Fundamental Perspectives on International Law [7 ed.] 1108839959, 9781108839952

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Fundamental Perspectives on International Law Seventh Edition Fully revised and updated by Tracy H. Slagter and John D. Van Doorn

How does international law impact the behavior of states? This book, designed for students in multiple disciplines, offers a comprehensive, accessible introduction to the “law of nations,” detailing the evolution of state practice in response to an ever-changing, diverse world. In this new edition of William Slomanson’s foundational text, the new authors, Professors Slagter and Van Doorn, trace how states manage their sovereignty in myriad ways, working through treaties, international organizations, and international courts to secure their own as well as global interests. With special emphasis on five key areas – human rights, the use of force, human security and humanitarian intervention, environmental protection, and economic relations – the authors illustrate both the power and limits of international law to provide structure and predictability on a globalized planet. Real-world problem sets, annotated bibliographies, and a practical guide to studying international law make this a text that students and instructors alike will appreciate. Tracy H. Slagter is Professor of Political Science at the University of Wisconsin Oshkosh. She earned her Ph.D. in Political Science from the University of Iowa. The winner of several university- and college-level teaching awards, she regularly teaches popular courses on international law, European Union politics, European politics, genocide, and global environmental politics. She teaches abroad whenever possible. She has published on the Court of Justice of the European Union, on regional human rights courts, and in the scholarship of teaching and learning. She is a passionate advocate for the value of a liberal arts education, civic knowledge, and global education. John D. Van Doorn holds a Ph.D. from the University of Oklahoma in International and Comparative Politics. He has worked for two US ambassadors, including the former US Permanent Representative to the United Nations, Dr. Edward J. Perkins, for whom he helped produce the book, Mr. Ambassador: Warrior for Peace. He is the recipient of top teaching awards at multiple universities for courses in international law and organizations, comparative democratization, Latin America, and diplomacy. He has published several articles on US policy towards Central America, teaching methods, and creative leadership. He is an enthusiastic scholar and teacher of law and democracy.

Fundamental Perspectives on International Law SEVENTH EDITION Tracy H. Slagter and John D. Van Doorn

University of Wisconsin Oshkosh

Independent Scholar and Researcher

with William R. Slomanson

Thomas Jefferson School of Law

Shaftesbury Road, Cambridge CB2 8EA, United Kingdom One Liberty Plaza, 20th Floor, New York, NY 10006, USA 477 Williamstown Road, Port Melbourne, VIC 3207, Australia 314–321, 3rd Floor, Plot 3, Splendor Forum, Jasola District Centre, New Delhi – 110025, India 103 Penang Road, #05–06/07, Visioncrest Commercial, Singapore 238467 Cambridge University Press is part of Cambridge University Press & Assessment, a department of the University of Cambridge. We share the University’s mission to contribute to society through the pursuit of education, learning and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/highereducation/isbn/9781108839952 DOI: 10.1017/9781108878258 © Tracy H. Slagter and John D. Van Doorn 2023 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press & Assessment. Sixth Edition: Wadsworth Publishing; (January 1, 2010) Fifth Edition: Wadsworth; (January 1, 2006) Fourth Edition: Thomson/West; Belmont, CA; 2003 Third Edition: Wadsworth Publishing; 1999-08 Second Edition: West Publishing Company; Minneapolis/SaintPaul, Minn.; 1995 First Edition: West Publishing Company; 1990 Printed in the United Kingdom by TJ Books Limited, Padstow, Cornwall A catalogue record for this publication is available from the British Library. ISBN 978-1-108-83995-2 Hardback ISBN 978-1-108-81389-1 Paperback Additional resources for this publication at www.cambridge.org/FPIL7. Cambridge University Press & Assessment has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

Contents

List of Figures List of Tables Foreword Preface to the Seventh Edition Table of Cases

How To Study International Law Using This Book 1 How to Read a Case in International Law 2 Why and How to Brief a Case 3 How to Read Treaties and UN Documents 4 Using and Understanding Theory/Jurisprudence in International Law

page xv xvi xvii xix xxiii

1 2 4 7 10

1 What Is International Law? Introduction 1 What Is International Law?

16 17 18

1.1 Opinio Juris and Consent 1.2 Enforcement 1.3 Other Actors

19 20 21

2 The Development of International Law 2.1 The Development of Modern International Law 2.2 A Different (Non-Western) Story 2.3 Monism and Dualism

3 Sources of International Law 3.1 3.2 3.3 3.4 3.5 3.6 3.7

Custom Treaties General Principles of Law Judicial Decisions Scholarly Writings UN Resolutions Hierarchy of Sources?

Thinking Ahead

22 24 28 31

35 36 40 42 43 46 47 49

51

vi

Contents

2 States and Individuals in International Law Introduction 1 The State 1.1 Elements of Statehood 1.1.1 Population 1.1.2 Territory 1.1.2.a Palestine 1.1.2.b Taiwan 1.1.2.c Fragile States 1.1.2.d Disappearing States 1.1.3 Government 1.1.4 Foreign Relations

2 Recognition 2.1 2.2 2.3 2.4

Recognition by States Recognition of Government Recognition of Belligerency Recognition by International Organizations

3 Changes in State Status 3.1 Succession 3.2 Secession and Self-Determination

4 State Responsibility 5 Sovereign Immunity 5.1 5.2 5.3 5.4

Absolute Immunity Heads of State Other Government Officials Restrictive Immunity 5.4.1 Foreign Sovereign Immunities Act (FSIA) of the US

6 Individuals in International Law 6.1 Nationality 6.1.1 Parentage 6.1.2 Birth 6.1.3 Naturalization 6.1.4 Dual Nationality 6.2 Statelessness 6.3 Refugees 6.3.1 Non-refoulement: Refugee Convention Ambiguity?

7 States and Foreign Nationals 7.1 Categories of Injury 7.1.1 Non-Wealth Injuries 7.1.2 Denial of Justice 7.1.2.a International Minimum Standard (IMS)

53 54 56 58 59 60 60 64 65 66 67 68

69 69 74 79 81

83 83 86

88 92 94 96 97 98 98

103 105 107 107 110 115 118 120 122

126 127 127 128 129

Contents 7.1.2.b Lack of Due Diligence 7.1.3 Confiscation of Property 7.1.4 Deprivation of Livelihood

Thinking Ahead

3 Treaties and Diplomacy Introduction 1 Treaty Classification 1.1 1.2 1.3 1.4

Oral versus Written Bilateral versus Multilateral Law-Making versus Contractual Self-Executing versus Declaration of Intent

2 Treaty Formation, Performance, and Cessation 2.1 2.2 2.3 2.4 2.5 2.6

131 131 132

133

134 135 136 136 137 137 138

142

Negotiations Signature Ratification Reservations Entry into Force Registration

143 145 145 146 154 155

3 Treaty Observance

156

3.1 Good Faith Treaty Performance 3.2 Treaty Suspension and Termination 3.2.1 Changed Circumstances 3.2.2 Consensual Termination 3.2.3 Material Breach 3.2.4 Impossibility of Performance 3.2.5 Conflict with Peremptory Norm 3.2.6 Conflict between Parties

4 Diplomacy 4.1 Evolution of Diplomacy 4.2 Diplomatic Relations 4.2.1 Breaking and Restoring Diplomatic Relations 4.3 Diplomatic Functions 4.3.1 Multilateral Diplomacy: Summits 4.3.2 Diplomacy through International Organizations 4.3.3 Consulates and Consular Officials 4.4 Diplomatic Extraterritoriality and Asylum 4.4.1 Diplomatic Asylum 4.5 Diplomatic Immunity 4.5.1 The Diplomatic Pouch

Thinking Ahead

156 159 159 161 163 164 165 166

167 168 170 172 174 176 177 178 181 183 185 187

189

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Contents

4 Range of Sovereignty Introduction 1 Gaining and Losing Territorial Sovereignty 1.1 Exclusive Sovereignty 1.2 Terra Nullius and Res Communis 1.2.1 Terra Nullius 1.2.2 Res Communis 1.3 Trust Territories 1.4 Methods of Obtaining Sovereign Territory 1.4.1 Military Conquest 1.4.2 Prolonged Occupations 1.4.2.a Palestinian Territories 1.4.2.b Russian Occupation of Crimea 1.4.2.c US Occupation of Afghanistan 1.4.3 Cession and Joint Decision 1.4.4 Prescription 1.4.5 Accretion 1.4.6 Boundary Resolution

2 Maritime Sovereignty 2.1 Brief History 2.2 UNCLOS 2.2.1 Internal Waters 2.2.1.a Ports 2.2.1.b Bays 2.2.2 Territorial Seas 2.2.2.a Baseline 2.2.2.b Innocent Passage 2.2.2.c Strait Passage 2.2.3 High Seas 2.2.4 Contiguous Zone 2.2.5 Exclusive Economic Zone 2.2.6 The Continental Shelf 2.2.7 The Deep Seabed 2.2.8 Global North Objections to UNCLOS 2.3 Combating Piracy, Terrorism, and Crime on the High Seas

3 Airspace Sovereignty 3.1 Domestic Airspace 3.1.1 Paris Convention 3.1.2 The Chicago Convention of 1944 3.1.2.a Private Aircraft

191 192 194 194 195 195 198 199 200 200 201 204 207 208 208 210 212 213

214 214 216 216 217 219 220 222 223 226 227 228 229 234 237 239 240

241 242 242 243 243

Contents 3.1.2.b Commercial Aircraft 3.1.2.c State and Military Aircraft 3.1.3 Excessive Force 3.1.4 Missiles 3.2 External Airspace 3.2.1 The Tokyo (1969), Hague (1970), and Montreal (1971) Conventions

4 Space Law and Responsibility 4.1 The Res Communis Space Treaties 4.1.1 The Outer Space Treaty (1967) 4.1.2 The Moon Treaty (1984) 4.2 Liability for Space Debris and Accidents 4.2.1 The Liability Convention (1971) 4.2.2 Informal Liability Regimes 4.3 Avoiding Future Militarization of Space 4.3.1 The US Position 4.3.2 The 2014 Proposed Treaty 4.4 The Future of Space Law

Thinking Ahead

5 Extraterritorial Jurisdiction Introduction 1 Understanding Extraterritorial Jurisdiction 1.1 Sovereignty and Jurisdiction 1.2 Principles of Extraterritorial Jurisdiction 1.2.1 Territorial Principle 1.2.2 Nationality Principle 1.2.3 Passive Personality Principle 1.2.4 Protective Principle 1.2.5 Universality Principle 1.3 Jurisdiction and the Internet

2 Extradition 2.1 Refusal to Extradite

3 Rendition Thinking Ahead

6 International Organizations Introduction 1 Legal Status of International Organizations 1.1 Capacity and Immunity under International Law

243 245 247 248 249 249

251 251 251 253 254 254 255 256 256 257 257

259

261 262 263 263 267 267 274 275 278 279 283

289 297

298 301

303 304 305 308

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Contents 1.2 Organizational Responsibility 1.3 Immunity of International Organizations

316 318

2 Classifying International Organizations 3 The United Nations

322 324

3.1 Evolution of the UN 3.2 Organs of the UN 3.2.1 General Assembly 3.2.2 Security Council 3.2.2.a Veto Dilemma 3.2.2.b Peacekeeping Operations 3.2.3 International Court of Justice 3.2.4 Other UN Organs 3.3 UN Assessment

325 329 329 333 335 337 337 338 340

4 European Union 4.1 4.2 4.3 4.4

Evolution of the European Project Institutions of the EU Legal Personality of the EU EU Assessment

5 Other Organizations 5.1 5.2 5.3 5.4

North Atlantic Treaty Organization Organization of American States African Union World Health Organization

Thinking Ahead

7 Human Rights Introduction 1 The Development of International Human Rights 1.1 Immediate Postwar Human Rights 1.2 The “Core” Human Rights Treaties 1.2.1 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) 1.2.2 Convention Against Torture (CAT) 1.2.2.a The US and CAT Obligations: The ATS and TVPA 1.2.2.b The ATS, Human Rights, and Corporations 1.3 UN Human Rights Council

2 Regional Approaches to Human Rights 2.1 European System 2.2 The Inter-American System 2.3 African System

344 344 347 350 351

352 353 356 360 362

365

367 368 369 371 375 382 389 394 396 401

402 402 407 415

Contents

3 Genocide and Crimes against Humanity 3.1 Genocide 3.2 Ad hoc International Criminal Courts 3.2.1 International Criminal Tribunal for the Former Yugoslavia 3.2.2 International Criminal Tribunal for Rwanda 3.2.3 Hybrid National–International Courts 3.3 International Criminal Court 3.3.1 Crimes under ICC Jurisdiction

Thinking Ahead

8 The Use of Force by States Introduction 1 Pre-UN History on the Use of Force 1.1 Ancient Sources on the Use of Force 1.2 The Nineteenth Century and the League of Nations 1.2.1 The Hague Conferences 1.2.2 Limitations on the Use of Force by the League

2 UN Principles on the Use of Force 2.1 General Prohibition on the Use of Force 2.1.1 Charter Prohibitions 2.1.2 Other UN Prohibitions 2.1.2.a Friendly Relations Declarations 2.2 Exceptions to UN Prohibitions 2.2.1 Force Authorized by the Security Council 2.2.1.a UN Security Council Chapter VII Sanctions Powers 2.2.2 Anticipatory Defense and Preemptive First Strike 2.2.2.a Anticipatory Defense 2.2.2.b Collective Self-Defense 2.2.2.c Preemption 2.3 Regional International Organizations and the Use of Force

3 The Laws of War and Arms Control 3.1 Terminology Clarification 3.2 Protections in Warfare 3.2.1 The Geneva Conventions 3.2.2 Lawful and Unlawful Orders 3.2.3 Laws of War Applied to Naval and Air Warfare 3.2.3.a Naval Warfare 3.2.3.b Air and Space Warfare

419 420 427 429 431 432 433 434

440

442 443 445 445 448 449 450

452 452 453 454 454 456 456 456 457 459 461 462 466

467 468 468 469 473 475 475 477

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Contents 3.3 Arms Control 3.3.1 Drones and Automatic Weapons Systems 3.3.2 Nuclear Weapons

4 Use of Force in Combating Terrorism and LowIntensity Conflict 4.1 UN Treaties and Resolutions against Terrorism 4.2 UN Convention Against Torture (CAT) 4.3 US-Led Changes to the Use of Force to Combat Terrorism 4.3.1 Extraordinary Rendition and Targeted Assassinations 4.3.2 Pushback to US-Led Changes

Thinking Ahead

9 Intervention and Human Security Introduction 1 Changing Norms of Intervention and the Use of Force 1.1 1.2 1.3 1.4

Persian Gulf War Post-Cold War Initiative Bosnia-Herzegovina Kosovo Administration

480 481 482

485 487 488 489 491 492

493

494 496 496 498 499 500 502

2 UN Peacekeeping Operations (UNPKO)

504

2.1 Evolution of UNPKO 2.1.1 Limitations 2.1.2 Uniting for Peace Resolution 2.1.3 El Salvador, 1991–1995 2.1.4 Cambodia, 1991–1993 2.1.5 Post-Millennium Evolution 2.2 UN Accountability 2.3 Non-UN Peacekeeping

504 505 506 511 512 512 515 519

3 “Just War,” R2P, and Humanitarian Intervention 3.1 3.2 3.3 3.4 3.5

Just War Defining Humanitarian Intervention Responsibility to Protect (R2P) Rescue NGO Humanitarian Intervention

4 Human Security 4.1 Evolution of the Concept 4.2 Health and Personal Security 4.3 Environment and Resource Security

Thinking Ahead

519 520 523 524 529 531

533 533 535 539

541

Contents

10 International Environmental Law Introduction 1 International Environmental Governance 1.1 1.2 1.3 1.4 1.5 1.6

544 545 546

1972 Stockholm Conference 1992 Rio Conference 1992 UN Framework Convention on Climate Change 1997 Kyoto Protocol 2015 Paris Agreement Intergovernmental Panel on Climate Change

548 552 554 555 556 558

2 Other Achievements of International Environmental Law

560

2.1 UN Convention on the Law of the Sea 2.2 Montreal Protocol 2.3 Convention on International Trade in Endangered Species of Wild Fauna and Flora

3 Principles of International Environmental Law 3.1 3.2 3.3 3.4

No Harm Prevention Precaution Principles of Balance 3.4.1 Polluter Pays 3.4.2 Common But Differentiated Responsibilities 3.4.3 Participation 3.4.4 Intergenerational Equity

4 Environment and Human Rights 4.1 4.2 4.3 4.4

Claiming the Environment as a Human Right European Court of Human Rights Inter-American Court of Human Rights African Court on Human and People’s Rights

5 The Environment and Armed Conflict 6 Corporations and the Environment Thinking Ahead

11 International Economic Relations Introduction 1 Development of International Economic Relations 1.1 Evolution of International Economic Relations 1.1.1 Tariffs, Blockades, and Sanctions 1.1.2 Development of the International Trading System

2 The GATT, WTO, and the Promotion of “Free Trade” 2.1 Bretton Woods System and the GATT

561 563 565

568 568 574 577 579 579 580 582 583

585 585 586 588 591

592 596 599

600 601 602 602 603 604

606 606

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Contents 2.2 Goals and Articles of the WTO 2.2.1 Evolution of the WTO 2.2.2 Essentials Articles of the WTO 2.3 Intellectual Property Rights and TRIPS 2.3.1 Trade-Related Aspects of Intellectual Property Rights

608 609 612 621 623

3 Trade Promotion in Regional Organizations 4 NGOs and MNCs in International Economic Relations

627 630

4.1 Multinational Corporations 4.1.1 Legal Personality of MNCs in International Law 4.1.2 MNC Bankruptcies 4.1.3 Codes of Conduct for MNCs 4.1.4 Nationalization of MNCs and the Calvo Doctrine 4.1.5 Bilateral Investment Treaties 4.1.6 Future Trends for MNCs in IER

631 631 639 642 643 645 645

5 The UN’s Convention on the Sale of International Goods and Letters of Credit 6 Combating Corrupt International Business Transactions

647 651

6.1 The US Foreign Corrupt Practices Act 6.2 Regional and UN Anti-Corruption Policies and Programs 6.2.1 UN Anti-Corruption Regime 6.2.2 OECD Bribery Convention 6.3 Combating Price-Fixing and Related Corrupt Practices 6.4 Combating International Cyber Financial Crimes

651 654 655 657 659 660

7 The Nationalist Pushback to the Liberal Economic Order Thinking Ahead

662 667

Index of Legal Instruments Index of Subject Terms

669 673

Figures

Figure 4.1 Figure 4.2 Figure 4.3

Sea zones Straight baseline method Bay, baseline, harbor, island, and territorial sea

page 216 224 233

Tables

Table 0.1 Table 2.1 Table 4.1 Table 5.1 Table 6.1 Table 7.1 Table 7.2 Table 7.3

Theoretical approaches to international law Commonly confused concepts in international law Space “charter” Principles of extraterritorial jurisdiction Select international organizations Human rights treaties based on the UDHR Summary of select articles of ICCPR and ICESCR Crimes against humanity, war crimes, and aggression at the ICC Table 8.1 Selected nuclear, biological, and chemical armscontrol agreements Table 9.1 Selected UN peacekeeping and political missions Table 9.2 Selected non-UN peacekeeping missions Table 10.1 Biodiversity-related conventions Table 10.2 Principles of international environmental law

page 12 57 252 268 354 376 378 435 483 509 514 567 568

Foreword

Many college and law school professors have contacted me over the years about when a new edition of Fundamental Perspectives on International Law would be forthcoming. I am pleased that the seventh edition has now reached the finish line. I believe that it combines the best of my old approach – a pragmatic focus on the law itself – with fresh insights into emerging areas in international law. I applaud the efforts of Slagter and Van Doorn to make the book accessible to a wider variety of students. I am honored that the 35 years I invested in this project will not be cast into the dustbin of academic history. Professors Slagter and Van Doorn deserve the credit for elevating this enduring project to the next level. Thus, no words can articulate the degree of thanks I have for the excellent job they have done to present you with this impressive seventh edition. Bill Slomanson San Diego, California William Slomanson is Professor Emeritus at Thomas Jefferson School of Law and currently teaches International Human Rights Law for San Diego State University’s Osher Institute and the University of San Diego's University of the Third Age. He was a Navy officer and awarded the Navy Achievement Medal for his service in Vietnam. Professor Slomanson is listed in the Directory of American Scholars, Who's Who in American Law, and Who's Who in American Education. He has authored, co-authored, or edited twenty-seven books, including the first six editions of Fundamental Perspectives on International Law. His scholarship has been cited over 3,500 times and he has received numerous teaching awards.

Preface to the Seventh Edition

Fundamental Perspectives on International Law is a text we both used as undergraduates and later as professors teaching our own courses in international law. We both examined a dozen alternatives before choosing the textbook we would assign to our students. In the end, the choice was easy. Due in no small measure to previous editions of this text, our courses in international law are among the most popular that we have taught. After the sixth edition of the textbook was published in 2011, we hoped that Bill Slomanson would produce an updated version, even as we – like so many other professors around the globe – kept using the old edition. At Bill’s invitation, we dedicated ourselves to producing a revised and updated version of a textbook we had both used our entire careers as professors of Political Science and International Studies. With constant encouragement from Bill Slomanson, we produced the version of the textbook that you hold in your hands. This text is dedicated to the proposition that international law is an important, intrinsically interesting, and enjoyable pursuit. We committed to this project in cooperation with Bill Slomanson because we noticed that there was a void in international law texts that only his approach filled. Other texts tended to be either too long and jargon-filled – or too brief and perfunctory for most students’ needs. More importantly, they did not invite students to explore the subject for themselves, even while providing the resources to help them do so. As political scientists, we were also eager for an international law text that was welcoming to those coming from disciplines other than the law. Fundamental Perspectives on International Law has always been an accessible and comprehensive introduction to international law, and we continued that tradition. If you have used previous editions of this textbook in the past, you will see that we have endeavored to maintain the features of Slomanson’s original book that made it so easy to read and a joy to teach from. They include a surfeit of examples, engaging prose, excerpts from cases throughout the book, and easy online access to longer excerpts of important cases. In addition, we have retained the “Problems” that used to appear at the end of every chapter. The Problems help make this subject more tangible for

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students. We have moved them and other material online so that they can be updated as new developments warrant. The text has been reorganized and rewritten throughout. Some chapters have been combined; some bear the same titles as in previous editions but the content is completely fresh. Readers of previous editions of this text will note a shift to a more narrative style with fewer subheadings. This makes the text easier to read while providing greater context. Additionally, new content was added on issues like the development of international law, space law, human rights, human security, environmental law, and economic relations in the era of cyber-risks. For those who are new to this textbook, here are some of the advantages it provides for instructors and students alike: ▪ The book opens with a “How To” chapter for students, created to assist students who are completely new to legal arguments and jargon. This chapter gives short, easy-to-understand guidance on how to read cases, how to brief them for use in class, how to read treaties, and how to decode UN documents. Additionally, while we do not adopt a particular theoretical perspective in this book, we have added a table and explanation to help demystify the theoretical approaches to international jurisprudence and help provide a framework for what is to follow. Instructors can use this chapter to complement their own teaching if they wish, or simply refer students to it as necessary. ▪ Each chapter begins with a vignette based on current issues in international law. These vignettes illustrate principles and pose questions that international law helps us answer. They demonstrate that international law is not a static subject reserved for long, dusty textbooks and academic discussion – it is dynamic, constantly evolving, and essential to understanding today’s world. ▪ In the best tradition of Bill Slomanson’s original textbook, we have been attentive to the writing style in the book, ensuring that it is both accessible and yet pithy enough to serve undergraduate, graduate, and law students well. The chapters are information dense. But they are readily divisible into sections to ensure a manageable reading load. The book is designed with both teacher and student in mind: it can be adapted for courses that meet several times a week or just a single time per week. ▪ The number of chapters fits readily into a single semester if preferable. There are eleven discrete chapters arranged in a logical sequence, but they can easily be used out of sequence to accommodate an instructor’s preference. We can envision this text being used in a course sequence

Preface to the Seventh Edition

that includes international law and international organizations and/ or diplomacy. ▪ Case excerpts are used throughout the text, edited to ensure that students understand not only a court’s decision but also its reasoning. Many of the more famous cases in international law (e.g., The S.S. Lotus and Nottebohm) are printed directly in the text for easy reference. Longer excerpts of both landmark cases and more recent cases from a wide variety of international courts have also been edited for length. These can be found online. Course instructors thus have the flexibility to assign online cases as desired for their students, customizing the textbook to suit their teaching needs. ▪ Since the best way to learn is through application, we have created “Problems” for every chapter that also appear online. These problems ask students to apply what they have learned to both hypothetical and real situations, helping them to think more deeply about the material they have read and discussed in class. Instructors may also wish to use some of these problems as springboards for exams, or as assignments in their courses. We have found them very useful for class debates and/or group projects. ▪ To help students and instructors satisfy their curiosity, we have also provided a brief annotated bibliography on the companion website. Maintaining it online allows for regular updates. It is our sense that international law as a subject and as a discipline is reaching an inflection point that is well captured by this text. We hope that a new generation of students will find in this textbook a path toward greater appreciation for, and understanding of, the nuances of international law, and that they will be part of a new international law for a new age. We also hope that it will encourage conversations between law and political science – conversations that happen all too infrequently. Students served as our inspiration for taking on this project. This new edition would not exist without the constant interest in the subject from decades of eager students. We are thankful to them, of course, but also to others who have made this book possible: the University of Wisconsin Oshkosh Faculty Development Program; Robert Dreesen, Erika Walsh, Lisa Pinto, Lucy Edwards, and Jackie Grant at Cambridge University Press; copyeditor Margaret Humbert; and our many faculty and staff colleagues, notably Debbie Gray Patton, Angelee Hammond, Ang Subulwa, Druscilla Scribner, Dave Siemers, and James Krueger. Special thanks go to the students who have worked in some capacity on this project, notably Elyssa Hochevar, Coleman Korb, Dakota Swank, and to

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students-turned-friends who have eagerly awaited its publication – Elyssa Hochevar, Brian Ramsay, and Sarah Taylor are at the forefront of this group. John would like to acknowledge the enthusiastic encouragement of his entire family, the graphical skills of his daughters Jinny and Emme, and especially his loving and unfailingly supportive wife, Judy, a scholar in her own right. Jinny designed the dove image in the text. Tracy thanks her patient and proud family, including Todd, Nate, and Meg, as well as her sister Jennifer. Our largest thanks, however, are reserved for Bill and Ana Slomanson, who were cheering us on the entire time. We believe this new edition of the book is worthy of the years they have put into the previous editions. Any errors are, of course, our own. Tracy H. Slagter Oshkosh, Wisconsin

John D. Van Doorn Columbus, Georgia

Table of Cases

A Abbott v. Abbott (2010) 42 Acquisition of Polish Nationality (1923, Germany v. Poland) 106 African Commission on Human and People’s Rights v. Kenya (“Ogiek” Case, 2017) 591–592 Aksu v. Turkey (2012) 538 Alabama Claims Arbitration (1871) 80 Aldona S. v. United Kingdom (1948) 95–96 American Insurance Assoc. v. Garamendi (2003) 69 Anglo-Norwegian Fisheries Case (1951, England v. Norway) 40, 223 Anheuser-Busch Inc. v. Portugal (2007) 625 Antigua v. US (2007), “United States Measures Affecting the Supply of Gambling and Betting Services (Award)” 621 Anudo v. Tanzania (2019) 417–418 APDF and IHRDA v. Rep. of Mali (2018) 418 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan) (1972) 164 Applicability of the Obligation to Arbitrate under Section 21 (1947) 31, 34 Application for Revision of the Judgment of 11 July 1996 (2003, see “Bosnia-Herzegovina v. Yugoslavia”) Armed Activities on the Territory of the Congo (2006, Democratic Republic of the Congo v. Rwanda) 153 Arrest Warrant of 11 April 2000 (2002, Democratic Republic of the Congo v. Belgium) 43, 98, 281–282 Asylum Case (1950, Colombia v. Peru) 37–38, 40, 184–185 Atkins v. Virginia (2002) 44–45 Attorney-General of the Government of Israel v. Eichmann (1962) 280–281, 427 Australian Mining & Smelting Europe v. EC Commission (1982) 43 Avena and Other Mexican Nationals (2004, Mexico v. US) 139, 180–181 Avero Belgium Ins. v. American Airlines, Inc. (2005) 146

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Table of Cases

B Balfour, Guthrie & Co. V. United States (1950) 314–315 Banco Nacional de Cuba v. Sabbatino (1964) 132 Bank of China v. Wells Fargo Bank & Union Trust Co. (1952) 78 Bankovic and Others v. Belgium et al. 317 Barcelona Traction, Light and Power Co. (1970, Belgium v. Spain) 43, 596, 633–637, 644 Behrami and Behrami v. France et al. (2007) 318 Bering Sea Fur Seals Arbitration (1893) 547 Blackmer v. United States (1932) 275 Bosnia-Herzegovina v. Yugoslavia (2003, “Application for Revision of the Judgment of 11 July 1996”) 332 Botswana v. Namibia (1999) 202, 211 Bradshaw v. Barbados (1992) 379 Burkina-Faso v. Mali (1986, see “Frontier Dispute”) Burkina-Faso v. Niger (2013, see “Frontier Dispute”)

C Cambodia v. Thailand (1962, see “Temple of Preah Vihear”) Camouco Case (2000, Panama v. France) 232 Canevaro Case (Italy v. Peru, 1949) 116 Center for Reproductive Law and Policy v. Bush (2002) 323 Certain Activities Carried Out by Nicaragua in the Border Area (2015, see “Costa Rica v. Nicaragua”) Chahal v. United Kingdom (1996) 391 Chapman v. Great Britain (2001) 538 Chevron (Texaco) v. Ecuador II, et al. (2009) 597 Chicago Prime Packers, Inc. v. Northam Food Trading (2005) 649 Clark v. Allen (1947) 166 CMS Gas Transmission Co. v. the Republic of Argentina (2003) 637–639 Collision with Foreign Government Owned Motor Car (1961) 101 Colombia v. Peru (1950, see “Asylum Case”) Congo v. Belgium (2002, see “Arrest Warrant of 11 April 2000”) Congo v. Rwanda (2006, see “Armed Activities on the Territory of the Congo”) Connors v. Great Britain (2004) 538 Corfu Channel (1949, Albania v. United Kingdom) 89–90, 225–226, 476, 570

Table of Cases

Costa Rica v. Nicaragua (2015, “Certain Activities Carried Out by Nicaragua in the Border Area”) 572–574 Cotton Field v. Mexico (2009) 407 Crosby v. National Foreign Trade Council (2000) 68–69 Cyprus v. Turkey (2001) 73

D Democratic Republic of the Congo v. Belgium (2002, see “Case Concerning the Arrest Warrant of 11 April 2000”) Democratic Republic of the Congo v. Rwanda (2006, see “Case Concerning Armed Activities on the Territory of the Congo”) Denmark v. Norway (1933, see “Legal Status of Eastern Greenland”) Diversion of Water from the Meuse (1937) 43

E East Timor (1995, Portugal v. Australia) 88 Electricity Company of Sofia and Bulgaria (1939, Belgium v. Bulgaria) El-Masri v. Macedonia (2012) 299 El-Masri v. United States (2007) 300 Endorois Case (2010) 592 Eritrea Ethiopia Claims Commission (2004) 116–117

F Factory at Chorzow (1928, Germany v. Poland) 45, 89, 103 Filartiga v. Peña-Irala (1980) 39 Fisheries Jurisdiction Cases (1973–1974, Germany v. Iceland and UK v. Iceland) 161 Flores v. Southern Peru Copper Corp. (2002–2003) 39, 46–47, 585 Frontier Dispute (Burkina-Faso/Mali and Burkina-Faso/Niger) 214

