to consider the influence of politics in specific governance regimes: the implementation of financial and environmental standards (Walter Mattli and Jack Seddon on both subjects; MJ Peterson on international environmental governance alone); human rights (Mikael Rask Madsen on the European Court of Human Rights; Suzanne Katzenstein on non-state actors and human rights); World Trade Organisation (WTO) dispute settlement (Gregory Shaffer, Manfred Elsig and Sergio Puig); intellectual property law (Susan K Sell); the war on terror (Jordan J Paust); cyber conflict (William C Banks); and regulation of the Internet (Anupam Chander).

5. Wayne Sandholtz and Alec Stone Sweet, ‘Law, Politics, and International Governance’ in Christian Reus-Smit (ed), The Politics of International Law (Cambridge, Cambridge University Press, 2004), cited Handbook [2–3].

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The Handbook provides valuable insight into corners of international law oversimplified or simply overlooked in classical scholarship. Hillebrecht’s and Brewster’s chapters, for example, encourage a move away from viewing international law as a question of outcome(s), calling instead for a study of how different actors’ expectations of compliance and effectiveness shape the design and implementation of governance regimes. This broader understanding alerts us to how states may well be in formal compliance with a regime’s rules without any actual influence – any evidence of effectiveness – from the regime’s institutions or processes. States may have designed the regime in such a way as to accord with their existing behaviour, for example, something outcome-focused approaches would not detect. In a more empirical mode, Verdier and Versteeg draw on a large dataset of the domestic rules and practices of 101 countries over a 200-year period to provide a granular portrayal of the interactions between international and domestic law across history, uncovering ‘numerous nuances in the treatment of international law that are not systematically reflected in constitutions, correlated with the legal traditions, or associated with a binary monist-dualist distinction’ [151].6 This last point is particularly well-explored, with Verdier and Versteeg finding, among other insights, that in practice there is no distinction in how customary international law is treated in monist and dualist states: ‘the vast majority of systems that are “dualist” with respect to international treaties are “monist” when it comes to customary international law’ and ‘while a few systems that give direct application to treaties deny it to international custom … all but a handful of countries give direct application to international custom’ [173]. While the chapters themselves are largely reluctant to draw any normative conclusions, the Handbook provides a helpful platform for building one’s own. For historians of specific legal regimes, delineating the stages of governance in this way directs us to those pressure points where a regime is most shaped by political considerations  – Radsen’s chapter on the European Court of Human Rights providing an excellent example. For international lawyers of a critical bent, the Handbook allows for a holistic view of how power operates through a given legal regime, also granting surgical access to how private actors, for instance, are able to exert undue influence at particular stages of a regime – see Mattli and Seddon’s account of the implementation of financial and environmental standards, as well as Sloss and Van Alstine’s findings that domestic courts are significantly more likely to engage with and uphold transnational (private-to-private) international legal rules than horizontal (state-to-state) rules. And, on a broader level, the Handbook – particularly Faude and Gehring’s chapter on regime complexes – again directs our attention to the growth of ‘technocracy’ in international law, the empowerment of political actors far removed from democratic control.7 6. This dataset is described in greater depth in Pierre-Hughes Verdier and Mila Versteeg, ‘International Law in National Legal Systems: An Empirical Investigation’ (2015) 109 American Journal of International Law 514. 7. David Kennedy, A World of Struggle: How Power, Law, and Expertise Shape Global Political Economy (Princeton, Princeton University Press, 2016).

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2.  The Need for ‘Mid-Range’ Theorising The Handbook’s contributions provide careful reflections on discrete areas of international law, and for this it is to be commended. But allow me to return to the much larger claims that lie behind the Handbook’s mid-range focus: The most familiar theoretical perspectives – broadly classified as realism, liberalism and constructivism – capture important dimensions of international law and politics. The problem is not that the broad theoretical frames are wrong, the problem is that they are all right, at least for some stages of the governance process, in some systems of governance, some of the time … This volume, then, is not organized around the ‘-isms’ [1–2, footnotes omitted].

One can be sympathetic to Sandholtz and Whytock’s claim. Cautioning against the in-built biases and assumptions of these ‘Great Debates’ (as Hillebrecht calls them, [30]) to illuminate smaller, neglected contexts of study is a valuable move to make. But the editors’ mixture of praise and condemnation of general theorising is unclear. No directions are given for identifying when and where constructivism is right, where it is overtaken by realism or liberalism, and by what metric these questions would be measured. Elsewhere, in fact, the accuracy of general theorising is quite explicitly challenged: These theories alert us to important variables and relationships. But they cannot be tested in any comprehensive way, and, so far, there does not appear to be any way to adjudicate among them empirically … As our context-specific understanding improves, it may one day be fruitful to theorize more generally about the factors that shape the relationship between law and politics. In our view, however, at this stage it is probably more fruitful to focus on ‘mid-range theorizing’ that helps to bring intellectual order to the politics of international law in both its fundamental processes and in substantive domains [2].

From this point on, general theories are removed from the Handbook’s picture. This is, I think, a mistake. The demand for empirical verification misunderstands the role the Great Debates play as conceptual matrices that shape the ways actors understand the world and their relationship to it. Analysts and actors do not stick to the Great Debates because they are misguided; rather, the Great Debates express particular assumptions and schema – starting points, if you will – as to how international law and relations (should) operate. Moreover, as the editors themselves note, the prevalence of each Great Debate changes across governance systems, across stages of governance, and across time – fluctuations which themselves seem ripe for analysis. In the remainder of this review I want to ask what is missed when we exclude ‘general theorising’ from our analyses. Taking a lead from the work of historiographer Hayden White, I want to explore the role the Great Debates play as explanatory narratives which entrench, express and achieve particular arguments and effects for their speakers and the audiences which receive them. With this understanding in mind, I then seek to reintroduce the Great Debates into the mid-range framework of the Handbook, showing how a nuanced appreciation of general theorising marries with the editors’ context-specific outlook.

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3.  Narrativity and the Representation of Reality What relevance does a historian have for the Great Debates of international law and relations? Perhaps one can begin by distinguishing Hayden White from what a ‘historian’ is normally understood to be. White was not interested in producing new historical accounts of the past, in mining the archives to find new evidence and insights. Rather, White questioned the very ways historical accounts are rendered historical: ‘how, in historical discourse, a certain part of the past is worked up for historiological treatment, made to appear to be a topic worthy of being treated historiologically’.8 In answer, White sought to take seriously the artistic – poetic – element of the historical account, the way historians and philosophers of his­ tory imaginatively ‘combine a certain amount of “data”, theoretical concepts for “­explaining” these data, and a narrative structure for their presentation as an icon of sets of events presumed to have occurred in times past’.9 White demonstrated how historians achieve varying ‘explanatory affects’ – different ‘styles’ of historical ­writing – by combining modes of formal argument, narrative emplotment, and ideological implication to render their account historically ‘correct’.10 Crucially, the ‘style’ used by a given historian is not governed by the materials he or she wishes to examine. As one interlocutor would later write: White rejected the idea that one genre or trope was more appropriate for some historical event than another. He likewise rejected the idea that one genre or trope more accurately corresponded to what really happened in the past than another. Instead, he insisted that tropes were how writers prefigured the historical field – the past became available to us only through a poetic act of construction … [W]riters made the past meaningful to readers by forming it into a plot.11

So far, so postmodern. But White did not leave the issue here. White understood that this poetic act was never truly unbounded – historians and philosophers of history could not select any style of writing they wanted and expect the account to be considered historical by their audience. Rather, the kind of historiography available, to both historian and audience, would be conditioned by the context in which it was produced: The theories … can claim authority as explanations of ‘what happened’ only insofar as they are consonant with the linguistic mode in which the [historical] field was prefigured as a possible object of mental perception. Thus, any theory which is framed in a given mode is foredoomed to failure in any public which is committed to a different mode of prefiguration … These precritical commitments to different modes of discourse and their 8. Hayden White, ‘Preface to the Fortieth-Anniversary Edition’ in Hayden White, Metahistory: The Historical Imagination in Nineteenth-Century Europe – Fortieth Anniversary Edition (Baltimore, John Hopkins University Press, 2014) xxvii. 9. White, Metahistory, ibid, xxix; and see generally Hayden V White, ‘The Burden of History’ (1966) 5 History and Theory 111. 10. See generally White, Metahistory (n 8) Ch 1. 11. Michael S Roth, ‘Foreword: “All You’ve Got Is History”’ in White, Metahistory (n 8) xi.

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constitutive tropological strategies account for the generation of the different interpretations of history which I have identified in this study of nineteenth-century historical consciousness.12

Put in other words, a historical account would only be held to correspond to ‘what really happened’ if it resonated with the aesthetic and moral climate of the audience which received it. By tracing the successes of specific historical accounts, then, and reflexively contextualising their acceptance as ‘correct’ representations of the past at certain points in time, White sought to produce a ‘metahistory’ of the changes in the historical imagination across the nineteenth century, reconstructing the contexts in which each historical account was accepted as ‘true’. White’s thinking provides us with two critical insights for the Handbook. First, it supports an approach towards the Great Debates not as verifiable, scientific theses but, rather, as poetic reconfigurations of events and data, styles of writing which embed conceptualisations, relations, assumptions and limits within the structure of the argument. Second, taking White’s reflexive turn, the recurrence of the Great Debates within particular contexts provides us with new points of investigation, allowing us to ask why certain sites of governance accept these debates as convincing at particular moments in time and in response to particular issues. The following two sections take these points up in turn.

4.  The Great Debates as Figurative Representations 4.1.  As (Disciplinary) Attitudes towards International Law How does the selection of one Great Debate over another signal different kinds of argumentative and stylistic structure? The first and perhaps most obvious approach is to situate the Great Debates as an attitude of the speaker towards the potential of international law. This is, in fact, noted in passing by Courtney Hillebrecht: The question of why states comply with international law is rooted in traditional sovereignty concerns. Namely, in an anarchical environment in which cooperation is hard-won, why would states sacrifice their authority to comply with international law? The last 20 years of scholarship on compliance used the frameworks of neorealism, neoliberal institutionalism and social constructivism to explain how states overcame sovereignty concerns to comply with international law or, conversely, why they failed to do so [30].

Reversing Hillebrecht’s analysis, we can ask how figuring arguments in realist, liberal, or constructivist ways begin from different starting attitudes towards state sovereignty and, from this, serve as an act of identification with – or distancing from – the project of international law. This act of identification, in turn, prefigures the kinds of arguments a speaker will be able to make while remaining within the logic of the chosen theory.

12. White, Metahistory (n 8) 431.

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Let’s see how this works in practice. Starting with liberalism, we see a close disciplinary connection between liberal thinking and the disciplinary identity of international lawyers. As Martti Koskenniemi has famously shown, the argumentative patterns of international law are structured around the (irresolvable) tension of ‘[providing] communal life without giving up individual autonomy’.13 This tension, rather than weakening international law, gives it a particular normative slant; now entrusted with the liberal-historical project of rationally resolving mankind’s disputes, ‘[t]o “do” international law is to operate with a teleology that points from humankind’s separation to unity’.14 Realists, by contrast, see the liberal belief in international law as hopelessly naïve. In their account, international law only ‘emerges from states acting rationally to maximise their interests, given their perceptions of the interests of other states and the distribution of state power’.15 International law, in short, is a tool of politics, and the key actors and explanatory motivations in realist accounts are figured to reflect this – power is placed at the centre of international relations. Constructivists sit somewhere in-between. The question for them is not how international law and politics affect one another, but rather the ways these concepts – of law, politics, power, normativity – are understood by the participants within the system, ‘what role they play in molding decisions’.16 Grand narratives and fixed conceptualisations are rejected in favour of contextual examinations: ‘a nuclear weapon in the United Kingdom and a nuclear weapon in North Korea may be materially identical … but they possess radically different meanings for the United States’.17 As such, to be ‘for’ law or politics is meaningless without an understanding of what these terms mean at a given moment, in a particular place, for particular actors. Underlying each Great Debate is a particular prefiguration of the field before it. An actor or scholar using a realist explanation, for example, embeds particular assumptions about power and law into their account, the types of actors which should be empowered and the kinds of solution placed on or off the table. As such, the argumentative field is limited: liberal notions of law controlling politics make

13. Koskenniemi, ‘The Politics of International Law’ (n 4) 28. See further Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument, 2nd edn (Cambridge, Cambridge University Press, 2006), particularly chapters 2–4. 14. Martti Koskenniemi, ‘Law, Teleology and International Relations: An Essay in Counterdisciplinarity’ (2012) 26 International Relations 3, 4. 15. Jack L Goldsmith and Eric A Posner, The Limits of International Law (Oxford, Oxford University Press, 2005) 3. 16. Friedrich V Kratochwil, Rules, Norms, and Decisions: On the Conditions of Practical and Legal Reasoning in International Relations and Domestic Affairs (Cambridge, Cambridge University Press, 1989) 4. This book has been described as ‘the closest thing to a manifesto of constructivism in the study of world politics’: see Jan Klabbers, ‘Review of Friedrich Kratochwil, The Status of Law in World Society: Meditations on the Role and Rule of Law. Cambridge University Press, 2014’ (2015) 25 European Journal of International Law 1195, 1195. 17. Jonathan Cristol, ‘Constructivism’, Oxford Bibliographies Online,www.oxfordbibliographies.com/ view/document/obo-9780199743292/obo-9780199743292-0061.xml (last accessed 10 January 2019).

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no sense within a realist or constructivist framing. In important ways, then, the Great Debates discipline the kinds of arguments available to a speaker.

4.2.  As an Act of Distancing and Disciplinary Therapy The above suggests ways the Great Debates can be used to ‘capture’ and explain events within a certain discipline or mode of thinking. But the Great Debates also work in opposition to one another. Speakers can make use of the Great Debates to distance themselves from crises, to shift responsibility onto another school of thought, and to offer their own thinking as the responsible solution, as the ‘adults in the room’. Think, for example, of the debate around the humanitarian intervention into Kosovo in the late 1990s. Here we saw actors use complex combinations of liberal, realist and constructivist accounts to position themselves outside of the horrific events taking place. Liberal accounts cast the crisis in Kosovo as a result of political deadlock within the Security Council and set about developing new legal frameworks (first in the language of humanitarian intervention, then the responsibility to protect) to justify and regulate the actions of NATO states. In contrast, realists cast the crisis as a legal deadlock, with states unable to intervene due to the absolute nature of Article 2(4) of the UN Charter – it was only the righteous justice of powerful states acting outside of the law that brought the crisis to a close. Arching between the two, constructivists drew attention to the exceptional nature of the dissolution of Yugoslavia and the failure to learn the lessons of the Rwandan genocide: desperate times, in other words, called for desperate measures.18 Note how two effects are achieved here. First, opposing Great Debates are presented as the cause of the crisis, with the speaker’s own view swooping in to offer salvation: the deadlock of the UN Security Council was the fault of the power-obsessed realists; the liberal straitjacket of the UN Charter needed to be overcome by righteous power. The Great Debates here serve a complex, conflictual role in the framing of disciplinary struggles, not only empowering one’s own community but also disempowering others. But this positioning also works to absolve the speaker’s own community from responsibility. As Anne Orford has shown, the international was never truly absent from the dissolution of Yugoslavia: The use of force as a response to security and humanitarian crises continued to mean that insufficient attention was paid to the extent to which the policies of international institutions themselves contribute to creating the conditions that lead to such crises. For example, the representation of the interventions in Bosnia and Kosovo as the actions of an international community interested in protecting human rights and humanitarian values served to obscure the extent to which the international community had itself contributed to the humanitarian crises that had emerged in those places. While ancient hatreds and ethnic tensions continue to be represented as the cause of the violence that erupted in the former Yugoslavia, critics have suggested that the crisis was equally a product of modern ­capitalist

18. For a full explication of these argumentative turns, see Martti Koskenniemi, ‘“The Lady Doth Protest Too Much” Kosovo, and the Turn to Ethics in International Law’ (2002) 65 Modern Law Review 159.

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international relations. In the former Yugoslavia as elsewhere, the project of economic restructuring and liberalisation which remains central to the new world order contributed to creating the conditions in which such hatreds were inflamed.19

Whether one explains this pre-existing international presence in realist, liberal or constructivist terms is somewhat beside the point. By framing the Kosovo crisis as a conflict between Great Debates – as the handing over from one set of thinking to another – the longer tail is obscured. The role of more mundane international law and relations – the continual presence of financial institutions in the day-to-day governance of Yugoslavia, backed by legal agreements as well as political pressure – is placed outside the hermetic ‘crisis’ around which the Great Debates are mobilised. As such, the Great Debates not only grant authority to the speaker’s own community but also serve to police the parameters of the available solutions. Wide panoramas and systemic failings are forced into the shadows by narrowly-defined demands for explanation, analysis and action.20

4.3.  As Techniques in Political or Ideological Projects Let’s take this final point further. We have seen how each Great Debate brings its own internal understandings of law and politics, as well as acting in forms of structural conflict with one another. But there is a contextual element too. The deployment of a particular Great Debate will have different effects, and serve different functions, depending on the context in which it is used. We can assess this point in two ways. In one direction, the limitation of arguments may serve to amplify certain voices, institutions and sectors of society at the expense of others. One can think here of critiques launched against the recent resurgence of formalist and positivist thinking in international law.21 Sahib Singh has attacked formalism’s ‘recurrent return’ as an ‘ultimately conservative theory’, one which prefigures the contemporary ‘crisis’ of international law in a way that ‘must privilege the status quo, that vision of the world that it sees as “is”’.22 From a historical angle, Monica García-Salmones Rovira has worked to unearth the economic politics of the positivist project, demonstrating how ‘the normativity of positivism’, narrowly

19. Anne Orford, Reading Humanitarian Intervention: Human Rights and the Use of Force in International Law (Cambridge, Cambridge University Press, 2003) 13 [fn omitted]. See also Anne Orford, ‘Embodying Internationalism: The Making of International Lawyers’ (1998) 19 Australian Year Book of International Law 1. 20. Hilary Charlesworth, ‘International Law: A Discipline of Crisis’ (2002) 65 Modern Law Review 377. 21. Key texts in this resurgence are, inter alia, Jean d’Aspremont, Formalism and the Sources of International Law: A Theory of the Ascertainment of Legal Rules (Oxford, Oxford University Press, 2011); Jörg Kammerhofer, Uncertainty in International Law: A Kelsenian Perspective (Abingdon, Routledge, 2011); Jean d’Aspremont and Jörg Kammerhofer (eds), International Legal Positivism in a Post-Modern World (Cambridge, Cambridge University Press, 2014). 22. Sahib Singh, ‘Narrative and Theory: Formalism’s Recurrent Return’ (2014) 84 British Yearbook of International Law 304, 330, 342 [emphasis in original]. See also Sahib Singh, ‘International Legal Positivism and New Approaches to International Law’ in d’Aspremont and Kammerhofer (eds), ibid.

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focused as it is on state interests, ‘is adapted to the conditions and philosophical foundations of modern capitalism’:23 If we take seriously the claim that ‘law is the normative order governing politics’ and use it as an analytical tool to interpret a snapshot of the state of international law at the beginning of the twentieth century, the image of a very thin international public sphere appears. The roughly common economic interests of powerful Western states constituted international politics in this sphere.24

What unites both these critiques is an awareness that, once contextualised within a broader climate of crisis and solution, the deployment of a particular argument is never neutral. A positivist argument is not merely one theory among others, but one which directs our thinking down certain (conservative) paths, towards certain struggles and ideologies. The prevalence of a theoretical movement thus not only empowers that theoretical community but also empowers particular types of political and economic project which may be easier to express within its framing. The same questions can in turn be posed to the Great Debates. What does the deployment of a realist rather than liberal argument achieve at a particular moment, in a particular forum? How does it connect to debates going on outside the field of international law and politics? And in what ways is our thinking directed down limited avenues by the implicit assumptions of the argument? In the opposite direction, the Great Debates may also act as a cloak to secure acceptance from particular communities. Each Debate engages with a different community, and an actor may shift their argumentative style to appeal to each audience. Think here of the mistreatment of prisoners by the US military in Guantanamo Bay. The causes and solutions to that crisis change from each standpoint: is Guantanamo a (liberal) failure of international law, a ‘gap’ in the system and its enforcement? Or is Guantanamo a space produced by (realist) power, one which vividly demonstrates the realist power of the US to act in ways other states could only dream of?25 Or is the question, in fact, one of the recontextualisation of these actions, the production and shaping of ideas like ‘enhanced interrogation’ in the climate of a ‘War on Terror’? A representative of Amnesty International, for instance, would not remain bound to one explanatory narrative, but might call for ‘more’ law in Geneva, for political pushback in Strasbourg or Brussels, and for a reconsideration of the exceptionalist War on Terror in the media. The underlying political project remains consistent, but each Great Debate is deployed with different institutions, fora and sets of actors to unlock tactical advantages. Whether a Great Debate is disciplining the arguments available or is being tactically deployed to fit a pre-existing argumentative bias will not be immediately 23. Mónica García-Salmones Rovira, The Project of Positivism in International Law (Oxford, Oxford University Press, 2013) 1. 24. Ibid, 357, citing Jan Klabbers, The Concept of Treaty in International Law (The Hague, Kluwer Law International, 1996) 247. 25. For a deeper exploration of these themes, see Fleur Johns, ‘Guantánamo Bay and the Annihilation of the Exception’ (2005) 16 European Journal of International Law 613.

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clear in a given situation – one will need to make complex judgements about the interactions between, as Michael Fakhri has put it, the ideas, institutions and interests at play at any given time.26 The point is merely to stress that the Great Debates hold a powerful function in the success and spread of ideas within governance systems. They tell us how ideas are thought through, explained and justified to and within different institutions. Appreciating how these arguments are variously entrenched and shifted brings important dynamics to light, and it is to these dynamics – in the context of the Handbook’s mid-range framework – that I now turn.

5.  Repositioning the Great Debates at the Mid-Range Level How does all this plug in to the Handbook’s ‘mid-range’ framework? Factoring in the nuanced understanding of the function of the Great Debates outlined in the previous section, and with Hayden White’s reflexive turn in mind, we can look for the appearance of the Great Debates within particular mid-range sites of governance to draw new insights about the contexts in which they are received as ‘correct’, insights which are impossible to gain from the editors’ framework alone. What follows are some tentative insights which would be gained from such an awareness. Moving laterally across the stages of governance, from rule-making to implementation to legal change, one could track the recurrence and divergence of the Great Debates, to see where each Great Debate is taken to properly explain the dynamics of that stage. Do rule-makers – the delegates taking part in the ‘long and potentially contentious political battles in Geneva, New York and state capitals around the world’ [Hillebrecht, 53] – consistently speak in realist, constructivist or liberal registers? What does this tell us about the dynamics that govern rule-making, the self-understanding of actors and decision-makers ? What attendant biases are at play? And how does this compare to another stage, like the implementation or alteration of legal rules? Are Parliaments, judges, non-governmental organisations more or less realist, liberal, constructivist? Why? By reintroducing analysis of the Great Debates into each stage we gain a better appreciation of how the actors understand their own role and the context in which they are operating. In turn, this shapes the kinds of actors who are able to participate, as well as the ideas and outcomes that are able to be produced. An awareness of the Great Debates unlocks key insights into the predominance of certain rationales in the shaping of governance regimes and the parameters of argument available, something invisible to an exclusively mid-range focus. The same analysis can be applied to the Handbook’s governance systems. Are human rights lawyers more liberal than trade lawyers? Do law and power play different roles in financial and environmental regimes? The Handbook allows us to pinpoint these contrasts and distinctions with precision. By taking a cross-section of,

26. Michael Fakhri, ‘Law as the Interplay of Ideas, Institutions, and Interests: Using Polyani (and ­Foucault) to Ask TWAIL Questions’ (2008) 10 International Community Law Review 455.

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say, the argumentative patterns of legal interpretation within two different governance systems, one can compare the prefiguration of the debates in each field. This would allow for quite striking analysis into the different dynamics at play between conflicting regime complexes, as well as contrasts in the self-understanding of lawyers and judges in different regimes. This relationship can also be reversed: how does the Handbook’s mid-range framework improve our theorising at the general level? First, one could follow individual actors across sites of governance. How do US delegates shift their argumentation for different audiences? Do they act differently in trade negotiations compared to human rights treaties? How does this measure against comparable actors: the UK, Russia or China? By combining the mid-range framework with a close attention to the political function of the Great Debates, one can build a more nuanced picture of the foreign policy of particular states, the techniques used to extract concessions or lock in interests, and a state’s overall perspective on the international legal order at a given point in time. Moving in a different direction, one could also trace, similar to García-Salmones Rovira’s work on positivism, the development of each Great Debate across history. Which arguments won out in the ‘victory’ of human rights in the 1970s, for example? What does this tell us about human rights and their relationship with the wider ecology of international law and relations?27 Again, the Handbook’s mid-range framework provides a valuable map for studying the incubation of arguments within particular states, institutions and fora. One can trace how realists gain hold in particular governance regimes at specific moments, granting them dominance within particular stages of governance, before losing their hold to liberal or constructivist positions, following the effect this has on policy at specific moments in time.28 Such a genealogical (or geological)29 investigation is given heightened clarity and detail by the H ­ andbook’s mid-range framework.

6. Conclusion In conclusion, the Handbook presents an excellent collection of research in a broad variety of contexts, with careful attention paid to separating out the many different facets of international law and its interrelation with politics. It provides a refreshing take on the study of international/global governance and a novel mid-range approach, reminding us that governance remains at all times a process, not homogenous but

27. Samuel Moyn, The Last Utopia: Human Rights in History (Cambridge: Harvard University Press, 2012); Samuel Moyn, Not Enough: Human Rights in an Unequal World (Cambridge, MT, Harvard University Press, 2018). 28. An existing example of this kind of investigation, in the context of the Bush administration, is Jens David Ohlin, The Assault on International Law (Oxford, Oxford University Press, 2015). 29. JHH Weiler, ‘The Geology of International Law – Governance, Democracy and Legitimacy’ (2004) 64 Heidelberg Journal of International Law 547.

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enacted across many sites of struggle and conflict. Nonetheless, its refusal to engage with broader stroke theories leaves many of the chapters’ analyses hollowed out, strangely mechanical. Reintroducing the role that general theorising plays in these relations, as suggested above, restores this crucial human element of the equation and, it is hoped, improves the utility of the Handbook’s framework going forward. David M Scott PhD candidate, Manchester International Law Centre, University of Manchester

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Research Handbook on International Courts and Tribunals edited by William A Schabas and Shannonbrooke Murphy. Cheltenham: Edward Elgar Publishing Ltd, 2017. ISBN 978-1-78100-501-9 What kinds of new perspectives can one take on international courts and ­tribunals? This is a central question a reader has in mind when picking up the recently published Research Handbook on International Courts and Tribunals (‘the Handbook’) edited by William A Schabas and Shannonbrooke Murphy. Existing books with a similar general title – such as the Manual on International Courts and Tribunals1 – have focused on introducing the various courts and tribunals: their history, jurisdiction, procedure, statutes and rules, main actors and seminal cases. Works that focus on only one court or tribunal discuss the above-mentioned areas but in more detail with respect to the court/tribunal in focus.2 Compared to other books such as those mentioned above, the Handbook’s approach is broader as it includes perspectives that might be categorised as ­historical, legal, political and sociological. The Handbook is an edited work comprising several stand-alone chapters which most likely will be studied selectively by a reader seeking information and sources regarding some particular subfield of or question concerning international courts and tribunals. The Handbook can of course be read from the beginning to the end by someone wanting to know the state of the art. The list of contributors to the Handbook is long and diverse in terms of nationality and jurisprudential outlooks and interests. They include both scholars and practitioners, many of whom have written extensively about international courts and tribunals. In 531 pages the Handbook comprises tables of contents, cases, treaties and national  legislation; an introduction; 16 chapters; a bibliography; and an index. The chapters are organised into two main parts. Part I is titled The Judgements and the Judges, and Part II is The Controversies and the Challenges. In what follows, the contents of each chapter are visited briefly followed by a conclusion on the book’s contribution to the field. The introduction (1–36) does the historical and conceptual groundwork for the following chapters, and touches on the themes discussed later in the book. William A Schabas defines key terms, categorises international courts and tribunals and explains the main differences between national and international courts and tribunals. He celebrates international courts and tribunals as arenas in which less powerful states can challenge the more dominant ones. The first chapter (39–49) is by Mónica Pinto. She discusses how the International Court of Justice (ICJ) has regulated the use of force. This is done through revisiting the Court’s first case, the Corfu Channel, as well as the Iran Hostages case and the case brought by NATO against Yugoslavia.

1. Ruth MacKenzie, Cesare Romano, Philippe Sands and Yuval Shany (eds), Manual on International Courts and Tribunals (Oxford, Oxford University Press, 2010). 2. For eg Robert Kolb, The International Court of Justice (Oxford, Hart Publishing Ltd, 2013).

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In the second chapter (50–78), Dinah Shelton considers whether the jurisprudence of regional human rights tribunals is and/or should be considered lex specialis or lex regionis. Shelton considers similarities and differences between regional human rights tribunals; in her view, similarities exceed differences. As an example Shelton discusses the margin of appreciation doctrine which is used in the European Court of Human Rights (ECtHR), the Inter-American Court of Human Rights (IACHR) and the African Court of Human and Peoples’ Rights, too. Another common feature is the frequent use of the teleological interpretation of the law. And, at least the ECtHR and IACHR seem to hold their respective charters as ‘living instruments’. In Chapter three (79–121), Nicolaos Strapatsas is concerned with how international courts and tribunals have affected the evolution of the concepts of war crimes and crimes against humanity. His focus is on the judgments of the international criminal tribunals for the Former Yugoslavia and Rwanda, respectively, and of the Special Court for Sierra Leone. Particularly relevant is how the Court and tribunals have dealt with the question whether jurisdiction requires that the crimes have been committed in an international armed conflict. According to Strapatsas, ‘the postSecond World War jurisprudence emanating from the earliest international criminal tribunals was not very consistent as to whether crimes against humanity could be committed in peacetime, or whether they required a nexus with international armed conflict’ (104). But, by now the distinction between international and noninternational armed conflicts with respect to war crimes has disappeared as a result judgments by various courts (98). Chapter four (122–42), by Makane Moïse Mbenguue, is about the role of international courts and tribunals in the development of international economic law. He discusses the cases Chorzow Factory;3 Barcelona Traction;4 Ahmadou Sadio Diallo;5 Gabcikovo-Nagymaros Project;6 and Pulp Mills.7 Moïse Mbenguue says it was through the Sadio Diallo case that international economic law opened up to human rights claims. And, a general duty to co-operate with other states was recognised in the case Kasiliki/Sedudu Island.8 Mbenguue makes some effort to discuss the Permanent Court of Arbitration and investment arbitration. In the case Shrimp/Turtle,9 the World Trade Organisation appellate body recognised the place of sustainable development in the world trading system (134). In Chapter five (143–80), Joseph Powderly and Jacob Chylinski discuss women judges as developers of international law. The authors aim to ‘provide a non-­exhaustive, illustrative historical survey of the contribution women judges in ­international

3. Factory at Chorzów (Germany v Poland) (Judgment) PCIJ Reports 1927 Series A No 9. 4. Barcelona Traction, Light and Power Company Limited (Belgium v Spain) (Judgment) ICJ Reports 1970, 3. 5. Ahmadou Sadio Diallo (Guinea v DRC) (Judgment) ICJ Reports 2007, 584. 6. Gabčíkovo-Nagymaros Project (Hungary v Slovakia) (Judgment) ICJ Reports 1997, 7. 7. Pulp Mills on the River Uruguay (Argentina v Uruguay) (Judgment) ICJ Reports 2010, 13. 8. Kasiliki/Sedudu Island (Botswana v Namibia) (Judgment) ICJ Reports 1999, 1045. 9. United States – Import Prohibition of Certain Shrimp and Shrimp Products (WTO-AB) (12 October 1998) WT/DS58/AB/R.

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courts and tribunals have made to the development of public international law and the institutions to which they have been appointed’ (143). They discuss Rosalyn ­Higgins’s contributions, especially her opinion in the Nuclear Weapons10 case but also in the Wall Advisory Opinion11 and the Arrest Warrant12 cases. Other women judges whose achievements are mentioned include Joan E Donaghue, Julia Sebutinde, Navanethem Pillay, Florence Mumba, Gabrielle Kirk McDonald, Anita Usacka, Teresa Doherty, Ekaterina Trendafilova, Janet Nosworthy, Cecilia Medina Quiroga and Francoise Tulkens. These judges have influenced the development of international law, for example in matters concerning male genital mutilation, wearing of religious symbols on a university campus, free speech and hate speech, and forced marriage. Chapter six (181–200), by Liliana Obregón, is about third world judges in the Permanent Court of International Justice and in the ICJ. The author argues that some judges promote their national, regional, or other allegiance, eg through dissenting opinions. Obregón visits the theme of selecting judges in international courts and tribunals. She also discusses the contribution of a selection of judges. These include Judge Rui Barbosa de Oliveira who advocated for the legal equality of states. In addition Obregón tells how Judge Alejandro Álvarez advocated for a new conception of international law which was less state-centred and paid more attention to the common good (189–91). Obregón also shares an anecdote about Judge José Gustavo Guerrero: He demanded that German troops did not harm staff of the Permanent Court of International Justice after they invaded Holland in the Second World War. The staff managed to leave Holland and start operations anew in Geneva. In Chapter 7 (201–26), which concludes Part I of the Handbook, Giulia Pecorella focuses on three prominent figures of the international judiciary: Hersch L ­ auterpacht of the ICJ, René Cassin of the ECtHR, and Antonio Cassese of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the Special Tribunal for Lebanon. According to Pecorella, in the twentieth century, international law has increasingly focused on the individual, and this is partly owing to the work of ­Lauterpacht, Cassin and Cassese (205). Cassese contributed to establishing individual criminal responsibility in the Tadic13 case. In the Tadic case, Pecorella says, ‘the principle of individual criminal responsibility for the violation of the laws of war was not only reaffirmed but also extended to the point of including all serious violations committed in a non-international armed conflict’ (213, 206). Lauterpacht had an important role in drafting the Charter of the International Military Tribunal and the Nuremberg Judgement which held individuals responsible. Through Cassin’s efforts, in turn, the name International Declaration for Human Rights was changed to Universal Declaration of Human Rights.

10. Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) ICJ Reports 1996, 226. 11. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) ICJ Reports 2004, 278. 12. Arrest Warrant of 11 April 2000 (DRC v Belgium) (Judgment) ICJ Reports 2002, 3. 13. Prosecutor v Tadic (Judgment) ICTY-94-1 T (07 May 1997).

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Chapter eight (229–45) on legitimacy opens Part II of the Handbook. The authors, Yvonne McDermott and Wedad Elmaalul, argue that legitimacy is weakened if, for example, an international criminal tribunal’s goals are too many and their hierarchy is unclear. In the authors’ view, ‘legitimacy is an inherently circular notion – ­legitimacy results in increased compliance, which in turn gives rise to enhanced legitimacy because the tribunal is seen as being more effective’ (239). They discuss constitutive and process legitimacy with references to Volker H Schmidt, Niklas Luhmann and Thomas Franck. Constitutive legitimacy entails two elements: principles of input and consent, and whether the court is accepted as legitimate and thereby made more efficient. Constitutive legitimacy is not enough for legitimacy, the authors maintain; they question whether individuals and all states really have had an equal say in the establishment of international courts and tribunals. Jurisdiction and forum shopping is the subject of Chapter 9 (246–72) by Luiz Eduardo Salles. He says: ‘International law is a landscape of jurisdictional overlaps and competence-competence, and is also a domain where jurisdictional rules often govern the relationship of adjudicatory authority between the tribunal and the parties to the dispute without explicit consideration for the operation of other tribunals’ (260–61). He argues that the many meanings of jurisdiction have caused discussion and confusion among commentators of international courts and tribunals. Salles defines some ways of understanding jurisdiction: competence-competence is one, and adjudicatory jurisdiction – which can be further divided into principal and incidental jurisdiction – is another. Salles also clarifies the difference between jurisdiction and admissibility, and offers ways to resolve conflicts of jurisdiction: exclusiveness, preference, subsidiarity, aggregation and bifurcation. In Chapter 10 (273–98), Richard Frimpong Oppong and Angela M Barreto discuss enforcement of decisions by international courts and tribunals. They stress two developments in international litigation that merit special attention: giving locus standing to individuals and the increasingly compulsory jurisdiction of international courts. Voluntary consent to jurisdiction seems to increase compliance, the authors have observed. The chapter touches on different means of enforcement: non-judicial organisations as enforcers, self-help by states, diplomacy and negotiations and using national courts. The case of NML Capital14 is discussed as an example in which enforcement was an issue. In this case, a question arose whether a Ghanaian court had to follow a decision made by the International Tribunal for the Law of the Sea. Chapter 11 (299–336), by Karin Oellers-Frahm, is about the proliferation of international courts and tribunals. She divides international courts and tribunals into three categories: general’ classic’ courts which are to maintain the unity of international law, regime courts dedicated to special values, and courts set up to advance important norms in the international sphere (eg human rights). Oellers-Frahm also

14. Republic High Court (Commercial Division) Accra, Ex Parte Attorney General, NML Capital and the Republic of Argentina (Civil Motion no J5/10/2013) (Supreme Court of Ghana, 2013).