G Gabcikovo-Nagymaros Case (1997, Hungary v. Slovakia) 91, 166 Germany v. Iceland (1974, see “Fisheries Jurisdiction Cases”)

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Germany v. Italy (2012, “Jurisdictional Immunities of the State”) 94 Germany v. Poland (1923, see “Acquisition of Polish Nationality”) Germany v. Poland (1928, see “Factory at Chorzow”) Girls Yean and Bosco v. Dominican Republic (2005) 109, 537 Google v. CNIL (2019) 286–289 Google Spain v. Agencia Española de Protección de Datos (AEPD) and Mario Costeja González (2014) 284–286 Greenland Case (1933, see “Legal Status of Eastern Greenland”)

H Hardy and Maile v. United Kingdom (2012) 578 Her Majesty’s Advocate v. al Megrahi and Fhimah (2001) 251 Hirsi Jamaa and Others v. Italy (2012) 124–125 Honduras v. Nicaragua (1960, “Case Concerning the Arbitral Award Made by the King of Spain”) 157 Hoshinmaru Case (2007, Japan v. Russian Federation) 232 Hussein v. Attorney General of the US (2008) 393 Hussein v. Strafford County Department of Corrections Superintendant Brackett (2018) 393

I In Re: Bianchi (1957) 218 In the Proceeding between The Loewen Group, Inc. and R. L. Loewen (Claimants) and the USA (Respondent) (2003) 130 Indigenous Communities of the Lhaka Honhat Association v. Argentina (2020) 589–590 Interpretation of the Agreement of March 25, 1951 between the WHO and Egypt (1980) 316 Island of Palmas Case (1928, US v. The Netherlands) 209

J Jam v. International Finance Corp. (2018–2019) 321–322 Jaworzina Boundary (1928, PCIJ) 210 Jesner v. Arab Bank, PLC (2018) 400

Table of Cases

Judgment of the House of Lords, Regina v. Bartle and the Commissioner of Police for the Metropolis and Other ex parte Pinochet (1999) 96–97 Judgment of Trial Chamber I in the Krstic Case (2004, see “Prosecutor v. Krstic”) Judgment of Trial Chamber II in the Kunarac, Kovac and Vukovic Case (2001, see “Prosecutor v. Kunarac et al.”) Judgment of Trial Chamber II in the Tadic Case (1997, see “Prosecutor v. Tadic”) “Jurisdictional Immunities of the State” (2012, see “Germany v. Italy”)

K Kadic v. Karadzic (1995) 426 Kaliña and Lokono v. Suriname (2015) 589 Kichwa of Sarayaku v. Ecuador (2012) 589 Kiobel v. Royal Dutch Shell Petroleum Co. (2013) 396–399

L Laker Airways v. Sabena (1984) 245 Land Reclamation in and around the Straits of Johor (2003, Malaysia v. Singapore) 563 Lautsi v. Italy (2009) 405–406 Lautsi et al. v. Italy (2011, Lautsi II) 406 Laventure v. United Nations (2019) 320 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004) 205–206 Legal Status of Eastern Greenland (1933, Denmark v. Norway) 136, 202–203 Legality of the Threat or Use of Nuclear Weapons (1996) 460, 571, 593 Legality of Use of Force (Yugoslavia v. Belgium, 1999) 317 Leghari v. Federation of Pakistan (2015) 584 López Ostra v. Spain (1994) 587

M Mali v. Keeper of the Common Jail of Hudson County (1887, “The Wildenhus Case”) 219 Mara’abe v. Prime Minister of Israel (2006) 206

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Marble Ceramic Center, Inc. (MCC) v. Ceramica Nuova D’Agostino, S.P.A. (1998) 649 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (2001) 137 Maritime Dispute Judgment (2014, Peru v. Chile) 230 Masacre de Ituango v. Colombia (2006) 535 Masacre de Mapiripán v. Colombia (2005) 535 Masacre de Pueblo Bello v. Colombia (2006) 535 Mavrommatis Palestine Concessions (1924) 103 Mayagna (Sumo) Awas Tingni Community v. Nicaragua (2001) 589 Medellín v. Texas (2008) 33, 140–141 Mexico v. United States (2004, see “Avena and Other Mexican Nationals”) Microsoft Corp. v. Commission of the European Communities, Court of First Instance, September 17, 2007. Case T-201/04 349 Mighell v. Sultan of Johore (1893) 96 MOX Plant (2001, Ireland v. United Kingdom) 563 Mtikila and Others v. Tanzania (2013–2014) 415–417 Murray v. The Charming Betsy (1804) 34

N Namibia (South-West Africa) Advisory Opinion (1971) 196, 374 Nationality Decrees in Tunis and Morocco (1923, PCIJ) 106 Nauru v. Australia (1989, “Certain Phosphate Lands in Nauru”) 570–571 Nicaragua v. Colombia (2007–2012) 230 Nicaragua v. United States (1986) 51, 338, 461–462, 476, 525 Nishimura Ekiu v. United States (1892) 110 North Atlantic Coast Fisheries Arbitration (1912, US v. UK) 156, 219–220 North Sea Continental Shelf Cases, The (1969, Germany v. Denmark and the Netherlands) 19, 37, 41–42, 235 Nottebohm Case (1955, Liechtenstein v. Guatemala) 105, 108, 111–114, 274, 639 Nuremberg Trial Proceedings (1946) 428

O Ogiek Case (2017, see “African Commission on Human and People’s Rights v. Kenya”)

Table of Cases

Ogoni Case (2001, see “Social and Economic Rights Action Center (SERAC) and Another v. Nigeria”) Önerylidiz v. Turkey (2004) 535 Opuz v. Turkey (2009) 407 Over the Top Case (1925, Schroeder v. Bissell) 33 Owens v. Sudan (2011) 99

P Panama v. France (2000, see “Camouco Case”) Paquete Habana and The Lola, The (1900) 32, 39–40 Pennoyer v. Neff (1878) 264–265 Perez v. International Olympic Committee (2000) 119 Portugal v. Australia (1995, see “East Timor”) Portugal v. India (1957, see “Right of Passage Case”) Powell and Rayner v. United Kingdom (1989) 587 Powers Case (1960) 247 Prosecutor v. Akayesu (1998) 423 Prosecutor v. Kanyabashi (1997) 431 Prosecutor v. Krstic (2004) 422 Prosecutor v. Kunarac et al. (2001) 430 Prosecutor v. Lubango Dyilo (ICC, 2012) 438 Prosecutor v. Milošević (2009) 97, 429 Prosecutor v. Nahimana (2007, “Radio Machete”) 432 Prosecutor v. Tadic (1996) 430 Pulp Mills on the River Uruguay (2010, Argentina v. Uruguay) 6–7, 573–577, 583

Q Qatar v. Bahrain (2001, see “Maritime Delimitation and Territorial Questions”)

R Radio Machete case (2007, see “Prosecutor v. Nahimana”) Rainbow Warrior Arbitration (1991) 89

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Rann of Kutch Arbitration (1968) 210 Rasul v. Bush (2004) 491 Re: Arton (1896) 290 Re: Penati (1951) 269 Reparations Case (1949) 308–314 Republic of Philippines v. China (2016, South China Sea Arbitration) 30, 192, 246 Reservations to the Convention on Genocide (1951) 148–152, 314 Right of Passage Case (1957) 169 Rubin v. Eurofinance S.A. (2013) 640–641

S Sale v. Haitian Centers Council (1993) 123 Samantar v. Yousuf (2010) 99 Sampson v. Federal Republic of Germany (2001) 93 Saudi Arabia v. Nelson (1993) 102, 395 Schalk and Kopf v. Austria (2010) 414 Schreiber v. Germany and the Attorney General of Canada (2002) 94 Schrems v. Data Protection Commissioner (2015) 284 Social and Economic Rights Action Center (SERAC) and Another v. Nigeria (2001) 592 Soering v. United Kingdom (1989) 291 Sosa v. Alvarez-Machain (2004) 36 South China Sea Arbitration (2016, see “Republic of the Philippines v. China”) Southern Bluefin Tuna (1999, New Zealand v. Japan; Australia v. Japan) 563 Spain v. Morocco (1975, see “Western Sahara”) S.S. Lotus, The (1927, France v. Turkey) 18, 269–276 State Obligations Concerning Change of Name, Gender Identity, and Rights Derived from a Relationship between Same-Sex Couples (2017) 409–414 Stichting Mothers of Srebrenica v. Netherlands (2013) 320 Switzerland v. France (1929, “Case of the Free Zones of Upper Savoy”) 161

T Tatar v. Romania (2009) 578 Temple of Preah Vihear (1962, Cambodia v. Thailand)

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Trail Smelter Arbitration (1941, US v. Canada) 568–570 Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory (1932) 33 Trendtex Trading Corp. v. Central Bank of Nigeria (1977) 38

U United States Diplomatic and Consular Staff in Tehran (1980, United States of America v. Iran) 645 United States Steel Corp. v. Multistate Tax Commission (1978) 126 Urgenda Foundation v. Netherlands (2015) 581–583, 599 US v. Alvarez-Machain (1992) 292–296 US v. Calley (1973) 474 US v. Cardales (1999) 278 US v. Cordova (1950) 249 US v. Eurodif S.A. (2009) 619–620 US v. Iran (1980, see “United States Diplomatic and Consular Staff in Tehran”) US v. Jefferson (2008) 653 US v. Kay (2004/2007) 652 US v. Neil (2002) 276–277 US v. Pizzarusso (1968) 279 US v. Reynolds (1953) 300 US v. Sissoko (1997) 171

V Valentine v. US ex rel. Neidecker (1936) 290 Van Parys NV v. Belgisch Interventie- en Restitutiebureau (BIRB) (2005) 611 Victory Transport, Inc. v. Comisaria General de Abastecimientos y Transportes (1964) 100

W Watada v. Head (2007) 475 Women Against Violence and Exploitation in Society (WAVES) v. Child Welfare Society, Sierra Leone (2019) 381 Weiss et al. (2020) 352

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Western Sahara (1975, Spain v. Morocco) 197, 202 Wildenhus Case (1887, see “Mali v. Keeper of the Common Jail of Hudson County”) Wiwa et al. v. Royal Dutch Shell (2000 and 2009) 395–396 World Duty Free Company, Limited v. the Republic of Kenya (2006) 654

How to Study International Law Using This Book

This book is an introduction to international law, which we could easily reduce to little more than a dense web of rules, practices, and organizations that help regulate the behavior of international actors. It is, however, so much more than that. International law represents nothing less than the cumulative vision of the human race, a statement of its highest priorities and its future direction as a species. Some of those priorities include the creation and maintenance of peace, the eradication of pandemic disease, the preservation of a livable environment, the provision of basic human needs, establishing the conditions for shared prosperity, and the spread and protection of fundamental human rights. In the chapters that follow, we introduce you to the ways in which international law is a constantly evolving, intensely relevant, and endlessly fascinating subject of study that is operating in your life at all times. Inspired by the reading habits and questions of our own students as well as the vision of William Slomanson (the book’s original author), we designed this textbook to be a user-friendly introduction to international law, with opportunities for deeper engagement offered online. You will see that each chapter is laid out the same way and has the same features. Every chapter begins with a real-world example of some aspect of international law. We want students to understand the connections between what they might read in the news and the vast array of topics covered in a course on international law. Next, every chapter’s introduction provides a brief roadmap to the contents of the chapter ahead, helping students quickly understand the major issues they are about to encounter. As you discover decisions of national and international courts in this book, you will find that some are excerpted within the text itself – you will see a few pages of the text of the decision printed right in the chapter – and some direct you to online content (the “Cases” portion of the website). The online cases are edited to make reading important decisions in international law more convenient, so that you are not wading through hundreds of pages to learn about a particular concept. We want students to have

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experience reading the reasoning of courts from around the world, and so actually reading and directly grappling with portions of these decisions (versus reading about them) is a crucial part of your international law education. You will gain an opportunity to put your knowledge of international law and the cases you have read to use in the “Problems” section of the textbook’s companion website. International law is often very abstract. Working through problems – many of them based on current events – can help it feel more concrete as you see abstract principles of the law applied in practice. We also provide you with a list of links to major treaties, documents, and courts (the “Resources” section of the website) that you may find useful as you proceed in your study of international law. Finally, each chapter ends with a preview of what follows in the next chapter, and hints at how the chapters speak to each other. Finally, we acknowledge that there is far more to the study of international law than we can cover in a relatively succinct text. New, helpful resources are published every day. To assist you in discovering some of those resources, we have also created an annotated bibliography, housed on the companion website. It is organized by chapter so that you can easily find additional reading to suit your academic needs. This brief preparatory chapter can serve as a ready reference to some of the key elements of studying international law, designed particularly for those with little experience working with and interpreting legal documents. In the sections that follow, you will find the following “how to” guides that may give you a jumpstart in your study of international law: (1) How to Read a Case in International Law; (2) How to Brief a Case; (3) How to Read a Treaty and UN Documents; and (4) How to Use and Understand Theoretical Approaches in International Law.

1 How to Read a Case in International Law You will soon discover that there is not just one court that issues judgments on international issues. Rather, courts around the world frequently address issues touching on international law, so you will encounter decisions from multiple perspectives in this book. Often, however, the definitive word on major issues of international law comes from the International Court of Justice (ICJ), the court connected to the United Nations (UN). Thus, in describing how to read and brief a case, we use the ICJ’s caselaw as a baseline. If you know how to read an ICJ case, you will quickly learn how to read and digest cases from other courts as well. What follows are steps you can follow to locate, read, and understand a decision efficiently.

1 How to Read a Case in International Law

1. Note the case name. Only states can bring disputes before the ICJ (which is not true of all courts that decide on issues of international law). This means that the case names can be confusing and difficult to remember if all cases are State X v. State Y. Instead, cases often have a descriptive name that is more often used to refer to the case. For example, the ICJ’s 2010 decision in Argentina v. Uruguay is usually referred to as Pulp Mills on the River Uruguay. Cases from other courts – human rights courts, for example – use the more familiar style of Party X v. Party Y, in which Party Y is typically a state that is accused of breaching an obligation under international law (e.g., Opuz v. Turkey). Cases in international criminal law, decided by the International Criminal Court (ICC) and dealing with crimes against humanity or genocide, are noted as Prosecutor v. Defendant (e.g., Prosecutor v. Germain Katanga). 2. Skim the facts. Each decision tells a story, and if you know the story it will be easier for you to remember the eventual decision of the court and its significance. Courts will always give a brief sketch of the facts of the case in the opening paragraphs of the decision. You need not memorize every detail, but rather have an overall portrait of the dispute that brought the parties to court. Only the most relevant facts to the issue(s) at hand are included in this summary. 3. Find the legal issue. Decisions from the ICJ and other international courts are often quite long – sometimes hundreds of pages. You should not expect to read entire cases in this course, but rather only the portions that are the most relevant to whatever concept you are studying. Most decisions touch on multiple elements of international law because the cases that come before the ICJ are complicated. This means the decisions you read will be broken up into different sections; you will see what the different sections are by reading the decision’s table of contents, making it easy for you to find the information you are seeking. Paragraphs are typically numbered. For example, if you are studying international environmental law and you want to understand a state’s procedural obligations in Pulp Mills on the River Uruguay, a quick pass through the decision’s table of contents will direct you immediately to paragraph 67. In this way, you can maximize your reading time and begin to understand how courts make decisions. Additionally, you will begin to notice references to other cases within the decisions that you read, giving you a better sense of how decisions build on each other in establishing and following precedents. 4. Find the court’s reasoning. Pay attention to how the court comes to a decision on the issue you are interested in. Why were certain arguments more compelling than others? What evidence did the court find

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persuasive? You will likely not find the court’s reasoning in a single sentence, but in multiple paragraphs. It is crucial to understand the court’s reasoning in context, lest you misinterpret what the court actually said. You will often find a brief restatement of the court’s decision on each issue of the case at the very end of the judgment, but if you read only that portion, you will miss the core of the court’s reasoning. 5. Find the ruling (holding) and dissents. This is the easy part. The court’s ruling (the majority opinion) on each issue is found at the end of the judgment. Be sure to note dissents, if any, and the reasoning behind them. Treat concurring opinions the same. Doing so expands your thinking about the law itself and how the court reaches its conclusions. Cases reach international courts because there are no easy solutions; reading dissenting and concurring opinions gives you a fuller portrait of the available options. When you are asked to craft your own arguments about international legal issues, you can use not only the majority opinions of the court but also the minority opinions. Sometimes, today’s minority opinion(s) can become tomorrow’s majority opinion as circumstances change. Now that you have thoroughly read a case, you are ready to brief it. As you gain more experience, you will be able to brief cases as you read them. To help you with both reading and briefing cases, you will find edited versions of long cases (such as Pulp Mills) on the companion website. Some cases are also reprinted in the text itself. These case excerpts give you enough information about the case so that you can understand the core arguments and the Court’s reasoning. Full citations for most of the cases are also provided, in the event you wish to read further to enhance your understanding or quench your curiosity.

2 Why and How to Brief a Case What does it mean to “brief” a case, and why should you do it? To avoid confusion, note that there are two kinds of briefs: (1) the kinds that lawyers in a case write to convince the court to accept their client’s legal arguments over the other party’s position; and (2) the academic brief of the case for use in class, which is the type that we are describing here. Judgments from international courts are long and detailed – they contain too much information to quickly recall. A case brief is in part a memory aid: in a brief, you capture the essentials of a case so that you can remember what it was about and the contribution it made without reading it all again. But

2 Why and How to Brief a Case

case briefs are more than that: they ensure that you have understood the legal significance of that case and its contribution to the larger body of law. Done well, case briefs are indispensable tools to building effective legal arguments. It is worth noting that there are many online sites that offer pre-written case briefs, especially for famous cases like many we reference in this book. While it is tempting to rely on briefs that others have written, your understanding of international law will suffer if you do not undertake the hard work of sifting through the cases for yourself. Briefs represent your own way of thinking about a case and a court’s conclusions; they are your own, personal notes. While you may wish to consult online case briefs to check your understanding, we encourage you to keep your own set of briefs for this course. There are many ways to brief a case, and your instructor may have their own preferred method. The “IRAC” method is popular, however, and easy to remember and understand. “IRAC” stands for “Issue, Rule, Application, Conclusion,” the principal building blocks of a good case brief. An IRAC case brief has the following elements: 1. Case name, date, and the court that made the ruling. It is good practice to note where the case can be found beyond knowing just the court that made the ruling. It is possible to locate a case through the citation to the reporter. The “reporter” is the concise name of the court or printer that publishes that court’s opinion, along with the volume and page number (e.g., “1949 ICJ Reports 174” is the reporter citation for the classic ICJ case Reparation for Injuries Suffered in the Service of the United Nations). Most cases can be found online using the full reporter citation. 2. Facts of the case. In a few sentences, explain the details behind the case that are relevant to the court’s eventual decision. You should not write an exhaustive play-by-play, but only record the pertinent facts of the story that brought the parties into conflict. One of the best ways to determine what facts you should include is to ask whether they are directly relevant to the issue(s) in that case (see below). Be sure that you understand who the parties are: who has brought the dispute (the plaintiff; if a state, the state is called the applicant) and who the dispute is with (the defendant; if a state, the state is called the respondent). To avoid confusion, note that the positions of the parties are reversed in a higher court (court of appeals) from the original court; the plaintiff becomes the defendant and the defendant the plaintiff (since they are the ones bringing the new legal action). 3. Issue. What is the question of law that the court is trying to answer? What is the point of law over which the parties are in conflict? It is often

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helpful, especially when you are new to briefing cases, to begin this part of your brief with the phrase, “The issue is whether . . . .” This construction, while formulaic, can help ensure that you have found the central question the court is attempting to resolve. This is the most important section of the brief, as the rest of the brief is devoted to the court’s resolution of the issue. (Note that most cases have many issues; you may be asked to do an “IRAC” analysis on all or just some of them, depending on your instructor’s objectives.) 4. Rule. Upon what existing legal principles or instrument is the court basing its decision? What is it being asked to interpret? The “rule” section might include decisions from other courts, treaties, different state laws, or even norms and customs (Chapter 1 introduces you to these). 5. Application. How did the court apply the rule to arrive at a decision in this case? How did the court interpret the facts of the case given the rule it applied? In this part of the brief, be sure you understand why the court decided the case as it did; that is, what legal reasoning they used. Did the court use novel reasoning, or did they largely rely on precedents? 6. Conclusion/holding. What did the court decide? This is the answer to the “issue” section of the brief. Was the decision unanimous? Here, you should also record if there are dissents or concurring opinions you would like to remember. See the sample case brief below. Remember, however, that there is no “perfect” way to write a case brief. The best case brief is one that will be useful to you in your studies and in class.

PULP MILLS ON THE RIVER URUGUAY (ARGENTINA V. URUGUAY) International Court of Justice, Judgment of April 20, 2010, ICJ Reports 2010, 14 Facts: The River Uruguay forms part of the border between Argentina and Uruguay. The 1975 Statute of the River Uruguay is a bilateral treaty that details the states’ joint management of the river and established the Administrative Commission of the River Uruguay (CARU). Article 7 of the Statute requires that if the states wish to undertake projects that may impact the river, they must first notify CARU. Article 41 requires states to protect marine life and prevent pollution on the river. Uruguay authorized two companies to build pulp mills near the river. Argentina argued that

3 How to Read Treaties and UN Documents

PULP MILLS ON THE RIVER URUGUAY (ARGENTINA V. URUGUAY) (cont.) Uruguay violated the 1975 agreement when it did so. Uruguay insisted it was using state-of-the-art technology that would not endanger the river. Issue: The issue is whether Uruguay, in authorizing the pulp mills near the river, violated the terms of the 1975 Statute. Rule: 1975 Statute of the River Uruguay Application: The ICJ ruled that Uruguay was in breach of its procedural obligations under the 1975 Statute because it did not inform CARU of its plans to authorize the pulp mills, even though it had notified Argentina (but not via CARU). Argentina argued that Uruguay had also breached several substantive obligations to protect the river, but the ICJ did not uphold these claims. Importantly, the ICJ did note that there exists a requirement under international law to conduct environmental impact assessments in situations where there is a risk that an activity by one state may harm another. Conclusion: Uruguay was in breach of its procedural obligations under the 1975 Statute of the River Uruguay. It was not in breach of substantive obligations, though the Court noted a general acceptance among states of a requirement to conduct environmental impact assessments.

3 How to Read Treaties and UN Documents Aside from cases, you will encounter many other types of documents in this book. Treaties – formal agreements made between states – and legally binding documents produced by the UN form the backbone of international law. While it is not likely that you will read entire treaties in this course, it is important to know what to look for as you skim one. Likewise, understanding how to decode UN documents will serve you well in any course with an international component. We offer a brief set of guidelines to assist you. Treaties are covered in detail in Chapter 3 of this book; we refer you there for information on what treaties are, the forms they take, how states form them, and how states end them. Our focus here is on how to find treaties online, how to tell if they are still in force, and how to quickly ascertain their purpose and limits. There are many online sources for finding treaties; indeed, a quick online search will reveal the text of many of them. In international law, however,

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consulting an authoritative version of a treaty is the best idea. There are several good sources for doing so. For multilateral treaties (treaties involving more than two states), the best resource is the UN Treaty Series (UNTS) online. A link to that database can be found on our companion website under “Resources”; you will also note that the UNTS is the source we used in our footnotes in this book. Full links to each treaty we reference in the book are included in the notes. For up-to-date information about multilateral treaties, the best resource is the database of Multilateral Treaties Deposited with the Secretary-General. This database is updated daily with the latest information on treaty ratifications, reservations, and other information that might help you in your research. This is the best place to look to find out whether a treaty is still in force. There is a link to this site on our companion website as well. The major international organizations – the European Union (EU) or the Organization of American States, for example – also maintain sites for their formal documents. In addition, sometimes treaties are made directly between states, some of which publish treaties to which they are a party, and they are registered with Secretariat of the UN. These, too, are linked on our website, though most of these treaties are also collected in the UNTS. Reading treaties can be tedious, but it is not difficult. What follows are guidelines on how to get essential information from a treaty in a single read. 1. Why was the treaty necessary? The preamble is the first section of every treaty. Each clause begins with an action word or phrase: “believing,” “noting with concern,” “affirming,” “recalling.” Reading through this section can quickly give you a sense of why the parties felt it necessary to draft the treaty and prepare you for the meatier portion of the treaty that follows. 2. What did the parties agree to do? The longest section of the treaty is its substance, the individual articles that make up the agreement between the parties. The articles are organized into different sections, often set off with subheadings. The first section of articles often defines terms that will be used throughout the treaty and indicates situations in which the treaty applies and when it does not apply. Articles that follow in subsequent sections form the heart of the agreement: this is where you should focus your attention as you read. What are the parties agreeing to do when they sign this treaty? How does the treaty limit or guide their behavior? 3. What happens in a dispute? Near the end of the treaty there will likely be a series of articles that do the following: (1) establish an organization with responsibility for overseeing the treaty’s observance; (2) detail how

3 How to Read Treaties and UN Documents

disputes will be settled; and (3) outline possible ramifications for noncompliance. These sections are crucial in international law; while we know that most states comply with international obligations, a large part of the study of international law is concerned with what happens when they do not. 4. How will the treaty come into force? The final section of a treaty is devoted to issues of ratification and entry into force. It is also the section that details whether or not reservations (sometimes also called “declarations”) are allowed. States can enter into some treaties without agreeing to all of its provisions. These “reservations” are typically listed at the end of the treaty or are easily found in the UNTS documentation. As you will read in Chapter 3, states cannot make reservations to a treaty that effectively nullify its purpose. Depending on your reason for reading the treaty, reservations may be important to consider. In addition to treaties, you will often encounter documents produced by the UN in this textbook (and in your study of international law more generally). Since the UN is a complex organization (detailed in Chapter 6) and since it publishes so much of its work, it can be confusing to figure out what type of document you are reading and what its purpose is. The most relevant UN documents for the study of international law are listed below, though your instructor may have amendments to this list: 1. UN Security Council resolutions. The UN Security Council is the only organ of the UN with the power to compel member states to act to counter a threat to international peace and security. As such, they are powerful documents in international law, particularly related to the use of force and peacekeeping. Security Council resolutions have been continuously numbered since 1946 and follow this pattern: S/RES/[sequential number] (year). 2. UN General Assembly resolutions. The General Assembly is the UN’s main deliberative body and it issues non-binding resolutions and declarations. These documents can be useful to ascertain the common interests of states; they carry considerable political weight even if they are not enforceable. General Assembly resolutions, which you will encounter in this book, carry the following tag: A/RES/[session number]/[sequential number]. 3. Reports and decisions from major UN committees. The UN has a lot of smaller agencies and committees under its umbrella. Notable among them are several human rights committees that issue recommendations and take decisions on situations submitted to them in accordance with

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human rights conventions. The Committee on the Elimination of All Forms of Discrimination Against Women (CEDAW Committee), for example, publishes its views on situations that are forwarded to it alleging violations of the Convention on the Elimination of All Forms of Discrimination Against Women. These documents carry special tags: CEDAW/C/[session number]/D/[communication number]/[year]. Other committees have their own similar tags. For example, the Human Rights Committee – the committee associated with the International Covenant on Civil and Political Rights – carries this tag: CCPR/C/[session number]/D/[communication number]/[year]. 4. Draft articles and documents of the International Law Commission. The International Law Commission (ILC) is tasked with the development and codification of international law. When the UN General Assembly adopts the ILC’s “draft articles” on topics of concern in international law, those articles are often incorporated into international agreements and referred to by international courts. You will find several references to specific draft articles throughout this textbook. Documents related to the ILC will bear the following tag: A/CN.4/[sequential number]. The various draft articles carry the tag: A/[session number]/10, where “10” refers to Supplement 10 of the UN General Assembly’s Official Records. Draft articles are also published in the Yearbook of the International Law Commission.

4 Using and Understanding Theory/Jurisprudence in International Law You may not be in the habit of thinking in explicitly theoretical terms. This text has a pragmatic focus and does not dwell on theory. However, theory is behind every subject of study, international law included. It will significantly aid your study of international law to understand what sorts of assumptions (“priors”) are hidden behind the voluminous content of the subject. Theory guides all researchers and writers in international law (textbook authors included) in the key decisions about what material to include and exclude in the first place, and how that material is presented in the text and in what order. In the following pages you will see a simplified table of the leading theories of international law. In the legal world, jurisprudence is the theory of how law is created/grounded/justified, who should/does make it, and under what circumstances it can/should be enforced or followed. More

4 Using and Understanding Theory/Jurisprudence

broadly, in the social sciences, every complete theory serves some combination of three or four broad purposes: (1) description of a class of phenomena; (2) explanation of that phenomenon; (3) prediction of how those phenomena will behave in the future and under what circumstances; and, sometimes, (4) a prescription of what can/should be done about the phenomena in the future. Understanding the major purposes for which they are designed is an effective shortcut to understanding the bases for complex theoretical arguments in international law. Table 0.1 is meant to be read primarily across the rows in order to compare like elements of each of the major jurisprudential schools listed here. The categories in the table – (1) Tenets; (5) Key Findings; and (6) Normative Preferences – should give you the quickest read on where the theories are coming from and what they hope to achieve. The other categories in rows – (2) Key Actors; (3) Analytical Tools; (4) Purposes of the theory; and (7) Significant Sub-schools – are designed to give you finer-grained understanding of the theories after gaining a sense of the basics from the earlier categories. It is through this compare-and-contrast method that you can better understand how each theory is constructed and what makes it unique, or what characteristics it shares with other theories. Several caveats are in order: Table 0.1 is not an exhaustive list of all of the existing jurisprudential approaches to international law. The purpose here is clarity, not overwhelming detail. You are encouraged to follow the notes in the table for further study of the included theories, and references to the additional related or subsidiary theories. Your instructor may use different names for the theories listed here. However, this table will provide you with a useful overview of the major jurisprudential approaches to international law. The table provides an additional tool to understanding by placing the theories into one of four “buckets”: Natural Law, Positivism, Social/ Contextual Legal Theories, and Critical Theories, according to their assumptions and ultimate goals. It is far beyond the scope of this text to provide a history of legal thought here, but the buckets allude to the pattern in international law’s jurisprudential history since roughly the Greek “golden age” (fifth century BC) for legal theories to be built upon one of these four bases. Throughout this time, the buckets of theory have risen or declined in popularity and use and they are likely to do so again in the future. It is useful for you to know that while the proper names of theories and schools come and go, the bases remain fairly constant. Your instructor can further elucidate the meanings and purposes behind each of the buckets if they wish to do so. Table 0.1 cannot give a sense, however, of the frequency of use of the theories in practice and which theories are emerging for the future of the

11

Table 0.1. Theoretical approaches to international law [Table also available at www .cambridge.org/FPIL7]

1. Tenets

Bucket 1: Natural Law

Bucket 2: Positivism

Liberal Legal Theory

Legal Positivist

1. it is “self-evident” that the free exchange of goods, services and above all, ideas, will lead to mutually beneficial economic, legal, and institutional practices, and these practices and evolving norms will reduce the frequency and severity of armed conflict and generally improve the human condition. 2. states, firms (e.g., Multinational Corporations), NGOs, and individuals

3. Analytical Tools

Formalism

1. the only law is positive 1. Lawyers must study only the law; i.e., international law text of the law (rule or is only binding and regulation) itself, seeking out effective “law” to the its plain meaning and extent that the most describing and legitimating powerful actors of the such norms.[1] time recognize and enforce it (currently states). Rejects a moral grounding for law, and the so-called binding nature of precedent or international legal systems on states' actions. 2. states and their agents, including accredited diplomats, and statecreated IGOs and PIOs; any sufficiently powerful political group

2. Key Actors

3. econometrics, statistics, theory-driven practice, case studies of international legal instruments

Bucket 3: Social/Contextual Legal Theories

2. states, PIOs, arbitral panels, 2. International elites, including diplomats, heads lawyers and legal scholars of state and foreign ministers, at all levels finance ministers and other economic decision makers. The public is usually treated as a large group, whose collective voice indirectly channels elite decisionmaking through its general behavior, polling, demonstrations, consciousness-raising, naming and shaming, etc.

7. Significant Sub-Schools

Legal Culturalists 1. Law cannot be understood apart from the culture(s) that it is embedded in.

2. Opinion leaders, the media, individual judges, and lawyers

3. laws, constitutions, rules and regulations

3. sociology and other social-science methods, polling and statistics, historical case studies

3. “hermeneutic self-reflection of jurisprudence,” i.e., textual analysis, context, history, and legal rationale of the law.[7]

4. descriptive, explanatory, and predictive

3. descriptive and explanatory

4. provide analytical clarity and more accurate analysis not provided by other theories, to bring back history and context to international political and legal analysis, a tradition that dates back at least to ancient Greece.[10] Can be used as a “nest,” or umbrella, to incorporate several other theories in meta-analysis.

4.descriptive and explanatory

5. the liberal international economic order (LIEO), created and reinforced by transnational legal norms, has resulted in greater prosperity for more people than any time in world history; has aided in the spread of both political liberalization and economic development. More sophisticated versions do acknowledge “uneven” development and the need for legal “nudges” to bring about optimal results

5. International law is not “naturally” given or derived, nor the result nor of any “original law-founding act,” but rather law is a product of politically driven coercion. It is ever-changing. There is only one legal system (“monism”); national and international distinctions are arbitrary (Kelsen).[11]

5. All law, including international law, constitutes closed systems of meanings and has a separate and authoritative status apart from society or culture; laws are best understood and interpreted by specialists.

5. Supposedly “fixed” laws and patterns in international law and relations are changeable and context-dependent; an example is the declining acceptance of offensive war by states as legally permissible or morally defensible.

5. In Comparative Public Law (CPL), national constitutions and legal systems make little sense apart from the cultures and societies in which they operate. For example, the meaning and legal status of a headscarf or other covering worn by a Muslim teacher in an Iranian versus a German school.[12]

6. the theory and practice of international law should embody supposedly “neutral” (race, gender, and colorblindness) principles of economic and political freedom, equality and democracy, and international open borders and free trade, unburdened by excessive IGO/PIO regulation

6. to emphasize the role of power, politics, and the organized coercive ability of states in effectuating international law as the only "realistic" and useful understanding of IL

6. to ground the status and legitimacy of law in legal systems rather than just states or PIOs; to narrow the focus to a close study of legal texts; to promote law not as subject to class interest, but rather “a fixed and inexorable system of logically deducible rules.”[14]

6. Preferences vary by context and individual legal analyst.

6. a division of labor in analysis of IL between lawyers, social scientists, theologians, and others should improve the relevancy of law in increasingly diverse societies, improve legislation, and standards by which to adjudge the legitimacy and soundness of the law.

7. Trade and Finance Theory, Democratic Peace Thesis, Universality of Principles, IHL, IEL, Liberal Pacifism,[21] Natural Systems Theory.[[22]

7. Realism in International 7. Analytical Jurisprudence Relations theory, (Hart), Scientific Jurisprudence, Command-Sanction Textualism, Transnational and approach (Austin), Legal Systems Theory “Pure Theory” approach (Kelsen),[23] Legal Critical Positivism[24]

7. “Naturalistic” (Wendt), Post-Modern (Ruggie, Onuf), Copenhagen School (Barzun) and Critical.

7. Legal Cycle Theory,[25] Law as Culture,[26] Time-Minded Jurisprudence (Postema),[27]

4. Purpose of the Theory

6. Normative Preferences

1. international legal rules, structures, and processes, rather than being “exogenous” or “given,” are socially constructed in a dialectic process between international elites and mass publics.

3. study of laws created by any sufficiently powerful organized group and related practices

4. explanatory and prescriptive

5. Key Findings

Constructivist Legal Theory

Bucket 4: Critical Legal Theories (change-oriented) New Haven School

Legal Realism

1. “Law is a process of 1. “[T]he empirical study authoritative and of how law actually controlling decision making works…and…on law as designed to promote human a method of pragmatic dignity and world order.”[2] problem-solving….”[4] The New Haven School is a International Law’s “comprehensive framework meaning develops over for inquiry into the interface time through a series between law and policy.”[3] of processes and practices.

Legal Critical Race Theory

Marxist-structuralism

Feminism

1. international laws, regulations, and other legal institutions systematically facilitate and privilege capitalist economic elites at the expense of the world’s working classes and poor, especially in the Global South (the “periphery”).

1. the role played by women in international law, as in society and history in general, has been systematically ignored, downplayed, controlled and/or belittled to their detriment and that of society. That the creation and practice of international law would be improved with the active participation of more women.[5]

1. White elites have set up institutions and systems that are designed to preserve and extend elite White privilege at the expense of persons of color, robbing them of agency, even in areas where the majority of the population is Black or other persons of color (BIPOC).

TWAIL 1. Agrees with the basic tenets of CRT, but adds that both democracy and capitalism as systems are racist, colonial, and violent at their core. Even “sovereignty” is held to be exclusionary. Other theories, especially neo-Liberalism, have enshrined their normative biases as supposedly “neutral” tenets of “pure” international legal theory, effectively placing CRT and TWAIL as outside the mainstream of international jurisprudence.

2. International lawyers, key law-making elites, NGOs, interest groups and individuals.[6]

2. the state, transnational actors, society and specific courts and judges.

2. primarily economic elites (bourgeoisie), concentrated in the “core of the core,” or the financial capitals of the Global North/developed world.

2. The “patriarchy,” or male-dominated legal and other repressive systems, at all levels.

2. White elites who deliberately make it (often through IL) extremely difficult for persons of color to ascend to positions of power and control. The key dichotomy here is White and non-White.

2. Agrees with CRT, but also elevates the dichotomy of the West (Global North) and the rest (Global South).

3. policy case studies, empirical-statistical analysis, analysis of communication processes between international actors, “phase” analysis,[8] contextual analysis.[9]

3. statistics, to analyze both state-level and international-level data sets, and participant-observation of individual judges and lawmakers

3. Hegelian-Marxian political-economy, history, economic classes, case studies

3. gender, race, socio-economic status (class), statistics and historical case studies.

3. race, ethnicity, class, history, case studies, and statistical (pattern) analysis

3. same as CRT, but adds geography

4. descriptive, explanatory, and prescriptive (of specific policies)

4. descriptive, explanatory, and predictive (of likely trends and outcomes).

4. explanatory and prescriptive/normative (change-oriented)

5. Modern IL policy making, e.g., in addressing climate change, is a complex interplay between local, state, and international actors. Existing law can be both empowering and disempowering to those affected by it.

5. Both soft and hard international law are constrained by non-legal social norms in order to obtain greater legitimacy for rulings, e.g., in the WTO dispute-resolution panels, and in EU courts. The EU’s Open Method of Coordination is an example of “experimentalist” legal realism.

5. international law and political systems are “captives” of the bourgeoisie; finds concentrations of wealth, especially among the world’s Multinational Corporations (MNCs); that most constitutions and other foundational legal documents in the Global North remove from legal protection social and worker “rights” in favor of the rights of the owners of the means of production.

5. women’s participation in politicalsocial-legal spaces decisively shapes outcomes, usually for the better. That there is a complex and often overlapping interplay of historicalsocial-economic norms and identities (some encoded into law and some not), called “intersectionality,” that affect women’s societal voice, roles and often results in a subjugated status. That the “essentialist” women’s perspective, which was usually based on White heterosexual females in the Global North, unfairly limits, and falsely depicts, many BIPOC[13] women’s lived experiences, especially in the Global South.

6. IL jurisprudence should blend pragmatism, by focusing on specific policies, and shared values and aspiration, by highlighting policies that “promote human dignity” often through international development and IHL. Education, especially legal education, should emphasize and reflect “democratic character,” i.e., the “capacity to respect the self and others.”[15]

6. maintain the focus on law as having an independent theoretical status while grounding its study in time and locationspecific context[16]; to move beyond the state to increase the relevance and explanatory power of these theories in an increasingly globalized (trans-national) world. To serve as a “bridge between law, practice, and the social sciences.”[17]

6. take power and wealth, including the “means of production,” from the Global bourgeoisie and their enablers, the capitalist-captured state, and distribute it equitably among the world’s poor and working class (the proletariat), and then enshrine such equitable material distribution into international law. More broadly, to “disrupt” the existing law’s “reproduction of ideology and advantage.”[18]

6. “liberate women as requiring the abolition of all forms of oppression, not only patriarchy.”[19]

6. Broadly, both CRT 6. Reduce the power and TWAIL are “seeking imbalance between to maximize law's Global North and South, emancipatory potential and to effect an equitable for racial justice and North to South resource substantive re-distribution. equality.”[20].

7. Dependency Theory, Modern World Systems Theory

7. Liberal, Radical, Institutionalist, Constitutionalist,[31] Intersectional,[32] Critical Race,[33] Post-Modern,[34] Queer, and Socialist,[35]

7. International CRT, 7. Chinese IL, Islamic IL Feminist CRT; sub-schools still under development

7. Empirical, 7. Aspects of the Law of Armed Conflict, Maritime Experimental, Behavioral, Contextual, and Law, applied theories in IEL, Institutional. [30] IP/IER, IHL, [28] Developmental Law[29]

4. descriptive, explanatory, and prescriptive (change-oriented)

4. descriptive, explanatory, and prescriptive

5. Legally created and maintained institutions, like banks, educational opportunities, infrastructure and patterns of policing systematically deprive BIPOC of opportunities and privilege Whites at the expense of BIPOC.

4. same as CRT

5. IL has facilitated Global North-based Multinational Corporations (MNCs) in systematically extracting non-renewable resources from the Global South without adequate compensation or long-term investment in the Global South states. More broadly, IL and the “rules-based order” have excluded Global South input and the resulting norms heavily favor the interests of the North over the South.

Notes: [1] Guilherme Vasconcelos Vilaca, “Why a Theory of International Arbitration and Transnational Legality?,” Canadian Journal of Law and Jurisprudence 29, No. 2 (2016): 495–520.

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[2] Molly Land, “Reflections on the New Haven School,” New York Law School Law Review 58, No. 4 (2013): 920. [3] Richard A. Falk, “Casting the Spell: The New Haven School of International Law – Jurisprudence for a Free Society: Studies in Law, Science, and Policy by Harold D. Lasswell and Myres S. McDougal,” Yale Law Journal 104, No. 7 (1995): 1991–2017. [4] Gregory Shaffer, “The New Legal Realist Approach to International Law,” Leiden Journal of International Law 28, No. 2 (2015): 194. [5] Elizabeth Katz, “Women’s Involvement in International Constitution-Making,” in B. Baines, D. Barak-Erez, and T. Kahana, eds., Feminist Constitutionalism: Global Perspectives (Cambridge: Cambridge University Press, 2012), 204–222. [6] Land, “Reflections on the New Haven School,” 923. [7] Franz Reimer, “Law as Culture: Culturalist Perspectives in Legal Theory and Theory of Methods,” German Law Journal 18, No. 2 (2017): 268. [8] Land, “Reflections on the New Haven School,” 924. [9] Mark D. Kielsgard, “Critiquing Cultural Relativism: A Fresh View from the New Haven School of Jurisprudence,” Cumberland Law Review 42, No. 3 (2011): 441–488. [10] Franz Reimer, “Law as Culture: Culturalist Perspectives in Legal Theory and Theory of Methods,” German Law Journal 18, No. 2 (2017): 256. [11] Kristina Cufar, “Pure Theory’s Deconstruction,” European Journal of Legal Studies 13, No. 1 (2021): 155–186. [12] Reimer, “Law as Culture,” 269. [13] BIPOC is an acronym for “Black, Indigenous [and] People of Color.” [14] Paulo Barrozo, “Law in Time: Legal Theory and Legal History,” Yale Journal of Law and the Humanities 31, No. 2 (2020): 330. [15] Ríán Derrig, “Educating American Lawyers: The New Haven School’s Jurisprudence of Personal Character,” European Journal of International Law 31, No. 3 (December 15, 2020): 834. [16] Victoria Nourse and Gregory Shaffer, “Empiricism, Experimentalism, and Conditional Theory,” SMU Law Review 67, No. 1 (2014): 141–186. [17] Shaffer, “The New Legal Realist Approach to International Law,” 210. [18] Emilios Christodoulidis, “Critical Theory and the Law: Reflections on Origins, Trajectories and Conjunctures,” in Emilio Christodoulidis, Ruth Dukes, and Marco Goldoni, eds., Research Handbook on Critical Legal Theory (Northampton, UK: Edward Elgar Publishing, 2019), 24. [19] Dorothy E. Roberts, “Critical Race Feminism,” in R. West, F. Haas, and C. Grant Bowman, eds., Research Handbook on Feminist Jurisprudence (Northampton, UK: Edward Elgar Publishing, 2019), 113. [20] E. Tendayi Achiume and Devon W. Carbado, “Critical Race Theory Meets Third World Approaches to International Law,” UCLA Law Review 67, No. 6 (2020): 1462. [21] Samuel Moyn, Humane: How the United States Abandoned Peace and Reinvented War (New York: Farrar, Straus and Giroux, 2021). [22] Alan Calnan, “Beyond Jurisprudence,” Southern California Interdisciplinary Law Journal 27, No. 1 (2017): 1–78. [23] Cufar, “Pure Theory’s Deconstruction.” [24] Tuori Kaarlo, Critical Legal Positivism (New York: Routledge, 2002). [25] Larry A. DiMatteo, “Unframing Legal Reasoning: A Cyclical Theory of Legal Evolution,” Southern California Interdisciplinary Law Journal 27, No. 3 (2017): 483–548. [26] Franz Reimer, “Law as Culture: Culturalist Perspectives in Legal Theory and Theory of Methods,” German Law Journal 18, No. 2 (2017): 255–270.

4 Using and Understanding Theory/Jurisprudence

[27] David Luban, “Time-Mindedness and Jurisprudence,” Virginia Law Review 101, No. 4 (2015): 903–918. [28] Roza Pati, “Trading in Humans: A New Haven Perspective,” Asia Pacific Law Review 20, No. 2 (2012): 135–166. [29] Qerim Qerimi, “Development as a Universe of Human Aspirations: A New Haven School Perspective,” Asia Pacific Law Review 19, No. 1 (2011): 113–134. [30] Nourse and Shaffer, “Empiricism, Experimentalism, and Conditional Theory,” 184. [31] Katz, “Women’s Involvement in International Constitution-Making.” [32] Adrien K. Wing, “International Law and Feminism,” in R. West, F. Haas, and C. Grant Bowman, eds., Research Handbook on Feminist Jurisprudence (Northampton, UK: Edward Elgar Publishing, 2019), 468–484. [33] Roberts, “Critical Race Feminism,” 112–126. [34] Laura A. Rosenbury, “Postmodern Feminist Legal Theory,” in R. West, F. Haas, and C. Grant Bowman, eds., Research Handbook on Feminist Jurisprudence (Northampton: Edward Elgar Publishing, 2019), 127–137. [35] Cynthia Grant Bowman, “Recovering Socialism for Feminist Legal Theory in the 21st Century,” Connecticut Law Review 49, No. 1 (2016): 117–170.

discipline. Today, and in the recent past, liberal legal theory and positivism have been far and away the most frequently cited (or assumed) approaches among Global North scholars and practitioners of international law, while some version of TWAIL (Third World Approaches to International Law) has been popular among many Global South scholars. Since most contemporary international law has been primarily the result of Global North-based institutions, liberal legal theory has been especially important in terms of justification of the types of international law that have been created, and for whose benefit these types have been created and enforced. Liberal legal theory is a crucial underpinning of almost every substantive area of international law: human rights, protection of the environment, rules promoting free(er) trade, safe and predictable navigation of the seas, air and space, and the creation of international organizations to enforce these same liberal ideas. These observations are not meant to imply the inherent superiority of liberal legal theory or positivism, but merely to provide a snapshot of current use. Indeed, each theory or school in this table has a wide variety of adherents, champions, and critics. It is not difficult to imagine that the four jurisprudential approaches listed in Bucket Four will become more important in the future study of international law as a subject, and that is why they are treated in some detail here. Bucket Four is all about change, and change is certainly coming to the practice of international law; we assume that there will be some continuity with past jurisprudence as well. In all probability, new jurisprudence will combine existing and yet-to-be-imagined jurisprudence in novel and interesting ways; perhaps you might be responsible for doing so.

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1

What Is International Law?

In one of the earliest meetings of his tenure as United States (US) Secretary of State, Antony Blinken found himself in Anchorage, Alaska, face to face with China’s top diplomats. After four years of antagonistic relations with China under US president Donald Trump, who waged an intense trade war with China and who blamed it for the deadly coronavirus pandemic, Blinken was attempting an unlikely reset at this meeting in March 2021. Blinken’s opening remarks at the meeting set the tone: Our administration is committed to leading with diplomacy to advance the interests of the United States and to strengthen the rules-based international order. That system is not an abstraction. It helps countries resolve differences peacefully, coordinate multilateral efforts effectively, and participate in global commerce with the assurance that everyone is following the same rules. The alternative to a rules-based order is a world in which might makes right and winners take all, and that would be a far more violent and unstable world for all of us.1

Chinese diplomat Yang Jiechi responded with a different view of Blinken’s “rules-based order”: What China and the international community follow or uphold is the United Nations-centered international system and the international order underpinned by international law, not what is advocated by a small number of countries of the so-called “rules-based” international order. And the United States has its style – United States-style democracy – and China has the Chinese-style democracy. It is not just up to the American people, but also the people of the

1

United States Department of State, “Secretary Antony Blinken, National Security Adviser Jake Sullivan, and the Office of the Central Commission for Foreign Affairs Yang Jiechi and Chinese State Councilor Wang at the Top of Their Meeting.” Press Release, March 18, 2021, www.state.gov/secretary-antony-j-blinken-national-security-advisor-jake-sullivanchinese-director-of-the-office-of-the-central-commission-for-foreign-affairs-yang-jiechiand-chinese-state-councilor-wang-yi-at-th/ accessed May 3, 2022.

Introduction world to evaluate how the United States has done in advancing its own democracy.2

What did Blinken mean by a “rules-based international order,” and how might it be different from what Yang meant by an “international order underpinned by international law?” In different ways, both diplomats were referencing the reality of a system that exists in some form beyond the confines of national borders, a system that governs international behavior. For Blinken’s US, that system is neutral and provides predictability; for Yang’s China, it is a system that has been manipulated by the Americans and other powerful countries at the expense of the less powerful. But both are referring to the existence of international law and its importance in maintaining global peace and prosperity. Which interpretation is correct? As it turns out, both of them are – helping you figure out why is one of the tasks of this first chapter.

Introduction This chapter examines the origins and nature of international law: what is it? Concepts that will be foundational throughout your study of international law – anarchy, sovereignty, opinio juris, and consent – are introduced in the first section of this chapter, giving you the vocabulary you need to understand the content to come. Next, we engage in a discussion of the development of international law: where does it come from, and how has it evolved through history? We provide a sketch of the broad lines of international law’s evolution, with a focus on some of the earliest writers who theorized about the laws of war and peace – some of them well before the concept of state sovereignty emerged. We focus on the scholarship of Vitoria, Grotius, Pufendorf, and Vattel, without whose contributions a book like this one would never exist. These European scholars tell one part of the story of international law’s development. A generation of scholars from the developing world have a different account, and we describe those developments as well. The largest part of this chapter is devoted to the sources of international law. As you will see, international law and national law are markedly different, and one of the major points of departure is in how the law is organized. International law is decentralized and not found in one place, but rather can be discovered in a dizzying array of habits, customs, documents, 2

Ibid.

17

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1 What Is International Law?

resolutions, decisions of courts from around the world, and scholarly writings. Understanding the “stuff” of international law is a foundation upon which the rest of your study of the topic rests.

1 What Is International Law? In its most elegant definition, international law is the body of rules that states consider binding in their mutual relations. States (countries3) are the major actors in international law, and the primary – but not only – subjects of it. As we will see in subsequent chapters, states are being increasingly joined by other actors as both creators and subjects of international rules, but states remain the primary actors. The Permanent Court of International Justice, the predecessor to today’s International Court of Justice (ICJ), defined international law as follows: International law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions [treaties] or by usages [customary state practice] generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims.4

Such a definition can be confusing because most of us first encounter law through study of national legal systems. National legal systems – the laws of individual countries – are relatively straightforward to study. Typically, a country’s laws are passed by executives or legislatures, are written down and organized into a coherent system that makes it easy to determine precisely what the law is, are enforced by those with the authority to do so, and interpreted (when necessary) by national courts. International law is different. A lot of what we understand about national or domestic legal systems does not translate well to international law. International law is not designed by a world legislature or world executive because those entities do not exist. It is not written down in a single place. It is not enforced consistently, and it is not always clear who should be the enforcer. There is a court, the ICJ, whose only job it is to interpret international law, but it is only one court among many that can do so. The following sections clarify some of the essential concepts in international law that clearly mark it as different from national law. 3 4

The differences between “states,” “countries,” and “nations” are explored in Chapter 2. The S.S. Lotus (France v. Turkey), 1927 PCIJ, Ser. A, No. 10, 18.

1 What Is International Law?

1.1

Opinio Juris and Consent

In domestic (national) law, the law is formulated by the legislative branch of government (or the legislature in concert with the executive) and in democratic societies should reflect the collective will of the people being governed. International law, however, is born out of state practice. State practice – that is, how states behave in their interactions with each other and their expectations about those interactions – is the foundation of international law. A number of states may employ a common practice that ultimately becomes the norm for international relations between all states. This feature of international law is typically referred to as opinio juris. The ICJ, the UN’s judicial branch, provided the caveat that “[n]ot only must the acts concerned amount to a settled practice, but they must also be such, or carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it . . . The States concerned must therefore feel that they are conforming to what amounts to a legal obligation. The frequency or even habitual character of the acts is not in itself enough [to constitute opinio juris].”5 Thus, it is not merely the acts of states that constitute opinio juris, but their belief that they have an obligation to act in a certain way. Furthermore, international law is predicated upon the consent of states to be bound by it. This is because the international system – all states together – is characterized by anarchy. Anarchy means that there is no central authority that can make rules that are applicable to every state. Similarly, no single entity enforces laws. Instead, each state is sovereign, deciding for itself how it should behave without intervention from any other entity. In a system such as this, in which every state makes its own decisions and cannot be compelled to submit to the will of a higher authority, creating and enforcing a common set of rules seems an impossible task. After all, why would any state wish to follow rules that an outside authority created? As former ICJ judge Bedjaoui observes: If one postulates at the outset that there is no higher authority than the State, how can the norm[s] of international law be produced for and applied by such a sovereign State? As might be expected, there is only [one] possible answer to this question, namely that, historically, it has not been possible for international law to be anything other than a law resting largely on consent, whether express or

5

The North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark/ Netherlands), 1969 ICJ Reports 3, 44. Emphasis added.

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20

1 What Is International Law? tacit, of States. . . . It is more a law of co-ordination (between the sovereign jurisdictions of individual States) than a law of subordination.6

When does a practice become part of international law? The answer to this question is unsatisfying: a practice becomes the standard of behavior for states (a norm) when enough states consistently use it and recognize that it constrains their behavior. There is no number or percentage of the world’s states that automatically convert a practice into international law. Put another way, universal acceptance is not required for a norm to become part of international law. Ultimately, because of state sovereignty, states are free to adopt the norms of international law or reject them outright – but most do choose to adopt them. States sometimes deviate from common practices that have developed over time. When one state invades another, for example, it is deviating from a norm of state sovereignty and the practice of non-intervention. But this does not render sovereignty or the practice of non-intervention invalid. International law cannot be created, modified, or nullified by the actions of a single state. Even the actions of a powerful state cannot reverse state practices that have developed over many years. While powerful states have been instrumental in the development of international law, they cannot unilaterally change it.

1.2

Enforcement

In domestic legal systems, it is easy to argue that laws are obeyed because they are predictably enforced. If you are driving over the posted speed limit, for example, you understand that a police officer who records your excessive speed can pull you over and issue you a ticket. At some level, you know the consequences for bad behavior and they are not pleasant (paying fines, time in prison, etc.). The same is not true in the international system of states: a state that defies state practice can often escape punishment in the traditional sense. There is no “state jail” for wayward states. Many who question the legitimacy – or even the existence – of international law criticize its lack of predictable enforcement. Hathaway and Shapiro note that this criticism is part of the “Modern State Conception” of law, which essentially mandates that “real” law must conform to our specific vision of domestic law. In this “Modern State Conception,” “law matters

6

“General Introduction,” in M. Bedjaoui, ed., International Law: Achievements and Prospects (Paris: UNESCO, 1991), 187–192.

1 What Is International Law?

through the threat of exercise of violence” and “legal rules only affect behavior when they are enforced . . . .”7 If there is no “global-cop” to punish states for bad behavior, how is international law enforced? How does it influence state behavior? States generally cooperate because they want to survive and thrive in an anarchic system. Even though there is no “world police” that can enforce international rules, “almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time,” as Henkin famously stated.8 International law provides structure and predictability to a system that has no centralized authority. Enforcement of international law does not require states to be under constant threat of violence; instead, enforcement in international law can take forms not recognized under the “Modern State Conception.” International law is often enforced by “outsourcing” enforcement to other actors, such as when the United Nations (UN) authorizes the use of force to maintain international peace and security. It is not the UN who enforces the rules, but the member states of the UN themselves. Enforcement of international law may also present as “outcasting”: “denying the disobedient the benefits of social cooperation and membership.”9 States may be excluded from international decision-making (e.g., in international organizations) and thus lose their influence: no small punishment. Hathaway and Shapiro term this “internal outcasting.” But external outcasting is even more effective and more pervasive: in this type of enforcement, the benefits of membership are denied by an authority outside the regime, and any sanctions (punishments) are carried out by states themselves.10 You will see examples of this type of enforcement in later chapters devoted to the protection of human rights and the environment, as well as in cooperation in trade. Enforcement in international law is thus less a problem of having no “state jail” or “world police” than it is a problem of having external actors (often states themselves) potentially failing to act.11

1.3

Other Actors

Thus far we have spoken of states as the primary actor in the international system. Historically, they have been the only actors recognized as important. Now, however, international law is also applicable to international 7

8 9 10

O. Hathaway and S. Shapiro, “Outcasting: Enforcement in Domestic and International Law,” Yale Law Journal 121, No. 2 (2011): 257. L. Henkin. How Nations Behave (New York: Columbia University Press, 1979), 47. Hathaway and Shapiro, “Outcasting: Enforcement in Domestic and International Law,” 258. 11 Ibid., 305–308. Ibid., 347.

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organizations (e.g., the UN, the European Union (EU)). In certain circumstances it is also applicable to individuals and corporations. As Crawford, Pellett, and Olleson, commenting on the early work of the International Law Commission (ILC) (the body tasked with codifying international law), observe: one of the first 14 topics selected by the Commission for codification was “State Responsibility.” At the time, it was not surprising that an examination of the law of responsibility would be limited to States . . . At the start of the 21st century a rather different picture has emerged. The international legal system, although principally controlled by States, now encompasses a broad range of actors and may directly regulate not only relations between States, but relations between States and individuals, between intergovernmental organizations and individuals, between States and corporations, [and] between inter-governmental organizations and non-governmental organizations. It seems that there is no natural or legal person beyond the reach of international law . . .12

The international system is not static, and neither is international law. While the state was once the primary actor of interest, world power dynamics are continually shifting and the law must shift to account for that dynamism. As we consider the significant influence of entities like multinational corporations, non-governmental organizations (e.g., Doctors Without Borders, Greenpeace) and international terrorist organizations (e.g., Al-Qaeda, the Islamic State), the range of actors within the “reach” of international law is quite likely to increase.

2 The Development of International Law Where did these abstract ideas come from? International law, distinct from the laws of individual states, is often traced back to European scholars writing during the period when the modern state and conceptions of sovereignty were forming or relatively new: the mid-sixteenth and seventeenth centuries. But there is, of course, evidence of much earlier attempts to constrain aggressive behavior and to bring order to relationships between city-states, tribes, and other entities. Nussbaum offers examples of treaties forged on clay tablets to cement alliances and mark boundaries in ancient 12

J. Crawford, A. Pellet, and S. Olleson, eds., “Preface,” in Oxford Commentaries on International Law: The Law of International Responsibility (Oxford: Oxford University Press, 2010), v.

2 The Development of International Law

Mesopotamia and Egypt.13 The ancient Greeks and Romans, too, provide evidence of rules of interactions and even guarantees of protections for foreigners, yet neither had wider conceptions of laws that looked much beyond their own civilizations.14 After the fall of the Roman Empire and the ensuing dark ages, there emerged in Europe (around the tenth century AD/CE) a new entity known as the Holy Roman Empire that claimed to be respublica Christiana, or an overarching “Christian Republic.” The Pope was at the pinnacle of this regime, granting kings authority over vast territories and authorizing crusades to expand the reach of Christianity and thwart Muslim expansion. Alongside the Pope stood the Holy Roman Emperor, ruler of a Christian empire that was not “international” because it was a single, massive entity. It was also inward looking, internally fragmented, and it failed to engage systematically with the outside world. For all these reasons, as Nussbaum notes, the contribution of the Holy Roman Empire to international law is relatively minor, except as a dysfunctional model that could be improved upon through the creation of a new kind of international law. Indeed, it was the destruction of this purported “Christian Republic” that enabled the emergence of the modern state system and modern international law.15 It was in commercial and maritime matters that international law began to emerge and grow. “The main incentive was, of course, the need for an exchange of goods,” Nussbaum notes. “A secondary motive was a desire of the territorial rulers to improve their finances by import duties and other exactions from foreign merchants. All this could be attained only where business was made attractive enough to foreigners.”16 It was in these areas – mercantile law and maritime law – where customs gradually began to become accepted as rules, and those rules were upheld by courts throughout Europe. These rules were a clear indication that there was a growing need for a common code of conduct of nations even beyond Europe’s shifting borders. The “rediscovery” of Roman law by influential thinkers, notably Thomas Aquinas, was also crucial to the development of international law. Aquinas, in his masterwork Summa Theologica (1274) offered a restatement and expansion of St. Augustine’s Just War doctrine. For Aquinas, Just War – wars fought with the intention of promoting good over evil – was part of a moral doctrine and thus under the Church’s umbrella. But perhaps even more

13 14 15

16

A. Nussbaum, A Concise History of the Law of Nations (New York: Macmillan, 1954), 2. See ibid., 5–13. R. Jackson, Sovereignty: Evolution of an Idea (Cambridge: Polity Press, 2007). See especially Chapter 2 in this text. Nussbaum, A Concise History of the Law of Nations, 27.