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distinguishes different types of fragmentation: Decisional fragmentation refers to that a same rule of law is interpreted and applied differently by different courts and tribunals. Genuine fragmentation, in turn, means the diversification of substantive international law. This has led to the proliferation of courts and tribunals. A reason for the fragmentation of international law is that no international court or tribunal has compulsory jurisdiction. While sometimes helpful in choosing the applicable law, the principles of lex specialis, lis pendens and res judicata are only to a limited extent useful in international law. Oellers-Frahm like many others have identified problems in diverging judgments by different courts and tribunals, but she is hopeful that the divergence can reveal inconsistencies and thereby provide an opportunity to develop international law. In Chapter 12 (337–76), Michelle Farrell tackles distribution. In her view ‘[i]nternational courts and tribunals are increasingly viewed as having a broader societal, perhaps even constitutional, function to fulfil’ (338). The chapter is an attempt to respond to questions such as: Is the distribution of international justice reinforced or challenged by international courts and tribunals? Has the emergence of international courts and tribunals changed international relations from powerbased into law-based? Farrell starts off by saying the key terms ‘international justice’, ‘distribution of justice’ and ‘international rule of law’ are ambiguous. For example, the concept of international justice is rarely defined by international legal scholars or judges. Farrell embarks on discussing international justice by comparing it with global justice, by pointing out weaknesses in John Rawls’s idea of justice, and by considering global public goods and responsibilities for their distribution. She draws on cosmopolitan political theory (Thomas Pogge) and the Third World Approaches to International Law (TWAIL) movement and argues that the international legal order is structurally biased, international institutions rarely can escape the politics of their founders and they do not distribute justice equally. Chapter 13 (377–406), by Tom Dannenbaum, is about regulating international judges’ professional behaviour and ethics. He sees independence, impartiality and integrity as paramount for judges. At the international level, these bedrocks are threatened by the nationality of judges, weakness of international courts in relation to states, and different normative expectations regarding the international judiciary’s role. Dannenbaum regards codes of conduct for judges as swords and shields at the same time. The current codes of conduct or procedural rules do not however sufficiently protect judges’ independence, impartiality and integrity. Nor can they really be used to hold judges accountable for acts or omissions. What codes that lack in detail can achieve, however, is that they can elaborate on master concepts such as impartiality and integrity. So, Dannenbaum holds that current international judicial ethics should be improved. He suggests, for example, eliminating nationality rules, transferring nomination and election of judges from states to independent professional bodies, giving judges certain special rights of residence, starting to see judges as colleagues rather counterbalances to each other. In Chapter 14 (407–49), Kate Gibson, John RWD Jones QC, Michael G ­Karnavas and Melinda Taylor discuss professional ethics of defence counsel at international

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criminal tribunals. The authors remark that there is no organisation, comparable to national bar associations, which would really support international defence counsel in zealous defence of their clients. They argue that ‘[…] the lack of an international bar has profound personal and professional implications for defence counsel’. (409). The existing codes of conduct for defence counsel do not provide sufficiently detailed guidance on complex ethical problems such as how to deal with an accused defending himself, witness proofing and how to divide authority between the lawyer and client. The authors discuss the practical steps towards developing an international defence counsel bar and a code of conduct. They consider the challenge of including lawyers from various legal cultures under one organisation and code. The authors would prefer a peer review of defence counsel’s professional behaviour. The Association of Defence Counsel Practising Before the ICTY is brought up as a model for future developments in the international criminal defence (442). In Chapter 15 (450–62) titled ‘Infrastructure’, Maria Varaki introduces the academic discussion on international courts and tribunals. For example, she explains how international legal scholars have reacted to the proliferation of these institutions in comparison to international relations scholars. A particular question Varaki is concerned with is whether more judicialisation is needed. She discusses how a few prominent scholars – Alter, Kingsbury and Romano – have stressed that different areas of international law are judicialised to different degrees. Same goes with different geographical areas; Europe is more judicialised than Asia, for example. Responding to the question whether more judicialisation is needed, Varaki suggests the establishment of a World Court of Human Rights, which has both supporters and opposers. At the end, Varaki opines: [A]lthough the voices for new global tribunals indicate the problems of unevenness and frustration with the current system of international dispute settlement, one could reasonably argue that a new era of more international institutions will be founded upon a different normative, political and economic ground (461).

In Chapter 16 (463–83), which is the final chapter of the Handbook, Yaël Ronen discusses the functions of and access to international courts and tribunals. In Ronen’s view, there has been a shift of understanding in the function of international courts and tribunals from dispute settlement to a ‘thicker analysis’ (465). This means that courts and tribunals now perform duties such as compliance assessment, enforcement and giving advisory opinions, fact finding, law-making and governance (465). Ronen discusses these new functions through in connection to dispute-settlement, development of law and control of public authority. As for access, he notes that increasingly often individuals have a standing before international courts and tribunals (472–73). Yet, in the Inter-American Court of Human Rights, for example, the Commission remains the main litigant and the victim participates in the proceedings only mediated by the Commission. At the ECtHR, Protocol 14 of the Convention restricts individual applications in cases where no significant harm has been suffered. Ronen considers this a regression in access to courts (474–75). The chapter also pays attention to third party intervention and amici curiae.

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The 16 chapters cover the different areas of international courts and tribunals well from fresh perspectives. In this way, the Handbook brings together views, many of which have been discussed in international law and international relations journals. In doing this, the Handbook is an addition to the existing books in the same field. How could the Handbook have been improved? Some chapters of the book overlapped or connected, but they were placed in different parts of the book. Perhaps a grouping of the chapters into five or six parts could have served readers better than the current two-partite organisation. Organising the overlapping or connected chapters into five or six parts might have helped readers to select chapters to read and the order in which to read them. An alternative way to organise the chapters could have been: Judges and Lawyers (chapters 5, 6, 7, 13, 14); Fragmentation and Expansion (2, 9, 15, 16); History and Legal Development (1, 3, 4); Legitimacy (8, 11, 12), and Enforcement (10). In sum, this book serves newcomers to the field of international courts and tribunals well in the sense that it covers a wide variety of (traditional) topics from fresh angles that are necessary for a today’s broad-minded student to consider. Also, more advanced students of international courts and tribunals will surely find some of the 16 chapters insightful and a useful recap of the state of the art. Overall, this book is a welcome update and expansion to the field. Tuomas Tiittala University of Helsinki, Faculty of Law

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The American Project and the Politics of History: James Brown Scott and the Origins of International Law* Paolo Amorosa Mr Custos, Madam Opponent, ladies and gentlemen, In the interwar period, James Brown Scott, an international lawyer from the United States, wrote a series of works on the history of his discipline. He made the case that the foundation of modern international law did not rest, as most assumed, with the seventeenth-century Dutch thinker Hugo Grotius, but with sixteenthcentury Spanish theologian Francisco de Vitoria. International law was teeming with new ideas and experiments in the inter-war years. Why would a leading scholar and political operator like Scott devote the last years of his career to a seemingly antiquarian endeavour? This dissertation provides an answer to that question. The Spanish origin narrative placed the inception of international law in the context of the discovery of America, rather than in the European wars of religion. The recognition of equal rights to the American natives by Vitoria was the pedigree on which Scott built a progressive international law, responsive to the rise of the United States as the leading global power and to developments in international institutionalisation such as the creation of the League of Nations and, especially, of the Permanent Court of International Justice. Seen in this light, Scott’s historical work was not antiquarian at all, but crafted as an intervention into vital debates over the changing nature of international relations following the Great War. If Scott’s work was not mere historical revision, I do not consider my research to be either. Understanding Scott’s theory of the Spanish origin in context is useful to add depth to the conversations on international legal history of recent years, which have assumed the relevance of Vitoria for the discipline. Often, discussing the Dominican’s thought in the context of international law has carried a larger, not always ostensible, meaning. Assessing the attitude of Vitoria towards his country’s colonisation of America has become a benchmark to evaluate the fundamental nature of international law itself. Was Vitoria using ius gentium to condemn colonial violence or was he ultimately justifying and enabling it? In other words, has international law been, since its birth, humanitarian or imperialist? This debate has been sparked among international lawyers by Antony Anghie’s seminal postcolonial history of the discipline. Anghie’s book Imperialism, Sovereignty and the Making of International Law makes the argument that Vitoria’s was ‘a particularly insidious justification of [the] conquest precisely because it is presented in the language of liberality and even equality’.1 His treatment of the natives spearheaded * Lectio praecursoria, held at the public examination of the doctoral dissertation at the University of Helsinki, 14 April 2018. Professor Karen Knop from the University of Toronto acted as the opponent. 1. Antony Anghie Imperialism, Sovereignty and the Making of International Law (Cambridge, Cambridge University Press, 2004) 28.

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the legal distinctions that would embed colonialist thinking in international law. These unequal structures, according to Anghie, are still present and are reproduced every time that international law renews and reforms itself.2 Anghie’s assessment has been opposed by authors who still hold views substantially in line with Scott’s: Vitoria’s recognition of universal rights, applicable to both Spaniards and American natives, was a brave humanitarian stand, ahead of its time. Within this line of thinking, the Dominican’s moral cosmopolitanism should still be considered an impressive achievement, both in itself and because of the international legal tradition it originated. As one of these scholars put it, Vitoria envisioned the ‘rules of the game’ for the world as a political community by reengineering the doctrine of the ius gentium. [He] gave birth to a big idea that many others, since then, have cultivated as a discipline and that has proved to be one of the most useful and now pervasive social artefacts of human progress.3

The debate on Vitoria and his international legal legacy includes a third point of view criticising both Anghie and his opponents on the basis of considerations of historical method. To evaluate Vitoria’s works in light of their later influence and use would be fallacious. To get a historically accurate account of the past, one should understand it in its own terms, without imposing our present concerns on it. In Martti ­Koskenniemi’s characterisation, this type of critique claims […] that we have no way of assessing Vitoria without committing the sin of anachronism and that viewing him as the ‘origin’ of something – of ‘modern’ international law – is a purely ideological move that provides no understanding of Vitoria in the temporal context where he lived and thought.4

The international legal scholar who has most vocally engaged in a rebuttal of this critique of anachronism, in defence of Anghie’s work, has been Anne Orford. In particular, I want to highlight a specific aspect of her rebuttal, which gives the measure of the importance of a full understanding of Scott’s work on Vitoria and the Salamanca School to underpin current discussions on international legal history and the development of international law in the last century. Orford notes that Anghie opened his reading of Vitoria with the reclamation of the Dominican by James Brown Scott. In so doing, ‘Anghie draws our attention to the special place that Vitoria played in the new American century’.5 Indeed, as I noted at the outset, Scott was a major player in the international law and foreign policy establishment in the United States in the early twentieth century. A key founder of the American Society of International Law, Scott had been the main 2. See ibid, 312–13 and Antony Anghie, ‘The Evolution of International Law: Colonial and Postcolonial Realities’ (2006) 27 Third World Quarterly 739, 741–45. 3. Pablo Zapatero, ‘Legal Imagination in Vitoria. The Power of Ideas’ (2009) 11 Journal of the History of International Law 221, 228–29. 4. Martti Koskenniemi, ‘Vitoria and Us’ (2014) 22 Rechtsgeschichte 119, 122. The article also features a fuller account of the debate I just outlined (see ibid, especially 120–23). 5. Anne Orford, ‘The Past as Law or History? The Relevance of Imperialism for Modern International Law’ (2012) 2 NYU Institute for International Law and Justice Working Paper Series, 11 and 14.

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legal officer of the State Department before joining the leadership of the Carnegie Endowment for International Peace. The picture of Vitoria he depicted reflected the ‘practices of international law developed for the American century […] Scott was a believer in’: in brief, international institutionalisation and freedom of trade and commerce. That picture also worked, Orford continues, ‘for the rationalisation of those practices and the new forms of international legal authority they brought into being’. Seen in this light, Anghie’s work does not take Vitoria out of his sixteenth-century context. Rather, it tracks a series of more recent contexts for his reception. Beginning with Scott’s historical work, this series […] suggests that the humanitarian critique of Spanish empire offered ideological innovators a means of rationalizing the form of empire that would triumph in the twentieth century. [E]arly modern ius gentium was systematically and carefully reconstructed in the United States of America […] to make sense of practices that were already reshaping the world.6

The dissertation expands on Orford’s intuition and tells the story of Scott as an ideological innovator who adopted Vitoria as an historical subject and, at the same time, a proxy for his agenda. The nature of that agenda, after extensive investigation, turns out to be much more articulated and complex than a generic liberal internationalism and support for international institutions. Not only Scott’s vision of the post-war international order, which he later associated with the Salamanca School, focused on adjudication, in direct contrast with that of Woodrow Wilson and of the younger up-and-coming generation of US international lawyers; Scott also brought under Vitoria’s umbrella causes that were highly controversial in US foreign policy circles but were invested by him with deep personal meaning. The last two chapters of the dissertation are dedicated to two such causes. Chapter 5 describes how Scott used Vitoria to champion the enduring significance of a Catholic conception of international law; Chapter 6 tracks Scott’s enlistment of Vitoria to support feminist activists seeking the international recognition of equal rights for women. To serve his diverse goals, Scott deployed Vitoria in varied discursive functions that the dissertation tracks and describes. In the first place, by successfully making the case for Vitoria as the founder of international law, Scott established the Dominican’s work as belonging to the canon of the discipline. In turn, the canonisation of Vitoria’s arguments represented the logical basis of further moves. In Scott’s progressive mindset, the thought of canonical figures came alive as the foundation of present global legal arrangements and the blueprint for their future configuration. Therefore, for him, the transition from establishing Vitoria as founder to deploying him as pedigree of current proposals was natural and organic. Scott employed the Dominican to lend authority either to specific international legal projects or to foundational visions of the international legal order as a whole. In the former mode, for instance, Vitoria could be enlisted in support of treaties prescribing equal rights for women and efforts of international codification. In the latter case, he became the intellectual father of 6. Ibid, 11 and 15–16.

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a modern international law based on individual rights, equality and global legal institutions. Scott’s account was flexible and versatile not only when he cast Vitoria as pedigree but also when he sought to forge alliances. Indeed, Scott tailored the image of Vitoria he presented to the groups he sought to create common cause with. For instance, as a revered figure of the country’s siglo de oro, Vitoria was the symbol of the alliance between Scott and the Spanish legal establishment; as a celebrated Scholastic theologian, he buttressed Scott’s approaches to the Roman Curia and the Catholic Church in the US. As the causes and the audiences he associated with Salamancan theology mirrored Scott’s individual preferences and inclinations, a comprehensive account of the campaign for the Spanish origin of international law should necessarily cover his formative years and early career, drawing connections with his personal life and the development of his legal thinking and professional endeavours. In turn, these aspects can be better understood only against the background of a larger historical context. As a result, the dissertation adopts a composite literary register and a multilevel analysis. It is both a professional biography and the account of a paradigm shift in international legal history. While, at its core, it is the story of Scott as an historian of international law, it necessarily features the exploration of larger interconnected trends and events taking place during his lifetime: the rise of the United States as a global power and related ideological developments; the social and religious changes the country went through in the period under scrutiny; the activity of hemispheric and global legal networks; the profound changes international law underwent between the late nineteenth century and the outbreak of the Second World War, including the creation of the League of Nations and the Permanent Court of International Justice. Indeed, in methodological terms, the dissertation is based on one basic idea: to be better understood and appreciated, the story of Scott’s Spanish origin needs to be read within a wide context, incorporating social, professional, biographical and geopolitical perspectives. The originality of the dissertation derives primarily from the new wide-ranging substantive knowledge it provides on Scott’s role in shifting the discipline’s canon and the insights I developed building on that knowledge. I collected the previously unpublished material I draw upon during a two-month visit to archives in the United States in 2015. I have carefully sifted through Scott’s personal papers at Georgetown University in Washington DC and, at Columbia University in New York City, through the archives of the Carnegie Endowment of International Peace, the powerhouse that Scott co-founded and co-led from 1910 until his retirement in 1940. The nature of the task of providing a comprehensive account of Scott’s historical project and its implications, though, necessarily went beyond. The social and political significance of marking Vitoria as the founder of international law requires the assemblage of an archive of knowledge encompassing the thought and action of international lawyers, religious leaders, feminists, activists, government officials, active in the United States and globally, over the course of half a century. Laying out a description of the Spanish origin theory and its relations to other elements of political and social discourse contemporary with it is the main contribution of my research.

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I approach the conclusion of this lectio praecursoria by tackling the issue of the contemporary relevance of my research that I touched upon briefly at the outset. Most obviously, the dissertation’s comprehensive analysis of Scott’s project, highlighting its shortcomings without discarding its strengths and achievements, is relevant to contemporary international law through the continuing significance of the liberal language of rights, free trade and equality that Scott promoted through Vitoria. Acknowledging Vitoria’s contemporary relevance as the accomplishment of Scott’s historical project also opens the avenue for a less direct but equally important critical perspective. Scott’s narrative offers reasons for opposition, but also provides lessons to learn. Accepting his good faith allows us to take him as a useful model for renewal in international law, even while disagreeing with his politics and recognising the flaws of his history writing. Indeed, the proof that Scott was a successful innovator is that, even though he was almost forgotten until recently, we have been accepting his version of the historical canon of international law. Without Scott, Anghie and many other international lawyers would not have given such a pivotal role to Vitoria in their historical work. Scott’s narrative, though unpersuasive in historiographical terms, has endured. It still constrains the canon of authors associated with the development of international law and with it the self-understanding of the discipline. So, if the goal is to replace or, at least, demystify Scott’s history and its political implications, it is important to think of the Spanish origin not just as the paradigm we need to move beyond. It is also the narrative that has performed that same transformative operation before and replaced a previous dominant paradigm. Indeed, before Scott’s intervention, Hugo Grotius was given the title of founder of international law. His work addressed the horror of the religious wars in Europe in the seventeenth century, ended by the peace of Westphalia and the rise of the nation-state. This perspective fit the Victorian understanding of international law as a tool regulating the external relations of European powers. By giving the title to Vitoria, Scott linked the inception of modern international law to the discovery of the American continent and the recognition of individual universal human rights. In the search of a newer transformative historical narrative of the discipline, moving away from Scott, learning what made him successful would allow his skill to be turned against him. One key lesson that Scott’s story teaches is that for an historical narrative to have a political impact it needs to be spread outside academia and employed in the service of practical immediate goals. Current international law projects on the left and within the eclectic label of critical legal studies seem to have lost that kind of political ambition. What concrete political projects could be served by assessing critically Scott’s international legal history and move beyond his account? I can think of a few but at this stage I will briefly describe one revolving around the concept of equality. If we have returned to pay attention to equality in global politics in recent years it is because of the increasing lack of it, especially in economic terms. The recognition of this trend on a global scale runs against progressive narratives of modernity, predicting that globalisation and the rise of international institutions could only lead to more equality, overall justice and individual rights. Scott’s was one such account: as I explain in detail in the corpus of the dissertation, equality was a key concept in his theory

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of international law already before he started working on Vitoria and turned the Dominican into equality’s prophet. Scott adopted equality as the distinctive principle of American political and legal culture, juxtaposing its progressiveness to the hierarchical societal arrangements of Europe. Yet, behind the surface, Scott’s understanding of equality proved to be based on an elitist and exclusionary logic. If the concept of equality is to return to a prominent place in sustaining transformative political projects in international law, studying Scott can provide a series of warnings about its pitfalls and ambivalences. In general, keeping in mind Vitoria’s persisting role as a key figure in the canon of international legal history, the dissertation sheds light on the contingency of shared assumptions about the discipline of international law and their unspoken implications. The legacy of the international law Scott developed for the American century is still with the profession today, in the shape of the normalisation and de-politicisation of rights language and of key concepts like equality and rule of law. Madam Opponent, I now call upon you to present your critical comments on my dissertation.