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influential than his contributions to the Just War doctrine was Aquinas’s philosophy of natural law. Aquinas saw natural law as: a system of moral rules reflecting the rational nature of man, but it is at the same time an inseparable part of the eternal law, the rational guidance of all created things by God. Natural law is discovered by the light of reason present in all man, but this reason is itself the divine spark within us, the eternal law operating through us.17

It was with such a conception of natural law that Renaissance scholars would wrestle, as international law began its gradual emergence as a subject born of, yet separate from, natural law. Aquinas held that the law of nations (jus gentium) was binding on reasonable men separately from the laws of their own polities. Adding these ideas to the development of nation states like England, France, and Spain in Europe, the eventual decline of the Church, and emerging conceptions of sovereignty meant that a more modern approach to international law was set to begin. Though there are certainly many scholars we could include, the next section focuses on the work of “modern” scholars of international law: Vitoria, Grotius, Pufendorf, and Vattel. While these European scholars are credited with “inventing” international law, remember that their account is not the only one. The end of this section highlights non-Western approaches to international law, making it clear that the approach you take to studying the law has consequences for the conclusions you reach and the solutions you recommend. Perspective and nuance matter.

2.1

The Development of Modern International Law

Francisco de Vitoria (1480–1546) was a Dominican friar who taught at the University of Salamanca (Spain) while the world was expanding around him. The New World – the Americas – had been “discovered,” and Spain was at the height of its power. Spain claimed not only the many natural resources they discovered in the New World as their own, but also the humans they encountered. In a period before our modern conception of state sovereignty existed, these new discoveries and encounters raised many questions. Vitoria was well positioned to answer them. Did Spain have the right to all the resources they found in the Americas? Could they do with the natives they found there as they wished? Was it permissible to subjugate the natives if the end goal was converting them to Christianity? Did the Pope, from his seat in Europe, have authority over the natives as well? 17

H. Bull, “Natural Law and International Relations,” British Journal of International Studies 5, No. 2 (1979): 174.

2 The Development of International Law

For Vitoria, the answer to all of these questions was clearly no. He reasoned that the Spanish had no rights over the native people nor to the land they had “conquered,” unless that land was taken in a time of war (which was not the case) or as a reparation for other injuries suffered (of which there were none). Furthermore, he was adamant that all men were free and equal, and that slavery could not be the consequence of war – even if the Pope disagreed (and he did). His most famous lectures, De Indis and De Jure belli Hispanorum in barbaros (both written in 1532) outline the basic Laws of War and the rights of indigenous people. While Vitoria is not without critics, his influence on subsequent scholars and the development of international law as a whole is undeniable.18 Vitoria is often called the “founder” of international law because he observed that: international law is, and means for him, a juridical bond which is established between nations . . . In his system this law is a real law which is based on sociability, because there is a natural society, there is mutual intercourse, a communion and a bond among peoples: One nation has the right of entering into relation with another nation to such an extent that the denial of the exercise of this right justifies war. In other words, Vitoria saw clearly the interdependence of nations, their reciprocal rights and duties.19

Vitoria inspired another giant of international law, Hugo Grotius (1583–1645), who was the first to think about international law in a systematic fashion. Economist and philosopher Adam Smith said that Grotius “had been the first who attempted to give the world anything like a regular system of natural jurisprudence . . . .”20 Grotius, dubbed the “Miracle of Holland” by Henry IV of France, was a child prodigy, who studied at now-Leiden University at age eleven and was named the historian for the State of Holland at age eighteen. He was eventually appointed to write an opinion on behalf of the Dutch East India Company, defending them after they had captured a Portuguese ship, towed it to Holland, and sold its valuable contents. This case forced his thinking about the role of law as it applied to the seas and would inspire his further thinking about the law between nations.

18

19

20

For a discussion of Vitoria and his critics, see A. Anghie, “Francisco de Vitoria and the Colonial Origins of International Law,” Social and Legal Studies 321 (1996). E. Nys, Les Origines de Droit Internationale (Paris, 1894), 11, as cited in H. McKenna, “Francis de Vitoria, Founder of International Law,” Dominicana Journal 14, No. 4 (1929): 295. A. Smith. Lectures on Justice, Policy, Revenue and Arms, Edwin Canaan, ed. (1896).

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1 What Is International Law?

While Grotius was later (wrongly) imprisoned for heresy and treason, he began writing his most famous work, De Jure Belli ac Pacis (The Law of War and Peace, published in 1625), which he finished after an ingenious prison escape. He wrote that he remained convinced “that there is a common law among nations, which is valid alike for war and in war, I have had many and weighty reasons for undertaking to write upon this subject. Throughout the Christian world I observed a lack of restraint in relation to war, such as even barbarous nations should be ashamed of.”21 In The Law of War and Peace, Grotius “defines the concept of war, argues for the legitimacy of war, and identifies who may legitimately wage war,” and later in the work “deals with the causes of war, the origins of property, the transfer of rights and more,” and finally writes of “the rightful conduct of belligerents in war.”22 It is a systematic collection of the Laws of War as he derived them, a catalog of laws to minimize bloodshed. Grotius’s work is founded on human reason, not the divine. Notably – and perhaps shockingly – Grotius declared that the laws of nature “would be valid even if ‘which cannot be admitted without utmost wickedness that there is no God or that human affairs do not concern him.’”23 In The Law of War and Peace, which became a widely used textbook on international law, Grotius cemented international law as secular. Interestingly, it was the last book he wrote on the subject. He spent the last decades of his life as a lackluster statesman.24 Like Grotius, Samuel Pufendorf also spent time in prison, and used the time to refine his thinking about law. Like Vitoria, he was a university professor, and taught about Grotius’s Law of War and Peace and added his own interpretations. Pufendorf wrote extensively, but his most famous contributions are Two Books of the Elements of Jurisprudence (1660), Of the Law of Nature and Nations (1672), and The Whole Duty of Man According to the Law of Nature (1673). In these works, he “insisted that the discipline of law was properly concerned with the civil laws regulating the conduct of citizens in specific states. Those laws turned on the legislator’s will and, unlike natural laws, could not be ascertained by unaided reason.”25 Pufendorf believed that practices and rules observed by states were simply evidence of the laws of nature; he did not believe in custom or even in 21 22

23 24 25

H. Grotius, Prolegomena, 28. J. Miller, “Hugo Grotius,” Stanford Encyclopedia of Philosophy, https://plato.stanford.edu/ entries/grotius/ accessed May 3, 2022. H. Grotius, as quoted in Nussbaum, A Concise History of the Law of Nations, 108. Nussbaum, A Concise History of the Law of Nations, 105–106. J. D. Ford, “Samuel Pufendorf,” Routledge Encyclopedia of Philosophy, www.rep.routledge .com/articles/biographical/pufendorf-samuel-1632-94 accessed May 3, 2022.

2 The Development of International Law

treaties. While these beliefs are contrary to the development of international law, his conviction that states are equal is more palatable. It is important to remember that Pufendorf was the first of these scholars to write after the signing of the Treaty of Westphalia, which ended the Thirty Years’ War but is widely recognized as the birth of the modern system of sovereign states. As such, Pufendorf was better able to write about how citizens could live in a peaceful society and the duties they owed to each other as members of such a society.26 Emmerich (Emer) de Vattel (1679–1764), Swiss philosopher of the socalled “Grotian School” of legal philosophy, is known primarily through his work The Law of Nations (1758) – a work that is perhaps cited out of proportion with its relatively limited contribution to international law. Vattel’s work was widely influential because of his full interpretation of sovereignty. “It is evident, that, by the very act of the civil or political association, each citizen subjects himself to the authority of the entire body, in everything that relates to the common welfare. The authority of all over each member, therefore, essentially belongs to the body politic, or State; but the exercise of that authority may be placed in different hands, according as the society may have ordained,” he wrote.27 As Beaulac demonstrates, Vattel transferred the concept of sovereignty from power of the state over the people within it to power that could not be interfered with from the outside. In Vattel’s words: Every nation that governs itself, under what form soever, without dependence on any foreign power, is a Sovereign State. Its rights are naturally the same as those of any other State. Such are the moral persons who live together in a natural society, subject to the law of nations. To give a nation a right to make an immediate figure in this grand society, it is sufficient that it be really sovereign and independent, that is, that it govern itself by its own authority and laws.28

Vattel, too, minimized the importance of natural law, and his work is evidence of the beginning of a positivist turn: an examination of how states actually behaved. Positivism was based on observation; thus, customs and treaties (much maligned by Pufendorf ) came to embody the essence of international law. From the nineteenth century forward, international law 26

27

28

For a detailed discussion of Pufendorf’s influence on international relations, as well as a concise summary of the critiques of that influence, see D. Boucher, “Resurrecting Pufendorf and Capturing the Westphalian Moment,” Review of International Studies 27 (2001): 557–577. E. Vattel, as cited in S. Beaulac, “Emer de Vattel and the Externalization of Sovereignty,” Journal of the History of International Law 5 (2003): 249. Ibid., 250.

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came to reflect the realities of democracy, nationalism, self-determination, and international organization. These forces were controlled by sovereign states – not a higher authority. The natural law theorizing about morality and the role of God in international affairs – which had been so dominant in the previous century – seemed to fall away. In its place was the prominence of the state and its ability to make law and drive events. The state remains central to the rest of this book.

2.2

A Different (Non-Western) Story

It is through the work of scholars like Vitoria, Grotius, Pufendorf, and Vattel that the earliest evolution of international law is commonly understood. Such an understanding paints international law as a Western development. But as Fassbender and Peters write, a Eurocentric view of international law’s development glosses over or wholly ignores “the violence, ruthlessness, and arrogance which accompanied the dissemination of Western rules, and the destruction of other legal cultures in which that dissemination resulted.”29 They encourage students of international law to broaden the scope of their study to include scholars from non-Western societies, scholars whose perspectives are vastly different from those of the European men featured in the foregoing paragraphs.30 It is also different from the US- and Europeancentered understanding of how international law works today, as the exchange between Blinken and Yang demonstrated in the opening paragraphs of this chapter. Scholars from non-Western societies view the international system as it currently operates as inconsistent with the experiences of states in the developing world. Western approaches privilege liberal democracy and the universality of human rights, which are problematic in societies nearly destroyed by imperialism, colonialism, and slavery. In 1996, a group of scholars committed to elevating these experiences met at Harvard Law School, creating the Third World Approaches to International Law (TWAIL) network. TWAIL scholars are interested in telling a different story about how international law evolved and how it impacts states in the developing world: Western scholars of international law have traditionally urged African governments like Ethiopia to adopt liberal solutions such as embracing civil and 29

30

B. Fassbender and A. Peters, “Introduction: Towards a Global History of International Law,” Oxford Handbook of International Law (Oxford: Oxford University Press, 2012): 2. Fassbender and Peters make particular note of works like Elias’s Africa and the Development of International Law (Dordrecht: Martinus Nijhoff, 1988), and Anand’s Studies in International Law and History: An Asian Perspective (Leiden: Martinus Nijhoff Leiden, 2004).

2 The Development of International Law political rights as an antidote to the perennial governance challenges. Such an approach presupposes that problems such as abuse of power could be addressed by simply embracing liberal institutions and international human rights norms to promote democracy. . . . [T]his simplistic view . . . [which] fails to take into account the historical association of international law with colonial conquest and western domination in Africa. The suspicion and circumspection with which some African scholars and states have treated international law is therefore explicable, in part, on this basis. . . . TWAIL scholars [thus] have a broad agenda of seeking to “transform international law from being a language of oppression to a language of emancipation – a body of rules and practices that reflect and embody the struggles and aspirations of Third World peoples and which, thereby, promotes truly global justice” . . .31

TWAIL scholars do not only highlight the varied experiences of lesserdeveloped countries in the international system. They are also critical of international law as a whole in maintaining the dominance of the developed world at the expense of the developing world. As Ikejiaku writes: international law was used by the Westerners to justify slavery, colonialism and exploitation or to drain the resources of the areas, particularly Third World countries subject to colonialism . . . it is a predatory system that legitimizes, reproduces and sustains the plunder and subordination of the Third World by the West . . . international law is predominantly used to protect, project, promote (3Ps) or to safeguard the interests of the Westerners . . .32

Yet another non-Western approach – while very different from that of TWAIL scholars – is evident in examining Chinese understandings of international law. For example, traditional Chinese international law was “an extension of Chinese culture and governance with layered hierarchical relations for order and harmony . . . Chinese international law was also founded on the recognition of China’s authority by other countries and people of

31

32

J. Gathii, “TWAIL: A Brief History of Its Origins, Its Decentralized Network, and a Tentative Bibliography,” Trade Law and Development 3, No. 26 (2011). The italicized portion of this quote is attributed to A. Anghie and B. Chimni, “Third World Approaches to International Law and Individual Responsibility in Internal Conflicts,” Chinese Journal International Law 2, No. 77 (2003): 79. B-V. Ikejiaku, “International Law is Western Made Global Law: The Perception of ThirdWorld Category,” African Journal of Legal Studies 6 (2013): 340–341. See also A. Anghie, “The Evolution of International Law: Colonial and Postcolonial Realities,” Third World Quarterly 27, No. 5 (2006): 739–753.

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non-Chinese culture.”33 China had existed in near-perfect isolation for centuries, resisting Western exhortations to open up to international trade. It was not until the Opium Wars (1839–1842) that China’s traditional, insulated world collided with the West. The Treaty of Nanking (1842) was an unfair treaty that granted British access to the Chinese market, marking the end of the Opium Wars and the beginning of Chinese skepticism about Western international law. Zuo notes that China quickly learned that, in relationships with the West, “might is right, and the Western-dominated international law is the accomplice of political oppression and economic exploitation as a language of power and interests.”34 This view of international law as created by and for the West persists and is evident in Chinese interpretations and uses of international law today. The Communist People’s Republic of China has what Williams describes as a “flexible and functional” approach to international law that allows it to take advantage of the international order without having to make too many changes domestically. It also seeks to shape legal norms itself – sometimes credibly (on trade, for example) – and sometimes not credibly (human rights).35 While China generally wants to be perceived as supportive of international law and as a participant in the many international organizations where decisions are made, it is generally reluctant to give up sovereignty to international institutions. This was evidenced by its non-compliance with the ruling in the South China Sea Arbitration (see Chapter 4), and its unwillingness to be cowed by human rights treaties and organizations in its relationship with Hong Kong. So, whereas TWAIL scholars see international law as a blunt tool of repression, Chinese scholars see international law as a game whose rules they must learn and eventually change. As you advance through this book, the impact of Western ideas on how we understand international law will be evident. The rules, norms, and institutions of international law were built on Western (primarily European and American) understandings of states, their responsibilities, and their interactions. We have endeavored to include multiple decisions from developing world courts as well as examples from less-developed states to illustrate the very different experiences and interpretations of these countries. 33

34 35

A. Zuo, “China’s Approaches to the Western-Dominated International Law: A Historical Perspective from the Opium War to the South China Sea Arbitration,” University of Baltimore Journal of International Law 6 (2018), 26–27. Ibid., 31. R. Williams, “International Law with Chinese Characteristics: Beijing and the ‘Rules-Based’ Global Order,” Brookings Institution, October 2020, www.brookings.edu/wp-content/ uploads/2020/10/FP_20201012_international_law_china_williams.pdf accessed May 3, 2022.

2 The Development of International Law

2.3

Monism and Dualism

Medieval scholars did not distinguish municipal (i.e., “internal” or “domestic” national) law from international law. The law of nations was considered a universal law that bound all of humanity.36 Positivists, writing in the nineteenth century, began to recognize that the state was an entity that could have its own will, and could exercise its influence in international law. What was the relationship between national and international law? The answer to that question was then, and is now, not without controversy. There are two dominant approaches that we outline here: monism and dualism. The monist perspective is that the “law of nations” and the law of each state form an integrated, universal legal order – international law is inherently woven into the legal fabric of every state. Under this theory, no state can reject international law in principle, though it may have reservations about certain components. Because so many national leaders have acknowledged the existence of international law, it may be characterized as a part of human existence that is unrestrained by national borders. For the monist, international law is an integral part of all national legal systems. The position of the ICJ is clear: national law can never prevail if it conflicts with international law. The Court confirmed this principle in its 1988 case involving US attempts to close the Palestinian Liberation Organization Mission at the UN via national anti-terrorist legislation. This law conflicted with the US treaty obligation not to close it. The ICJ admonished the US that it should: recall the fundamental principle of international law that international law prevails over domestic law. This principle was endorsed by judicial decision[s] as long ago as . . . 1872 in the Alabama case between Great Britain and the United States, and has frequently been recalled since . . . in which the Permanent Court of International Justice laid it down that it is a generally accepted principle of international law that in the relations between Powers who are contracting Parties to a treaty, the provisions of municipal law cannot prevail over those of the treaty.37

Hans Kelsen, an Austrian legal philosopher and author of the Austrian Constitution of 1920, was the foremost proponent of the monist approach. His articulation was that national law and international law have always been a part of the same legal system of universal norms. In an earlier era, 36

37

See E. Dickson, “The Law of Nations as Part of the National Law of the United States,” University of Pennsylvania Law Review 101 (1952): 26, 26–27. Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of June 26, 1947, 1988 ICJ Reports 12, para. 57.

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these norms provided the basis for a system that came to be known as international law. The same behavioral norms also propelled national legal orders. States, through individuals who served as their agents, were expected to behave as individuals would. International law did not need to establish its primacy in relation to national law, given the interdependent, rather than hierarchical, relationship between these integrated legal systems.38 The monist approach is evident in several state constitutions. For example, the German Basic Law (constitution) provides as follows in Article 25: “The general rules of public international law shall be an integral part of federal law. They shall take precedence over the [other federal] laws and directly create rights and duties for the inhabitants of the Federal territory.” Similarly, Article 29(1-3) of Ireland’s Constitution reads as follows: “Ireland affirms its devotion to the ideal of peace and friendly cooperation amongst nationals founded on international justice and morality . . . Ireland accepts the generally recognized principles of international law as its rule of conduct in its relations with other States.” By contrast, dualists reject the monist perception of international law as articulating an unrealistic assessment of two autonomous legal regimes. Under this theory, international law and national law are distinct legal orders. Each state retains the sovereign power to integrate – or isolate – the norms of international law. National and international law are not parts of a unified whole. The dualist theory flows from the very nature of state sovereignty: a state may not be bound without giving its approval. When a state actively decides to incorporate international law into its national law, only then is international law the law of that land. Without express incorporation, international law is more a common goal or standard of achievement for each state member of the global legal community. The quintessential restatement of the contemporary dualist doctrine in the US appeared just twenty-five years after the Supreme Court’s 1900 statement that “International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination.”39 In a significant departure from this Supreme Court articulation of monist doctrine, an often-cited 1925 federal trial court opinion declared as follows:

38

39

H. Kelsen, General Theory of Law and the State (Cambridge, MA: Harvard University Press, 1945), 363–380. The Paquete Habana and The Lola, 175 U.S. 677 (1900).

2 The Development of International Law a misconception exists here as to the status . . . of so-called international law when that law encounters a municipal enactment. If we assume for the present that the national legislation has, by its terms, made the acts complained of a crime against the United States even when committed on the high seas by foreign nationals upon a ship of foreign registry, then there is no discretion vested in the federal court, once it obtains jurisdiction, to decline enforcement. International practice is law only in so far as we adopt it, and like all common or statute law it bends to the will of the Congress. It is not the function of courts to annul legislation; it is their duty to interpret and by their judicial decrees to enforce it – and even when an act of Congress is declared invalid, it is only because the basic law is being enforced in that declaration . . . The act may contravene recognized principles of international comity, but that affords no more basis for judicial disregard of it than it does for executive disregard of it.40

The US Supreme Court affirmed this dualist perspective in a 2008 decision in which a majority of the Court agreed to the following articulation: No one disputes that the Avena decision – a decision that flows from the treaties through which the United States submitted to ICJ jurisdiction with respect to Vienna Convention disputes – constitutes an international law obligation on the part of the United States. But not all international law obligations automatically constitute binding federal law enforceable in United States courts. The question we confront here is whether the Avena judgment has automatic domestic legal effect such that the judgment of its own force applies in state and federal courts.41

Monists and Dualists do agree on one matter: no state may assert its internal law in defense of a breach of international law. As aptly articulated by the Permanent Court of International Justice in 1931: “[A] State cannot adduce as against another State its own Constitution with a view to evading obligations incumbent upon it under international law or treaties in force.”42 This principle has been solidified by different decision-makers in too many eras to be voided by modern expediencies like national security. Under the ILC’s 1949 Draft Declaration on the Rights and Duties of States, every state must carry out its obligations arising from treaties and other sources of international law in good faith. A state “may not invoke provisions in its constitution or its [other internal] laws as an excuse for failure to perform 40

41 42

The Over the Top Case (Schroeder v. Bissell), 5 F.2d 838, 842 (DC Conn. 1925). Emphasis added. Medellín v. Texas, 128 S.Ct. 1346, 1356 (2008). Emphasis original. Permanent Court of International Justice, “Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory” 1931 PCIJ, Ser. A/B, No. 44, at 24.

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this duty.”43 It was reaffirmed in the Commission’s 2001 final draft adopted by the UN General Assembly. Article 27 of the 1969 Vienna Convention on the Law of Treaties (VCLT) provides that “[a] party may not invoke the provisions of internal law as justification for its failure to perform a treaty.” In 1988, the ICJ chimed in: “[R]ecall the fundamental principle that international law prevails over domestic law. This principle was endorsed as long ago as the arbitral award of 14 September 1872 in the Alabama case between Great Britain and the United States and has been frequently recalled since [then] . . . .”44 US courts have cautiously adhered to the theme that internal law is no defense. The Supreme Court, for example, has consistently held that an Act of Congress should not be construed to conflict with international obligations – unless Congress expressly intends it do so. Per the Court’s often-cited passage: “[A]n act of Congress ought never to be construed to violate the law of nations if any other possible construction remains, and consequently can never be construed to violate . . . rights, . . . further than is warranted by the law of nations as understood in this country.”45 Research by Verdier and Versteeg gives reason to be skeptical about the monist-dualist categorization. In an impressive dataset that covers the period 1815–2013, Verdier and Versteeg find that the strict distinction between the monist and dualist traditions may no longer hold. Even states in the so-called dualist tradition are more likely to “give treaties direct effect and hierarchical superiority over domestic law” even while states that are considered “monist” are expanding the “categories of treaties whose ratification requires prior legislative approval.”46 Furthermore, they find that in almost all states, customary international law (explained in detail in the following section) is considered directly applicable without any further action from the legislature.47 So, while monism and dualism are still useful shortcuts to how we think about how international law is received by states, the distinction might be becoming less useful overall.

43

44

45 46

47

International Law Commission, Yearbook of the International Law Commission (1949), 286, 289. Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of June 26, 1947, ICJ Reports 1988, 12. Murray v. The Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804). P. Verdier and M. Versteeg, “International Law in National Legal Systems: An Empirical Observation,” American Journal of International Law 109 (July 2015): 515. Ibid., 528.

3 Sources of International Law

3 Sources of International Law International decision-makers routinely examine the established “sources” of international law to see whether a particular rule that a participant is advocating is actually a part of the corpus of international law. The word sources is a chameleon-like term in the jargon of international law.48 One should distinguish between a source where the law may be found and a source that is the substantive content of applicable law. We use the term “source” to refer to the forensic process involving where a decision-maker or researcher looks to ascertain the substantive legal rule that governs a legal dispute or academic discourse. In this context, the term “source” does not refer to the actual language of the relevant legal text. Instead, it is a category or type of source where the applicable substantive law comes from. The international community has routinely applied the following list of sources for researching the content of international law. Under Article 38.1 of the Statute of the ICJ: The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. . . . judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.49

This portfolio of sources was extracted from Article 38 of the original court’s constitutive statute, unanimously adopted by the First Assembly of the League of Nations in 1920. This Permanent Court of International Justice source list evolved from the common practice of local or regional tribunals, which had used these same sources for finding evidence of the substantive content of international law. While scholars have debated the

48

49

See “Different Meanings of the Term ‘Sources of Law,’” in V. D. Degan, Sources of International Law (Hague: Martinus Nijhoff, 1995), 1. Statute of the International Court of Justice, www.icj-cij.org/en/statute accessed May 3, 2022.

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completeness of this list of sources,50 it remains the definitive list for international arbitral and judicial tribunals. We now turn to each of these sources in turn.

3.1

Custom

Decision-makers often examine the customary practice of various states as a primary source for determining the content of the rule applicable to the legal issue at hand. An established state practice, accepted by many countries, qualifies as a binding custom. This source has a rich and diverse history dating back to the Roman Empire.51 It has longevity because many international obligations were not, and are not, expressed in treaties. When is a custom binding on states? This is a complex issue the answer to which has evolved from the dual process of having to determine both where to find evidence of the custom’s existence and what customs are obligatory components of international law. Some decision-makers are uncomfortable with virtually any degree of uncertainty. The US Supreme Court, for example, reiterated – on four occasions (in the same case in 2004) – that, to be actionable in a US court, such a norm must be “specific, universal, and obligatory.”52 International decision-makers, however, acknowledge a continuum whereby a customary practice among a few states may ultimately ripen into a custom applicable to all nations – on an evolving regional or global basis. Brownlie assembled the four recognized elements for resolving whether a claimed practice has reached the status of custom: (1) duration or passage of time; (2) substantial uniformity or consistency of usage by the affected nations; (3) generality of the practice, or degree of abstention; and (4) opinio juris et necessitatis – international consensus about, and recognition of, the particular custom as binding.53

50

51

52 53

See, e.g., I. Brownlie, Principles of Public International Law, 6th ed. (Oxford: Oxford University Press, 2003), 5; J. Brierly, The Law of Nations, 6th ed. (Oxford: Clarendon Press, 1976), 56. For a different view, see G. Maris, International Law: An Introduction (New York: University Press of America, 1984), 44 (“Amidst the chaos . . . is a lack of a set rule of sources”). See “The Elements of International Custom,” Ch. 1 in K. Wolfke, Custom In Present International Law, 2nd rev. ed. (Dordrecht: Martinus Nijhoff, 1993), 1. Sosa v. Alvarez-Machain, 542 U.S. 692, 732, 748 and 749 (2004). Brownlie, Principles of Public International Law, 7–10.

3 Sources of International Law

Brownlie’s fourth element is arguably the most important, yet the most difficult to authenticate. The ICJ’s opinion in the 1969 North Sea Continental Shelf Cases authoritatively evaluated the requisite degree of international consensus. The issue in these cases was whether the UN’s 1958 Convention on the Continental Shelf, containing an equidistance principle for allocating limited resources within the Shelf, codified a customary rule that would be binding even on nations that were not parties to that Convention: Not only must the acts concerned amount to a settled practice, but they must also be such . . . as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it . . . The States concerned must therefore feel that they are conforming to what amounts to a legal obligation . . . There are [otherwise] many international acts, e.g., in the field of ceremonial [behavior] and protocol, which are performed almost invariably, but which are motivated only by considerations of courtesy, convenience, or tradition, and not by any sense of legal duty.54

A regional custom applied by a few nations is not necessarily tantamount to a custom practiced by all other members of the community of nations. But both categories of custom may be binding. For example, Colombia claimed, in a 1950 ICJ case (Colombia v. Peru), that “American International Law” required Peru to recognize Colombia’s grant of asylum in the Latin American region. Peru responded that the Colombian embassy improperly granted asylum to a Peruvian national seeking to overthrow Peru’s government. Peru was unwilling to permit its Peruvian national to depart the Colombian embassy and then leave Peru without being prosecuted for treason. The Court rejected the existence of either a regional or universal custom requiring Peru’s recognition of Colombia’s grant of diplomatic asylum – a decision for which the faraway ICJ, headquartered in Europe, was harshly criticized, especially among African states. Yet, the ICJ tacitly approved the potential application of regional customs where they could be proven to exist. The following passage poignantly illustrates what Colombia needed to prove in order to establish that this custom had become a part of customary international law: “The Party which relies on custom . . . must prove that this [supposed] custom is established in such a manner that it has become binding on the other Party . . . [and] that the [claimed right of asylum] . . . is in accordance with a constant and uniform usage, practised by the States in question, and that this usage is the expression of a right appertaining to the State

54

The North Sea Continental Shelf Cases at 44.

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granting asylum [Colombia] and a duty incumbent on the territorial State [Peru].”55 Some commentators, however, contend that a practice must be universal before a custom can become binding under international law.56 This “requirement” has been advocated in socialist states when international law is not considered part of a legal hierarchy of laws that can bind a sovereign state. The practical problem with this contention is that universality is rarely achieved in an international system composed of many diverse states and legal systems. International custom gradually evolves through compromise and consistency of application. Hsiung, writing on Chinese recognition practices, provides a useful insight. “It is impossible to measure precisely how strong the dissent must be before an existing norm is changed – or precisely when a rejected norm ceases to exist. Dissent, or a change of consensus, if supported by a growing number of States, may thus bring about a new norm or at least indicate a revision in customary practice.”57 National courts have various methods for ascertaining the scope of an applicant’s claim that a customary rule of international law exists and should thus be applied. For example, the UK Court of Appeal articulated how such rules may be proven in its pronouncement that: [r]ules of international law, whether they be part of our law or a source of our law, must be in some sense ‘proved,’ and they are not proved in English courts by expert evidence like [hearing testimony about] foreign law: they are ‘proved’ by [the trial judge] taking judicial notice of international treaties and conventions, authoritative textbooks, practice and judicial decisions of other courts in other countries which show that they have attained the position of general acceptance by civilized nations.58

The following case illustrates how a group of decision-makers – in this instance, US federal judges analyzing international human rights and environmental issues – examined the Article 38.1 sources of international law. They used the Article 38 sources in their quest to determine whether there was a yardstick to measure corporate responsibility for environmental pollution.

55 56

57

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Asylum Case (Colombia v. Peru), 1950 ICJ Reports 266, 276. See, e.g., G. Danilenko, “Customary Rule Formation in Contemporary International Law,” Soviet Yearbook of International Law 169 (1983): 170. English translation. J. Hsiung, “China’s Recognition Practice and International Law,” in J. Cohen, ed., China’s Practice of International Law: Some Case Studies (Cambridge, MA: Harvard University Press, 1972), 14, 17. Trendtex Trading Corp. v. Central Bank of Nigeria, 1 All England Law Reports 881, No. 902B03 (1977). Emphasis added.

3 Sources of International Law

FLORES V. SOUTHERN PERU COPPER CORPORATION United States Court of Appeals Second Circuit, 414 F.3d 233 (2003) [Excerpted case available at www.cambridge.org/FPIL7]

Flores relied on the same custom alleged in an earlier case, Filartiga v. Peña-Irala. The latter case involved the Alien Tort Statute (ATS) claim (discussed in the next chapter). In Paraguay, a policeman tortured and killed the brother/son of the plaintiff citizens of Paraguay. 59 They successfully claimed that there was clearly a global customary practice among nations, all of whom prohibit such torture.60 In Flores, however, the same federal Court of Appeals in New York ruled against the Peruvian plaintiffs on their fundamental environmental claim arising under the ATS.61 The US Supreme Court’s Paquete Habana case has been cited numerous times for this particular passage: “International law is a part of our law, and must be ascertained and administered by the courts . . . as often as questions of right depending upon it are duly presented for their determination.”62 There was no treaty provision that addressed the issue presented in that case – whether the US embargo of Cuba, during the Spanish–American War of 1898, authorized the capture of coastal fishing vessels not associated with Spain’s war effort. The Court thus examined centuries of foreign governmental decisions. While not binding, they could provide persuasive guidance as to what other nations had done in these circumstances.