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The American Project and the Politics of History: James Brown Scott and the Origins of International Law by Paolo Amorosa, Doctoral Dissertation, University of Helsinki, 2018 If the name James Brown Scott even rings a bell with them, most contemporary Anglo-American international lawyers would assume that this largely forgotten early twentieth-century US international lawyer wrote about the famous sixteenth-century Spanish theologian Francisco de Vitoria because Vitoria was part of the canon of international law. Not so. As Paolo Amorosa’s spellbinding dissertation traces, it was Scott – a widely influential figure in his day – who campaigned to change the conventional story of the origins of international law so that it began not with the seventeenth-century Dutch Protestant international lawyer Hugo ­Grotius, but earlier, with Vitoria.1 Scott’s project to make Vitoria and the later Spanish scholastic Francisco Suárez part of the canon of international law was so successfully absorbed into the discipline that most international lawyers have no idea that it was ever anyone’s ­project – even as Vitoria is hotly debated as a critic of the Spanish conquests in America or an apologist for them.2 Yet any international lawyer who has taken a volume of the Carnegie Classics of International Law off a library shelf has unknowingly laid hands on Scott’s canon, which he popularised through this series of English translations funded by the Carnegie Endowment for International Peace. Scott’s position as the Endowment’s Secretary and Director of its Division of International Law from its establishment by US industrialist Andrew Carnegie in 1910 until Scott’s retirement in 1940 made him ‘arguably the best-funded international lawyer the world had ever seen’.3 In addition to the Classics of International Law, the professionalisation (and ready record) of international law that we inherit from this period is largely of Scott’s making, including the founding of the American Society of International Law and its American Journal of International Law, the American Institute of International Law and the Hague Academy of International Law.

1.  Rise and Fall Combining historiography and professional biography, Amorosa’s marvellous dissertation pivots on James Brown Scott’s campaign to rewrite the history of international law, an overseas cause on which he embarked in the mid-1920s as his vision of international law lost its hold in the United States. The emergence, development and execution of his multi-pronged campaign structure Amorosa’s compelling and

1. Paolo Amorosa, The American Project and the Politics of History: James Brown Scott and the Origins of International Law (2018). All information is drawn from Amorosa unless otherwise indicated. 2. See, eg, Andrew Fitzmaurice, ‘The Problem of Eurocentrism in the Thought of Francisco de Vitoria’ in José María Beneyto and Justo Corti Varela (eds), At the Origins of Modernity: Francisco de Vitoria and the Discovery of International Law (New York, Springer, 2017). 3. Amorosa (n 1) 40.

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original account of the relationship between the intellectual and institutional sides of Scott’s career, integrate the huge volume of material on Scott and his multiple contexts consulted by Amorosa, and drive the critical story forward. But Amorosa has given us even more. His thorough use of the Scott archive at Georgetown University, together with the records of the Carnegie Endowment for International Peace at Columbia University, Scott’s major published work and a remarkable range of relevant literatures in several languages, has produced ‘the first comprehensive critical survey of Scott’s life and thought’, in the words of pre-examiner David Armitage. Scott’s success was at its height in the years leading up to the First World War, when he served as Solicitor to the US Department of State under Secretary Elihu Root and then, moving to the Carnegie Endowment, masterminded a series of projects to institutionalise international law and to promote the ideas of international adjudication and Pan-Americanism that Root and he had prioritised in the State Department. In addition to the American Society of International Law (1906), Scott was among the founders of the American Society for the Judicial Settlement of International Disputes (1910) and of the American Institute of International Law (1912), which he and Chilean international lawyer Alejandro Álvarez conceived of as a version of the Institut de droit international devoted to the regional codification of international law. After the First World War, the judicialism that Scott embraced lost favour, replaced by the idea of collective security embodied in the new League of Nations which President Wilson had championed. As Scott’s professional influence declined within the United States, he turned outward, investing his institutional energy more in the American Institute of International Law, the Institut de droit international and the establishment of the Hague Academy of International Law, all three funded substantially by the Carnegie Endowment through Scott. Most crucial to Amorosa’s story, Scott also pivoted intellectually to the history of international law, undertaking the ambitious research that led to his theory of the Spanish scholastics as the founders of international law. For Scott, Vitoria and Suárez were beacons as well as founders. He considered them, as Christopher Rossi put it, ‘the first liberals, the first feminists, the inspirers of the citizenship clause of the United States Constitution, and, essentially, the grand synthesizers of what would become 18th century republicanism’.4

2.  Scott’s Vitoria In the first three chapters, Amorosa convincingly shows how Scott’s earlier activities and commitments, including intellectual, pedagogical, legal and political, drew him logically to Vitoria. He next analyses the development of Scott’s understanding of Vitoria and, in the final chapters, uncovers Scott’s efforts to put ‘his’ Vitoria to two bold uses: to persuade the Pope to issue an encyclical on peace (unsuccessful) and to support prominent US feminist activists Alice Paul and Doris Stevens in their efforts

4. Christopher R Rossi, Broken Chain of Being: James Brown Scott and the Origins of Modern International Law (The Hague, Kluwer Law International, 1998) 143.

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to achieve two inter-American treaties on women’s equality (successful). Among the remarkable twists and turns in these last chapters is the dashed expectation of the Carnegie Endowment’s Board of Trustees that its decision to fund an extensive modernisation of the Vatican Library would lead the Pope to endorse international law and arbitration. But perhaps the most novel archival material that Amorosa examines in this comprehensively researched and illuminating dissertation relates to Scott’s support of female suffrage and the right to independent nationality for married women.5 As encapsulated in this rather improbable telegram from Scott to Spain’s permanent delegate to the League of Nations, Vitoria was central to Scott’s strategy: ‘I URGE YOUR SUPPORT … ALICE PAUL’S RESOLUTION … WE HOPE SPANISH LEADERSHIP HUMAN RELATIONSHIPS IN ACCORDANCE ­VITORIA’S PROGRESSIVE LAW NATIONS’.6 Until now, Scott’s involvement has only been mentioned in passing by historians of women and nationality. Candice Lewis Bredbenner, for example, quotes Stevens as confiding about Scott: ‘Miss Paul thinks we have never made a more valuable friend’.7 Amorosa’s reconstruction of what was actually an ‘unlikely alliance’8 and the role of Vitoria in Scott’s thought and actions is an important original contribution to histories of women’s transnational activism as well as to the literature on Scott. The American Project and the Politics of History: James Brown Scott and the Origins of International Law thus reveals Scott’s story about Vitoria as a story of and for its time. Amorosa ingeniously analyses the extent to which Scott’s interpretation of Vitoria dovetailed with a range of Scott’s ideas about the international legal order: some judicialist ideas standard in the pre-war years but later displaced, some intended to shift international law’s centre of gravity to the Americas and to give a positive account of rising US power in the region, others like women’s equality more radical and specific to Scott. Whereas recent critical histories of international law in the Americas have concentrated on the contributions of leading Latin American scholars and diplomats,9

5. Until the First World War, the nationality laws of virtually all countries made a married woman’s nationality dependent on her husband’s nationality. As some but not other states reformed their nationality laws, married women could instead be left stateless or with dual nationality. After the War, women lobbied internationally as well as nationally for the equal right to choose their nationality. Whereas feminists were dissatisfied with the 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws, which treats married women’s nationality as a problem of conflicting laws, the 1933 Inter-American Convention on the Nationality of Women – one of what Scott dubbed the two ‘Stevens treaties’ – prohibits sex-based distinctions as regards nationality. 6. Amorosa (n 1) 322. 7. Candice Lewis Bredbenner, A Nationality of Her Own: Women, Marriage, and the Law of Citizenship (Berkeley, University of California Press, 1998) 205. 8. Amorosa (n 1) 22. 9. See, eg, Arnulf Becker Lorca, Mestizo International Law: A Global Intellectual History 1842–1933 (Cambridge, Cambridge University Press, 2014); Liliana Obregón, ‘Completing Civilization: Creole Consciousness and International Law in Nineteenth-Century Latin America’ in Anne Orford (ed), International Law and its Others (Cambridge, Cambridge University Press, 2006); Symposium on Alejandro Álvarez (2006) 19 Leiden Journal of International Law 875.

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Amorosa traces the career and oeuvre of a US Protestant insider who sought to reach the Spanish-speaking and Catholic world: Latin America in his heyday, and later – through Vitoria – Spain, the Holy See and Latin America again. Amorosa’s interest in Scott as part of the ‘American project’ is shared by Benjamin Coates in L ­ egalist Empire: International Law and American Foreign Relations in the Early Twentieth ­Century10 and Juan Pablo Scarfi in The Hidden History of International Law in the Americas: Empire and Legal Networks,11 both published within the past two years. Neither Coates nor Scarfi, though, deals solely with Scott. For Coates, Scott’s career is one window onto ‘how the ideological, cultural, and social needs of legalists shaped the profession’ of international law,12 while Scarfi’s interest is in networks. Moreover, neither delves into Scott’s mission to establish, popularise and deploy Vitoria as the founder of international law. And while Rossi’s 1998 Broken Chain of Being: James Brown Scott and the Origins of Modern International Law both focuses on Scott’s Vitoria and situates his interpretation in its historical time, it is to explain and then repair Scott’s amateurish theory of international law for our own. For Rossi, Scott is a vehicle to study the intellectual history of plenitudinism in international law because Rossi sees Scott as animated by the substantive plenitudinist idea that the international legal system is complete because universal values are always available to fill gaps.13 Amorosa’s project on Scott and the origins of international law is a very different one. He does not set out to assess or correct Scott’s interpretation of Vitoria in historical, legal, philosophical or theological terms. Rather, his goal is to explain the production of Scott’s interpretation of Vitoria and its use; that is, the politics of history.

3.  The Politics of History The ‘politics of history’ in Amorosa’s title is a reference primarily to Scott’s history of international law, but also to recent methodological friction between historians and international lawyers – including about the limits of history as a form of political critique. As a substantive matter, while contemporary controversies over the understanding of Vitoria among historians and international lawyers, including Robert A Williams, Jr, Anthony Pagden, James Anaya, Antony Anghie, Annabel Brett, Georg Cavallar, Pablo Zapatero and Martti Koskenniemi, are the context for the dissertation, they are not directly relevant because Amorosa’s interest is specifically in Scott’s Vitoria. As a matter of methodology, however, these controversies have surfaced what appear to be differences between the disciplines of history and law, and it is here that Amorosa weighs in by virtue of his choice of historical method. 10. Benjamin Allen Coates, Legalist Empire: International Law and American Foreign Relations in the Early Twentieth Century (New York, Oxford University Press, 2016). 11. Juan Pablo Scarfi, The Hidden History of International Law in the Americas: Empire and Legal Networks (New York, Oxford University Press, 2017). 12. Coates (n 10) 60. See also John Hepp, ‘James Brown Scott and the Rise of Public International Law’ (2008) 7 Journal of the Gilded Age and Progressive Era 151. 13. Rossi (n 4) vii–viii.

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Amorosa associates himself with contextualism as formulated by historian Quentin Skinner: ‘we need to situate the texts we study within such intellectual contexts and frameworks of discourse as enable us to recognise what their authors were doing in writing them’.14 At the same time, he intends his ‘story of Scott as an ideological innovator who adopted Vitoria as an historical subject and, at the same time, a proxy for his agenda’ to counter international lawyers who argue that contextualism limits history as a form of critique.15 In particular, international lawyer Anne Orford asserts that studying the past only as the past will make the historical scholarship done by international lawyers more conservative by constraining them from reflecting ‘upon the past as a critical participant in the practice of international law in the present’.16 Recognising that Amorosa’s primary purpose is not to contribute to this debate on method, I nonetheless want to suggest that the debate could recede further in the framing of his dissertation. My main reason is that Amorosa may be pushing against an open door. His project is motivated by, and largely in tune with, an earlier intervention by Orford, in which she draws out Scott’s Vitoria in the work of leading Third World Approaches to International Law international lawyer Antony Anghie.17 Taking issue with contextualist criticisms that Anghie assumes ‘a false continuity and connectedness’ or makes ‘fanciful connections’ between Vitoria’s ideas of international law and the imperialism of later centuries,18 Orford argues that these historians misconstrue Anghie, and that his method is contextual as well as critical. For her, it is significant that Anghie begins with Vitoria’s lectures ‘De Indis Noviter Inventis’ and ‘De Jure Bellis Hispanorum in Barbaros’ as the opening volumes of the Carnegie Classics of International Law and cites Scott’s The Spanish Origins of International Law: Francisco de Vitoria and his Law of Nations.19 Although ‘Anghie does not deal with Scott in any detail in his history’, Orford reads Scott and his time as the historical context for Anghie’s discussion of Vitoria. That is, Anghie has not invented a project of modern internationalism that he then ‘anachronistically projects backward onto early modern ius gentium’, but rather … early modern ius gentium was systematically and carefully reconstructed in the United States of America at the

14. Amorosa (n 1) 9 (quoting Quentin Skinner, Visions of Politics: Volume I, Regarding Method (Cambridge, Cambridge University Press, 2002) vii). 15. Amorosa (n 1) 3, 8–12. 16. Anne Orford, ‘International Law and the Limits of History’ in Wouter Werner, Marieke de Hoon and Alexis Galán (eds), The Law of International Lawyers: Reading Martti Koskenniemi (Cambridge, Cambridge University Press, 2017) 303. But see Andrew Fitzmaurice, ‘Context in the History of International Law’ (2018) 20 Journal of the History of International Law 5, 14. 17. Amorosa (n 1) 3. 18. Anne Orford, ‘The Past as Law or History? The Relevance of Imperialism for Modern International Law’ IILJ Working Paper 2012/2 (June 2012), http://ssrn.com/abstract=2090434, 16 (quoting Georg Cavallar, ‘Vitoria, Grotius, Pufendorf, Wolff and Vattel: Accomplices of European Colonialism and Exploitation or True Cosmopolitans?’ (2008) 10 Journal of the History of International Law 181, 207). 19. Orford (n 18) 11, 14 (citing Antony Anghie, ‘Francisco de Vitoria and the Colonial Origins of International Law’ (1996) 5 Social & Legal Studies 321, 321).

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dawn of the twentieth century to make sense of practices and institutions that were already reshaping the world.20

If Orford herself has thus ironed out what seemed to be a methodological difference between Anghie’s post-colonial critique of Vitoria and the constraints of contextualism, then the debate is somewhat beside the point for Amorosa’s dissertation.

4.  History and Canon As distinct from the politics of ‘history’, Amorosa also raises the politics of a ‘canon’ in his introduction. Drawing again on Skinner, he distills the problem of the canon as follows: canons of intellectual contribution are not fixed. They derive from contingent decisions and projects, like Scott’s [and can therefore] … be questioned and problematized. On the one hand, having a canon … helps creating a common tradition of intellectual exchange … On the other hand, a canon is a limit to renewal and originality. Restricting the analysis of intellectual traditions to few important books or authors, understood in dialogue with one another, is problematic. It may lead the lawyer to overlook the complexity of the intellectual and social milieu in which the canonical texts were produced. It also risks condemning texts and authors that are left outside on the basis of judgments made by early canon-setting authorities like James Brown Scott.21

As Amorosa suggests, the idea of a canon has yet to be explored in international law, and rethinking the canon at this level would be a valuable future project. To that end, Amorosa could, in my view, make the distinction between a history and a canon more explicit throughout the dissertation. Amorosa incisively analyses both how Scott advanced his story of Vitoria as such and how he used it to advance other causes. For Scott, it seemed to follow that once Vitoria was recognised as the founder of international law, Vitoria’s ideas would carry greater weight for present-day proposals such as women’s equal rights.22 But one need not follow from the other. Vitoria’s ideas might have become more important without becoming correspondingly more determinate or more persuasive. Consider the following passage in a letter to Scott from Dutch international lawyer Jan de Louter, his recent collaborator on a Carnegie Classics edition of Bynkershoek: ‘I well enough can agree with you in the glorification or hero-worship of Fr. Vitoria … but I cannot share your exultation of the individual man-woman or (oder) child, and most universal ­phenomena’.23 ­Similarly,  although the Vatican might have been attracted to the theory of the

20. Orford (n 18) 14, 16 (quoting Ian Hunter, ‘Global Justice and Regional Metaphysics: On the Critical History of the Law of Nature and Nations’ in Shaunnagh Dorsett and Ian Hunter (eds), Law and Politics in British Colonial Thought: Transpositions of Empire (New York, Palgrave Macmillan, 2010) 20). 21. Amorosa (n 1) 15. 22. Amorosa (n 1) 3–4. 23. Amorosa (n 1) 322–23.

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­ atholic origins of international law, the Pope did not ultimately endorse the ideas C about peace that Scott attributed to Vitoria. Moreover, once Scott had established Vitoria as the founder of international law, alternative interpretations of Vitoria would also carry more importance. These may be points about the power of a canon more than the power of a history. Pursuing the nature or function of a canon in international law would also open up parallels with the crisis of the canon as a literary idea.24 Akin to some literary theorists, Amorosa has demystified the canon by revealing the role of ‘a complex system of cultural, academic, aesthetic and political alliances’ in its production.25 In the Department of Justice Building in Washington, DC, Vitoria is one of the ‘Great Codifiers of the Law’ depicted in a mural of eighteen larger-than-life panels in the Ceremonial Entrance. It is little known that Vitoria’s face was actually modelled on Scott. The story as told by his protégé George Finch is that Scott was unable to find a likeness of Vitoria for the artist and therefore became a substitute – a tribute that Finch considered ‘Poetic Justice’.26 For Orford, Finch’s vignette leads to the caution that the Vitoria who was reclaimed for twentieth century international law arrived between the covers of a book emblazoned with the name of one of the richest industrialists of the nineteenth century, in a series edited by one of the most influential American international lawyers and moralists of the early twentieth.27

Amorosa develops and inflects the story further. The explanation for what might seem like the artist’s wink to Scott or Scott’s own act of vanity actually lies in one of the purposes to which Scott put Vitoria, namely, women’s equality. It was Doris Stevens, a mutual friend, who proposed Scott to the artist as a fitting stand-in, as well as the addition of Vitoria to the mural in the first place. What, we might wonder, did Vitoria mean for Stevens? Amorosa describes Scott’s inclusion of Stevens as the Secretary of Sessions for the first US meeting of the all-male Institut de droit international in 1929 and Stevens’s use of a Columbus Day banquet during the meeting to toast a woman, Isabella of Castile, as the ruler who had sent Christopher Columbus west and therefore without whom Vitoria would not have founded the modern law of nations. Stevens thus sought to leverage Vitoria beyond his texts to argue for women’s political leadership in keeping with the equal-rights feminism of her time. Again, the point worth pursuing is that the addition of a figure to a mural or an author to a series is less determinate than the rewriting of the history of international law. More­ over, seen in a larger view, the very idea of a canon can be re-theorised to address its

24. See, eg, Jan Gorak, The Making of the Modern Canon: Genesis and Crisis of a Literary Idea (London, Athlone, 1991). 25. Ibid, 3 (discussing Richard H Brodhead, The School of Hawthorne (New York, Oxford University Press, 1986)). 26. George A Finch, ‘James Brown Scott, 1866–1943’ (1944) 38 American Journal of International Law 183, 199. 27. Orford (n 18) 17.

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conservative, exclusionary nature: Northrop Frye’s visionary canon or Edward Said’s open canon, for example.28 As Amorosa noted in the public examination of his dissertation, however, emphasising the idea of a canon further may take him too far from his choices about context. To quote David Armitage, Amorosa ‘pursues a dual strategy of rational reconstruction and critical distance, allowing the reader to appreciate the structure and detail of Scott’s arguments while also revealing their contingent purposes and, where appropriate, their historical shortcomings and ideological intentions’. Scott sought to rewrite international law, not only to remake its canon, and Amorosa’s critique, as Armitage observes, comes from his elucidation of Scott’s multifaceted project. Amorosa’s choices about context are driven largely by what he understands Scott to treat as significant. For example, one of Amorosa’s distinctive contributions to the literature on Scott is his sustained exploration of the religious, specifically ­Catholic, dimensions of Scott’s professional projects and what might have drawn Scott  – ­himself a Presbyterian – to elaborate a Catholic conception of international law and to approach the Vatican at a time when the US foreign policy establishment was dominated by WASP men. By the same token, Amorosa pursues Scott’s identification with the equal-rights feminism of Paul and Stevens, but does not examine whether contemporaneous ideas of the masculine and the feminine were relevant to the appeal of the judicialism that Scott sought to advance in international law. That said, it could be argued, as Coates does, that Scott himself recognised the gendered pitfalls and even laboured to portray his projects as manly. Coates writes: For Scott and his contemporaries, the problem with embracing a moralistic conception of international law was … being dismissed as utopian, emasculated dreamers unworthy of inclusion in the councils of state. This fear was especially salient in an era that prized vigorous masculinity. Beginning in the late nineteenth century … Victorian-era definitions of manhood as restrained and upright behavior faced competition from a new vision … a shift from mature ‘manliness’ to the more assertive ‘masculinity.’ … In the 1890s, male supporters of international arbitration had been attacked both for their disavowal of martial glory and their alliances with women and women’s organizations.29

5.  Legal History’s Methodological Moment Regardless of whether the idea of a canon deserves more attention in his already superb dissertation, I would encourage Amorosa to explore the ways in which his

28. See Gorak (n 24). 29. Coates (n 10) 62. See also 65, 74, 85, 159.

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analysis might connect to larger directions in legal history. Legal history is having a ‘methodological moment’.30 In international law, Doreen Lustig argues, this moment should be embraced as encompassing more than the recent tension between contextual and critical historiography and the continuing contestation over how to address the question of Eurocentrism and empire.31 Furthermore, as Amorosa observes, the contextualism versus critique debate ‘is neither new nor fully representative of the methodological conversations on critical legal history at the cutting edge’.32 The most relevant direction for Amorosa’s dissertation is perhaps the ‘doing things with history’ scholarship.33 His account of Scott’s Vitoria is a model of the multiple uses to which a past thinker, Francisco de Vitoria, can be put not only in international law and theory, but in the configuration of the international legal profession and in legalist diplomacy. Another related direction would generalise from the attention to form implicit in the notion of a canon. Literary artifacts like canons, classics and curricula have furnished lenses for legal historians in other disciplines of law. Writing in a volume devoted to the legal treatise, Christopher Tomlins argues: ‘we should not be satisfied with the conventional historian’s move of adumbrating the appropriate contexts for our texts. The texts stand as objects for our aesthetic as well as our analytic contemplation’.34 For example, on the one hand, Scott needed to be credited with elevating Vitoria and Suárez because he traded on that credit to further additional goals. On the other, it is precisely his erasure of himself, and ultimately our forgetting of him, that consolidated the canon. Amorosa writes: Scott made himself credible as a translator of that past into the present through humility. His language was flowery, even pompous at times, but always aimed at praising great ideas, political cultures and men of authority, never himself or his own achievements.35

In conclusion, Paolo Amorosa’s The American Project and the Politics of History: James Brown Scott and the Origins of International Law is, as David Armitage writes, ‘without doubt, the study of Scott historians of international law, of US international relations, and of the history of political thought have been waiting for’. It also innovates critically by connecting the re-telling of international legal history in different formats with that retold history in action. Amorosa’s impressive and original

30. Markus D Dubber, ‘Legal History as Legal Scholarship: Doctrinalism, Interdisciplinarity, and Critical Analysis of Law’ in Markus D Dubber and Christopher Tomlins (eds), Oxford Handbook of Legal History (Oxford University Press, 2018) 99. 31. Doreen Lustig, ‘Governance Histories of International Law’ in Dubber and Tomlins, ibid, 862–64 (version as of 18 October 2017), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3052361. 32. Amorosa (n 1) 7. 33. See, eg, Part V of Dubber and Tomlins (n 30). 34. Christopher Tomlins, ‘Commentary: Effects of Scale: Toward a History of the Literature of Law’ in Angela Fernandez and Markus D Dubber (eds), Law Books in Action: Essays on the Anglo-American Legal Treatise (Oxford, Hart Publishing, 2012) 241. 35. Amorosa (n 1) 202–203.

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dissertation thus establishes Scott’s role as what Armitage calls ‘the indispensable figure in the anglophone history of international law in the first half of the twentieth century’ and his fingerprints on the story of international law’s origins that modern international lawyers have inherited from that period. Karen Knop Professor Faculty of Law, University of Toronto [email protected]

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Developing the Reasoning of the European Court of Human Rights Would Improve its Judicial Legitimacy Maija Dahlberg* At first sight, the fundamentality of human rights seems rather self-evident for us who live in a Western welfare state. Human rights are part of everyday life. From a journalist’s viewpoint, one clear example would be the balancing of the right to a private life against freedom of speech, and another would be the absolute prohibition of torture and of inhuman or degrading treatment or punishment. Sometimes, however, human rights issues do not appear so clearly to the public. For example, whether a prisoner should have the right to vote and whether it is acceptable to place religious symbols in a classroom may not seem like real human rights issues. Human rights are protected under several international conventions and the Council of Europe’s Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter the ‘European Convention on Human Rights’ or the ‘Convention’) is one of the central human rights conventions in Europe. More than 200 conventions exist under the Council of Europe’s system, of which the European Convention on Human Rights is the most significant. The European Convention on Human Rights was drafted after the Second World War and entered into force in 1953. In the beginning, there were ten Contracting States and now there are 47. This will become 48 after the European Union accedes. The original text of the Convention is over 60 years old and since its adoption the Convention has been amended a number of times and supplemented with many new rights. The Convention system is underpinned by the European Court of Human Rights (ECtHR), which applies and interprets the Convention. The ECtHR’s interpretative praxis is dynamic and from the outset the ECtHR has not adhered to the idea that a literal approach should be taken to the interpretation of the text of the Convention or that it should be interpreted by reference to the intentions of the original Contracting States. Instead, the ECtHR has interpreted the Convention in a dynamic way and in the light of present day conditions. Furthermore, the ECtHR has emphasised that the Convention’s aim is to protect the rights of individuals. A concrete example is the imposition on states of positive obligations in respect of the right to private and family life. Article 8(1) of the Convention provides as follows: ‘Everyone has the right to respect for his private and family life, his home and his correspondence.’ The ECtHR has interpreted this to mean that states have a positive obligation to organise national legislation in such a way as to enable a child who is born out of wedlock to

* Lectio Praecursoria, held at the public examination of the doctoral dissertation at the University of Eastern Finland, 12 June 2015. Professor Elina Pirjatanniemi from the Åbo Akademi acted as the opponent.

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be integrated into her family and develop normal family relationships.1 The second example of positive obligations concerns freedom of speech under Article 10(1) of the Convention, which states: Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

The ECtHR has interpreted this as imposing a positive obligation on states to protect newspapers and their journalists against violence and intimidation.2 The individual application mechanism is another cornerstone of the system created by the Convention. This mechanism differs from the supervisory mechanisms laid down under most international conventions because it allows every natural person, non-governmental organisation or group of individuals covered by the jurisdiction of the Convention to appeal to the ECtHR if their rights under the Convention have been violated. Due to the use of this individual application system and to the presence of a functioning court, the European Convention on Human Rights’ system has been described as the most effective supervisory machine for human rights in Europe.3 The ECtHR’s extensive and dynamic interpretations of Convention provisions have also been the subject of serious criticism. There must be limits on the extent to which the ECtHR can apply the principles of dynamic interpretation without undermining its legitimacy. There is also a general concern that the ECtHR does not recognise cultural and national sensitivities.4 Furthermore, the ECtHR has been dubbed the ‘asylum court’ because of the extension of the applicability of Article 3 (prohibition of torture or inhuman or degrading treatment or punishment) to the living conditions of asylum seekers.5 It has been argued that in several asylum cases 1. Marckx v Belgium, Application no 6833/74, European Court of Human Rights, Judgment (13 June 1979). 2. Özgür Gündem v Turkey, Application no 23144/93, European Court of Human Rights, Judgment (16 March 2000). 3. See, eg, Henry J Steiner and Philip Alston (eds), International Human Rights in Context – Law, Politics and Moral, 2nd edn (Oxford, Oxford University Press, 2000) 801, 807; Laurence Helfer and ­Anne-Marie Slaughter, ‘Towards a Theory of Effective Supranational Litigation’ (1997) 107 Yale Law Journal 273, 296; Laurence Helfer, ‘Redesigning the European Court of Human Rights: Embeddedness as a Deep Structural Principle of the European Human Rights Regime’ (2008) 19 European Journal of International Law 125, 125. 4. See, eg, Luzius Wildhaber and Steven Greer, ‘Reflections of a Former President of the European Court of Human Rights’ (2010) 2 European Human Rights Law Review 165; Egbert Myjer, ‘One Salduz a Year is Enough. 20 Associative Thoughts on Judge Rozakis, Judicial Activism and the Salduz Judgment’ in Dean Spielmann, Marialena Tsirli and Panayotis Voyatzis (eds), The European Convention on Human Rights, a Living Instrument: Essays in Honour of Christos L. Rozakis (Bruylant, 2011) 428; Gerhard van der Schyff, ‘Two-Stage Rights in the ECHR’ in Eva Brems and Janneke Gerards (eds), Shaping Rights in the ECHR, The Role of the European Court of Human Rights in Determining the Scope of Human Rights (Cambridge, Cambridge University Press, 2013) 79–81. 5. Marc Bossuyt, ‘The Court of Strasbourg Acting as an Asylum Court’ (2012) 8 European Constitutional Law Review 203; Marc Bossuyt, ‘Is the European Court of Human Rights on a Slippery Slope?’ in

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the ECtHR has transformed a civil right (as laid down in Article 3) that must be respected regardless of the available resources into a social right (the right to certain living conditions) requiring considerable expenditure.6 There has been much criticism in the United Kingdom of the ECtHR’s legitimacy and withdrawal from the Convention has been seen as a serious option.7 The Finnish courts have also at times had difficulty in accepting the ECtHR’s dynamic interpretations.8 By constantly stretching the boundaries of the Convention’s provisions and by creating new rights and obligations under the Convention, the faith of the Contracting States in the acceptability both of the ECtHR and of the whole Convention system has been placed in jeopardy. The ECtHR’s case load, which is a well-known and much discussed area of contention, has also weakened the functionality and acceptability of the Convention system. In 2013, close to 66,000 applications were allocated, some 100,000 were pending at the same time, and nearly 94,000 were decided (by decision or judgment). There is a clear historical trend: applications have been received at a considerably higher rate than they have been decided. The trend is luckily slowly turning. However, in practice it may still take the ECtHR 10 years or more to deliver a judgment. This inefficiency has led to the legitimacy of the whole Convention system being questioned. The Convention system and its legitimacy has been the subject of much recent international legal research.9 However, such research has not focused on the ECtHR’s

Spyridon Flogaitis, Tom Zwart and Julie Fraser (eds), The European Court of Human Rights and Its Discontents, Turning Criticism into Strength (Cheltenham, Edward Elgar, 2013). 6. Bossuyt, ‘Is the European Court of Human Rights on a Slippery Slope?’, ibid, 32; MSS v Belgium and Greece, Application no 30696/09, European Court of Human Rights, Grand Chamber (21 ­January 2011); Rahimi v Greece, Application no 8687/08, European Court of Human Rights, Judgment (5 April 2011); Sufi and Elmi v the United Kingdom, Application nos 8319/07 and 11449/07, European Court of Human Rights, Judgment (28 June 2011). 7. See, eg, Rowena Mason, ‘Grayling says European Court of Human Rights has Lost Legitimacy’ The Guardian (30 December 2013) www.theguardian.com/law/2013/dec/30/grayling-european-courthuman-rights-legitimacy; Tom Brooks-Pollock, ‘Strasbourg Court Undermines Democracy, says Former Lord Chief Justice’ The Telegraph (1 October 2014) www.telegraph.co.uk/news/worldnews/ europe/11132446/Strasbourg-court-undermines-democracy-says-former-Lord-Chief-Justice.html; James Kirkup, ‘Britain May Need to Withdraw from European Convention on Human Rights, says Cameron’ The Telegraph (29 September 2013) www.telegraph.co.uk/news/politics/conservative/ 10342403/Britain-may-need-to-withdraw-from-European-Convention-on-Human-Rightssays-Cameron.html; Jon Henley, ‘Why is the European Court of Human Rights Hated by the UK Right?’ The Guardian (22 December 2013) www.theguardian.com/law/2013/dec/22/ britain-european-court-human-rights. 8. See the judgment of the Finnish Supreme Administrative Court KHO 2012:75. 9. See, eg, Steven Greer, The European Convention on Human Rights: Achievements, Problems and Prospects (Cambridge, Cambridge University Press, 2006); Andreas Føllesdal, Johan Karlsson Schaffer and Geir Ulfstein (eds), The Legitimacy of International Human Rights Regimes: Legal, Political and Philosophical Perspectives (Cambridge, Cambridge University Press, 2014); Jonas Christoffersen and Mikael Rask Madsen (eds), The European Court of Human Rights between Law and Politics (Oxford, Oxford University Press, 2011); Nick Huls, Maurice Adams and Jacco Bomhoff (eds), The Legitimacy of Highest Courts’ Rulings, Judicial Deliberations and Beyond (The Hague, TMC Asser Press, 2009).

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argumentation when addressing questions of legitimacy. My research aims at addressing this issue. The aim of the thesis is to concretise this critique in four stories that focus on the tension between the ECtHR’s methods of interpretation and the need to maintain its legitimacy. While legitimacy is a complex notion that lacks an unequivocal definition, its essence is that the ECtHR’s authority must be justified and acceptable. Legitimacy offers a meaningful tool for analysing the ECtHR’s role and functioning. The ECtHR has built up a role as the most workable international human rights court, but this success story is in crisis: the functionality, credibility and legitimacy of the Convention system will be measured in forthcoming years and the ECtHR itself holds the keys to maintaining its position. Judicial legitimacy is at the core of all four articles of this study. The underlying questions are, first, what the ECtHR’s judicial legitimacy is based on, and second, how its judicial legitimacy can be achieved. The question of its legitimacy is examined particularly in the context of the ECtHR’s constantly expanding interpretations of Convention provisions, using the startingpoint that it either gains or loses its judicial legitimacy through the reasoning used in its judgments. Furthermore, all four articles tackle certain aspects of the ECtHR’s legitimacy, although I do not offer a blueprint as to how it may be rescued. The first story concerns positive obligations and principle of subsidiarity in the ECtHR’s case law.10 The second story analyses comparative argumentation by the ECtHR, and asks whether comparative argumentation offers means of enhancing the legitimacy of its judgments and, consequently, its legitimacy.11 The third story analyses the arguments concerning the inclusion of social rights in the ECtHR’s interpretation of the provisions of the Convention. The question is whether it is legitimate for the ECtHR to include social rights within the Convention when it is clear that the Convention does not cover social rights.12 Finally, the fourth story balances formal and substance legitimacy in the context of the right to a fair trial (Article 6 of the Convention).13 Focusing on the ECtHR’s interpretations means, in practice, also focusing on its legal argumentation. Legal argumentation leads the study into the field of legal theory. In this context, the term ‘legitimacy’ refers to judicial legitimacy, which means focusing on the judiciary’s point of view in relation to legitimacy. Judicial legitimacy can be divided into formal legitimacy and substance legitimacy. Formal legitimacy is gained by respecting procedural rules and the subsidiarity principle in its different forms; while substance legitimacy means paying attention to the content of the judgment and whether it can be seen as justified and acceptable. Justification and

10. Maija Pitkänen, ‘Fair and Balanced Positive Obligations – Do They Exist?’ (2012) 5 European Human Rights Law Review 538. 11. Maija Dahlberg, ‘“The Lack of Such a Common Approach” – Comparative Argumentation of the European Court of Human Rights’ (2015) 23 Finnish Yearbook of International Law 73. 12. Maija Dahlberg, ‘Should Social Rights Be Included in Interpretations of the Convention by the European Court of Human Rights?’ (2014) 16 European Journal of Social Security 252. 13. Maija Dahlberg, “‘… It is not its task to Act as a Court of Fourth Instance” – The Case of the European Court of Human Rights’ (2015) 7 European Journal of Legal Studies 84.