59

60 61

62

For further insight into this case, the Alien Tort Statute, and the other cases that stemmed from this one, the More Perfect podcast recorded an episode that featured one of the plaintiffs, Dolly Filartiga. The episode is entitled “Enemy of Mankind” (recorded October 24, 2017) and can be found online at www.wnycstudios.org/podcasts/radiolabmoreperfect/ episodes/enemy-of-mankind accessed May 3, 2022. Filartiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980). For the argument that – absent a clear rule from a federal statute or treaty – US state courts and their legislatures are free to follow or ignore Customary International Law, see C. Bradley and J. Goldsmith, “Customary International Law as Federal Common Law: A Critique of the Modern Position,” Harvard Law Review 110 (1997): 815. This “revisionist scholar’s” position was rebuked by Harold Koh, then Assistant Secretary of State for Democracy, Human Rights, and Labor, in his response “Is International Law Really State Law?,” Harvard Law Review 111 (1998): 1824. The Paquete Habana, 175 U.S. 677, 700 (1900); confirming its 1815 precedent: “[T]he Court is bound by the law of nations which is a part of the law of the land.” The Nereide, 13 U.S. 388, 423 (1815).

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THE PAQUETE HABANA AND THE LOLA Supreme Court of the United States, 175 U.S. 677 (1900) [Excerpted case available at www.cambridge.org/FPIL7]

A custom in international law exists, then, if a general state practice is adopted by a sufficient number of states. But what if a state consistently opposes a practice before it develops into a custom? The opposing state may escape the binding nature of the international legal custom by invoking the “persistent objector” rule. This limitation upon customary international law derives from the recognition that international law emanates from the consent (tacit or express) of independent, sovereign states. So a state that has manifestly and continuously objected to an evolving custom is not bound by it.63 The ICJ has dealt with this theme on two occasions – in both a regional and general rule context. In its Fisheries case, the Court determined that even if a 10 mile straight baseline were the then customary rule for generally defining irregular coast lines, it “would appear to be inapplicable as against Norway, inasmuch as she has always opposed any attempt to apply it to the Norwegian coast.”64 In the ICJ’s Asylum Case, the Court stated that even if a local custom authorized the granting of political asylum between South American states, “it could not be invoked against Peru which, far from having . . . adhered to it, has, on the contrary, repudiated it by refraining from ratifying the Montevideo [asylum] Conventions . . . .”65 The persistent objector exception may itself be the subject of an exception. Certain jus cogens norms – peremptory norms of international law, from which no derogation is permitted – could not be trumped by a persistent objector rule. Assuming a general custom that prohibits ethnic cleansing, then no state could object to that prohibition.

3.2

Treaties

Treaties, the first on the ICJ’s list of sources of international law, are the easiest to recognize, trace, and use. A multilateral treaty is usually the most convenient way of securing reliable evidence of a consensus on the issue before an international decision-maker. When ratified by many countries, a 63

64 65

For extensive treatment of this subject, see J. Green, The Persistent Objector Rule in International Law (Oxford: Oxford University Press, 2016). Anglo-Norwegian Fisheries Case (England v. Norway), 1951 ICJ Reports 116. Asylum Case (Colombia v. Peru), 1950 ICJ Reports 266.

3 Sources of International Law

multilateral treaty is direct proof of rights and obligations accepted by the multiple parties to that treaty. It is the primary method for ascertaining the nature of what the international participants have agreed to do or not do. As you will see in Chapter 3, there is often an inverse correlation between the number of treaty parties and the treaty’s specificity. The more parties to the treaty, the less detail there is. That achieves a greater degree of consensus on the underlying principles, even if the treaty ultimately accomplishes less. Because of the enormous range of issues that are not addressed by express treaty terms, customary international law often fills in the gaps between treaties. A regional treaty is not intended to have universal applicability. It is nevertheless a useful source for ascertaining the rules that bind its local participants. The Charter of the Organization of American States (OAS), for example, provides that all international disputes between American States shall be submitted to the procedures set forth in the OAS Charter – “before being referred to the Security Council of the United Nations.”66 State parties thereby agree to first resort to regional OAS agencies, rather than proceeding directly to the UN Security Council. While the UN Charter encourages such regionalism, this particular treaty requires its members to seek an OAS solution first, before pursuing a remedy in a more global forum. Conversely, non-OAS nations are free to lodge their claims directly with the UN or other appropriate forums. Global multilateral treaties usually provide the best evidence of international consensus, even when they are not universally adopted. One example is the UN Law of the Sea Treaty, which entered into force in November 1994. It is the best evidence of the respective rights and obligations of the parties who have accepted it. When enough nations have ratified such a treaty, its entry into force is the best source for resolving maritime issues between the ratifying states. Such a treaty may also bind non-parties, as a matter of customary international law, if it codifies the general practice of many nations. In accordance with Article 38 of the Vienna Convention on the Law of Treaties: “Nothing . . . precludes a rule set forth in a treaty from becoming binding upon a third State as a customary rule of international law, recognized as such.” This derivative process was confirmed by the ICJ in its statement that a treaty may have: generated a rule which, while only conventional or contractual in its origin [between ratifying States], has since passed into the general corpus of international law, and is now accepted as such by the opinio juris, so as to have

66

Article 20, 2 US Treaties 2394, 119 UNTS 3. Emphasis added.

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1 What Is International Law? become binding even for countries which have never, and do not, become parties to the Convention. There is no doubt that this process . . . constitutes indeed one of the recognized methods by which new rules of customary international law may be formed.67

There could, of course, be differences of opinion about a treaty ratified by every nation on the planet. Multilateral treaties are typically worded in broad terms. Their specific application will depend on the particular circumstances – much like a court is called upon to resolve a dispute between parties who are contesting the meaning of a statute or contract. As explained by the US Supreme Court in 2010: “In interpreting any treaty, ‘[t]he opinions of our sister signatories’ . . . are ‘entitled to great weight.’” Furthermore, many national courts often defer to the executive branch of the government when the court is called upon to interpret a treaty. But the court will nevertheless tend to observe the wishes of its coordinate branch, so that the country is effectively speaking with one voice. Thus, “[i]t is well settled that the Executive Branch’s interpretation of a treaty ‘is entitled to great weight.’”68

3.3

General Principles of Law

The ICJ’s list of sources includes “general principles of law recognized by civilized nations.” Why is this source necessary? Treaties do not, and usually cannot, provide answers to every future dispute. International decisionmakers can therefore borrow gap-filling concepts from the internal law of various nations, such as “equity” and “good faith.”69 Where do “general principles” come from? There is no set definition; indeed, this part of the ICJ’s Statute has been interpreted in many different ways. As Biddulph and Newman explain: General principles do not arise solely from state action, like treaties or custom. They have been identified in the municipal systems of states, in the underpinnings of the international legal system as a whole, in natural law, as inchoate custom, in the tenets of legal logic, and in non-binding “soft law” instruments . . . no consensus has emerged on what a general principle is nor on how it is formed, despite the frequent use of general principles in international jurisprudence.70 67 68 69

70

The North Sea Continental Shelf Cases, 41–42. Abbott v. Abbott, 130 S.Ct. 1983, 1993 (2010) (both quotes). Equity: C. Rossi, Equity and International Law: A Legal Realist Approach to International Decisionmaking (Irvington, NY: Transnational, 1993), 87. Good faith: J. F. O’Connor, Good Faith in International Law (Aldershot: Dartmouth, 1991), 17. M. Biddulph and D. Newman, “A Contextualized Account of General Principles of International Law,” Pace International Law Review 26, No. 2 (Fall 2014): 291 (footnotes removed).

3 Sources of International Law

Both the Permanent Court of International Justice (PCIJ) and its successor, the ICJ, have affirmed the pragmatic value of the general principles source. In an often-quoted statement from a 1937 PCIJ case, Judge Anzilotti drew upon the commonly applied equitable principle that a non-performing nation cannot take advantage of another nation’s non-performance. He was convinced that this general principle was “so just, so equitable, so universally recognized, that it must be applied in international relations” as one of those general principles of law recognized by civilized nations under Article 38 of the Court’s Statute.71 The propriety of using national legal principles in international adjudication was similarly reconfirmed in a 1970 ICJ case dealing with the general principle of judicial independence from other branches of government. Notwithstanding differences in degree among the various national legal systems, judicial independence from the other branches of government “may be considered as a universally recognized principle in most of the municipal [national] and international legal systems of the world.”72 The following case provides an excellent example of how “general principles of law” are applied. In this case, the “judge” is the European Commission, the executive of the European Community (precursor to the EU). As you consider this case, note the source of the “general principles,” and how the Commission systematically organizes them in its opinion.

AUSTRALIAN MINING & SMELTING EUROPE LTD. V. COMMISSION OF THE EUROPEAN COMMUNITIES European Community Commission, Case 155/79, May 18, 1982 [Excerpted case available at www.cambridge.org/FPIL7]

3.4

Judicial Decisions

The ICJ Statute includes “judicial decisions” as a source for determining the content of international law. For a variety of reasons, international decisionmakers have drawn mostly upon national court decisions, as opposed to the jurisprudence of international tribunals. States do not customarily consent to resolve their most sensitive disputes in international tribunals. As a result,

71 72

Diversion of Water from the Meuse, PCIJ, Ser. A/B, No. 70, at 25 (1937). Barcelona Traction, 1970 ICJ Reports 3, 33.

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there is a comparatively large body of jurisprudence available in the form of national caselaw on issues arising under international law. When a particular issue is similarly resolved by the courts of various nations, an international tribunal may thus consider the routine resolution of that issue as evidence of a state consensus. Lauterpacht commented that the “decisions within any particular State, when endowed with sufficient uniformity and authority, may be regarded as expressing the opinio juris,” meaning an expression of what that state considers accepted practice.73 This particular Article 38 source is a “subsidiary” source of international law. A judge’s decision does not make law. A judge normally interprets the law and applies it to a pending case in both national and international tribunals. As such, the ICJ cannot be a binding “decision-maker” in the same way that national supreme courts can effectively overrule legislative and executive action within their national legal systems. The judicial pronouncements of the court of one or many nations do not directly create or modify international law. Such judicial decisions provide evidence, however, of how the judicial branch of one member of the community of nations has resolved a particular issue, which can then be instructive to other courts. The “judicial decisions” source for determining international law has evolved to the point where some commentators have characterized it as the most important factor in the progressive development of international law – referring particularly to the jurisprudence of international tribunals. Some writers characterize such judicial decisions as being entitled to greater significance than the “subsidiary” status accorded them by Article 38.1 of the ICJ Statute. As stated by a past president of the ICJ, decisions of international tribunals “exercise considerable influence as an impartial and wellconsidered statement of the law by jurists of authority, made in light of actual problems which arise before them.”74 Not all states readily accept that foreign law can impact national law. Indeed, the US Supreme Court has, at times, expressed its disdain for the use of international law as a guidepost for national decision-making. Justice Antonin Scalia clearly stated his position: Equally irrelevant are the practices of the “world community,” whose notions of justice are (thankfully) not always those of our people. “We must never forget that it is a Constitution for the United States of America that we are

73

74

H. Lauterpacht, The Development of International Law by the International Court, rev. ed. (London: Stevens & Sons, 1958), 20. R. Jennings and A. Watts, “General Principles of Law,” in Oppenheim’s International Law, Part 1, 9th ed. (Harlow: Longman, 1992), 41.

3 Sources of International Law expounding . . . .” [W]here there is not first a settled consensus among our own people, the views of other nations, however enlightened the Justices of this Court may think them to be, cannot be imposed upon Americans through the Constitution.75

While some, like Justice Scalia, have feared the encroachment of foreign sources of law into national legal systems, others recognize both its benefits and its long history. “References to foreign sources of law have not been aberrational over the past 200 years,” Calabresi and Zimdahl write. Such references “reflect an old tradition, which can be found in many nineteenthcentury Supreme Court opinions, including opinions written by such historical titans as Chief Justice Marshall and Justice Story.”76 Scholars like Slaughter have examined the references – both formal and informal – that judges make to decisions across courts. “[J]udges around the world are talking to one another: exchanging opinions, meeting face to face in seminars and judicial organizations, and even negotiating with one another over the outcome of specific cases,” she writes. “. . . The result is a growing and overlapping set of vertical and horizontal networks that together establish at least the beginnings of a global legal system.”77 Opinions of the ICJ itself are also an important piece of the Article 38 puzzle. Under Article 59 the ICJ Statute, a “decision of the Court has no binding force except as between the parties and in respect of that particular case.” This means that, unlike national court decisions, the precedent of the ICJ is not necessarily binding on future cases. As stated by the Permanent Court of International Justice in 1926, the reason for this (still applicable) statutory limitation “is simply to prevent legal principles accepted by the Court in a particular case from being binding on other States or in other disputes.”78 The drafters of this provision acknowledged that such a limit would attract more states to submit their disputes to this distant tribunal in the Netherlands, because an unpopular result in one case would not haunt other states in a subsequent dispute. Also, State C would be less reluctant to use the ICJ if a principle announced in litigation between States A and B were not precedent in subsequent litigation by either one of them against State C.

75

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Atkins v. Virginia, 536 U.S. 304, 347–348 (2002) (J. Scalia, dissenting, joined by Justices Rehnquist and Thomas). S. Calabresi and S. D. Zimdahl, “The Supreme Court and Foreign Sources of Law: Two Hundred Years of Practice and the Juvenile Death Penalty Decision,” William and Mary Law Review 47 (2005): 743, 907. A.-M. Slaughter, New World Order (Princeton, NJ: Princeton University Press, 2004), 65–69. Case Concerning the Factory at Chorzow (Germany v. Poland), 1926–1929 PCIJ, Ser. A, No. 7, 19 (Judgment of May 25, 1926).

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In practice, however, the ICJ has reapplied many principles from its earlier cases. A number of prior opinions have provided useful cannon fodder for resolving the same issues when they resurface in later cases. Otherwise, there would be little consistency in the ICJ’s decision-making process – and less respect for its ability to participate in the progressive development of international law.

3.5

Scholarly Writings

Article 38.1 further authorizes the use of “the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.” Analyses by influential “publicists” – prominent commentators on international law – are the remaining statutory method for ascertaining evidence of the content of international law. As a practical matter, one who is deciding a question of international law typically begins with academic writings. Where there is a treaty provision or a widely recognized customary practice directly on point, there would be no need to resort to any other source to answer the issue at hand. Scholars write about established or evolving norms and their gaps. Their summaries thus influence the rule-making process, but they can never make rules, customs, or treaties. Scholarly commentaries memorialize historical and contemporary developments in state practice. Wolfke characterizes scholarly writing as an essential instrument for analyzing a disputed issue, gathering information about prior resolutions of the same issue, and finding the latest trends in the ebb and flow of international legal norms. In addition to “attracting attention to international practice and appraising it, the writers indirectly influence its further evolution, that is, the development of custom.”79 This respect is premised on the notion that renders their opinions more objective than those of advocates or national officials serving for only a limited period or purpose.80 On the other hand, the need for such publicists has dwindled. As articulated in the Flores case: The ICJ Statute’s emphasis on the works of “publicists,” more commonly known as scholars or jurists, as a subsidiary or secondary source of customary international law suffers from an anachronism, as the work of international law

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K. Wolfke, Custom in Present International Law, 2nd rev. ed. (Dordrecht: Martinus Nijhoff, 1993), 77. A. D’Amato, “What Does it Mean to be an Internationalist?,” Michigan Journal of International Law 10 (1989): 102.

3 Sources of International Law scholars during the nineteenth and early twentieth century differed considerably from that of contemporary scholars. In “the nineteenth century . . . ,” international law scholars “did the hard work of collecting international practices.” The practice of relying on international law scholars for summaries and evidence of customary international law – that is, as secondary or “subsidiary” sources of international law – makes less sense today . . . Without taking any view on the merits of different forms of scholarship, and recognizing the potential of theoretical work to advance scholarship, we note that [the earlier raw] compilations and digests are of greater value in providing “trustworthy evidence of what the law really is,” whereas [today’s] expressly theoretical or normative works make their contribution by setting forth the “speculations of . . . authors concerning what the law ought to be.” The Paquete Habana, 175 US 677, 700 (1900).81

3.6

UN Resolutions

Article 38.1 of the ICJ Statute is not necessarily a closed list of sources. Resolutions of international organizations such as the UN also assist international decision-makers in search of the substantive content of international law. The UN is the preeminent global organization of states. It does not have a specialized agenda like other large organizations, such as the World Trade Organization. Courts and writers, seeking evidence of state practice and state expectations in a given circumstance, have employed its resolutions as a compass for determining the general content of international law. UN resolutions come in two basic types: Security Council resolutions and General Assembly resolutions. UN Security Council resolutions typically respond to aggressive uses (or threats) of force that are in violation of the UN Charter. They are not designed to be normative or rule-making. They are, instead, case-by-case reactions to violations of existing international law principles that may threaten world or regional peace. By contrast, the General Assembly’s role is to make recommendations. Under Article 10 of the UN Charter, the Assembly “may discuss any questions or any matters within the scope of the present Charter, and . . . may make recommendations to the Members of the United Nations or to the Security Council . . . .” Under Article 11, the Assembly “may consider the general principles of cooperation in the maintenance of international peace and security . . . and may make recommendations with regard to such principles to the [other General 81

Flores v. Southern Peru Copper Corp., 414 F.3d 233, 251 n.26 (2d Cir. 2003). Emphasis added.

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Assembly] Members or the Security Council or both . . . .” Otherwise, General Assembly resolutions would be characterized as “laws,” greatly reducing the need for an Article 38.1 source listing for ascertaining the substance of international law. A former UN Legal Counsel characterized General Assembly resolutions as non-binding, even when universally adopted. Pursuant to this view: [the] General Assembly’s authority is limited to the adoption of resolutions. These are mere recommendations having no legally binding force for member states. Solemn declarations adopted either unanimously or by consensus have no different status, although their moral and political impact will be an important factor in guiding national policies . . . The General Assembly, through its solemn declarations, can therefore give an important impetus to the emergence of new rules, despite the fact that the adoption of declarations per se does not give them the quality of binding norms.82

General Assembly resolutions are useful for illustrating the difference between hard law and soft law. “Hard law” typically refers to “legally binding obligations that are precise (or can be made precise through adjudication or the issuance of detailed regulations) and that delegate authority for interpreting and implementing the law,” as Abbott and Snidal write.83 A state’s obligations under a treaty, for example, are considered hard law. Soft law, on the other hand, “is not binding, though perhaps superficially it may appear to be so; nevertheless, international entities habitually comply with it, and it is this feature that makes possible reference to it as ‘law.’”84 General Assembly resolutions are soft law; they are aspirational and non-binding and do not create specific obligations for states. They are best understood as an expression of what the international community of states could agree to when states are made equal by virtue of the fact that every state – large or small – has only one vote in the General Assembly. The Restatement of the Law (Third): Foreign Relations Law of the United States provides that, unlike states, international organizations historically “have no authority to make law, and their determinations of [what is] law ordinarily have no special weight. But their declaratory pronouncements provide some evidence of what the states voting for it regard the law to 82

83

84

E. Suy, “Innovations in International Law-Making Processes,” in R. McDonald et al., eds., The International Law and Policy of Human Welfare (Alphen aan den Rijn: Sitjhoff & Noordhoff, 1978), 187, 190. K. Abbott and D. Snidal, “Hard and Soft Law in International Governance,” International Organization 54, No. 3 (Summer 2000): 421. P. Szasz, “General Law-Making Processes,” in O. Schachter and C. Joyner, eds., United Nations Legal Order, Volume 1 (Cambridge: Cambridge University Press, 1995), 45B46.

3 Sources of International Law

be . . . Resolutions of universal international organizations, if not controversial and if adopted by consensus or virtual unanimity, are given substantial weight.”85 Schachter questioned this assumption that such resolutions may be entitled to some degree of legal validity. A vote for a resolution may not be intended to signify agreement on the legal validity of the asserted norm. Governments do not always have that intent when they either vote for a resolution or fail to object to it. They may fairly assume that, since Assembly resolutions are only recommendations, “their vote should mean no more than that. They may cast their vote solely on political grounds in the belief that a resolution of the General Assembly is entirely a political matter without legal effect.”86 Regardless of the varied positions on General Assembly resolutions as an extra-statutory source, they are a useful resource for seeking evidence of international norms.

3.7

Hierarchy of Sources?

There is a hierarchy among the various norms of international law. Few international law experts would disagree with the following notion: all substantive rules of international law are important, but some are more important than others. For example, according to the ILC: “A rule of international law may also be superior to other rules by virtue of a treaty provision. This is the case of Article 103 of the United Nations Charter by virtue of which ‘In the event of a conflict between the obligations of the Members of the United Nations under the . . . Charter and their obligations under any other international agreement, their obligations under the . . . Charter shall prevail.’”87 The arrangement of the sources within Article 38 of the ICJ Statute suggests an implicit hierarchy. The first layer of this ordering is that treaties, customs, and general principles are the primary sources for finding the content of international law. Judicial decisions and scholarly writings are expressly designated as the subsidiary sources for determining the content of international law.

85

86

87

American Law Institute, Restatement of the Law (Third): Foreign Relations Law of the United States, Comment c. to §103 (St. Paul, MN: American Law Institute, 1987), 37. O. Schachter, “Resolutions and Political Texts,” Ch. VI in O. Schachter, International Law in Theory and Practice (Dordrecht: Martinus Nijhoff, 1991), 88. ILC: “Report on the work of its fifty-eighth session” (2006), General Assembly Official Records, Sixty-first Session, Supplement No. 10 (A/61/10), §XII.D.II.6 (Fragmentation of International Law), 420; Commentator: F. Martin, “Delineating a Hierarchical Outline of International Law Sources and Norms,” Saskatchewan Law Review 65 (2002): 333, 359.

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The possibility of an express hierarchy of sources was incorporated into a draft of the predecessor of Article 38 (when the “Committee of Jurists” drafted it for the Permanent Court of International Justice in 1920). The initial draft version provided that any listed sources were to be considered en ordre successif – in successive order. This phrase was deleted, however, at the First Assembly of the League of Nations. The League’s records do not indicate whether the deletion was meant to avoid a hierarchy, or, alternatively, was so unnecessary as to render the words “en ordre successif ” superfluous. From a practical perspective, however, a treaty is usually the best evidence of what international law is; a custom is more readily articulated than a general principle; and so on.88 Contemporary commentators are fond of ranking the comparative importance of this statutory list of sources. Many consider custom to be not only at the top, but also the essential basis for the other sources. Conforti, for example, insists that: Customary rules properly are placed at the top of the hierarchy of international norms. Included as a special category of customary rules, are general principles of law common to all domestic systems. Custom is both the highest source of international norms, and the only source of general rules. Treaties are second in ranking. Their obligatory character [itself] rests on a customary rule, pacta sunt servanda [good faith performance], and their entire existence is regulated by a series of customary rules known as the law of treaties. Third in the hierarchy are sources provided by agreements, including, most importantly, acts of international organizations.89

Other commentators characterize treaties as the most fundamental source. Bernhardt asserts that custom is often superseded by treaties. His perspective is that: normal customary law . . . can as such be superseded by regional as well as universal treaties. States are in general free to conclude treaties, which depart from customary law. This happens every day. Treaties on economic relations between certain States, double taxation agreements, defence alliances and human rights treaties all change the legal relations between the participating States, impose additional and different obligations, limit the existing freedom

88

89

See M. Akehurst, “The Hierarchy of the Sources of International Law,” British Yearbook of International Law 47 (1974): 273–274. B. Conforti, “The Hierarchy of International Norms,” in B. Conforti, International Law and the Role of Domestic Legal Systems (Dordrecht: Martinus Nijhoff, 1993), 115–116 (Provost translation).

Thinking Ahead and sovereign rights of the States concerned, and [thereby] change the applicable norms. In this context, treaties have a “higher” rank than customary law.90

If a rule of customary international law and a treaty-based rule were similarly worded, would the treaty provision trump the customary rule? The subject-matter governed by these two sources of law does not always precisely overlap. For example, in 1986 Nicaragua sued the US in the ICJ regarding the clandestine use of US force against a Nicaraguan government the US did not support. As explained by the Court: even if a treaty norm and a customary norm relevant to the present dispute were to have exactly the same content, this would not be a reason for the Court to take the view that the operation of the treaty process must necessarily deprive the customary norm of its separate applicability. . . . [T]he Court observes that the United Nations Charter . . . by no means covers the whole area of the regulation of the use of force in international relations. On one essential point, this treaty itself refers to pre-existing customary international law; this reference to customary law is contained in the actual text of Article 51, which mentions the “inherent right” . . . of individual or collective self-defence . . . The Court therefore finds that Article 51 of the Charter is only meaningful on the basis that there is a “natural” or “inherent” right of self-defence [which is undefined in the UN Charter], and it is hard to see how this can be other than of a customary nature, even if its present content has been confirmed and influenced by the Charter. Moreover the Charter, having itself recognized the existence of this right, does not go on to regulate directly all aspects of its content. For example, it does not contain any specific rule whereby self-defence would warrant only measures which are proportional to the armed attack and necessary to respond to it, a rule well established in customary international law.91

Thinking Ahead International law is not the same as domestic law: it is not created or enforced in the same ways that domestic laws are. These differences have sometimes made people skeptical about whether or not international law is 90

91

R. Bernhardt, “Hierarchy Among the Sources of International Law?,” in D. Constantopoulos, ed., Sources of International Law, Volume XIX of Thesaurus Acroasium (Thessaloniki: Institute for Public International Law, 1992), 209. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. US), 1986 ICJ Reports 14, at paras. 176–177.

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really law at all. Yet, we know that states have created a system of international law in order to achieve a world that is a bit more predictable, and where coordination on major issues is possible. We also know that states are more likely to comply with international law than they are to flout it. But international law has not been experienced the same by every state, a challenge that exists to this day. Developed by Western powers to serve their own interests, international law has played a role in maintaining global inequalities and reinforcing Western perceptions of what law is and who it serves. In the opening paragraphs of this chapter, the different understandings of international law by Secretary Blinken (US) and Chinese diplomat Yang are illustrative of the fact that while international law applies to every state, not every state has participated equally in its evolution. The US has, with its European counterparts, benefited from the dominant, liberal approach to international law, while the Chinese have warily viewed that development as evidence of the continued and unwelcome domination of Western values. Students of international law are well advised to consider this problematic evolution when reading the remainder of this book. This chapter provided a basic overview of some of the major building blocks of international law that will be developed more fully in the chapters that follow. For example, the state, introduced here, is the subject of the next chapter. As the primary actor in international law, the state is the anchor for nearly every other concept and subject area explored in this book and is the entity that ties individuals to international law. Subsequent chapters continue to refine the state, its responsibilities, and its limits. From there, we will consider the role of state-created international organizations, the use of force by states and international organizations, and, in the final chapters, we will examine substantive issue areas in international law such as the environment and economic relations. All of these elements make up the fascinating, ever-changing interplay that is modern international law.

2

States and Individuals in International Law

On July 1, 1997, the city of Hong Kong was returned to Chinese control after over 150 years as a British colony. This was the fulfillment of a deal struck after the Opium Wars (1839–1842 and 1856–1860), when the victorious British extracted from the Chinese control over Hong Kong and the Kowloon Peninsula, eventually leasing the territory from the Chinese in 1898 for a period of ninety-nine years. Under British rule, Hong Kong enjoyed British-style government and economic prosperity, becoming one of the wealthiest cities in the world and a major international port city. In many ways, it also became a destination for Chinese citizens whose political ideas differed from those espoused by the powerful Chinese Communist Party. The British influence in Hong Kong made it very different from the rest of the People’s Republic of China (PRC). After it was returned to the Chinese in 1997, the Chinese were, via a legally binding agreement, required to allow it to maintain its own governmental, economic, and legal systems. It could also trade with foreign countries independent of China. This agreement, “One Country, Two Systems,” essentially allowed Hong Kong legally to be part of China, but to exist as a Special Administrative Region, exempted from many of the constraints of the Chinese Communist Party. The “One Country, Two Systems” promise, which is set down in Hong Kong’s Basic Law,1 expires on June 30, 2047 – if the Chinese allow it to last that long. Since Hong Kong is legally part of the sovereign territory of the PRC and since it is such an important part of the international economy, it has been difficult for China to resist interfering in its affairs. And citizens of Hong Kong know that it is only a matter of time before the Chinese will be free to exert their full influence on the region and its people – indeed, it has already begun. The student-led, pro-democracy “Umbrella Movement” protests in 2014 were followed by further protests in 2019. These protests would likely have continued if the COVID-19 pandemic had not intervened. Since then, 1

D. Gittings, “What Will Happen to Hong Kong After 2047?,” California Western International Law Journal 42, No. 1 (2011): 38.

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the Chinese government has passed laws severely restricting political protest in the city and has shuttered pro-democracy media outlets.2 What recourse does Hong Kong have, given its past history as a British colony, but its legal status as a Special Administrative Region of the PRC? What about the people of Hong Kong – do they have a right to determine how they are governed? What protections are due to them given their residence in the Special Administrative Region? The situation does not appear very hopeful. Other states are reluctant to intervene on Hong Kong’s behalf, given China’s position in the international community. States, as we discuss them in this chapter, are sovereign: no state can tell another state what to do within its own borders. Combined with the longstanding principle of non-intervention that is enshrined in Article 2(4) of the United Nations (UN) Charter, it is unlikely that Hong Kong will be able to ward off further Chinese influence for very long, and certainly not as long as 2047.

Introduction This chapter introduces you to some of the major actors in international law, entities that have legal personality, responsibilities, and privileges in the international system. Primary among these actors is the state, and most of this book will focus on the relationship of states to other states. Indeed, states were often considered the only relevant actor until the end of World War II, after which the landscape of international law was changed considerably. It was then that individuals became important in international law as well, since they are impacted by, and in turn themselves impact, the states in which they live and work. This was exemplified in historic fashion by the Nuremberg trials of Nazi officials in the wake of World War II. In other chapters of this book additional significant actors – international organizations and corporations – are also explored.3 In many ways, this chapter sets you up for everything that remains in this book. Without a solid understanding of the state, sovereignty, and state responsibility, international law makes little sense. Without an appreciation for how the individual and the state are intertwined, international law has limited relevance. This is a chapter that is heavy on definitions and key 2

3

J. Hernandez, “Harsh Penalties, Vaguely Defined Crimes: Hong Kong’s Security Law Explained,” New York Times, June 20, 2020. See Chapters 6 (international organizations), 7 (human rights), and 11 (international economic relations).

Introduction

concepts, but it is one that will serve you well as you make your way through the rest of the book. The first part of this chapter defines the state as the primary actor in international law and shows how the state is different from other entities in international politics. The state is endowed with sovereignty, which means that it is accountable, on the surface, only to itself. This feature makes states very interesting because international law is essentially a set of rules for states – states that, because of sovereignty, are not always keen to recognize any authority but themselves or to follow rules they themselves did not create. We briefly explore how state sovereignty and international law intersect, while also revealing the key elements that make a state what it is. Because states are sovereign, they can choose their own fates. Sometimes this means that they change their shape – expanding or contracting as their fortunes change via war or agreement with other states. Sometimes it means that they give up some of their sovereignty for a higher purpose, such as joining an international organization of like-minded states. Through all of these decisions, states can also decide the conditions under which they will recognize other states that surround them, choosing to withhold recognition if it does not serve their political interests, or acknowledging new states when it does. States know that all other states are making these same determinations about each other’s status all the time. Furthermore, they also understand that states are equal in their sovereignty and that a state must not pass judgment on another state’s actions unless those actions are particularly egregious (e.g., genocide, slavery, or crushing democratic protests, as in Hong Kong): states have the privilege of being immune from suit in other state’s courts – most of the time, at least. The latter part of this chapter ties the state and the individual together. After all, everything the state does has an impact on real people. States give individuals their nationality, a guarantee of having a place in the world, and a state to rely on in times of need. We explore the impact of nationality and citizenship and the reciprocal responsibilities that exist between the state and the individual. We also examine situations in which the individual is vulnerable because the state is in crisis or because it has changed the rules surrounding citizenship. Individuals who are stateless, refugees, or internally displaced people have no state to rely on. How are these people protected under international law, if at all? This chapter ends with a discussion of state behavior toward foreign nationals. States are powerful and can injure individuals who travel, work, or reside within a state that is not their own. States are responsible for the injuries they cause not only to other states, but also to individuals whose property they confiscate, who are treated differently than the state’s own

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citizens, or when they deprive them of a livelihood. States must compensate individuals for those injuries under international law, although there are many different methods for doing so.