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acceptability can be distinguished on the grounds that justification refers to the argumentation the judge uses to justify the chosen interpretation to herself while acceptability means making the legal decision acceptable to the audience. Therefore, the focus is on what is required in order for a legal decision to be acceptable. Evaluation of the acceptability of the ECtHR’s interpretative doctrines leads to analysis of its argumentation. The ECtHR’s methods of interpretation and the need to maintain its legitimacy are central to this research, and, as a consequence, also to its reasoning. Consequently, substance legitimacy is the focus of the study. One of the main propositions to be defended is that through its legal argumentation the ECtHR either acquires or loses judicial legitimacy. The key conclusions of the study are that argumentation and legitimacy are inseparably interlinked in relation to the ECtHR’s judicial legitimacy, and that substance trumps form in relation to legitimacy. The stories outline the key conclusion of the study, which is that the ECtHR’s judicial legitimacy comprises four requirements: (1) form; (2) sources of law; (3) methods of interpretation; and (4) the nature of the reasoning used. This study develops further the acceptability criteria concerning legal sources and methods of interpretation that are created in rational argumentation theory.14 Furthermore, the four stories reveal that applying several legal sources and emphasising those methods of interpretation that support rights-centred points of view enhance the acceptability of a judgment. As regards the fulfilment of requirements concerning form and process, procedural rules and the principle of subsidiarity must be respected. The requirement concerning the nature of reasoning means that the ECtHR should use cumulative, open and transparent argumentation and the argumentation should also show the counter-arguments. Each of these requirements has arisen in these four stories. Judicial legitimacy requires that all four requirements are fulfilled at the same time. If one is lacking, judicial legitimacy is weakened. Achieving judicial legitimacy through legal reasoning is not an important issue solely in the field of legal theory. In practice, achieving judicial legitimacy may also improve national courts’ readiness to follow the ECtHR’s judgments at national level. Furthermore, the study paves the way for the Contracting States to take a positive attitude towards the Convention system even though the ECtHR will probably keep imposing more obligations on states in the future. A positive and constructive attitude towards human rights is extremely desirable both in relation to the European Convention on Human Rights’ system and in relation to human rights overall. Because of this, the legitimacy of the ECtHR is a significant issue.

14. Aulis Aarnio, Rational as Reasonable: A Treatise on Legal Justification (Dordrecht, Reidel, 1987); Neil D MacCormick and Robert S Summers (eds), Interpreting Statutes (Aldershot, Dartmouth, 1991); Aleksander Peczenik, On Law and Reason, 2nd edn (New York, Springer, 2009); Robert Alexy, A Theory of Legal Argumentation: The Theory of Rational Discourse as Theory of Legal Justification (Oxford, Clarendon Press, 1989); Jerzy Wróblewski, The Judicial Application of Law (Dordrecht, Kluwer, 1992).

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The Death of the Freedom Fighter – How the Threat of Terrorism is Suffocating the Protection of Political Criminals* Julia Jansson Honourable Opponent, Custos, ladies and gentlemen, This is a short presentation on the findings of my Doctoral Thesis. Its aim is to give an overview of the themes of my dissertation and to touch upon the concepts and questions that lay at its core. Most of you only know that I have been working on a thesis on terrorism. However, that is not entirely true. Terrorism is one of the key themes that I discuss in the book but the main findings of my research relate to the issues of political crime and political criminals. During the process of conducting research, I slowly learned that the existence of terrorism affected the way in which political crime was treated. Similarly, the way in which political crime was treated affected how terrorism was understood. This dynamic between political crime and terrorism became the focus of my study. My thesis demonstrates two things: First, it shows that political criminals were strongly protected until the modern terrorist threat emerged. Since then, the prior protection for all political criminals has become weaker and weaker. Second, because political crime was considered a special category of crime, more and more states wanted to deny the political nature of terrorism. I call this the depoliticisation of terrorism. I will explain this a bit more in the following. As stated, political crime was typically treated differently in comparison to so-called common crime. First, for a long time, political criminals were seen as the most dangerous types of criminals because they threatened the existence of the state itself. Robberies and murders were considered as private quarrels, but political crime attacked the structures of the state and thus threatened its very existence. In order to catch political criminals, extradition treaties were created. Extradition treaties are treaties between two or more states which aim at securing the transfer of criminals between Contracting States. In other words, if a criminal flees one Contracting State and lands on the territory of another, this state will, upon request, surrender the criminal. As a result of the spread of liberal-democratic ideas after the French revolutions of 1789 and 1830, the viewpoint on political offenders changed. A new romantic view considered them noble revolutionaries, and possible state leaders. In consequence, in 1834, the so-called political offence exception to extradition (POE) was created.

* Lectio praecursoria, held at the public examination of the doctoral dissertation at the University of Helsinki, 9 June 2018. Dr Saskia Hufnagel from the Queen Mary University of London acted as the opponent.

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The idea of the exemption was to allow states to deny the extradition of political criminals without creating a diplomatic mess. In other words, if the crime was of political nature, there was a legitimate reason to decline the surrender of the fugitive. What made this practice complicated was the fact that different states have always held different views on what constitutes as political crime. Some have thought all crime committed for political reasons should be considered political. Some have deemed crimes committed during times of political unrest as political in nature. Others have argued that only those crimes that directly target state structures can be seen as political. The US has in the past been one of the countries with the most liberal views on political offenders. Soon after its creation, the political offence exception to extradition proved to be complicated. First, the rise of so-called ‘attentats’ put it to test. In Europe, since the mid-1800s, there was a growing trend to try to change political conditions by killing a Head of State. Because this practice was widely considered unacceptable, the first limitation to the political offence exemption, the so-called attentat clause, was created. The attentat, or Belgian clause, stated that attacks against the lives of Heads of State would not be protected by the POE. The second problem to the exemption arose with the wave of anarchist terrorism in the late 1800s. Anarchists threw bombs, created chaos and aimed at destroying governments altogether. They also used attentats as a method. Some countries contended that anarchist deeds should be exempted from the political offence exception. They claimed that anarchism had nothing to do with politics because anarchists aimed at destroying politics completely. The use of the attentat clause spread as a reaction to the anarchist threat and it was incorporated into most extradition treaties since that period. In contrast, the exclusion of anarchists from the protection of the political offence exemption never became common. After the Second World War, the political offence exception was faced with yet another problem. The 1960s and 1970s witnessed the rise of international terrorism. This threat had similar features with the anarchist threat of the nineteenth century, as it was stealthy and the targets of the violent acts included civilians. The terrorism of the period included for instance aircraft hijackings and bombings. One of the famous cases of the time was that of the Palestinian terrorist group Black September attacking the Olympic games held in Munich in 1972. The terrorists took as hostages and killed 11 Israeli athletes and a German police officer. Because terrorist deeds were politically motivated, it proved complicated to deal with them internationally. Due to the political nature of these crimes, some courts considered that the perpetrators were protected by the political offence exception. Further, for instance, the UN had a problem with the concept of terrorism, because the organisation was supportive of so-called freedom fighting, the self-determination of peoples. The International Criminal Police Organisation, Interpol, also turned out to be toothless in the efforts against terrorism. It was limited by its constitution and as a result, could not take a stand on political issues. Once the terrorist threat grew bigger and bigger during the 1970s and 1980s, it became obvious that something had to be done internationally.

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As a result, the 1980s witnessed a change in many policies. First, already in 1977 the European Convention on the Suppression of Terrorism signed by the majority of European States excluded terrorism from the scope of the political offence exemption. This meant that signatory states agreed that they would no longer consider terrorism a political crime for the purposes of extradition. As mentioned, the US had for a long time held a lenient view on political offenders. It was itself built on rebellion and many political criminals from the old world found refuge on its soil. However, the US was also increasingly affected by the terrorist threat. In addition, the fact that US courts had protected many members of the Irish Republican Army that the UK considered terrorists, proved to be a major diplomatic problem. As a result, in 1985, the new US – UK Supplementary Extradition Treaty excluded all violent crimes from the political offence exception. According to US President Reagan, the Treaty aimed at closing legal loopholes that allowed for the protection of terrorists. Around the same time, in the mid-1980s, both Interpol and the UN started to make slow changes to their policies and started to treat terrorism more as a crime than as a political phenomenon. In my opinion, the changes in US policies affected both these organisations. In the 1990s, this trend was confirmed. Since the last years of the decade, it had become obvious that no one wanted to see terrorists escape justice. More and more anti-terrorist conventions were created. Terrorism was depoliticised by labelling specific acts as terroristic, regardless of their motivations, and by claiming that political motivations did not justify the use of violent means. In other words, long before the most well-known and destructive terrorist attacks of our times, those of 11 September 2001, the world was uniting against the terrorist threat. After 2001, the pace of the changes got faster and many new anti-terrorist conventions and laws saw daylight. In 2004, the so-called European Arrest Warrant was created. In practice, this means that within the EU there is now automatic extradition for all criminals who have committed severe enough crimes, political or not. The new mechanism is built on mutual trust, meaning that states take for granted the legitimacy of the request of the other state. Thus, at the beginning of the 2000s, where my research ends, terrorists were attacked on two fronts. First, they were excluded from the protection of the political offence exception, which meant that they had fewer opportunities to escape extradition. Second, their acts were growingly treated as common crimes. Interestingly, a third, seemingly contrasting development also emerged. I call this the repoliticisation of terrorism. While there was internationally a need to label terrorists as common criminals, nationally more and more countries started to criminalise non-violent acts that related to terrorism, thus underlining the political elements of terrorist acts. For instance, some European states created laws that criminalised the glorification of terrorism. This has led to criminal charges against musicians in Spain for instance.

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The motivation for all these changes was good: not to leave legal loopholes through which terrorists could escape and to make sure terrorists were punished severely. However, restricting the protection of political offenders and the new criminalisations did not only affect terrorists, but also non-violent political offenders. Automatic extradition within the European Union for a variety of crimes means it is very difficult to turn down extradition requests. If we look at the current developments in for instance Hungary and Poland, this automatisation of extradition might turn out to be problematic. My study raises interesting questions that relate to moral issues and future developments. Will the trend of narrowing the protection of political offenders continue in the coming years? Is it possible that the whole concept of the political offence exception will be determined as outdated? The fact that Edward Snowden currently resides in Russia and Julian Assange is hiding in the Ecuadorian embassy in England, demonstrate the limitations that are now in place for non-violent offenders. Is it possible to claim that democracy and the rule of law have won and we can trust other states, to always guarantee fair treatment to political offenders? Is there any room for political offenders in the current world? Is the political offence exemption still necessary? I argue that the narrowing of protection for political offenders in today’s world is a side effect of the fight against terrorism. For this reason, my study is not actually about terrorism, but about the 200 year-long history of liberal democracies facing political offenders. I claim that we have witnessed the death of the freedom fighter and the end of romantic liberalism vis-à-vis political offenders.

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The Death of the Freedom Fighter – How the Threat of Terrorism is Suffocating the Protection of Political Criminals by Julia Jansson, Doctoral Dissertation, University of Helsinki, 2018 Julia Jansson’s original PhD clearly makes a valuable contribution to scientific knowledge on terrorism and the political offences exception (POE). She starts the thesis with three very clear cut and transparent research questions aiming at, first, determining the point in time when terrorism was depoliticised, second, finding out what the interaction between this and the POE was and, third, examining why these changes occurred and what they meant. Jansson takes us through the history of extradition treaties containing the POE, the history of the terrorism offence and puts both into context at the end. As the link between terrorism and the POE has, to my knowledge, never been examined in this way previously, despite abundant literature on both POE and terrorism, the thesis represents original research in the area and adds to the existing body of knowledge. The research focuses on the US perspective, which gives it another twist of originality. More specifically, the dissertation adds new scientific knowledge to the discussion in the US and beyond on terrorism, the POE and depoliticisation of each. It provides a new angle from which to consider terrorism, the POE, depoliticisation and repoliticisation. A particular focus is put on the inter-link between the failure to promulgate a proper, acceptable definition of terrorism and the demise or diminution of the POE. This is a completely new way of addressing the issue. The intersection is furthermore extremely important, and the thesis as it stands provides the academic community with excellent food for thought and opportunity to develop new scholarship. The dissertation provides a history of extradition and the POE as developed through extradition treaties, particularly since the 1830s, but also previously. It demonstrates how the POE was diminished incident to the Irish Terrorism cases and the US – UK Extradition Treaty, including US judicial decisions relating to that Treaty. It also provides a collection of and analyses various relevant academic material, as well as national, international, multilateral and bilateral legislation and case law. The collection of material itself is extremely helpful to scholarly research. The dissertation argues that the attempts to battle terrorism have actually hindered success against it, that attempts to fight terrorism have also eviscerated the POE, and the liberal idea that political dissidents, regardless their political ideology, deserve protection. This has rendered all states and the world less healthy. This perspective is fresh and interesting. It also prompts additional research and consideration. Particularly convincing is Chapter 4, which includes a very good explanation as to how the POE changed with Irish Terrorism cases, from an absolute to a limited exception, if the crime was directed against civilians (like war crimes) and when the crime did not take place where a political struggle took place (eg Ireland). The chapter also includes an outstanding outline of 1970s as opposed to 80s–90s terrorism, putting more recent incidents into perspective.

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1.  The PhD Candidate Demonstrates Critical Thinking The critical analysis excels in particular with a view to international law provisions, such as the treaty law developed by the United Nations, but extends further to bilateral and multilateral treaties and agreements, as well as domestic and international case law. While citing scholars’ criticism in this field, the debates are balanced, academically sound and in no way biased towards one side or the other. The thesis presents a very good and in-depth analysis of the history of the POE including the legislative, judicial and political developments. The analysis improves throughout the thesis and is in particular visible after page 230. Chapter 5 includes a very good critical discussion on the POE. While this thesis provides somewhat more discussion and description than the author’s own critique, the dissertation clearly demonstrates critical thinking. Challenges to the various definitions of terrorism, the development and diminution of the POE, depoliticisation and re-politicisation are well explained. This is done objectively and does not favour any of the camps in the scholarly debate. While the reader would profit from knowing the author’s own position or perspective on these daunting issues in more detail, this will without a doubt be further elaborated in a future publication of this thesis. However, the dissertation and the questions it poses prompt scholarly interest and desire to enter the scholarly fray. The thesis furthermore makes it very clear and elaborates critically that the definition of terrorism and its depoliticisation are thorny topics for anyone to address, but addressing them is important. It highlights that it is necessary to try to come up with a legal definition of terrorism, in as much as perpetration of terrorism can cause armed conflict or war and it may prompt prosecution and/or punishment of perpetrators. The dissertation prompts enthusiasm to address these extremely difficult problems. Thus, the thesis raises and analyses issues that provide opportunity for critique and deeper analysis for both Jansson and other scholars in the future. One might argue and be able to establish that conduct including these elements is universally condemned in the sense that it is recognised as criminal or worthy of prompting violent reaction, armed conflict or even war, whenever it is committed against any nation or group. Virtually all nations and groups condemn it as criminal, at least when terroristic conduct is perpetrated against those in the group or nation. The nation or group considers itself to have been attacked and justified in prosecuting the perpetrators or even taking up arms against them. From the perspective of the attacked nation or group, the end or goal, sought to be obtained by the perpetrators, does not provide an excuse or a justification. It does not matter what ideology, philosophy, or religious ideal is being promoted. The conduct is considered aggression and criminal no matter what it is designed to accomplish, whether to promote some ideology, political goal, change of regime, attract adherents, or simply as nihilistic violence. This is true, even if it is aimed at combating terrorism or at combating oppression. These points are clearly open to debate and the dissertation clearly prompts such debate. The thesis relates to the difficulty in defining ‘innocents’ (268) and continues by raising issues ripe and important for future scholarship: The problem of the exclusion

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of terrorist offences from the scope of political offences is equal to the problem of trying to create an anti-terrorist resolution. For instance, John Patrick Groarke has been of the opinion that with a global definition of a political offence, it would be possible to exclude those who have attacked civilians from the protection of the POE, meaning that the most ‘offensive type of terrorist acts’ would not go unpunished. A similar stance was taken by the courts in the Eain and Quinn cases. However, as in trying to create a global antiterrorist resolution, the definition of civilian has in itself proved to be problematic. For example, is violence against the police forces of the state legitimate? In Antje Petersen’s words: ‘[…] uncertainty clashes with uncertainty when terrorism has to be located on a scale of acceptable political struggle in the context of deciding on protection from extradition’.1 This is a major issue and difficulty in trying to define terrorism. The dissertation does a great service raising the issue once again for future scholarly treatment and debate. Adding the author’s opinion in a future publication on the impact of defining terrorism with regard to extradition and the POE, as well as the relationship of nations being allies and their decision to extradite or not to extradite would be of great benefit to scholarship on the issues. Throughout, including on page 239, the dissertation raises fascinating questions relating to the nexus between the failure to promulgate a proper, acceptable definition of terrorism and the demise of the POE.

2. The PhD Candidate Demonstrates Profound Familiarity with the Field Jansson’s knowledge of the field is, as demonstrated, outstanding. The number of treaties she has studied as well as the related case law is truly impressive. Her masterful examination of the literature derived from many different fields is clearly based on an intimate familiarity with the topic. Her ability to speak and understand different languages has clearly helped to analyse a number of important sources beyond the reach of English speaking scholars. The second chapter contains a very good definition section of the relevant concepts within the historical context that shows an in-depth understanding of both context and definitions. It furthermore demonstrates an intimate knowledge of the academic literature in the field, including a number of different disciplines. The historical context of extradition is very well discussed and while the legal requirements could have been discussed in more depth, the development is meticulously outlined and very well written and researched. In Chapter 3, Jansson outlines the concepts of extradition and the POE very well in the historical context. For a publication, there should be more comparative legal analysis included, which is very relevant to the assessment of the history of extradition. However, the chapter includes a very good comparison of the different 1. AC Petersen, ‘Extradition and the Political Offence Exception in the Suppression of Terrorism’ (1992) 67(3) Indiana Law Journal 767–96, 788.