1 The State The state is arguably the most important actor in international law and is the primary actor we examine throughout this book.4 A state has legal personality. To use Brownlie’s succinct definition, this means that the state possesses “international rights and obligations” with the capacity to “maintain its rights by bringing international claims; and . . . be responsible for breaches of obligation by being subjected to such claims.”5 The state is not the only actor that has legal personality and is thus a subject of international law; international organizations like the UN possess it as well, in addition to a small group of other actors we explore in the coming chapters. The terms state, nation, nation state, country, and government are often used interchangeably. The following words in the Preamble to the UN Charter provide an example of such usages: “We the peoples of the United Nations . . . [h]ave resolved to combine our efforts . . . [through] our respective Governments . . . ” (emphasis added). These terms are quite easily confused and international legal arguments rely on some degree of precision. Table 2.1 outlines the definitions we will use for these commonly confused concepts within this book. The definitions of these terms are important to practitioners of international law, but we must note that not everyone is concerned with definitional precision. Heads of state (e.g., presidents, prime ministers, monarchs), diplomats, speakers, journalists, and other writers have varying agendas. They do not always identify such details for their respective audiences. Academics have long debated the appropriate nomenclature for the state. In the international law context, however, a state consists of a population, within a readily defined geographical area, united to ensure their mutual welfare and security. Regardless of one’s word choice, the quintessential entitlement of statehood is sovereignty: there is no higher authority than the state that can dictate how it acts. The state must answer to no one but itself. This idea is

4 5

See the entry for Positivism in Table 0.1. J. Crawford. Brownlie’s Principles of Public International Law (Oxford: Oxford University Press, 2008), 115.

1 The State

Table 2.1. Commonly confused concepts in international law Concept

Use in international law

state

Legal entity with a permanent population, defined territory, a government, and capacity to enter into relationships with other states. Has the monopoly on the use of force/coercion within its territory.

nation

People who consider themselves to have a shared kinship, history, religion, language, or other feature not necessarily based on physical attributes. An “imagined community.”1

nation state

An entity in which the geographic borders of the state coincide with the living area of a single nation.

country

Geographic entity; the geographic descriptor of a state and its location.

government

The political group within a state that has the authority to engage in international relations.

Note: 1 B. Anderson. Imagined Communities (New York: Verso, 1983).

rooted in the Treaty of Westphalia (1648) – the foundation of our modern state system – as follows: And to prevent for the future any Differences arising in the Politick State, all and every one of the Electors, Princes and States of the Roman Empire, are so establish’d and confirm’d in their antient Rights, Prerogatives, Libertys, Privileges, free exercise of Territorial Right, as well Ecclesiastick, as Politick Lordships, Regales, by virtue of this present Transaction: that they never can or ought to be molested therein by any whomsoever upon any manner of pretence.6

The concept of the state has evolved beyond the utopian vision that underscored the above Treaty of Westphalia. It sought to displace the inequality of medieval nobles and warlords with co-equal sovereign entities. Krisch succinctly characterizes this utopia as follows: Sovereign equality is one of the great utopias of international law, but also one of its great deceptions. . . . [I]t embodies a far-reaching promise – a promise to abolish all unjustified privileges based on power, religion, wealth, or historical accident, [and] a promise to transcend the blatant injustices of the international system. This utopian aspiration has always been one of the most appealing

6

Peace Treaty between the Holy Roman Emperor and the King of France and their Respective Allies (October 24, 1648), Art. LXIV, at: https://avalon.law.yale.edu/17th_century/westphal .asp accessed May 3, 2022.

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While international law proclaims that all states are equal because they are all endowed with sovereignty, this equality is a fiction. International law attempts to level the playing field for all states, no matter their size, influence, or capacity.

1.1

Elements of Statehood

When an entity achieves statehood, it is entitled to the following – as classically restated in the Charter of the Organization of American States (OAS): the State has the right to defend its integrity and independence, to provide for its preservation and prosperity, and consequently to organize itself as it sees fit, to legislate concerning its interests, to administer its services, and to determine the jurisdiction and competence of its courts. The exercise of these rights is limited only by the exercise of the rights of other States in accordance with international law.8

What does it take to become a state? Sovereignty and the recognition of that sovereignty appear to be guaranteed for all entities that meet the criteria for statehood, but sovereignty itself is a dynamic concept that is continually being relitigated. Can it be revoked or limited? For example, are so-called “rogue states” still states under international law?9 Does a state waive its right to sovereignty when it facilitates gross violations of human rights, like genocide, within its borders? Exports terrorism? Proliferates weapons of mass destruction?10 In international law, a state’s “international legal personality” consists of four elements. Under the 1933 Montevideo Inter-American Convention on 7

8

9

10

“US Predominance in International Law,” in M. Byers and G. Nolte, eds., United States Hegemony and The Foundations of International Law (Cambridge: Cambridge University Press, 2003), 135. Charter of the Organization of American States, Art. 9, April 30, 1948. 119 UNTS 1609 at: https://treaties.un.org/doc/Publication/UNTS/Volume%20119/volume-119-I-1609-English .pdf accessed May 3, 2022. P. Minnerop, “The Classification of States and the Creation of States within the International Community,” in Max Plank Yearbook of United Nations Law (Leiden: Martinus Nijhoff, 2003): 7. See M. Kelly, “Pulling at the Threads of Westphalia: ‘Involuntary Sovereignty Waiver’ – Revolutionary International Legal Theory or Return to Rule by the Great Powers?,” UCLA Journal of International law and Foreign Affairs 361 (2005): 10.

1 The State

the Rights and Duties of States, a “State as a person of international law should possess the following qualifications: (1) a permanent population; (2) a defined territory; (3) government; and (4) capacity to enter into relations with other states.”11 The simultaneous presence of these elements identifies a sovereign entity entitled to such international personality. The Montevideo Convention is the clearest expression of the so-called declarative theory of statehood, holding that an entity is a state by virtue of possessing these characteristics, and that outside recognition by other states is not necessary for statehood.12 This treaty-based legal criterion for statehood has been widely adopted, but the practical application of these criteria has been far from simple. One reason is that the absence of one or more of these distinct elements, even over a period of time, does not necessarily deprive a state of its international personality. Analytical problems most often arise when larger states break up into smaller ones, as did the former Yugoslavia after the demise of the Soviet Union; or when one part of a nation attempts to secede, as in the American Civil War of the 1860s or South Sudan’s independence from Sudan in 2011;13 or when a foreign power exercises de facto control over another state, such as when Russia invaded Crimea (part of Ukraine) in 2014. We now examine each of the elements of statehood in turn.

1.1.1

Population

Neither a minimum population nor an express grant of nationality to the inhabitants is required for qualification as a state.14 Nor does the absence of part of the population over a period of time necessarily vitiate state status. The nomadic tribes on the Kenya-Ethiopia border, for example, have been an ambulatory element of each state’s population for centuries. The transient nature of this significant component of each state’s population has not diminished the permanence of either bordering state.

11 12

13

14

League of Nations Treaty Series 165, No. 19, 49 US Stat. 3097 (entered into force 1934). We will explore the counter to the declarative theory – the constitutive theory of statehood – in Section 2.1 in this chapter. Although Quebec has received the most attention, Nunavut’s flag flew for the first time (April 1999) in the now self-governing territory in the northernmost portion of Canada. This culminates twenty years of negotiations between Canada and its indigenous, aboriginal Inuit people, who number about 25,000. M. Gunter, “What Happened to the United Nations Ministate Problem?,” American Journal of International Law 110 (1977): 71. See also Case Concerning Acquisition of Polish Nationality (Germany v. Poland), 1923 PCIJ, Ser. B, No. 7, at 18 (Judgment of September 15, 1923).

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Deficiencies with the other elements of statehood – defined territory and a government engaging in foreign relations – have posed more serious problems.

1.1.2

Territory

This element of statehood appears, on its surface, to be the easiest to identify: to be a state, there must be a distinct, geographical area to defend. As it turns out, however, the territorial element of statehood is fraught with difficulties and differences of interpretation, as the following examples illustrate. 1.1.2.a Palestine The territorial element of statehood can be blurred by mutually exclusive claims to the same territory, and “Palestine” is perhaps the most famous example. In 1917, the British government endorsed the Balfour Declaration, which was “in favor of the establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing should be done which might prejudice the civil and religious rights of existing non-Jewish communities in Palestine.”15 The 1922 League of Nations Mandate provided that “[t]he Administration of Palestine shall be responsible for enacting a nationality law . . . to facilitate the acquisition of Palestinian citizenship by Jews who take up their residence in Palestine.” Influential leaders of the era did not agree. As India’s Mohandas (Mahatma) Gandhi cautioned in November 1938 – in response to the Balfour Declaration (favoring Palestine as a home for Jews) and the above League Mandate (Palestine to facilitate nationality for Jews): Palestine belongs to the Arabs in the same sense that England belongs to the English or France to the French. It is wrong and in-human to impose the Jews on the Arabs. What is going on in Palestine today cannot be justified by any moral code of conduct. The mandates have no sanction but that of the last war. Surely it would be a crime against humanity to reduce the proud Arabs so that Palestine can be restored to the Jews partly or wholly as their national home. The nobler course would be to insist on a just treatment of the Jews wherever they are born and bred. The Jews born in France are French in precisely the same sense that Christians born in France are French . . . The Palestine of the Biblical conception is not a geographical tract. It is in their [the Jews of Palestine] hearts. But if they must look to the Palestine of geography as their national home, it is wrong to enter it under the shadow of the British gun. A religious act cannot be performed with the aid of the bayonet or the 15

Text of the Balfour Declaration, www.jewishvirtuallibrary.org/text-of-the-balfourdeclaration accessed May 3, 2022.

1 The State bomb. They can settle in Palestine only by the goodwill of the Arabs. They should seek to convert the Arab heart.16

Quigley offers a useful analysis of two forgotten realities emerging from the interim period between the two world wars. First, no state or international organization claimed sovereignty over Palestine. Second, he depicts the argument for Palestine’s de jure statehood, when the League of Nations created the post-World War I “Class A” mandates17 (including Palestine): Opinions of analysts can be found supporting every conceivable position on sovereignty [over Palestine] and on the Statehood of the Class A Mandates. What analysts say is less important than what states did. . . . The Class A mandates, including Palestine, were states because that is how they were erected and that is how they were considered as they operated in the international arena. The [other] States of the era had no difficulty separating the concept of statehood from that of independence. They did not regard an absence of independence in relation to Palestine as a negation of its statehood.18

The postwar UN, however, partitioned Palestine. Its plan – devised in 1947 to divide Palestine into an Arab State and a Jewish State – appeared to track the US statement to the UN that “[i]n the final analysis the problem of making any solution work rests with the people of Palestine.” On the occasion of the 1947 Partition of Palestine, the UN decreed that “[i]ndependent Arab and Jewish States and the Special International Regime for the City of Jerusalem . . . shall come into existence in Palestine two months after the evacuation of the armed forces of the mandatory Power [the UK] has been completed but in any case not later than 1 October 1948.” The boundaries of the Arab State, the Jewish State, and the City of Jerusalem were all specifically stated in the partition plan.19 Philip Jessup represented the US in the UN Security Council in 1948 (and later became a judge of the International Court of Justice (ICJ)). In the passage below, he discloses the US perspective on why Israel satisfied the doctrinal elements of statehood.

16

17

18

19

“March 3, 1939: Gandhi to Jewry: Palestine Belongs to Arabs,” Center for Online Judaic Studies, http://cojs.org/march-3-1939-gandhi-jewry-palestine-belongs-arabs/ accessed May 3, 2022. Class A Mandates included the formerly Turkish territories of Iraq, Syria, Lebanon, and Palestine. J. Quigley, “A State Awaiting Independence,” Ch. 7 in The Statehood of Palestine: International Law in the Middle East Conflict (Cambridge: Cambridge University Press, 2010), 66. Citations in this section are from Yale University’s excellent Avalon Project, available at: https://avalon.law.yale.edu/20th_century/decad164.asp accessed May 3, 2022.

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ON THE CONDITION OF STATEHOOD 3 UN Security Council Official Records, 383rd Meeting, at 9–12 (1948) Over a year ago the United States gave its support to the principles of the majority plan proposed by the United Nations Special Committee on Palestine. That plan envisaged the creation of both a Jewish State and an Arab State in Palestine. We gave our support to the resolution of 29 November 1947 by which the General Assembly recommended a plan for the future government of Palestine involving, as one of its elements, the establishment of a Jewish State in part of Palestine. . . . The Security Council now has before it the application of the Provisional Government of Israel for membership [in the United Nations]. The consideration of the application requires an examination of . . . the question of whether Israel is a State duly qualified for membership. Article 4 of the Charter of the United Nations specifies the following: “Membership in the United Nations is open to peace-loving States which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations . . .”

The first question which may be raised in analyzing Article 4 of the Charter and its applicability to the membership of the State of Israel, is the question of whether Israel is a State, as that term is used in Article 4 of the Charter. It is common knowledge that, while there are traditional definitions of a State in international law, the term has been used in many different ways. We are all aware that, under the traditional definition of a State in international law, all the great writers have pointed to four qualifications: first, there must be a people; second, there must be a territory; third, there must be a government; and, fourth, there must be capacity to enter into relations with other States of the world. In so far as the question of capacity to enter into relations with other States of the world is concerned, learned academic arguments can be and have been made to the effect that we already have, among the Members of the United Nations, some political entities which do not possess full sovereign freedom to form their own international policy, which traditionally has been considered characteristic of a State. We know, however, that neither at San Francisco nor subsequently has the United Nations considered that complete freedom to frame and manage one’s own foreign policy was an essential requisite of United Nations membership.

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ON THE CONDITION OF STATEHOOD (cont.) I do not dwell upon this point because . . . Israel is free and unhampered. On this point, I believe that there would be unanimity that Israel exercises complete independence of judgment and of will in forming and in executing its foreign policy. The reason for which I mention the qualification of this aspect of the traditional definition of a State is to underline the point that the term “State,” as used and applied in Article 4 of the Charter of the United Nations, may not be wholly identical with the term “State” as it is used and defined in classic textbooks of international law. When we look at the other classic attributes of a State, we find insistence that it must also have a Government. No one doubts that Israel has a Government. I think the world has been particularly impressed with the way in which the people of Israel have organized their government and have established a firm system of administration and of law-making under the most difficult conditions. Although, pending their scheduled elections, they still modestly and appropriately call themselves the Provisional Government of Israel, they have a legislative body which makes laws, they have a judiciary which interprets and applies those laws, and they have an executive which carries out the laws and which has at its disposal a considerable force responsive to its will. According to the same classic definition, we are told that a State must have a people and a territory. Nobody questions the fact that the State of Israel has a people. It is an extremely homogeneous people, a people full of loyalty and of enthusiastic devotion to the State of Israel. The argument seems chiefly to arise in connection with territory. One does not find in the general classic treatment of this subject any insistence that the territory of a State must be exactly fixed by definite frontiers. We all know that, historically, many States have begun their existence with their frontiers unsettled. Let me take as one example my own country, the United States of America. Like the State of Israel in its origin, it had certain territory along the seacoast. It had various indeterminate claims to an extended territory westward. But, in the case of the United States, that land had not even been explored, and no one knew just where the American claims ended and where French and British and Spanish claims began. To the North, the exact delimitation of the frontier with the territories of Great Britain was not settled until many years later. And yet, I maintain that, in the light of history and in the light of the practice and acceptance by other States, the existence of the United States of America was not in question before its final boundaries were determined.

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ON THE CONDITION OF STATEHOOD (cont.) The formulae [sic] in the classic treatises somewhat vary, one from the other, but both reason and history demonstrate that the concept of territory does not necessarily include precise delimitation of the boundaries of that territory. The reason for the rule that one of the necessary attributes of a State is that it shall possess territory is that one cannot contemplate a State as a kind of disembodied spirit. Historically, the concept is one of insistence that there must be some portion of the earth’s surface which its people inhabit and over which its Government exercises authority.

The UN partition plan was not implemented, due to the war that consequently erupted in 1948. Israel was able to expand its territory beyond that provided for by the UN plan, displacing millions of Arabs. The 1967 Six-Day War enlarged the original boundaries of the Jewish State in Palestine, and the borders have been the subject of hostilities ever since. Benjamin Netanyahu, the embattled Prime Minister of Israel, planned to annex the territory of the West Bank in 2020, an area that is home to millions of Palestinians, and this plan was backed by the US under the pro-Israel Trump Administration. Violence in the area has continued even into 2021. Since the Oslo Accords (1993, 1995), the West Bank has been recognized as Palestinian territory that is occupied – unlawfully – by Israel. The Accords fell short of recognizing Palestine as an independent state, though the vast majority of states in the international community (with the notable exception of the US, long-time ally of Israel) recognize it today.20 1.1.2.b Taiwan Taiwan is another classic Montevideo-elements conundrum. Prior to a nineteenth-century war, China claimed sovereignty over the island of Taiwan. China ceded it to Japan after the Sino-Japanese War of 1895. Japan relinquished sovereignty over the island as part of the 1951 US– Japanese peace treaty. That agreement was silent as to whom sovereignty was thus ceded. After the Communist takeover of mainland China by Mao Zedong in 1949, the international community recognized the island of Taiwan as the legitimate Chinese government. Taiwan is thus often referred to as the Republic of China (ROC), in contrast to the PRC (Communist mainland China). But most of the Chinese people lived on the mainland. Since the early 1970s: (1) the UN withdrew Taiwan’s entitlement to occupy the organization’s “China” seat; (2) mainland China was substituted for Taiwan at the UN; (3) the nations of the 20

Palestine has also held non-member observer status in the United Nations since 2012.

1 The State

world divided on which entity was the true China, or whether each was entitled to statehood; (4) the World Trade Organization admitted Taiwan, just after the mainland’s PRC became a member; and (5) each side has initiated various military maneuvers designed to establish who has the edge. The PRC’s opposition to the ROC’s claim of statehood was exemplified in the 2005 Anti-Secession Law. It was enacted for the purpose of “opposing and checking Taiwan’s secession from China, . . . promoting peaceful national re-unification [similar to the German experience, and] preserving China’s sovereignty and territorial integrity . . . .” Taiwan’s statehood is thus ambiguous for a host of reasons, including US military support of the uneasy status quo, the PRC position of “one country, two systems” akin to Hong Kong’s current (and threatened) status, and the Taiwanese counter-proposal of “one country, two governments.”21 The current Taiwanese president, reelected in 2020, reaffirmed Taiwan’s status, and was countered by the PRC’s confidence that Taiwan would eventually – one way or another – be fully Chinese territory.22 Given the recent aggression against Hong Kong noted in the opening paragraphs of this chapter, Chinese moves to consolidate its territory in Taiwan would not be surprising. 1.1.2.c Fragile States Another difficulty for determining territory arises when we consider the growing number of failed or failing states in the world. A fragile or failed state has a government that is no longer in control of its territory, cannot guarantee security for its citizens, cannot provide public goods, or has lost its legitimacy. The Fragile States Index collects data on such states in decline; in 2020, placing states like Yemen, Somalia, South Sudan, and Syria at the top of its list of “very high alert” states.23 These states are typically beset by civil war and unwanted outside influence, and have economic and social systems that cannot withstand increased pressures. Yemen is typically either at or near the top of the list of the world’s most fragile, unstable states, and is a state that is caught in the middle of a larger conflict between the major powers of the Middle East: Saudi Arabia (majority 21

22

23

Anti-Secession law: its ten articles are available in English in B. Chimini et al., eds., “Selected Documents,” Asian Yearbook of International Law 11 (Leiden: Martinus Nijhoff, 2006): 347; History: “Purposeful Ambiguity as International Legal Strategy: The Two China Problem,” in J. Makarczyk, ed., Theory of International Law at the Threshold of the 21st Century: Essays in Honour of Krzysztof Skubiszewski (Brill: Martinus Nijhoff, 1996), 109; Ambiguity: H. Kuijper, “Is Taiwan a Part of China?,” in J. Henckaerts, ed., The International Status of Taiwan in the World Order: Legal and Political Considerations (London: Kluwer, 1996), 9; Hong Kong: S. Zhichao, “International Legal Personality of the Hong Kong Special Administrative Region,” Chinese Journal of International Law 7 (2008): 339. L. Kuo. “Tsai Wen Says China Must Face Reality of Taiwan’s Independence,” The Guardian, January 15, 2020, www.theguardian.com/world/2020/jan/15/tsai-ing-wen-says-chinamust-face-reality-of-taiwans-independence accessed May 3, 2022. Fragile States Index, https://fragilestatesindex.org/ accessed May 3, 2022.

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Sunni Muslim) and Iran (majority Shiite Muslim). Saudi Arabia backed Yemeni president Mansur Hadi, but Shiite Houthi rebels with ties to Iran assumed control of the government and forced Hadi into exile in 2015. The Houthis and the Saudi-backed supporters of Hadi’s government have had repeated armed clashes, and this has resulted in a standstill for all operations of daily life in Yemen. Parliamentary elections have not been held since 2003, and the presidential election of 2012 had only one candidate running.24 In addition to multiple other failures, the humanitarian crisis in Yemen – mass starvation, lack of access to food and shelter, little access to medical facilities, inadequate sanitation – is staggering: over 24 million people are estimated to be in need of humanitarian assistance.25 Yemen is, unfortunately, the very definition of a failed state. What to do with fragile or failed states? The long-standing norm of sovereignty gives us little guidance. As Rotberg writes, the best way to deal with failed states is to prevent them from happening in the first place, which requires a long-term, substantial financial investment, and oversight – all of which seem unlikely to occur.26 Another, perhaps more fruitful approach, is to reimagine the UN Trusteeship Council to provide management for states that have lost the ability to control their own destinies, redefining the role it once played during the dismantling of colonialism. In this vision, the Trusteeship Council could act as a third-party that assists failing or failed states in reestablishing good governance, the most important aspect of state-building.27 1.1.2.d Disappearing States Island nations are disappearing as a consequence of unmitigated climate change. With an expected ocean rise of just a few meters, the forty-four members of the Alliance of Small Island States (AOSIS) must plan for the loss of their inhabitable land. Polar ice sheets are melting at a faster pace than previously anticipated, permafrost is thawing, and the world’s oceans are warming, causing sea levels to rise at an extraordinary rate. The Intergovernmental Panel on Climate Change (IPCC), an international group of scientists collecting and verifying research on climate science, predicts that sea levels will rise between 0.029 meters and 1.1 meters

24

25

26

27

Freedom House, “Yemen,” https://freedomhouse.org/country/yemen/freedom-world/2020 accessed May 3, 2022. United Nations Office for the Coordination of Humanitarian Affairs, “Yemen: Crisis Overview,” www.unocha.org/yemen/crisis-overview accessed May 3, 2022. R. Rotberg, “The New Nature of Nation-State Failure,” Washington Quarterly 25, No. 3 (2002): 85–96. A. Meizei, “The Trusteeship Council and State Failure – Trusteeship Systems and the Forgotten UN Organ in the 21st Century,” Köz-gazdaság 14 (2019) http://unipub.lib.unicorvinus.hu/4075/1/mezei.pdf accessed May 3, 2022.

1 The State

by 2100.28 This rise, though it seems insignificant at first blush, will devastate a number of low-lying island nations. The average elevation of the Marshall Islands, for example, is about 2 meters.

1.1.3

Government

The “government” element of statehood is problematic when independent actors, operating in different regions of a state, claim that each is the legitimate government of the entire territory. Some historical examples include Nationalist and Communist China and North and South Korea. In each instance, separate entities – possessing administrative and legislative authority – claimed the exclusive right to govern. External interference by other states contributed to the rigidity that caused each government to adopt and maintain inflexible postures regarding the potential for a shared power arrangement. A more recent example of this problem of a stable government is in Syria, a state in which the current government has little control over large swaths of territory. The president, Bashar al-Assad, has held that position since the death of his father in 2000. In 2011 a series of pro-democracy demonstrations spread throughout the Middle East, starting in Tunisia with demonstrations that came to be known as the Arab Spring. In March 2011, a group of anti-Assad protesters demanded the release of political prisoners in Syria and defaced public property with anti-Assad graffiti. Assad crushed the demonstrations and killed the protesters, setting off a civil war that has had global implications. A decade later, nearly 6 million Syrians have fled the country and now claim refugee status, over 6 million are internally displaced within Syria, and over 500,000 are estimated to have been killed as a result of the conflict.29 Of the displaced and refugees, close to 50 percent are children.30 While Assad is formally the head of state, he does not have control over the entire Syrian state. Instead, multiple groups control different regions, and that control often shifts. Russia has supported the Assad regime, the US has supported the Free Syrian Army (rebels, anti-Assad). Iran has supported Assad, while Turkey, and particularly its Kurdish minority, has supported the rebels. In portions of the country the Islamic State, a terrorist 28

29

30

R. Moore, “IPCC Report: Sea-level Rise is a Present and Future Danger,” Natural Resources Defense Council (blog), September 25, 2019, www.nrdc.org/experts/rob-moore/new-ipccreport-sea-level-rise-challenges-are-growing accessed May 3, 2022. United Nations High Commission on Refugees, “Internally Displaced People,” www.unhcr .org/sy/internally-displaced-people accessed May 3, 2022. P. Stewart and B. Van Esveld, “The Children of Syria: Young Lives Damaged by War,” Human Rights Watch, March 13, 2020, www.hrw.org/news/2020/03/13/children-syria accessed May 3, 2022.

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organization (that, despite its name, is not a state according to accepted definitions), has, or has had, effective control over the territory and the population. Like Yemen, Syria is a state that is failing.

1.1.4

Foreign Relations

The attribute requiring the “capacity to enter into relations with other states” is arguably the most decisive criterion for statehood. Under international law, to be considered a “state,” an entity must function independently of any authority other than that which might be imposed by international law. Not all entities referred to as a state possess this capacity. Some provincial entities engage in foreign relations although another and more powerful governmental entity in the region disputes its legal right to do so. This typically occurs when there is a “breakaway” province, wherein the inhabitants seek to establish their right of self-determination (discussed later in Section 3.2 in this chapter). Taiwan, for example, was a province of China for thousands of years, and now a number of countries recognize Taiwan as an independent state. Additionally, an entity may possess the characteristics of sovereignty without actually being in control of its populace and territory, as mentioned above in relation to failed states. Under international law, only the national government has the legal capacity to engage in foreign relations. Yet an increasing number of subnational governments typically engage in international trade relations, crime control, and other governmental matters. This is particularly true in the relationship between the US federal government and the state governments, which is potentially problematic. A classic illustration of the potential state–state conflict within a nation was presented by the so-called Massachusetts Burma Law. The US Supreme Court’s ruling in Crosby v. National Foreign Trade Council struck down a state law imposing sanctions on Massachusetts businesses that traded with Burma (now Myanmar). Massachusetts attempted to bar companies within that state from doing business with Burma due to its poor human rights record and anti-democratic practices, while the federal approach to dealing with Burma’s human rights and democracy problems was more liberal. The national government desired more flexibility in dealing with the human rights record of Burma’s military government. The Supreme Court characterized the Massachusetts law as: an obstacle to the accomplishment of Congress’s full objectives under the federal Act. We find that the state law undermines the intended purpose . . . of at least three provisions of the federal Act, that is, its delegation of effective discretion to the President to control economic sanctions against Burma, its limitation of

2 Recognition sanctions [applicable] solely to US persons and new investment, and its directive to the President to proceed diplomatically in developing a comprehensive, multilateral strategy toward Burma.31

The Court ruled similarly in its 2003 Holocaust Victim Insurance Relief Act (HVIRA) case, wherein federal law preempted a California law requiring insurance companies to disclose certain information about policies they or their affiliates wrote in Europe between 1920 and 1945. A strongly worded dissent by four justices agreed that the California legislature should not speak on foreign policy issues. However, that was not the effect of this particular state law. Although “the federal approach differ[ed] from California’s, no executive agreement or other formal expression of foreign policy disapprove[d] state disclosure laws like the HVIRA. Absent a clear statement aimed at disclosure requirements by the ‘one voice’ to which courts properly defer in matters of foreign affairs, [the Court] would leave intact California’s enactment.”32 The end result of both of these decisions is that states cannot substantially interfere with the power of the federal government to engage in international relations.

2 Recognition The term “recognition” has a variety of meanings. It generally refers to one state’s willingness to establish and maintain official relations with another state, its government, or some belligerent group within another state. In this section we focus on recognition of one state by another with a brief comparison of collective recognition of a state by an international organization. Writers and jurists have described recognition as one of the most chaotic and theoretically confusing topics in international law. It is certainly one of the most sensitive and controversial.33 Recognition of another state or an entity within it typically involves a mixture of political, military, and economic considerations, as described below.

2.1

Recognition by States

The first distinct state recognition scenario is a state’s decision whether to recognize another newly created state (as opposed to merely a new 31 32

33

Crosby v. National Foreign Trade Council, 530 U.S. 363, 373–374 (2000). American Insurance Association v. Garamendi, 539 U.S. 396, 430 (2003) (Ginsburg dissenting). P. Chandra, International Law (New Delhi: Vikas, 1985), 28 (“chaotic”); D. O’Connell, International Law, 2nd ed. (New York: Oceana, 1970), 127 (“confusing”); J. Dugard, Recognition and the United Nations (Cambridge: Grotius, 1987), 28 (“controversial”).

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government). José Maria Ruda, former judge and president of the ICJ, aptly describes recognition of a new state as “a unilateral act whereby one or more States admit, whether expressly or tacitly, that they regard the . . . political entity as a State; consequently, they also admit that the . . . entity is an international legal personality, and as such is capable of acquiring international rights and contracting international obligations.”34 But the term “recognition of States” means different things to different people. As Ribbelink argues: A distinction must be made between recognition of States and recognition of governments. Recognition of a State only becomes an issue with the appearance of a “new” State. When there is no new State, [unlike a new government,] the issue does not arise. Recognition of a State means that, according to the recognizing State, that specific State fulfils the criteria for statehood.35

Receiving recognition is one of the highest-ranking political goals for a new state. Its leaders desire equality of status with the other members of the international community. Statehood, and the distinct but related recognition decision by other states, enables new states to engage in international relations. For example, after Kosovo’s unilateral declaration of independence in 2008, its leaders desperately sought the recognition of the international community. By mid-2020, nearly half of all UN member states had recognized Kosovo as an independent state. Some new states have had an easier time securing recognition because their creation was supported by their “parent” state. South Sudan, for example, formally carved out of Sudan in 2011, is recognized by over 130 states, and holds a seat in prominent international organizations like the UN and in the African Union. Recognition is a minimum requirement to engage in international relations; states cannot play the game of international politics without it. The Russian Federation, for example, was keenly interested in the international recognition of its new republic, formed after a 40-year Cold War that stagnated its economy and embroiled it in adverse relations with democratic states. The US recognized Russia (and a number of other members of the former Soviet Union) in 1991.

34

35

J. Ruda, “Recognition of States and Governments,” in M. Bedjaoui, ed., International Law: Achievements and Prospects (Dordrecht: Martinus Nijhoff, 1991), 450. On the historical evolution of recognition practice, see G. Abi-Saab, “International Law and the International Community: The Long Road to Universality,” in R. MacDonald, ed., Essays in Honour of Wang Tieya (Dordrecht: Martinus Nijhoff, 1994), 36–39. Ribbelink in J. Klabbers et al., eds., State Practice Regarding State Succession and Issues of Recognition (The Hague: Kluwer, 1999), 34 and 38.

2 Recognition

A new state may be recognized almost immediately, or in some cases, years after it is formed. The very existence of the German Democratic Republic (formerly East Germany) was considered a breach of the Soviet Union’s duties under its post-World War II treaties with the Allied powers regarding the administration of German territory. It was obviously a “state” in terms of its de facto (factual) status. Many Western nations did not recognize East Germany’s de jure (legal) existence, however, until 1973. A series of unilateral recognitions ultimately cured what many Western nations perceived as an illegal state regime. There may also be delayed recognition of a state even though it is recognized by some or many other states, and the reasons for delay are not standard. The Vatican did not recognize Israel until 1994, forty-five years after Israel was admitted to the UN as a member state. The Vatican delay, until the Oslo Accords of 1993, was premised on many centuries of distrust between Catholics and Jews. Many Israelis believe that the Catholic Church did nothing to halt, or may have clandestinely supported, Nazi Germany’s appalling treatment of Europe’s Jews.36 De jure, or legal, recognition may be prematurely granted. The European Community (precursor to the EU) recognized Slovenia and Croatia approximately six months after their vote for independence from the former Yugoslavia in 1991. This was an arguably premature decision, which many claim to be the spark that fueled the fires between ethnic rivals in the former Yugoslavia. Recognition of Bosnia–Herzegovina was arguably premature as well. The Russian newspaper Pravda reported in its February 27, 1993, issue that the “international carnage has been largely caused by the hasty recognition [by countries including Russia] of the independence of the unstable state of Bosnia and Herzegovina.” This perspective is premised on Bosnia– Herzegovina not being in control of its territory during the flurry of international recognitions shortly after its secession from the former Yugoslavia and the 1992–1995 Bosnian War. Yugoslavia (in so far as it still existed) protested that the EU’s premature recognition of these former territories of Yugoslavia violated international law. Virtually immediate international recognition by other countries allegedly violated Yugoslavia’s territorial sovereignty over its secessionist regions. One can readily argue that there was no de facto basis for recognition (of

36

See, e.g., “The career of Eugenio Pacelli – Pope Pius XII – from the beginning of this century is the story of a bid for unprecedented papal power that by 1933 had drawn the Catholic Church into complicity with the darkest forces of the era.” J. Cornwall, Hitler’s Pope: The Secret History of Pius XII (New York: Viking Press, 1999), viii.

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Bosnia–Herzegovina) by other countries, given the lack of the new Bosnian government’s independent control over the territory and populace. Recognition decisions are thus granted or denied for a variety of reasons. Since the recognizing state is usually satisfied that the legal elements of statehood are present, the essential decision of whether to recognize another state has been traditionally quite political in nature. Some considerations might include: 1. whether the new state has been recognized by other members of the international community;37 2. ethnocentric motives stemming from the perceived inferiority of certain nations, which effectively limited the recognition of new states (for example, most current African states) from outside the European community for many decades;38 3. a need to appease certain regimes, as when Great Britain recognized the nineteenth-century Barbary Coast, whose pirates were stealing British ships and cargoes;39 4. humanitarian motives, whereby many states refused to recognize Southern Rhodesia (now Zimbabwe) because of its internal racial policies; and 5. commercial and military motives.40 There are two classical theories expressed in recognition discourse: the constitutive theory and the declaratory theory. Under the constitutive theory, members of the community of states must recognize a new state in order to constitute or establish its de jure international legal personality. The declaratory view, on the other hand, is that recognition is not required for the new state to be considered legitimate. Recognition merely declares or acknowledges the existing fact of statehood. Although the constitutive theory is still advocated by some states and scholars,41 recognition is not a necessary condition for statehood under

37

38

39

40 41

E. McDowell, “Contemporary Practice of the United States Relating to International Law,” American Journal of International Law 71 (1977): 337. C. Fenwick, International Law, 4th ed. (New York: Appleton-Century-Crofts, 1965), 157–159. See The Helena, 4 Ch. Rob. 3 (1801) (British case on pirate treaties), reprinted in W. Bishop, International Law, Cases and Materials, 3rd ed. (Boston: Little, Brown and Co., 1971). G. Von Glahn, Law Among Nations, 7th ed. (Boston: Allyn and Bacon, 1996), 69. Two academic treatises sparked this post-World War II debate about the nature of recognition. They are still the classics. Compare H. Lauterpacht, Recognition in International Law (Cambridge: Cambridge University Press, 1947), 63, with T. Chen, The International Law of Recognition, L. C. Green, ed. (London: Stevens, 1951), 61.

2 Recognition

international law. Recognition is a matter of domestic political decisionmaking with international political impacts. States have no obligation to recognize a new state merely because it possesses all the legal attributes of statehood. Instead, recognition is a matter of discretion. It is a political act with legal consequences. The prevailing declaratory theory is evident in regional treaties that specifically negate recognition as an element of the definition of statehood. Less powerful states do not want external recognition decisions to influence their political objectives, nor do they want more powerful states to use recognition as a ploy to exact political concessions. Under Article 12 of the Charter of the OAS, for example, the “political existence of the State is independent of recognition by other States. Even before being recognized, the State has the right to defend its integrity and independence, to provide for its prosperity, and consequently to organize itself as it sees fit. . . . The exercise of these rights is limited only by the exercise of rights of other States in accordance with international law.” The practical consequences of non-recognition are vividly exposed in the following case:

CYPRUS V. TURKEY European Court of Human Rights Grand Chamber, Application No. 25781/ 94, May 10, 2001 [Excerpted case available at www.cambridge.org/FPIL7]

The UN plan to reunite the island of Cyprus failed. Turkish Cypriots in the north voted in favor of the reunification plan, while Greek Cypriots in the south rejected it. Each of the respective referenda had to pass for reunification to occur. With the defeat of the planned reunification, Cyprus (and nine other states) joined the EU in 2004; however, all EU laws and benefits apply only in the internationally recognized south, and Turkey is not an EU member state (despite decades of trying). In 2005, the EU advised Turkey that its accession negotiations would be paralyzed if it did not recognize “Cyprus” – as opposed to “Northern Cyprus.” The European Court of Human Rights (ECtHR) confirmed its position in a judgment finding that the denial of the right of displaced Greek Cypriots to occupy their homes is a “continuing violation” of the human rights treaty.42 In July 2008, rival Greek

42

Xenides-Arestis v. Turkey, Case No. 46347/99 (2006).

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and Turkish Cypriot leaders announced the beginning of reunification talks, but these have effectively been stalled since 2014. Should the legality of a regime within State X (e.g., the Turkish Republic of Northern Cyprus) impact State Y’s political recognition decision? As Raic notes: States are under a legal obligation not to recognize effective territorial entities which have come into existence as a result of a violation of one or more specific fundamental rules of international law. In this case “non-recognition is said to ‘bar the legality’ of the act or situation in question, unless otherwise legalised.” ... In addition, . . . there is a clear relationship between non-recognition and the criteria for statehood. . . . Indeed, serious attention is called for when States withhold recognition of situations or acts where one would normally expect their recognition . . . where States are of the opinion that they are under an international legal obligation to withhold recognition of an otherwise effective territorial entity claiming statehood.43

2.2

Recognition of Government

The second category of recognition decisions involves the state decision to continue or break relations with the new government of a previously recognized state. A change of government may trigger a host of political concerns for both the government desiring recognition and states considering whether to recognize the new government. As with recognition of a new state, recognition of a new government may be lawfully withheld or withdrawn. States often reconsider prior recognition decisions when the government of an existing state changes, especially when there has been an unconstitutional change in government, such as a coup d’état in a former republic. When comparing the recognition of a state versus its government, one might use the analogy of a “tree” and the “leaves” that it drops from time to time. The tree is the state and the leaves are various governments. While governments (or forms of government) may come and go, the tree remains. Sometimes, a state may choose not to recognize either the tree or a leaf that has just sprouted. Furthermore, states can decide to withdraw recognition of another state’s government (a leaf ) while still recognizing the state itself (the tree). As Talmon notes: By the term “recognition” or “non-recognition” may be meant an indication of willingness or unwillingness on the part of the recognizing government to 43

D. Raic, Statehood and the Law of Self-Determination (Hague: Kluwer, 2002), 90–91.

2 Recognition establish or maintain official, but not necessarily intimate, relations with the government in question. Especially in cases of pro-longed official nonrecognition of established governments States frequently speak of their willingness to “normalize” their relations with the Government in question.44

Why would a state withhold the recognition of another’s government? Recognizing states are often concerned about whether the populace under a new government has actually agreed to the change, or if it was forced upon them. In addition, a sudden change in the form of government can present significant economic, political, and military concerns to other states. Yet another reason is to support international isolation of a “rogue” state – a term which of course means different things to different people. North Korea has been essentially isolated from the community of states since the 1950–1953 Korean War, and three UN member states refuse to recognize it at all: France, Japan, and South Korea, as well as non-UN member Taiwan (ROC). Because of North Korea’s threats to test and use nuclear weapons, the secretive nature of its government, and its dubious record of human rights violations, other states have been unwilling to fully accept its government or have diplomatic ties with its “Dear Leader,” Kim Jong Un. This is why US president Donald Trump’s friendly overtures to the North Korean leader in 2019 were so contentious: by traveling to North Korea for denuclearization talks with Kim Jong Un, Trump appeared to be lending legitimacy to his brutal authoritarian regime.45 If North Korea’s isolationist “rogue” status were to diminish via the adoption of true democratic norms and nuclear disarmament, there might be a flurry of recognition from states around the globe. Perhaps an even better example of the importance of the recognition of a new government is illustrated by the recent leadership challenges in Venezuela. In January 2019, Juan Guaidó, relying on the Venezuelan constitution, declared himself the country’s new president. He claimed to be the successor to Nicolas Maduro, who had held the office since the death of famed leader Hugo Chavez. During Maduro’s time in office, the Venezuelan economy plummeted and millions of Venezuelans streamed out of the country. After what many consider to be a rigged election in 2018, Maduro

44

45

S. Talmon, Recognition of Governments in International Law: With Particular Reference to Governments in Exile (Oxford: Clarendon Press, 1998), 21–27. Footnotes omitted. These talks did not result in tangible improvements to the US–North Korea relationship, and indeed may have frustrated the reclusive North Korean leader. Details on the 2019 meeting can be found in J. Lederman and H. Nicols, “Trump Meets Kim Jong Un . . . ,” NBC News, June 29, 2019, www.nbcnews.com/politics/donald-trump/trump-kim-jong-un-meet-dmzn1025041 accessed May 3, 2022.

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declared himself the winner – the Venezuelan National Assembly, however, declared the election results invalid, which then led to Guaidó’s declaration of himself as interim president. As the president of the National Assembly, Guaidó argued, the constitution was on his side. Many other countries agreed: nearly sixty UN member states (including powerful actors like the US and the member states of the EU) all recognize Guaidó as the legitimate leader of Venezuela, supported by large international actors like the OAS.46 Supporters of Maduro include Russia and other states with close diplomatic ties to Russia (e.g., Iran, North Korea, and China). But the question of recognition is not simple in this case. As Paddeu and Dunkelberg note, “it is necessary to determine whether the recognition given to Guaidó was intended as an affirmation of its legal status as the government of Venezuela, as opposed to a form of political support for the Venezuelan opposition.”47 That is, when countries recognize Guaidó’s government, are they lending credence to the idea that democratic legitimacy is a necessary component of recognition? States like the US and Costa Rica have turned out Maduro’s diplomats in favor of Guaidó’s, while other states (in Europe, especially) have instead treated Guaidó’s envoys as his personal representatives and not as official diplomats. Still other states have done some combination of these, such as not forcing Maduro’s representatives out of embassies but also accepting Guaidó’s representatives as the official voice of Venezuela. Paddeu and Dunkelberg speculate that Guaidó might have an easier time being widely recognized if he had more effective control of the state. That control, however, still rests – at least in part – with Maduro. Under the “Tobar Doctrine” (1907), a number of Latin American states entered into treaties providing for the de-recognition of states when there was an interruption of the constitutional order. Its stated objective was to reduce the threat of revolution and civil war in the Inter-American system by emphasizing the need for all governments to support the establishment of constitutionalism and democracy.48 Some nations thus entered into treaties embracing this apparently uncontroversial theme. But the Tobar Doctrine was widely viewed not as shoring up democratic principles, but instead suppressing internal challenges to the national or regional status quo. The 46

47

48

S. Anderson, “What Does it Mean for the United States to Recognize Juan Guaidó as Venezuela’s President?,” Lawfare (blog) www.lawfareblog.com/what-does-it-mean-unitedstates-recognize-juan-guaid%C3%B3-venezuelas-president accessed May 3, 2022. F. Paddeu and A. Dunkelberg, “Recognition of Governments: Legitimacy and Control Six Months after Guaidó,” Opinio Juris (blog) http://opiniojuris.org/2019/07/18/recognitionof-governments-legitimacy-and-control-six-months-after-guaido/ accessed May 3, 2022. See C. Stansifer, “Application of the Tobar Doctrine to Central America,” The Americas 23 (January 1967): 251–272.

2 Recognition

Tobar Doctrine was succeeded by the “Estrada Doctrine” (1930), which reasserted the rights of states not to be subjected to what they perceived as another form of intervention in their internal affairs. By adopting the Estrada Doctrine, a number of Latin American states addressed their concern that larger developed states were misusing their power to undermine new governments. Latin American countries viewed any external renewal of recognition agenda as no more than a device for treading on a new government’s sovereign right to conduct both internal and foreign affairs as it deemed appropriate. How the new government came into existence was not a matter for external recognition decisions by foreign powers.49 The distinction between the Tobar and Estrada doctrines are of particular interest to observers of Latin American states and international law. To continue the Venezuela example, it is clear that a number of Latin American states are concerned about the collapse of democracy and the likelihood of ongoing human rights abuses in Venezuela and are willing to isolate it as a result. The Lima Group, a gathering of fourteen likeminded Latin American states (plus Canada), formed in 2017 in response to the Venezuelan crisis, issued a statement highly critical of Maduro’s rigged election and supportive of Guaidó. In paragraph 13(A–G) of the statement, Lima Group members essentially cut diplomatic ties with Venezuela and encouraged other states to do the same.50 Noticeably absent from this group, however, is Mexico, which inconsistently adheres to the Estrada Doctrine. Mexican president López Obrador’s statement on the situation is as follows: The Government of México, in faithful compliance of the constitutional principles of foreign policy, will abstain from issuing any kind of pronouncement regarding the legitimacy of the Venezuelan government. Selfdetermination and non-intervention are constitutional principles that Mexico will follow.51

49

50

51

Genaro Estrada’s doctrinal statement is reprinted in American Journal of International Law 25, Supplement (1931): 203. A provocative response was published in P. Jessup, “The Estrada Doctrine,” American Journal of International Law 25 (1930): 719. Government of Canada, “Lima Group Declaration,” January 4, 2019, www.international.gc .ca/world-monde/international_relations-relations_internationales/latin_americaamerique_latine/2019-01-04-lima_group-groupe_lima.aspx?lang=eng accessed May 3, 2022. See Gurmendi’s treatment of this issue, in A. Gurmendi, “Estrada Redux: Mexico’s Stance on the Venezuela Crisis,” Opinio Juris (blog) http://opiniojuris.org/2019/01/08/estrada-reduxmexicos-stance-on-the-venezuela-crisis-and-latin-americas-evolving-understanding-ofnon-intervention/ accessed May 3, 2022. Quote is translated from the Spanish by Gurmendi.

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Recognition, then, is not just a legal issue, but also an intensely political one. A new government faces difficult legal barriers when it is not recognized by a particular country or the community of nations. An unrecognized government cannot effectively represent its interests abroad. For example, the unrecognized government and its citizens do not have access to the courts of non-recognizing states, and such governments must endure the fiscal or political consequences of non-recognition.52 A classic illustration materialized in a 1952 US federal judicial opinion, Bank of China v. Wells Fargo Bank & Union Trust. The government-operated Bank of China in Shanghai deposited $800,000 into a US bank in San Francisco (Wells Fargo). Mao Zedong subsequently overthrew the government of China in 1949. Wells Fargo then received conflicting demands regarding the ownership of the deposited money from what were then the two national “Banks of China.” The mainland’s new PRC was the alleged successor to the government and property belonging to the Chinese people. The other claimant was the ousted Nationalist Chinese government, then seated in Taiwan (formerly Formosa). Judge Goodman had to resolve which Bank of China would receive the proceeds. He explored several grounds for resolving this matter, including (1) statehood; (2) which entity more clearly represented the Chinese people; (3) an equitable division of the deposit; and (4) whether Formosa’s recognition by the US executive branch would legally foreclose the judicial ability to decide in favor of what was then the non-recognized PRC government. Judge Goodman found that both “Chinas” were states. Both appeared to represent the people of China, the real owner. The Nationalist government was the original depositor. The mainland’s Communist authority now presided over the vast majority of Chinese people. President Truman announced that the US recognized the Nationalist regime as the legitimate government for all of China. Judge Goodman thus felt bound to award the money to the Nationalist government.53 There are still remarkable recognition-related questions in US courts. Almost fifty years after Judge Goodman’s decision, a US federal appellate court had to determine whether Taiwan would be entitled to the same benefits as a treaty ratified by the PRC. Beijing signed the Convention with the declaration that the Convention “shall of course apply to the entire

52

53

See P. Brown, “The Legal Effects of Recognition,” American Journal of International Law 44 (1950): 617; Comment, “Effects in Private Litigation of Failure to Recognize New Foreign Governments,” University of Chicago Law Review 19 (1951): 73. Bank of China v. Wells Fargo Bank & Union Trust Co., 104 Fed. Supp. 59 (1952), affirmed, 209 Fed. Rptr. 2d 467 (9th Cir. 1953).

2 Recognition

Chinese territory including Taiwan.” The underlying question was whether the US de-recognition of Taiwan resulted in Taiwan being bound by China’s international agreements.

2.3

Recognition of Belligerency

The third form of recognition decision materializes when a state decides to recognize a condition of belligerency within another state. Belligerents typically seek to overthrow the governments there. Other states may wish to officially recognize the belligerent force or to covertly provide support to one side or the other in a civil war. The belligerent group, while not the recognized government, may nevertheless achieve a limited degree of legal personality under international law. A revolutionary group attempting to seize power in its own country, or a portion of it, might thus be “recognized.” The recognition may come initially from the existing government in the state of the belligerency or externally from a foreign state. The essential elements for achieving this status require a group to: 1. 2. 3. 4. 5.

be the appropriate representative for a recognizable group; exhibit some form of recognizable government; field a military arm; control some specific territory; and achieve external recognition, such as the Confederate States during the US Civil War.

Once recognized externally, such recognition then confers certain rights upon the belligerent entity – as well as on the government that opposes the belligerent entity. When another country is not a party to a dispute between the belligerent forces and the forces of the regular government, it is expected to remain neutral until the belligerency is resolved. This duty of neutrality is at least as old as the historical state-centric system that has driven international law from the time of the 1648 Treaty of Westphalia between the Holy Roman Emperor, the King of France, and their respective treaty allies. The 1939 US Neutrality Act presents a slightly more recent example. It provides that “[i]f the President . . . shall find that a vessel . . . in a port of the United States, has previously departed from a port . . . of the United States during such war and delivered men, fuel, supplies, dispatches, information, or any part of its cargo to a warship . . . or supply ship of a state [during a war in which the US is a neutral country] . . . he may prohibit the departure of such vessel during the duration of the war.”54 54

1939 US law: 22 U.S.C. §450.

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Upon recognition, the duty to remain neutral means that an uninvolved state shall: 1. not take sides to assist either the belligerent or the regular government; 2. not allow its territory to be used as a base for hostilities by the belligerent forces; 3. acquiesce in restrictions imposed by the parties to the dispute if it wishes to remain entitled to respect of neutral state rights; 4. declare any change in status, as when it decides to side with the belligerency or the regular government; and 5. accept state responsibility under international law for any violation of its duty of neutrality.55 Recognition of a belligerency can effectively help a group within a state achieve its political quest for self-determination. In 1837, for example, a group of private American supporters were aiding a Canadian rebellion against British rule. Their support included running a ship carrying men and supplies back and forth across the Niagara River into Canada. When the British learned of this, they sank the ship at its mooring on the US side of the border. While this famous incident is known more for its impact on the right to self-defense,56 the US would have been in violation of its third-party duty of neutrality if Secretary of State Thomas Jefferson had acquiesced in these incursions into Canadian waters. Great Britain later recognized the Confederate States of the US as “belligerents” when the Civil War with the Northern states of the US began in 1861. Great Britain did not, however, observe its state duty to remain neutral as required under international law. Ships for the Confederate South were built in British ports and prepared for war with the Union forces in the US. As a result, the Treaty of Washington of 1871 inaugurated the Alabama Claims international arbitration proceedings. Two years later, Great Britain paid over $15 million to the US as a consequence of the damages done by five vessels built for the belligerent Confederate forces. Now that we have reviewed the fundamentals of belligerent recognition, it is important to note here that the doctrine has fallen out of favor in customary international law (that is, in practice) for three reasons: 55

56

See generally, E. Chadwick, Traditional Neutrality Revisited: Law, Theory, and Case Studies (Hague: Kluwer, 2002); S. Neff, The Rights and Duties of Neutrals: A General History (Manchester: Manchester University Press, 2000); and “Unilateral and Third Party Claims: Neutrality,” in C. Chinkin, Third Parties in International Law (Oxford: Clarendon Press, 1993), 299. This is often referred to as the “Caroline affair,” after the name of the ship that was set on fire and destroyed.

2 Recognition

(1) the lack of uniformity with which it has been applied; (2) the decline of approval in international law of resort to war, which is implied in belligerency recognition; and (3) the rise of collective security obligations through international organizations, which have lessened recognition of belligerency with its requirements of strict neutrality and non-intervention, as detailed above. However, there are contemporary attempts to revitalize the doctrine because it can give some humanitarian protection to domestic insurgent groups.57 The 2011 recognition of the Libyan National Transitional Council by a dozen states suggests the confusion associated with this category of recognition. Such recognition may indicate the recognizing state’s willingness to enter into official relations with a new group. It may, instead, manifest its opinion on the legal status of the group. Or it may be only a means of expressing political support or approval. In practical terms, recognizing a belligerent group might legitimize its struggle against the incumbent government. It might also provide international acceptance of its objectives. It normally allows the group to address other states and international organizations. It is most effective when it results in financial aid.58

2.4

Recognition by International Organizations

An international organization consisting of a group of states may decide to extend (or withhold) its collective recognition. Article 1(2) of the League of Nations Covenant provided for a form of collective recognition. It permitted admission to this world body only if applicants expressed a commitment to observing international obligations. A state or other territory could attain League membership “if its admission is agreed to by two-thirds of the Assembly, provided it shall give effective guarantees of its sincere intention to observe international obligations, and shall accept . . . regulations . . . in regard to its military, naval, and air forces and armaments.” As noted by a prominent Finnish statesman in 1926, if the League of Nations did not succeed “in repelling an aggression or in preventing an occupation . . . of the territory of a Member, the other Members must not recognize that de facto change as final and valid de jure. If one of the direct consequences of that unlawful aggression has been the establishment of a new State, the Members of the League of Nations should . . . refuse to 57

58

K. Mastorodimos, “Belligerency Recognition: Past, Present and Future,” Connecticut Journal of International Law 29, No. 2 (2014): 301–328. Further details are available in S. Talmon, “Recognition of the Libyan National Transitional Council,” ASIL Insights (June 2011) www.asil.org/insights/volume/15/issue/16/ recognition-libyan-national-transitional-council accessed May 3, 2022.

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recognize that new State the existence of which is conflicting with the supreme values [of the League] . . . .”59 The UN does not collectively recognize states. Unlike the League, mere admission into the UN is not regarded as an act of collective recognition. The Charter drafters thought it unwise to imply recognition from admission into this second-generation world body. In 1950, the Secretary-General expressly stated that the UN “does not possess any authority to recognize either a new State or a new government of an existing State. To establish the rule of collective recognition by the UN would require either an amendment to the Charter or a treaty to which all members would adhere.”60 This is one reason why the UN is more universal than was the League of Nations. The individual state members retain the discretion to deny recognition even if the new state is admitted to the UN. As the world’s foremost regional organization, the EU is a powerful legitimizing voice for new states. The EU, composed of twenty-seven member states but possessing its own distinct supranational voice via European institutions in Brussels, sometimes speaks collectively on recognition issues and sometimes does not. The EU’s recognition requirements are comparatively objective but not always consistent. As Newman and Visoka explain: While the EU does not recognise states in a traditional sense, its collective statements serve as policy guidance and path-openers for bilateral recognition, given the EU’s global stature. The collective position of the EU as a significant group of states has also influenced the recognition decisions of other states, which position the EU as norm-builder in the broader context.61

The EU may collectively withhold its recognition from states, territories, or colonies that are the product of international aggression, and recognition will not be given to states that violate territorial sovereignty or fail to observe international human rights guarantees. But EU organizational recognition was not applied to Kosovo when it declared independence in 2008. Instead, the EU opted to allow each member state to decide the issue of recognition of Kosovo. The objection by certain member states was quite predictable. Spain, for example, did not recognize Kosovo, fearing that the Basque region of Spain might otherwise draw upon Kosovo as precedent for its secession. EU 59

60

61

See English translation in “Collective Recognition and Non-Recognition under the League of Nations,” Ch. 3, at 28, and arguments for and against this practice, Ch. 4, both in J. Dugard, Recognition and the United Nations (Cambridge: Grotius, 1987), 41. Memorandum on the Legal Aspects of the Problem of Representation in the United Nations, UN Doc. S/1466, March 9, 1950. E. Newman and G. Visoka, “The European Union’s Practice of State Recognition: Between Norms and Interest,” Review of International Studies 44 (2018): 772.

3 Changes in State Status

members Bulgaria, Cyprus, Greece, Malta, Portugal, Romania, and Slovakia refused to recognize Kosovo as well.

3 Changes in State Status States, of course, are not static and borders are not always sacrosanct. Changes to states or territories also trigger changes to the ways in which an entity impacts and is impacted by international law. Upon losing or achieving varying degrees of autonomy, an entity’s international legal personality can change in a number of ways, including the following: occupation (e.g., Soviet occupation of Afghanistan from 1979–1989); political union (e.g., states of the former Soviet Union); joinder (e.g., the reunification of East and West Germany in 1990); non-existence (e.g., if, due to climate change, a small island state like the Maldives disappears into the ocean); secession (e.g., South Sudan breaking away from Sudan in 2011); separation (Czechoslovakia peacefully separating into the Czech Republic and Slovakia in 1993); transitional governments (e.g., Iraq after the US invasion); international administration (e.g., the UN’s caretaker status in East Timor between 1999–2002); or state failure (e.g., Yemen, as described earlier). This section briefly addresses the changes in status that are especially important in current world affairs: succession, secession, and self-determination.

3.1

Succession

This term describes State A’s taking over the territory of State B – whereby B ceases to exist. There are treaties that loosely define the term. Under Article 2 of both the 1978 Vienna Convention on Succession of States in Respect of Treaties, and the 1983 Vienna Convention on Succession of States in Respect of State Property, Archives, and Debts, the term succession of states “means the replacement of one State by another in the responsibility for the international relations of the territory.”62 These treaties have had only varying degrees of success, however, which is why there is still much room for interpretation on the accepted laws of succession.63

62

63

1978 “treaty” succession: UN Doc. A/CONF. 80/31; 1983 “property” succession: UN Doc. A/ CONF. 117/14 (the former has entered into force, although only the minimum fifteen nations have ratified it; the latter draft treaty has not entered into force). For an excellent treatment of the development of these Vienna Conventions related to succession, see A. Sarvarian, “Codifying the Law of State Succession: A Futile Endeavour?,” European Journal of International Law 27 (2016): 789–812.

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Succession occurs in a variety of circumstances including breakups and mergers. A tidy example of succession is the 1993 split of Czechoslovakia into two states: the Czech Republic and Slovakia. A merger is exemplified by the 1990 merger of the three territories of the Federal Republic of (West) Germany, the (East) German Democratic Republic, and the City of Berlin. The legal status of Berlin was never fully resolved although the significant issues were laid to rest by a treaty, which effectively merged Berlin into the new integrated state of “Germany.” This particular merger was fully agreed to by all the nations with any territorial interest: East Germany, West Germany, France, the (former) Soviet Union, the UK, and the US.64 The merged entities succeeded to the territory that once consisted of two sovereign states and a special zone, all three losing their formerly distinct international legal personalities in the process. It is worth noting that the succession of South Sudan in 2011 was the first new state that was not born out of the long processes of decolonization (post-World War II) or de-sovietization (postCold War).65 There are numerous succession scenarios involving states, recognition, succession between international organizations, a succeeding state’s responsibilities to an international organization, and continuity of membership in the UN and in other organizations.66 Three big questions must be answered regarding succession: (1) the status of preexisting treaties made by the predecessor state; (2) the successor state’s property rights and debt obligations; and (3) the nationality of the inhabitants of the successor state. Does the successor state take over the treaty obligations of the succeeded state? The historical view is that a new state commences its career with a clean slate. But global (and even intra-regional) perspectives are by no means uniform. Today, there is no universal rule regarding state succession and 64

65 66

See “Treaty on the Final Settlement with Respect to Germany,” International Legal Materials 29 (1990): 1186, 1188. See Sarvarian, “Codifying the Law of State Succession,” 807. On state succession generally, see R. Jennings and A. Watts, Oppenheim’s International Law, Part I, 9th ed., (Harlow: Longman, 1993), sections 60–70. Recognition issues are addressed in Klabbers et al., eds., State Practice Regarding State Succession. Regarding treaties, property, and debt, see P. Menon, The Succession of States in Respect to Treaties, State Property, Archives, and Debts (Lampeter: E. Mellon, 1991). A new state’s responsibilities to an organization, of which the prior state was a member, are addressed in K. Buhler, State Succession and Membership in International Organizations: Legal Theories versus Political Pragmatism (Hague: Kluwer, 2001). Succession between international organizations is covered in P. Meyers, Succession between International Organizations (London: Kegan Paul International, 1993). Regarding UN membership, see K. Buhler, “State Succession, Identity/Continuity and Membership in the United Nations,” in P. Eisemann and M. Koskenniemi, eds., State Succession: Codifications Tested against the Facts (Hague: Martinus Nijhoff, 2000), 187–326.

3 Changes in State Status

prior bilateral treaty obligations. Generally, such treaties cease to exist when the state that concluded them no longer exists. These agreements specifically depend upon and assume the existence of the contracting state. They no longer function when that state dissolves. Although there is some disagreement, even non-political treaties concluded by an extinct predecessor state, such as those involving commerce and extradition, generally fail to survive the extinction of the state that once adopted them. Yet, the same treaties are likely to survive the succession where two or more states agree to unify. When Nazi Germany absorbed Austria into Germany in 1938, the commerce treaties of the former state of Austria did not bind the successor German state. Yet, the commercial treaties of the former East and West Germany would bind today’s successor state of unified Germany. Multilateral treaties present a clearer picture. They survive succession when they contain norms that have been adopted by many nations. The successor state cannot claim a “clean slate” to avoid humanitarian treatment of the citizens of the predecessor state when such treatment is the subject of a multilateral treaty which the predecessor has ratified. This liability of the new or succeeding state is already rooted in norms of customary international law existing independently of the treaty, even where the succeeding state has not become a treaty party to that multilateral treaty.67 Does the successor state take over the property and debts of the succeeded state? The property and the debts of an extinct state normally become the property of the successor state. The successor state is expected to absorb both the benefits and the burdens maintained by the former state. An exception is often claimed when the debts of the succeeded state are contrary to the basic political interests of the successor state. International arbitrators have adopted the view that a successor state cannot be expected to succeed to such debts when they are repugnant to the fundamental interests or public policy of the succeeding state. When Yugoslavia reclaimed the territory of the “Independent Croatian State” – an unrecognized puppet regime established on Yugoslavian territory during World War II – the successor state of Yugoslavia did not assume the debts of the former unrecognized fascist administration.68 The 1983 Vienna Convention on Succession of States in Respect of State Property, Archives, and Debts addresses this question although it has not yet received sufficient ratifications to enter into force. The successor state is entitled to the property of the former state. Succession does not extinguish 67 68

Oppenheim’s International Law, Part I, sections 62, 211–213. “Regarding Dues for Reply Coupons Issued in Croatia,” International Law Reports 23 (1956): 591.