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clauses/wording used in extradition treaties, showing great familiarity with original sources. Chapter 4 contains a comprehensive historical overview and analysis of political changes and their impact on the terrorism offence. Chapter 4 also includes a very good narrative which is interesting and easy to follow. Tone and language of the account are here clearly of the highest standard. The thesis picks up speed in particular with the account of terrorist attacks in the 1970s as opposed to the 80s–90s and provides for a very pleasant read. In general, the spectrum of coverage of this thesis is very broad, including history, international and domestic political theory, sociology, domestic law of several states, international law, extradition, terrorism, as well as legal documentary material and scholarly commentary in several languages. The thesis covers relevant bilateral and multilateral treaties, European, US and other national law, relevant judicial decisions, scholarship, international law, international organisation rules and regulation. The dissertation’s presentation of and commentary on the various academic arguments and aforementioned sources, is impressive and valuable. It not only provides evidence to justify its arguments, the collection of material itself is most helpful to scholarly research. The counterpoised arguments on defining terrorism and the impact of failure to arrive at a legal definition acceptable around the world or even among academics on the diminution of the POE is important. The dissertation’s definitional sections allow the reader to understand historical and philosophical context of the various difficult and hotly debated definitions and their evolution over time.

3. The PhD Candidate Demonstrates Mastery of Research Methods and their Application Jansson refers to an abundance of different disciplines in her study, including international law, political science, legal and political history and the sociology of law. This is due to the fact that the literature on the POE and terrorism is grounded in those diverse fields. She has managed to successfully merge this literature. Her research is, however, clearly a legal historical analysis, merging literature from different fields. Her research method relies on primary and secondary sources, which she addresses critically and in context. The method applied is very well carried through the thesis and she gives a logical justification for the choice of method and focus (US). Her timeframe is well chosen, although in future publications more explanation as to the choice could be given. It needs to be stressed that this dissertation demonstrates a mastery of research methods from many diverse disciplines and Jansson applies them to her study. (See comments in the previous section on this point.) The dissertation covers and analyses various relevant academic, national (judicial, legislative, and executive), international organisation rules and regulations, multilateral and bilateral treaties, to provide evidence to justify its arguments. The dissertation impressively analyses material in several different languages from international law, academics, several

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nations and international law. The collection of material itself is helpful to scholarly research.

4.  The PhD Candidate is Scientifically Convincing The thesis is highly scientifically convincing. The focus on particular political developments in conjunction with legal (domestic and international) developments is creating new scientific knowledge as well as explaining existing knowledge from a new perspective. The student has clearly conducted extensive research into the case law and presents us with an impressive historical analysis of extradition and the POE. Political alliances are presented clearly and motivations for extradition (and non-extradition) are well presented with relevant arguments throughout the thesis. The discussion of the intersection of historical developments in legal (various domestic and international), political history, sociology, and more is impressive. The presentation of the impact of the convergence of events and alliances on the definition of terrorism and the diminution of the POE establishes important new knowledge and new perspectives from which to debate these thorny issues and to resolve seemingly intractable problems.

5.  The PhD Thesis Contains Justified Results The author substantiates each of her results and presented arguments throughout the thesis with solid historical and legal analysis. The results of this thesis are thoroughly backed up by the historical analysis and have been developed throughout the thesis in a systematic fashion. Each result of the thesis is supported by arguments and analysis throughout the chapters. The thesis is extremely thoroughly argued and not the least bit pretentious.

6. The PhD Candidate Demonstrates Scientific Integrity and Adheres to the Ethical Norms of Research Jansson has demonstrated scientific integrity to the point that she has omitted citing some of her own outstanding previous publications and only referred to other sources. This shows a very high level of academic integrity as well as humility. The thesis is truly a reverence to other authors in the field. Dr Saskia Hufnagel Queen Mary University of London [email protected] Professor Christopher L Blakesley University of Nevada, Las Vegas [email protected]

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The End of Freedom in Public Places? Privacy Problems Arising from Surveillance of the European Public Space1 Jens Kremer Mr Custos, Mr Opponent, ladies and gentlemen, It was at some point around April 2001, when right extremists were calling for a protest march through the German city of Nuremberg, a city well known for its fascist past and the coming to terms with it. As usually on these occasions in Germany, a broad alliance of civil society groups, political parties, and unions were arranging a counter-demonstration. I remember it well. We were young, outraged, loud, and we were many when we separated from the peaceful counter-demonstration. We wanted to block the marching path of the 300 fascists. Fascists, so was our motivation, shall never march through the city of Nuremberg again, at least not without encountering fierce resistance. Despite the enormous efforts of an overwhelming majority of police to keep both parties separated, there we were, about 100 teenagers and young adults, arms tucked together, sitting on the asphalt of a major crossroad, blocking the fascists’ marching path while chanting: ‘No Pasaran’. It was miserably cold, raining, and remnants of pepper spray were burning in our eyes. But it was our moment, our triumph while we were carried away one by one by riot police. We had indeed halted the Fascist’s march for over one hour. At that time, this was our way to challenge authority, to disobey, and it was our way to claim and occupy a small piece of space that was just about to be claimed by the marching Fascists. And, for a brief moment, it was us controlling that small piece of public street. At that time, this was our utilisation of the enormous symbolic and political character of public spaces. Many public spaces have been occupied throughout history for various reasons. Many occupations and blockades, however, did not occur, as for us, under the umbrella of a well-functioning democratic state such as Germany. We, even as disobeying teenage rebels, were protected by rule of law, fundamental rights and accountable police officers. In fact, occupying a public space and claiming control can be very dangerous, even a danger to one’s life, in many parts of the world today. Therefore, one may rightly ask: Why did we take the risk of getting injured or arrested while blocking a democratically justified public event organised by rightextremists? Why do other people take even more serious risks of getting injured or killed when participating in blockades and occupations of public spaces? Public spaces are both functional and symbolic. They represent efficiency and functionality of political and social systems. And they contain and embody narratives

1. Lectio praecursoria, held at the public examination of the doctoral dissertation at the University of Helsinki, 24 March 2017. Professor Iain Cameron from the Uppsala University acted as opponent.

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of power and governance. Occupations of public spaces question the power of governments and their institutions. And they impact the functionality of society as such. Control of public spaces therewith lies at the heart of political and social systems, and their manifestations of power. In 1989, Tiananmen Square in Beijing was occupied by protesters. Many of them were students calling for democratic reforms, freedom of press and freedom of speech. The Chinese Government employed tanks and lethal force to quell the protests. Hundreds, if not thousands, were killed. This became a widely known symbol for violent suppression of an expression of protest on a public space. Visiting Tiananmen Square today impressively illustrates the political sensitivity and the materialisation of control of public space. It can be seen as a blueprint for how surveillance and security technologies are used for controlling a public space. The huge square today is completely fenced off and can only be accessed by passing through security checkpoints. On the square, one can observe a vast array of surveillance technologies: An enormous amount of video cameras and all sorts of other sensors are installed; probably barely anything on that square can happen without being monitored, recorded and analysed. Security and order in public spaces today is often achieved through heavy surveillance and access control. In many countries in Europe, however, public spaces are often defined with reference to accessibility. The Council of Europe’s Venice Commission defined public space as a ‘space which can be in principle accessed by anyone freely, indiscriminately at any time under any circumstances’. In the UK, public places are all areas to which people can have access ‘whether by payment or otherwise’. In France, public places are ‘open to the public or assigned to a public service’. In Germany, a public place becomes a public place if it is designated as such by an administrative procedure. The strong focus on accessibility of public spaces in Europe, therefore, contravenes physically fencing them off. This would fundamentally contradict the European ideal of a free public space. Yet, the need to control public spaces for guaranteeing the functionality of political and social systems is not a need limited to authoritarian regimes. In fact, many fears, including perceived threats of terror attacks, have led to increased fortification and surveillance of European cities and the European public space. The legal response to this expansion of surveillance and control of public space lies at the heart of this dissertation. What are the legal arguments that address public space surveillance and control? How does law respond to the tendency of ever-increasing surveillance and control through the use of highly sophisticated technologies? Surveillance technologies indeed have become part of the problem. They are digitised, networked, and are often based on data processing. Data taken from a variety of sensors in public spaces such as from video cameras, microphones, chemical and radiation sensors, to name just a few, are analysed and processed in a variety of ways. Both quality and analytical capabilities have improved tremendously up to the point where surveillance technology today can automatically and efficiently surveil and

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control public spaces in their entirety, analyse incidents in real time and even predict certain events. Additionally, the networking of devices and sensors such as the Internet of things or mobile phones, and the use of personal data in everyday services have created a digital virtual sphere that defies the separation of public and private space. The many recent revelations on excessive data surveillance of communications and digital spheres indicate the urgency of that matter. Traditionally, the mechanisms that address and attempt to mediate surveillance, control, power and also the exercise of violence in Europe rely on fundamental rights arguments. And it is for that reason, that the main research question of this study asks, how the existing European fundamental rights frameworks can address the unprecedented surveillance capabilities and the increased potential for the control of public spaces in Europe. Of course, there is a variety of fundamental rights that are potentially affected by the control of public spaces. However, this study chooses to focus on privacy and data protection. Privacy, because it has traditionally been the core right addressing government surveillance, and data protection, because data digitisation and data analytics today lie at the core of the functionality of states, societies and everyday life. This is also because modern surveillance systems cannot function without collection, processing and retention of personal information. Privacy, as a right, has a rather broad scope. Privacy, in a common law context, is traditionally associated with a ‘right to be let alone’, or, as a tool to address specific harms done to individuals. Privacy and its legal protection, however, can also be specified with reference to personal intimacy or secrecy, the control of personal information, access to a person, or personal identity amongst many others. Many scholars have attempted to define, conceptualise or build typologies of privacy. In addition, courts have included issues such as the secrecy of communications, development and maintenance of personal identity and relationships, environmental impacts, family life, sexual practices, and many more, into the scope of a right to privacy or private life. By employing a right to privacy, this dissertation addresses one core question in ongoing privacy debates: the application of privacy based fundamental rights arguments in public spaces. How can a right, protecting the private life of individuals, function for addressing public space surveillance? Intuitively, one may argue, that if privacy essentially protects individuals from interferences with their private lives, is it not problematic to apply the same argument in a space that is by its nature defined as open and accessible? One response to this problem is the reduction of applicability of privacy in public. It appears obvious that while being on a public square, one enjoys less privacy than in one’s bathroom. While we are in principle free, we need to limit our expectations of being left alone, once we enter a public area. The degree of acceptable intrusion into one’s privacy then depends on the legitimate expectation to privacy under certain conditions, and therewith on the freedom of individuals and their choices.

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Another response to the problem of privacy in public focuses on the core of individuals in a community. A dignity based right to personality can be employed to argue that privacy applies in public as a tool to counter coercion and suppression as such. Because it is essential for individuals to form and maintain their personalities as communal beings, it is essential that privacy as a right protects the mere preconditions for democratic communities. One would, therefore, enjoy a right to privacy as a right to be free from control rather than a right based on situational expectations. Privacy as a derivate of dignity therewith can present a legal argument that addresses the overall coercive effect of surveillance rather than the individual’s expectations in seclusion. Privacy can therewith provide an important contribution to a discussion on the acceptable levels of control in democratic societies. The third important argument addressing privacy in public spaces derives from data protection. Data protection has very recently gained importance because it is being increasingly articulated as a fundamental right. Data protection plays an enormously important role for the question of privacy in public. First, because essentially all modern digital surveillance technologies employ and process personal data in one or the other form, and, second, because data protection arguments have become extremely important for the regulation of privacy in Europe, not least due to the recent regulatory reforms. Data protection embodies a variety of rights and principles which prescribe that general surveillance of public spaces cannot be unlimited. The focus on data protection has enabled courts to address privacy in public differently. Once the mere collection, retention and processing of personal information is an interference with fundamental rights, all surveillance in public requires strict interference justifications. These three approaches to public privacy show that current fundamental rights in Europe have the capabilities to respond to the problem of privacy in public very well. It seems, however, that the more sophisticated and data centred surveillance in public places becomes, the more it makes sense to employ a legal argument that focuses on the overall societal effects of that surveillance, on the potential capabilities for control, and on potential coercive effects for individuals forming a democratic community. The title The End of Freedom in Public Places’, therewith has a dual connotation. On the one hand, it embodies the liberal ideal of freedom of individuals in public areas. On the other hand, it refers to the tendency that courts will need to employ new interpretative legal arguments when addressing public surveillance, arguments that go beyond individual freedom and individual expectations. Considering the oncoming increase of future cases addressing mass surveillance, public surveillance and the processing of personal information, this dissertation aims to contribute to potential arguments addressing privacy in public. It analyses the specific privacy problems of targeted surveillance, mass surveillance, private actor surveillance and automation and prediction in light of advancing surveillance and security technologies and from a European fundamental rights perspective.

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As privacy problems arising from the surveillance of European public places are unlikely to diminish and surveillance technologies will advance further in their capabilities, much of these discussions will need to be addressed in courts in future fundamental rights cases. While many of the existing legal arguments addressing the problem of privacy in public work, others will need to be reformulated. Public spaces, in their many forms, may they be physical or virtual, play an essential role in Europe today because they are platforms for political and social conflict and their peaceful and democratic mediation and resolution. Privacy also plays an important role in this, strongly depending, however, on its conceptualisation. Provided that we are aiming for a long-term establishment of democracy through law in Europe, we better make sure that law has adequate tools available to address the exercise of power and control of public spaces. Mr Opponent, I now call upon you to present your critical comments on my dissertation.

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The End of Freedom in Public Spaces? Privacy Problems Arising from Surveillance of the European Public Space by Jens Kremer, Doctoral Dissertation, University of Helsinki, 2017 The advent of the Internet and mobile phones (and the fusion of these in smart phones) have already transformed the lives of many people on the planet, especially (but not limited to) people living in the developed world. The continuing accumulation of personal data in the hands of social media such as Google enables a vast repository of data on social behaviour. The improved potential this entails for societal planning can bring obvious benefits in a variety of different ways (efficiency of transport, logistics, etc) and obvious disadvantages in terms of risks or damage to privacy, freedom of expression and democracy (the Cambridge Analytica scandal being a case in point). Combine these factors with the increased availability of cheap sensors and cameras, together with continual advances in artificial intelligence and machine learning, allowing for continual improvements in automated analysis of data and communications patterns, and you have the context of Jens Kremer’s highly topical doctoral dissertation on privacy in public places. I was Mr Kremer’s opponent and what follows is a modified version of my report to the board of the faculty of law of the University of Helsinki, recommending approval of his dissertation. The dissertation consists of four chapters. The introductory chapter sets out the research questions and delimitations of the study (3–34). The main research question is how the existing European fundamental rights to privacy and data protection address, and can address, surveillance of public spaces in Europe. In Chapter 2 the author discusses the theoretical conceptions behind the research, the concepts of public space, privacy, data protection and security, concluding with a short examination of limitation clauses in human rights catalogues (35–128). In Chapter 3 the author discusses four more specific issues in relation to public space surveillance, primarily through analyses of existing European Court of Human Rights (ECtHR) and Court of Justice of the EU (CJEU) case law: individually targeted surveillance (130–80), mass surveillance (181–226), surveillance through private actors (227–38), and automation and prediction (239–48). The imbalance in size between these sections can be explained by the existence, or lack thereof, of relevant European-level case law. There is little if any European Court case law dealing with the future-oriented final topic, which explains why in particular it is short. Chapter 4 consists of concluding remarks (249–53). In Chapter 1, the author demonstrates his familiarity with research methods in law, even if the method section is relatively short. The author states that he intends to make a legal dogmatic, ie ‘doctrinal’ study. As such, it fits into the mainstream of legal research (at least in the Nordic countries). However, there are some challenges involved in making a doctrinal study of case law from the ECtHR. This case law is not particularly stable and nor is it particularly coherent, at least as compared to a codified system, such as a Criminal Code. The same can be said of the case law of the CJEU: this is arguably more stable but, in my view, at times less coherent

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from a national perspective. This applies in particular to the Watson/Tele2 joined cases C 203/15 and C 698/15.1 Despite the technology being the same, the ways states use it are very different as is social capital in different EU states. Thus, ‘one size’ for what the state can do (especially the police) really does not fit all. My own perspective is that human rights law has to be ‘translated’ through a national legal system before it becomes ‘meaningful’. The author chooses not to examine how ECtHR case law has been translated through the lens of a national system, although throughout the book he does use examples from German law occasionally. These I found particularly useful, and I think more examples from national law would have improved the dissertation further. Still, I am playing Devil’s Advocate here: I have written such a study of ECtHR case law myself. Thus, I do consider that this case law is both sufficiently stable to be the subject of a doctrinal study and sufficiently free-standing to be treated independently of national law. But it is something to bear in mind for young researchers: rich though the case law of the ECtHR and the CJEU now is, it is still subsidiary in the sense that it is designed to build upon, and act through, national law. One can also question the largely European focus, in that there is now a global telecommunications infrastructure and global data flows. Surveillance systems situated in Helsinki can be operated in another country. Moreover, the manufacturers and operators of the major operating systems, search engines, etc generating big data are – so far – mainly US companies. On the other hand, one has to begin somewhere and for a thesis of 250 pages, it is not really feasible to take on any more issues than the author has done. Moreover, the CJEU case law firmly asserts ‘data nationalisation’ meaning that, whatever the nationality of the manufacturer/operator, systems operational in EU states must conform to European standards. So, even if the phenomenon of surveillance of public spaces is global, the European standards will be very important. Chapter 1 also includes a short explanation of relevant surveillance technology and uses the device of a scenario, to assist the reader in understanding how this technology actually works and may work in the future, and how the relevant case law impacts, and can impact, upon it. These sections are very useful and show that the author – unlike the CJEU at times – understands what he is talking about. He also touches upon the considerable body of sociological work on perceptions of privacy. I think this is an important part of understanding the area. One can go further and look at the – now considerable – body of criminological research on surveillance, in particular the role it has to play on ‘situational crime prevention’. Still, the thesis is in law, so such an omission is not serious, but in my view, reference to this work would improve the work (which I hope will be reworked and published as a book). For a topic of this sort, it is necessary to begin with a discussion of the relevant concepts and Chapter 2 covers well-trodden ground. The author’s discussion of the 1. Tele2 Sverige AB v Post- och telestyrelsen and Secretary of State for the Home Department v Tom Watson and Others ECLI:EU:C:2016:970.

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concepts in Chapter 2 (privacy, security, the dichotomy between private and public, etc) is not limited to European sources, but also – I think correctly – discusses the American origins of the modern concept of privacy. Underlying the whole thesis is the author’s view of the inadequacy of a framework based upon a rigid dichotomy between private life, into which the state is not to tread (unless it fulfils the requirements of limiting such a relative right, ie prescribed by law and necessity) and public life, where as far as monitoring is concerned ‘anything goes’. Obviously it is not simply the state which can affect private life. Google and other social media companies are not the state. But the public and the private are also inextricably linked. I think he demonstrates convincingly the inadequacy of such a framework, and this is one of the strong merits of the thesis. One criticism which can be advanced is that this chapter could have devoted more attention to the problems caused by the phenomenon of ‘private-public’ space: areas which in the modern city are privately owned, such as shopping malls. Nonetheless, the author shows a profound familiarity with the field, and a good ability to analyse the work of other scholars. The author’s discussion is wide-ranging, nuanced, critical and intelligent. Chapter 3 also covers relatively familiar ground. However, a new element is added by the fact that the four specific issues are examined through the prism of two different concepts of privacy; one based on individual liberty, and the other based on dignity. For most readers used only to English-language sources, the latter concept – associated as it is with the case law of the German Federal C ­ onstitutional Court – is new. With such a concept of privacy, issues of data protection/­informational self-determination come to the fore, even in ‘public’ spaces. The author’s c­ onclusion is that, for each of the four specific issues, a concept of privacy based (at least partly) on dignity has considerable advantages, and that such a conclusion is compatible with the European Courts’ case law. I think his conclusion is justified and ­scientifically convincing. His emphasis on the right of data protection as being a more promising right to build upon, as far as surveillance of public spaces is concerned (compared to protection of private life) is also well-supported and convincing. Private life has inherent limitations, not simply the fact that the video surveillance technology is improving to the extent that we can now see through walls. Privacy has a close relationship with consent and we have made the mistake of inviting the vampire of social media not simply into our public places (because the WiFi in the café is free!) but also into our homes. One criticism which can be advanced relates to the definition of ‘mass’ surveillance used by the author (201). This focuses on ‘indiscriminate’ collection of information. As such, any form of surveillance which applies some form of filter would fall beyond the definition, even if it involves the collection of vast amounts of information. This is, indeed, how the signals intelligence agencies see the issue: anything collection filtered by a selector is not bulk, even if the selector is ‘Russia’. The author argues that mass and targeted surveillance raise different types of problem, and so requires different types of solution. Thus, more problematising of the difficulties in distinguishing between the two would have been useful. Still, the criticism is not major: the author considers that the difference between the two is not conceptual, but rather that the

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two represents opposite ends of a scale. One of the points the author makes is that, in practice, with the technologies in use today, and even more so in the future, the two shade into one another. I agree with this. In any event, even with his focus on only four issues, the author manages in this chapter to cover a lot of ground. The final chapter is rather short, but contains useful concluding remarks. Mr Kremer’s suggestions that data protection can be developed usefully beyond the limitations inherent in the conception of privacy are well taken. These suggestions are highly topical with the entry into force of the EU General Data Protection Regulation (GDPR). This cannot have escaped the reader (think of all the plaintive appeals you received in March and April 2018 from obscure companies you once bought something from). A Nordic doctoral defence is a special thing. At best it is an open, critical but respectful dialogue between equals. Doctoral candidates signal their willingness, and ability, to take their place in the academy. Mr Kremer defended his thesis extremely well at the public defence, with humour, enthusiasm but at the same time an ability to show a critical distance from his own work. I was in no doubt that the thesis deserves the award of the doctoral degree and, as mentioned, I hope that Mr Kremer swiftly reworks it and publishes it as a book, so that it receives the audience it deserves. Iain Cameron Professor of Public International Law University of Uppsala [email protected]

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From League of Nations Mandates to Decolonization: A History of the Language of Rights in International Law* Taina Tuori In this lectio praecursoria, I will introduce my topic by first describing the background of my research and the reasons for choosing this particular topic. I will then introduce the main source and subject of my research, namely the Permanent Mandates Commission of the League of Nations and its papers. Finally, I will briefly explain what I have meant by rights language and what its relevance has been to my research. My research can be considered to fall within the field of the history of international law, and even more particularly, the history of human rights law. This study, From League of Nations Mandates to Decolonization: A History of the Language of Rights in International Law, started from my fascination towards true, old-fashioned hands-on research. I was looking for a topic that would allow me to forget myself in a library with a pile of documents and to see what I would find. It was suggested that I could start to research the minutes of the Permanent Mandates Commission of the League of Nations, the predecessor of the United Nations, as they were a sufficiently limited source, and still well available. My original idea, I believe, was to study how the cultural foundation of international law, meaning the European origins of international law and a European centred way of thinking, still affected international law. The League of Nations mandates system was supposed to be just one part of my study. However, I found myself immersed in the discussions of the Permanent Mandates Commission of the League of Nations. They were available in a backroom of the library of the Finnish Parliament and armed with a portable scanner, I was allowed to spend hours copying anything that I found interesting. At that point, I did not know what I was looking for and therefore, took note of anything that even remotely related to culture. Already then I had an intuitive feeling that reading through those papers would be the most pleasurable part of my work. I had not expected to find what I found: discussions that would reveal the personalities of the members of the Permanent Mandates Commission. The conversations on the mandates, the administrations and the inhabitants of the mandated territories were open and direct, prejudiced and benevolent at the same time. Some members of the Commission were humanitarians, the others were more strictly part of old colonial traditions. I spent a great amount of hours in the company of the members of the Permanent Mandates Commission and never grew tired of them. The idea behind the mandates was to set up an international governance, supervised by the League of Nations, and in practice, administered by the victorious allies

* Lectio Praecursoria, held at the public examination of the doctoral dissertation at the University of Helsinki, 9 December 2016. Professor Jochen von Bernstorff from the University of Tübingen acted as the opponent.

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of the First World War. The mandates, initiated by the then US President ­Woodrow Wilson and General Jan Smuts of South Africa, were to become a compromise between colonialism and internationalism. The territories were not to be annexed by the victorious states of the War but they would not be granted self-determination either, at least not yet. The task of the Permanent Mandates Commission was to supervise the mandates system by, for instance, examining reports submitted by the mandatories and receiving petitions from the mandates. Also, the Permanent Mandates Commission saw its own task as assisting the mandatories to carry out their duties. Their reports were written according to questionnaires that were drafted by the Permanent Mandates Commission, and this led to the discussions to concern certain pre-meditated issues, some of which are at the centre of my research. The members of the Permanent Mandates Commission of the League of Nations were appointed by their governments but acted as independent experts. Many of them had colonial expertise, some were from mandatory states, but a majority came from non-mandatory states. One member was to be a woman, and Sweden was the only country willing to give its seat to a female member. The mandates, on the other hand, were former non-Turkish territories of the Ottoman Empire, which the Empire had lost after the First World War (Syria, ­Lebanon, Iraq and the Palestine, including present-day Jordan) and former ­German colonies both in Africa (Ruanda-Urundi, Tanganyika, Cameroons, Togo and South West Africa) and the Pacific (New Guinea, Nauru, Samoa and certain islands north of the equator). The mandates were set up by Article 22 of the Covenant of the League of Nations, and were described in the following terms: To those colonies and territories which as a consequence of the late war have ceased to be under the sovereignty of the States which formerly governed them and which are inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world, there should be applied the principle that the well-being and development of such peoples form a sacred trust of civilisation and that securities for the performance of this trust should be embodied in this Covenant.

The mandated areas were classified into A, B and C mandates, according to their presumed level of development. The A mandates were the areas that had formerly belonged to the Turkish Empire and were considered the most developed of these territories. They were recognised as provisionally independent nations, but only Iraq would gain independence during the mandatory period and even then the Permanent Mandates Commission was very reluctant to grant independence to Iraq. The B mandates were all in central Africa and described as being at such ‘a stage that the mandatory must be responsible for the administration of the territory’.1 The C mandates, including South West Africa and the Pacific islands, were a compromise between annexation and non-annexation, and described to be administered ‘under the laws of the mandatory as integral portions of its territory’.2 1. Art 22 of The Covenant of the League of Nations, Part I of the Versailles Treaty, 28 June 1919. 2. Ibid.

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I was to find the focus of my research as I was asked to participate in a book project on the origins of human rights. I started to re-read the minutes from the point of view of, if not actual human rights, at least some type of rights language. I had not come across any human rights discussions during my earlier readings, and I knew I was not going to find them now either. Yet, I was aware that the position of the inhabitants in the different mandated territories was indeed discussed, and I started to look at the language that was used. I realised that many of the topics included in the questionnaires and thus the reports of the mandatories were such that would be considered human rights only a few decades later. They included freedom of conscience and religion, the prohibition of the slave trade, the prohibition of forced labour, the land rights of the native inhabitants and the position of women and children. Moreover, as Iraq was granted independence in 1932, the rights of religious minorities in Iraq were a source of constant worry. And perhaps most importantly, the petitions system that originally did not even exist in the mandates system but was added a few years later was seen by later generations as a natural right and, in a way, the mandates system’s legacy to human rights. Knowing that there were no actual human rights to be found, I was initially disconcerted by the words of the American historian Susan Pedersen, whom I knew was simultaneously writing a magnum opus on the mandates system. In a paper that she had given on ‘imperial trusteeship’ and ‘human rights’, she concluded that ‘only the most obsessively present-minded historian would want to write (or read) a book explaining why the mandates regime wasn’t a human rights regime rather than a book about what it was’.3 And yet, this was precisely what I was about to do. I have described my research as the history of rights language in the League of Nations mandates system. As I was aware that the topics were not discussed as rights, not to mention human rights, I had to decide what kind of language I was going to look for. How was I going to overcome the problem of anachronism, meaning that speaking of rights in the interwar period was placing a certain vocabulary or looking for a certain vocabulary in a time period where it did not belong? And why was I doing it? The latter question was easier to answer. First, after the Second World War, certain lawyers were placing themes relevant to the mandates system into a greater narrative of human rights.4 Mainly this happened regarding the petitions system, but also the abolition of slavery, religious rights, rights of minorities and rights of labourers had been mentioned in this context. Second, some of the mandated territories continued their existence after the Second World War as United Nations trusteeships, and the

3. Susan Pedersen, ‘Did ‘Imperial Trusteeship’ Have Anything to Do with ‘Human Rights’?’, unpublished paper, on file with the author. 4. HD Hall, Mandates, Dependencies and Trusteeship (Washington, Carnegie Endowment of Peace, 1948) 128 (on the assumption of democracy in the League of Nations) and 198 (on petitions as a natural right); Hersch Lauterpacht, International Law and Human Rights (reprint of 1st edition of 1950, ­London, Archon Books, 1968) 244 (also on petitions as a natural right).

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clauses on trusteeships do include a mention of the human rights of the inhabitants of these territories. Third, the International Court of Justice would judge several cases concerning the former mandates from the 1950s onwards, and in these cases, human rights relating to the inhabitants of the territories became an issue, first only in the applications, and later, in 1971, also in an advisory judgment of the International Court of Justice.5 Thus, there was a certain continuation from the interwar era into the post Second World War period. I was curious to see what the place of the mandates, often seen as a more humane version of colonialism, was in this story and whether there was a development towards a greater emphasis on the rights of the inhabitants during the mandatory period that would somehow anticipate the post Second World War period and the era of human rights. In the minutes of the Permanent Mandates Commission, I chose to follow thematical debates on those topics that would later be articulated in rights language. The Mandates Commission would to a certain extent grant freedom of religion to native religions, question the mandatories on the developments on the abolishment of slavery and forced labour, and weigh the importance of securing traditional land usage as compared to modern land ownership. There were certain practices relating to women and girls that were considered barbarous and therefore necessary to abolish, such as polygamy or child marriage. These topics were not discussed as rights (except for a few rare occasions), not to mention human rights, but under concepts such as guarantees, liberties, obligations, social problems, matters and questions. Thus, in order to study ‘rights’ language, I had to liberate myself from looking for an exact language of human rights. I was not aiming to look for predecessors or antecedents for human rights, but rather, developments predating the human rights language that was to become so powerful after the Second World War and especially towards the end of the century. Thus, I have needed to accept that my concept of rights has been both ambiguous and open-ended. The common denominator that I used in my search for relevant discussions was the relationship between the individual and the administration, and I did not even try to look for mentions of human rights until after the Second World War when human rights began to be projected into the mandates. My sources supported the idea that the mandates system was not part of a clear linear development towards universal, all-encompassing human rights, but neither did it support the so-called big bang theories suggesting that human rights language gained its power all of a sudden in the immediate aftermath of the Second World War. According to many textbooks, human rights seemed to appear from almost nowhere after the Second World War, when the Charter of the United Nations and the Universal Declaration of Human Rights were drafted. Rather, the mainstreaming of human rights seemed to be a slow process, with some international judges being ready to argue on the basis of human rights only in the early 1970s.

5. 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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The standard way to write the history of human rights in many textbooks has been to go through certain landmark documents, and it has depended on the choices made by the author whether the starting point has been the Universal Declaration of Human Rights, perhaps the French Declaration of the Rights of Man and of the Citizen, or even the Magna Carta of 1215. A new tendency has been to claim that human rights are a recent phenomenon. Samuel Moyn has famously placed the breakthrough of the human rights phenomenon in the 1970s,6 and Stephan-Ludwig Hoffman most recently in the 1990s, the end of the Cold War, the first War in Iraq and the Kosovo war and the international reaction to those.7 If the crisis of liberal ideals in the West, the rise of nationalist and populist politics in both Europe and the US are to continue, resulting, for instance, in the British plans to leave the European Convention of Human Rights, it remains to be seen whether the era of human rights was only a brief one.

6. Samuel Moyn, The Last Utopia. Human Rights in History (Cambridge, Massachusetts, Harvard University Press, 2010). 7. Stefan-Ludwig Hoffman, ‘Human Rights and History’ (2016) 232 Past & Present 279.

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From League of Nations Mandates to Decolonization. A History of Rights by Taina Tuori, Doctoral Dissertation, University of Helsinki, 2016 Taina Tuori’s PhD thesis From League of Nations Mandates to Decolonization. A ­History of Rights deals with an underexplored topic: the use of rights vocabulary in the League of Nations mandate system. Even though there has been a broad and controversial debate on the origins of human rights over the last ten years, the issue of whether and to what extent the mandate system generated discursive structures, which functionally resembled what 30 years later came to be known as ‘international human rights’, remained an area yet to be thoroughly researched. This fact alone justifies the successful scholarly project undertaken by this PhD. The author approaches her topic in a methodologically conscious fashion, discussing at the outset whether looking for rights language in a historical period in which contemporaries had a different understanding of ‘human rights’ than later generations or today’s readers is a tenable perspective on legal history to begin with (10–13). The potential charge of ‘anachronism’ is raised in the Introduction, leading the author to submit that instead of looking for ‘exact language of human rights’ she had decided instead ‘to use an ambiguous and open-ended concept of human rights’. Her ‘common denominator’ for ‘rights’ in the sense of the project is the relationship between the individual and administration. The PhD falls into two main thematic parts arranged in chronological order. ­Chapters 2, 3 and 4 together deal with the League’s mandate system whereas C ­ hapter 5 discusses an important aspect of the afterlife of the mandate system, namely the International Court of Justice’s (ICJ) South West Africa cases. At the beginning of the part on the mandate system, the author describes the negotiations leading to the provisions on the mandates in the League Covenant. The mandate system is interpreted as a ‘practical solution’ (57) to the stand-off between those favouring full annexation and their opponents proposing full internationalisation. Consequently, the question of sovereignty (League or Mandatory power) remained disputed as the author demonstrates through prominent voices from the contemporary debate. Throughout the book, the author shows a fine sensibility for paternalistic discursive structures, which in international administration traditionally tends to merge with humanitarian aspirations. The term ‘mandate’ and the content of Article 22, functioning as the basic norm of the erected system, clearly resonated with the civil (Roman Law) law concept of guardianship for minors. At the end of this second chapter, the author directly poses the question raised by Anthony Anghie and others whether the mandate system was a ‘continuation of colonization’ (74). The author answers this question in the affirmative mainly because of the continuation of the ‘civilizing mission’ as a justification for foreign or international rule. Her answer is mainly based on the utterances of contemporaries. It could have been helpful in this context to look into the kind of ‘colonisation’ that the mandate territories had endured before 1919 and what the prevalent (and arguably diverging) approaches to

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‘colonial’ rule had been in the territories controlled by Germany and the Ottoman Empire. How did local populations and their representatives perceive the new rulers, what were their expectations and political projects in 1919 and what was communicated to them after being taken over by the mandatory powers? After a short overview regarding the status of the Permanent Mandates Commission (PMC) within the League and some of its members, the PhD focuses on the minutes of the Commission in order to look into how it dealt with the ‘rights’ or interests of the natives. This part of the manuscript gives a good insight into the deliberations within the PMC on issues of freedom of religion, slavery, forced labour and land tenure. Most of the examples chosen are new historical material and highly instructive in understanding the work of that institution. The overall impression created is that the Commission often sincerely attempted to act in order to protect the perceived ‘interests’ of the natives while constantly falling back into paternalistic justifications for external interventions of the mandatory powers into these interests. What comes out in the selected examples is that purely exploitative or geo-political arguments of the mandatory powers were not tolerated. Given that the ‘well-being’ of the natives was part of the substantive basic norm of the mandate system, the PMC had to frame its deliberations accordingly. As the author also makes clear, various forms of paternalistic and humanitarian justifications for external rule and intervention had been an essential element of the language of colonialism for centuries. Structurally central elements of today’s rights discourse, such as legitimate reasons for restricting rights (public morals, public order, etc), the idea of a ‘margin of appreciation’ as well as the dilemmas of universalism and cultural relativism (respect for native traditions) are – as the author shows – already present in the deliberations of the PMC. Perhaps because of a potential charge of ‘anachronism’ the author does not directly engage in comparing these structures over time (not even in the overall conclusion). As a consequence, the question of institutional and discursive path dependencies remains somewhat underexplored. The relatively short part on the petition system is a helpful introduction into the way the PMC handled the petition system based on some illustrative examples. This part of the manuscript would profit from more empirical information on the system and also from a comparison with the minority petition system of the League. It would be helpful to describe in what way these petition systems differed or whether they followed similar discursive logic and institutionalised routines. After a relatively detailed analysis of the ICJ’s South West Africa cases, the manuscript ends on the ICJ’s belated 1971 ‘turn to rights’ regarding the South West African mandate, eventually overriding ‘formalist’ resistance within the court with human rights arguments. The submitted manuscript deals with an underexplored historical topic with high relevance for current international legal debates. It is highly readable and demonstrates the candidate’s ability to handle both the available secondary literature as well as the historical material in a competent and insightful fashion. During the public examination, the candidate answered questions on the methodology and the contents of her thesis. She was also able to respond to questions relating to the broader theoretical debates regarding the ‘right’ methodology of international legal ­history,

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the ‘origins’ of human rights, the relevance and function of ‘rights talk’ in and through international institutions, as well as the issue of ‘normalisation’. On some of these current debates, she took a clearer position than she did in the submitted PhD. She also demonstrated during the examination that she had a solid command of her sources. Both the submitted thesis and the public examination fulfil the requirements of a PhD examination. Professor Dr Jochen von Bernstorff Chair of Constitutional Law, Public International Law and Human Rights Law Eberhard Karls Universität Tübingen [email protected]

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