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obligations owed by the former state to either public or private creditors. The 1983 Succession treaty provides that succession “does not as such affect the rights . . . of creditors.”69 Much more data is needed in order to draw any conclusions about the effectiveness of this convention. Must the successor state provide its citizenship to the citizens of the succeeded state? When a state ceases to exist, so does the citizenship that it has previously conferred on its inhabitants. The former citizens of the extinct state must then look to the internal law of the successor state for their citizenship rights. This is generally a matter of internal law, rather than international law. Yet international practice does suggest that new states confer their citizenship on those who were citizens of the succeeded state, based on habitual residence. On the other hand, the new state may not force its citizenship on individuals within what has become a subjugated state. This would preclude Israel, for example, from imposing its citizenship on people within the “occupied territories” it has acquired as a result of various wars.70 We address issues of citizenship in Section 6.1 in this chapter.

3.2

Secession and Self-Determination

While succession involves the takeover of another state’s territory, secession is the breakup or subdivision of an existing state, typically for the purpose of achieving independent statehood. For example, after the Soviet Union dissolved in the early 1990s, ethnic conflict and resurgent nationalism spawned the breakup of the former Yugoslavia into six separate states. Attempts to break up a current state are not only relegated to the pages of history, however. In recent years, Catalonia has threatened secession from Spain, while Scotland has held one failed referendum on independence in 2014 that is very likely to be followed by another referendum. Secession is often messy and violent. Why undertake it at all? Part of the answer lies in the principle of self-determination. Self-determination is the inhabitants’ right to choose how they will organize and be governed. They might not prefer self-governance; alternatively, they may opt for some form of autonomy that may or may not be actual statehood. Article 1.2 of the UN Charter provides that one of the essential purposes of the UN is “respect for the principle of equal rights and self-determination of peoples . . . .” The cornerstone is the Article 73 Declaration Regarding Non-Self-Governing 69

70

“Vienna Convention on Succession of States in Respect of State Property, Archives, and Debts,” opened for signature April 8, 1983, see A/CONF.177/15 of April 7, 1983, https:// treaties.un.org/doc/Treaties/1983/04/19830408%2008-18%20AM/Ch_III_12p.pdf accessed May 3, 2022. Oppenheim’s International Law, Part I, sections 62, 218–219.

3 Changes in State Status

Territories: “Members of the United Nations [that] have or [will] assume responsibilities for the administration of territories whose peoples have not yet attained a full measure of self-government recognize the principle that the interests of the inhabitants of these territories are paramount, and accept as a sacred trust the obligation to promote to the utmost . . . the well-being of the inhabitants of these territories . . . .” If a people feel common bonds of kinship, ethnicity, race, religion or other characteristics, they may seek selfgovernance in the form of statehood (usually involving secession) or another arrangement (such as autonomous governance within an existing state). In their quest for self-determination, success is by no means guaranteed. Indeed, any alteration to the existing state order is fraught with risk. As Buchanan notes: [if] each ethnic group, each “people,” is entitled to its own state, then it [secession movements] is a recipe for virtually limitless upheaval, an exhortation to break apart the vast majority of existing states, given that most [states] if not all began as empires and include a plurality of ethnic groups or peoples within their present boundaries. . . . Secession can shatter old alliances . . . tip balances of power, create refugee populations, and disrupt international commerce. It can also result in a great loss of human life. And regardless of whether it acts or refrains from acting, each state takes a stand on each secessionist movement – if only by recognizing or not recognizing the independence of the seceding group.71

Even if a clearly recognized group of “peoples” want to undertake selfdetermination, how would that occur under international law? Consider the Russian-claimed “secession” of Crimea from the existing and recognized state of Ukraine (discussed in more detail in Chapter 4). The bulk of international law scholarship allows secession under only limited circumstances that were not satisfied in the Crimean case. Some of these conditions would include internationally supervised, repeated, and uncoerced elections over a period of time. Waters offers a minority contrary view that secession should be relatively easy under international law.72 Perusing the historical and current autonomist and secessionist movements of the world reveals the discontent of “peoples” with their geopolitical boundaries in numerous countries and regions. Many such boundaries were initially set by colonial powers, often via straight latitudinal and longitudinal

71

72

A. Buchanan, Secession: The Morality of Political Divorce from Fort Sumter to Lithuania and Quebec (Boulder, CO: Westview Press, 1991), 2. T. W. Waters, Boxing Pandora: Rethinking Borders, States, and Secession in a Democratic World (New Haven, CT: Yale University Press, 2020).

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lines with little concern for splitting vintage ethnic enclaves or even natural boundaries (e.g., mountain ranges, rivers). One of the prominent ICJ selfdetermination cases describes the contemporary contours of the right to selfdetermination.

CASE CONCERNING EAST TIMOR (PORTUGAL V. AUSTRALIA) International Court of Justice, General List No. 84, 1995 ICJ Reports 90 (1995) [Excerpted case available at www.cambridge.org/FPIL7]

The question of what post-secession obligations remain often arises after a secession. Since World War II, the unequivocal rule that authorized a fresh start for seceding states became somewhat equivocal. New states that have seceded from others still enjoy a “clean slate,” but not as to treaties creating norms intended to bind all states. Human rights treaties are the best example of this. These normally codify the existing customary practice of states. When Pakistan separated from India in 1947, it acknowledged a continuing obligation to remain a party to the 1921 Convention for the Suppression of Traffic in Women and Children. Pakistan’s recognition of this obligation was specifically premised on India’s acceptance of the 1921 treaty when the Pakistani territory was still a part of India.73

4 State Responsibility Once statehood is acquired in whatever fashion, a state incurs obligations associated with its international status. Most importantly, it is required to make reparations for any international wrongdoing that can be attributed to it. A state could thus breach an obligation – whether it impacts just one state (for example, breach of a bilateral treaty) or, alternatively, the entire community of nations.74 Massive human rights violations like genocide, for 73

74

O. Schachter, “The Development of International Law through the Legal Opinions of the United Nations Secretariat,” British Yearbook of International Law 25 (1948): 91, 107. To further explore those breaches, which supposedly impact all states, as opposed to harming only one/several states, see A. de Hoogh, Obligations Erga Omnes and International Crimes: A Theoretical Inquiry into the Implementation and Enforcement of the International Responsibility of States (Hague: Kluwer, 1996).

4 State Responsibility

example, are offensive to all states, and a state so involved has an obligation to make reparations for its offense. Three elements combine to trigger state responsibility: (1) the existence of a legal obligation recognized by international law; (2) an act or omission that violates that obligation; and (3) some loss or articulable damage caused by the breach of that obligation.75 These elements are drawn from a variety of sources, including various judicial and arbitral awards. The Permanent Court of International Justice (precursor to today’s ICJ) tendered the quintessential articulation in a decision rendered in 1928: “[I]t is a principle of international law, and even a greater conception of [all] law, that any breach of an engagement [responsibility to another state] involves an obligation to make reparation.”76 In the case before the court, Germany had sued Poland, seeking reparations for Poland’s breach of its treaty obligation not to expropriate a German factory once it was built in Poland. Support for this principle can also be found in many arbitral decisions. In 1985, for example, the crew of the Greenpeace vessel Rainbow Warrior protested French nuclear testing in the South Pacific. French agents then destroyed the vessel in a New Zealand harbor, killing one of the crew members. New Zealand was obviously upset because of this salient breach of its territorial sovereignty. France agreed to transfer the responsible French agents to its base in the Pacific where they would remain for at least three years. They were clandestinely repatriated to France, however, without New Zealand’s consent. In the ensuing 1986 arbitration, the UN Secretary-General ruled that France had thus incurred state responsibility for the acts of its agents and the related violation of its treaty commitment to incarcerate them in the geographical region, which was the scene of the crime. The Rainbow Warrior Arbitration affirmed that “the legal consequences of a breach of a treaty, including the determination of the circumstances that may exclude wrongfulness . . . and the appropriate remedies for breach, are subjects that belong to the customary law of state responsibility.”77 There is a persistent question about whether a finding of fault or intent on the part of a state’s agents is required for state responsibility when one state harms another. The ICJ’s 1949 Corfu Channel opinion suggests that some 75

76 77

Whether actual damage is required is the subject of an intense debate. See A. Tanzi, “Is Damage a Distinct Condition for the Existence of an Internationally Wrongful Act?,” in M. Spinedi and B. Simma, eds., United Nations Codification of State Responsibility (New York: Oceana, 1987). Case Concerning the Factory at Chorzow, PCIJ, Ser. A, No. 17, at 29 (1928). Rainbow Warrior Arbitration, International Law Reports 82 (1991): 499, 511. See UN Secretary-General’s opinion contained in American Journal of International Law 81 (1987): 325.

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showing of fault is required for liability to arise. Great Britain sued Albania when British naval vessels hit mines that had been recently laid in an international strait off Albania’s coast. Albania denied any knowledge of the presence of those mines notwithstanding rather suspicious circumstances. The Court decided that “it cannot be concluded . . . that that state [Albania] 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 [of the act of mine laying in the strait].”78 Shaw points out, however, that this lone passage from the Court is not tantamount to its general adoption of a “fault” requirement that would limit state responsibility. While judicial and academic opinions are divided on this matter, most tend to agree that there is a strict liability standard. Therefore, the state’s fault, intent, and apparent knowledge are not necessary conditions for state responsibility. Under this standard, Albania would have been liable for the damages to the British warships – even if it did not intend to harm another state, citizens, or property. A state can thus be liable for a failure to act, such as when there are floating mines in its territorial waters through which foreign vessels routinely navigate.79 The study of international law would be much clearer if the law on state responsibility was codified, and indeed that work began nearly a century ago and continues. From 1924 to 1930, a committee of experts working with the League of Nations produced draft articles that were limited to the responsibility of states for injuries within their respective territories to foreign citizens or their property. The next attempt, from 1949 to 1961, was undertaken by the UN’s International Law Commission (ILC) – a group of prominent international legal scholars nominated by the governments of UN member states.80 From 1963 to date, the next attempt at codification of the law of state responsibility appeared to crest with the UN Charter, in that the drafters broadened their efforts to cover state responsibility for all topics within the Charter’s substantial reach. The Draft Articles on State Responsibility for Internationally Wrongful Acts were first adopted by the ILC’s members in 1996. The rules contained in the 2001 Draft Articles focus on procedural rules as opposed to substantive 78 79

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1949 ICJ Reports 4, 18. M. Shaw, “State Responsibility,” Ch. 14 in M. Shaw, International Law, 7th ed. (Cambridge: Cambridge University Press, 2014), 569–570. See UN, The Work of the International Law Commission (New York: UN, 1996), 121. On the various phases of the ILC’s work, see I. Sinclair, The International Law Commission (Cambridge: Grotius, 1987), 45. Various provisions, their genesis, and their development are discussed in S. Rosenne, The International Law Commission’s Draft Articles on State Responsibility (Dordrecht: Martinus Nijhoff, 1991).

4 State Responsibility

rules that could have directly addressed what acts or omissions, specifically, give rise to state responsibility for a breach of international law. This model law of state responsibility is thus couched in only the most general of terms, despite more than seventy years of laborious efforts. Article 1 provides that “[e]very internationally wrongful act of a State entails the international responsibility of that State.” Article 2 adds that “[t]here 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.”81 The Draft Articles have been presented to the UN General Assembly and referred to by the ICJ; as that is the case, some consider them to be part of customary international law.82 One of the most complex and relevant sections of the Draft Articles is Article 8, which addresses attribution. It provides as follows: The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct.83

As non-state actors like terrorist groups – the Islamic State (IS/ISIS/ISIL) or Al-Shabaab, for example – or even cybercriminals and corporations play more of a central role in international politics, determining attribution, responsibility, and reparation becomes increasingly difficult. Normally, the conduct of private individuals or entities is not attributable to the state under international law. But circumstances may arise where such conduct is attributable to the state. This occurs when there exists a specific relationship and purpose between the individual or entity engaging in the conduct and the state. As noted in the Commentary to the Draft Articles: Most commonly, cases of this kind will arise where State organs supplement their own action by recruiting or instigating private persons or groups who act as “auxiliaries” while remaining outside the official structure of the State. These include, for example, individuals or groups of private individuals who, though not specifically commissioned by the State and not forming part of its police or armed forces, are employed as auxiliaries or are sent as “volunteers” to neighbouring countries, or who are instructed to carry out particular missions abroad. 81

82 83

International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, November 2001, Supplement No. 10 (A/56/10), chp.IV.E.1, https://legal.un .org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf accessed May 3, 2022. See Hungary v. Slovakia (Gabcikovo-Nagymaros Case), ICJ Reports 1997 (at 7). Draft Articles on Responsibility of States for Internationally Wrongful Acts, Art. 8.

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Consider, for example, cybercrimes. In 2007, a watershed moment for cybercrime occurred in Tallinn, Estonia. Officials in the city removed a Soviet-era World War II memorial from the city center, despite warnings from Moscow that doing so would have consequences. Very soon afterward, the country’s internet service went dark: Estonia, called “the most wired country in the world,” was cut off from the Internet.84 Service was eventually restored, but it was immediately clear that the attack on Estonia was from the outside, and Estonia suspected (with good reason) that the Russians were behind the paralyzing outage. Mačák notes that “speculations arose that Russian government agents used various chatrooms and other online fora to incite Russian patriotic hackers to strike against Estonian networks.” But those speculations were not enough to meet the strict requirements of Article 8: Russia could not be held responsible for the work of private hackers, and there is no crime for merely inciting wrongful conduct.85 Attribution under Article 8 requires demonstration that the suspected state was giving instructions, controlling, or directing a non-state actor or private individual – a very high bar for a crime that is so difficult to trace but whose effects can be devastating, Article 11 offers little further guidance: “Conduct which is not attributable to a State under the preceding articles shall nevertheless be considered an act of that State under international law if and to the extent that the State acknowledges and adopts the conduct in question as its own.”86 Clearly, states engaging in activities like cybercrime, interference in elections, email or website hacking, or working with terrorist groups likely have little interest in claiming the unlawful conduct as their own.

5 Sovereign Immunity This section of the chapter introduces an important aspect of state status. Although a state may incur state responsibility for certain conduct, its status as a sovereign entity may shield it from having to respond to suits in the courts of another country. In this context, when sovereign immunity applies, 84

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J. Davis, “Hackers Take Down the Most Wired Country in Europe,” Wired, August 21, 2007, www.wired.com/2007/08/ff-estonia/ accessed May 3, 2022. K. Mačák, “Decoding Article 8 of the International Law Commission’s Articles on State Responsibility: Attribution of Cyber Operations by Non-State Actors,” Journal of Conflict and Security Law 21, No. 3 (Winter 2016): 416. Report of the International Law Commission on the Work of Its Fifty-third Session, Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries (2001). Emphasis added. http://untreaty.un.org/ilc/texts/instruments/english/ commentaries/9_6_2001.pdf accessed May 3, 2022.

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one state’s judges cannot assert jurisdiction over other states. Reparations, if any, must be sought in some other forum. The other avenues would include diplomatic intervention or a suit against State A in State A’s own courts under State A law.87 This attribute of sovereignty – immunity from suit in the courts of another country – is premised on one of the fundamental building blocks of international law: all states are equal. State B, being a co-equal sovereign entity in the international community, should not be subjected to a lawsuit in the courts in State A without State B’s consent. Although the State A plaintiff is entitled to a remedy from the government or an agency of State B, it may be preferable to resolve the dispute through diplomatic negotiations, rather than in the courts of State A. This equality is often expressed in the constitutive documents of international organizations. Article 2.1 of the UN Charter provides that the “Organization is based on the principle of the sovereign equality of all its Members.” One of the classic illustrations of the rationale for sovereign immunity is contained in the following excerpt from a 2001 United States (US) judicial opinion in Sampson v. Federal Republic of Germany. The US government successfully requested dismissal of an Auschwitz survivor’s claim, thus supporting Germany’s argument that it had sovereign immunity for its acts during World War II: “We think that something more nearly express . . . is wanted [in the US Foreign Sovereign Immunities Act] before we impute to the Congress an intention that the federal courts assume jurisdiction over the countless human rights cases that might well be brought by the victims of all the ruthless military juntas, presidents-for-life, and murderous dictators of the world, from Idi Amin to Mao Zedong.”88 The historical lineage of sovereign immunity is somewhat sketchy. As stated by the Supreme Court of Canada: The principle of sovereign immunity originated somewhat obscurely centuries ago in a period when the sovereign personified the state, and when sovereign interventions were generally limited to matters of public order, the conduct of international affairs and the defence of the state. . . . Sovereign immunity developed from the doctrine of the law of nations, which governs the international community of states based on the notions of sovereignty and equality of states. . . . These notions form the basis of an old Latin maxim: “Par 87

88

See G. Hafner, M. Kohen, and S. Breau, State Practice Regarding State Immunities (Leiden: Martinus Nijhoff, 2006) and J. Dellapenna, Suing Foreign Governments and Their Corporations, 2nd ed. (Ardsley, NY: Transnational, 2003). Sampson v. Federal Republic of Germany, 250 Fed. Rptr. 3d 1145, 1146–1147 and 1152 (7th Cir., 2001).

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2 States and Individuals in parem imperium non habet,” which translates as “An equal has no authority over an equal.”89

The scope of sovereign immunity includes issues spawned by the alleged misconduct of states, heads of state, governmental agencies conducting state business, diplomats, and military forces operating in foreign theaters. State practice can thus be classified in terms of two general types of immunity: absolute and restricted.

5.1

Absolute Immunity

States have historically employed the absolute theory of sovereign immunity. The ICJ ruling in Germany v. Italy (2012) provides an excellent example of the absolute theory at work. During World War II, German forces occupied a sizable swath of Italian territory. Nazi forces perpetrated numerous atrocities against the Italian population, including massacres of civilians and the deportation of large numbers as forced laborers. Nazi forces also took as prisoners several hundred thousand members of the Italian armed forces – within Italy and elsewhere in Europe. They were denied prisoner of war status and were deported to Germany and German-occupied territories and used as forced labor. The ICJ nevertheless embraced absolute immunity as its basis for denying Italy’s claims. How could this be? The following case demonstrates the Court’s reasoning.90

JURISDICTIONAL IMMUNITIES OF THE STATE (GERMANY V. ITALY) International Court of Justice, General List No. 143 (February 3, 2012) [Excerpted case available at www.cambridge.org/FPIL7]

Just after World War II, absolute sovereign immunity applications began to focus on whether the defendant government’s particular activity was closely associated with its political objectives within the host state. Thus, the purpose of that government’s apparent commercial activity was the

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Schreiber v. Germany and the Attorney General of Canada, 2002 Can. Sup. Ct. 62 §13 (2002). A succinct analysis is available in Chimène I. Keitner, “Germany v. Italy: The International Court of Justice Affirms Principles of State Immunity,” ASIL Insights 16 (February 14, 2012): 15.

5 Sovereign Immunity

controlling factor, rather than the fact that a private business could carry out the same project. The fact pattern of the following Polish case is a useful illustration: A woman named Aldona was a typist employed by the weekly magazine Voice of England. This magazine was published in Kraków, Poland, by the British Foreign Office of the government of the UK. Ms. Aldona was dismissed from her job. She was not paid the remainder of the salary due to her under the contract with the magazine. She sued Great Britain in a Polish court for the breach of her contract by the British agency publishing the magazine. The Polish courts dismissed her case because the defendant was a foreign sovereign. Aldona asserted that this dispute involved a mere contract of employment between a private person and a commercial magazine that was a profit-making enterprise. The magazine just happened to be published by an agency of the British government for diplomatic and other political purposes. Aldona’s argument, which was ultimately unsuccessful, was that publishing a magazine should be characterized as an “economic” rather than a “diplomatic” or some other state-related activity. Her lawyer argued that if an official UK magazine could thereby avoid paying her, on the basis of a dismissal on grounds of sovereign immunity, the contractual obligations of the British government in Poland would be meaningless. The Polish court first assessed the reciprocity concerns. Absent a dismissal in this case, the Polish government or its state-run entities would not fare well in British courts. Subsequent suits against a Polish governmental entity in the UK would likely invite a British judge to allow a suit to proceed against Polish government agencies operating in the UK. The Polish court noted that while the British magazine was a commercial entity because it was selling magazines for a profit, its underlying purpose was an inoffensive political activity on the part of the UK. The Polish Supreme Court also tied up an important loose end sometimes overlooked in sovereign immunity analyses: the plaintiff has a remedy, but it is not in the courts. Rather, the plaintiff’s home state may enter into diplomatic negotiations on her behalf. As reasoned by the Polish Supreme Court: Polish Courts were unable, given the principle of reciprocity, to accept for deliberation the claim submitted by Aldona S., even if it concerned a commercial enterprise on behalf of the British authorities. However, such is really not the case, for the [lower Polish] Court of Appeal held that the publishing house of “Voice of England” is not a commercial enterprise. The objection of the plaintiff that this does not concern diplomatic but [rather] economic activity cannot be admitted as valid, for although the activity may not be diplomatic, it is political by its content, and economic only by its form . . .

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2 States and Individuals Finally, the last objection of the plaintiff, that refusal of legal protection would render the obligations of the British Foreign Office as a publisher of a magazine in the territory of our State incomplete and unreal, is also unfounded, for, if the plaintiff does not wish to seek justice before English courts, she may take advantage of general international usage in connection with immunity from jurisdiction, and approach the [Polish] Ministry of Foreign Affairs, which is obliged to take up the matter with the [British] Ministry of Foreign Affairs of a foreign country with a view to obtain satisfaction for a just claim. This approach frequently produces speedier results than court procedure.91

This case illustrates the importance of the political/diplomatic off-ramp in international law. It is almost always better to seek a remedy outside the courts if at all possible, in order to avoid the uncomfortable situation of one state’s courts sitting in judgment of another state’s (alleged) misbehavior.

5.2

Heads of State

The scope of absolute sovereign immunity may also depend on what entities are embraced within the term “state.” There is a distinction between heads of state and the state itself. For 2,000 years, absolute immunity has been universally recognized for heads of state regarding their public and private acts while they are in office. In the famous case Mighell v. Sultan of Johore, cited in an 1893 British court decision, Great Britain extended sovereign immunity to a foreign head of state who was sued there for breach of his promise to marry. The case against the sultan was thus dismissed without considering the merits of the plaintiff’s case.92 For this application of sovereign immunity, there was an ironclad rule: a foreign head of state was not subject to any civil or criminal prosecution in foreign or international courts, during and after leaving office. This rule was born of perceptions of necessity and reciprocity, and uniform application made it a sort of golden rule. The Augusto Pinochet litigation made a significant contribution to toppling the centuries-old immunity accorded to heads of state, which had continued after they left office. Pinochet thus provided a significant spark to an evolving paradigm: one which questioned whether it still made sense to extend absolute immunity to an ex-ruler who engages in such heinous conduct in office that it could hardly be considered state policy.93

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Aldona S. v. United Kingdom, Supreme Court of Poland (1948), reported in Journal Du Droit International 191 (1963): 90. 1 Queen’s Bench 149 (1893), reported in All England Law Reports 1019 (1963). N. Roht-Arriaza, The Pinochet Effect: Transnational Justice in the Age of Human Rights (Philadelphia, PA: University of Pennsylvania Press, 2004).

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The analyses of various members of the House of Lords is provided in the following case.

JUDGMENT OF THE HOUSE OF LORDS, REGINA V. BARTLE AND THE COMMISSIONER OF POLICE FOR THE METROPOLIS AND OTHERS EX PARTE PINOCHET Appeal from Divisional Court of the Queen’s Bench Division, March 24, 1999 [Excerpted case available at www.cambridge.org/FPIL7]

In 2006, Chile’s Supreme Court further stripped Pinochet of his former immunity from prosecution, thus subjecting him to trial on corruption charges for conduct occurring during his 1973–1990 reign. Pinochet died in 2010, well before he could be tried for his crimes. Slobodan Milosevic was the first head of state to be prosecuted by an international tribunal. His trial for genocide and various other crimes began in 2002, after the Serbian government turned him over to the International Criminal Tribunal for the Former Yugoslavia and ended anti-climactically with his death in 2006. The proceedings by this UN Security Council-initiated court in the Netherlands unsettled the millennia-old rule of absolute immunity for sitting and former heads of state. Prosecution of other heads of state is now within the treaty-based jurisdiction of the International Criminal Court (ICC) in the Netherlands, which charged the sitting President of Sudan, Omar Hassan al-Bashir, in 2008. Bashir is accused of mass atrocities against Black Africans in the Darfur region of Sudan. As we shall see in a later chapter, the ICC has had a difficult time arresting those it charges, as many countries – and African countries, especially – are unwilling to turn heads of state, especially, over to the ICC.94

5.3

Other Government Officials

The leading treaty on the degree to which government officials are entitled to their historical immunity from criminal prosecution is the Statute of the ICC. In ICC proceedings, governmental capacity is irrelevant when an individual commits an international crime within the Court’s jurisdiction, which includes crimes against humanity and genocide. The ICJ, however, a court

94

See Chapter 7 on human rights. See also Chapter 6 on international organizations.

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that hears only cases between states, addressed this issue in its opinion taken from the Arrest Warrant case:

CASE CONCERNING THE ARREST WARRANT OF 11 APRIL 2000 (DEMOCRATIC REPUBLIC OF THE CONGO V. BELGIUM) International Court of Justice GL No. 121 (February 14, 2002) [Excerpted case available at www.cambridge.org/FPIL7]

The UN Charter provides – and the ICJ refers to – the principle that a state may not exercise its authority on the territory of another state because of sovereign equality among all UN member states. No Belgian official went into the Congo to arrest the Congo’s Foreign Minister. No other country had arrested him. It was evident that there was a strong prima facie case that he committed the crimes charged. One might argue that the ICJ thus overreacted to Belgium’s attempt to enforce the provisions of the clearly applicable substantive rules of international human rights law. The majority’s opinion did not fully address the potential application of the Belgian law beyond its borders as a possible violation of international law. The immunity of state diplomats and consular officials is a special case established by treaty. This is discussed in greater detail in Chapter 3.

5.4

Restrictive Immunity

When is a state acting like a state, and when is it acting like something else? If it or its agents are carrying out the duties of state, then it is almost unquestionably immune from prosecution in the courts. If, however, it is acting in a manner that is not entirely “state-like,” its immunity can be restricted. This section of this chapter addresses those restrictions, and you will note that this topic rears its head elsewhere in this book as well.95

5.4.1

Foreign Sovereign Immunities Act (FSIA) of the US

In 1952, the US government led the way by shifting from an across-theboard absolute immunity approach for its civil cases to one of restrictive immunity.96 Foreign governments would thereafter be immune from suit in 95 96

See Chapter 3, Section 4.5 and Chapter 6, Section 1.1. This was done via the so-called “Tate Letter,” written by the Acting Legal Adviser for the State Department, Jack Tate, declaring that the State Department would no longer assume absolute immunity if cases involved commercial activity.

5 Sovereign Immunity

US courts only when the sovereign was acting like a sovereign (jure imperii) and not a private merchant (jure gestionis). The specific determinations were generally left to the State Department until Congress enacted the Foreign Sovereign Immunities Act of 1976 (FSIA). The FSIA sought to codify the exceptions to sovereign immunity which had evolved since World War II. The FSIA now provides the sole basis for obtaining jurisdiction over a foreign state in US courts. How did the FSIA change interpretations of sovereign immunity? The FSIA provides that a foreign state is generally immune from the jurisdiction of US courts, subject to some important exceptions. The most common of these exceptions are: (1) if the foreign state waives its immunity; (2) if the foreign state has engaged in commercial activity; or (3) if there was a tort (injury) committed by a foreign individual within the US.97 These exceptions start to define when a state is no longer acting as a state and thus is no longer entitled to state immunity. Note that the FSIA is about states and not individuals, though this is continually tested. The US FSIA was amended in 1996 to create a “statesponsored terrorism” exception to the FSIA, which allowed US victims of terrorist attacks to sue terrorist states. It subjected a half dozen “terrorist” states to suits in US courts. In one such case, Iran was ordered to pay $2.6 billion for Iran’s role in the 1983 marine barracks bombing in Lebanon that killed 241 US marines, money that the families of the victims were not able to recover. Later in 1996, Congress passed the Flatow Amendment, designed to create a way for private litigants to bring suit against a foreign state, though the US executive branch has been loath to use frozen assets of terrorist states to pay victims’ families. The FSIA has been interpreted by the US Supreme Court as not coextensive with immunity for foreign officials. After the Samantar v. Yousef decision, “future cases involving foreign official defendants may largely depend upon the State Department and the practices it develops for assessing foreign official immunity.”98 In a December 2011 ruling by a US federal judge, Sudan and Iran were deemed liable – for potentially billions of dollars in damages to victims – for the 1998 US embassy bombings in Nairobi, Kenya, and Dar es Salaam, Tanzania.99 This result represents another test of the National Defense Authorization Act for Fiscal Year 2008. It again amended the FSIA to allow foreign nationals working for the US government to sue a state sponsor of

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For an excellent summary of the FSIA and its implications, see J. Elsea, “Samantar v. Yousef: The Foreign Sovereign Immunities Act (FSIA) and Foreign Officials” (Congressional Research Service, December 16, 2013). 99 Ibid., 11. Owens v. Sudan, 826 F. Supp. 2d 128 (D. Col. 2011).

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terrorism for any injuries or death suffered on the job. The judge did find that the amendment did not apply to the plaintiffs in this case, because the act does not specifically include a federal cause of action for the family members of victims who are not US citizens. Under the contemporary restrictive theory of sovereign immunity most states no longer automatically extend absolute immunity to foreign government-owned or operated entities. An entity operated by a state, in its capacity as a trader competing with other private merchants, is not necessarily given immunity from suit under the newer restrictive theory of sovereign immunity. As illustrated in the following materials in this section, this application of sovereign immunity analysis affects a state engaged in a commercial enterprise as opposed to conduct that can be undertaken only by a sovereign nation (such as declaring war). For example, the US-based Boeing and Lockheed Martin corporations are private corporations that build military aircraft. They may benefit if the US government decides to engage in a military conflict with another state. But only the US government has the legal competence to engage in military combat as opposed to either of these private corporations, which could not require a flight unit to fly sorties into a combat theater. Assume that a foreign government owns the company that builds its warplanes. That government-owned company orders parts from Lockheed Martin or Boeing, but it then fails to pay for those parts as promised. Formerly, the US companies would not be able to sue that foreign government or its state-owned entities in a US court for breach of contract. A US court would not be permitted to hear the merits of such a claim because of the old rule, which provided for the absolute immunity of a foreign government from a suit in a US court. Under the FSIA, however, the foreign government and/or its state-operated instrumentality will not be immune from a suit in a US court. That this government was contracting for the public purpose of defending itself is now virtually irrelevant. That foreign government effectively placed itself in the position of a private defense contractor who owes money to the US company for the delivered parts.100 Most (but not all) states currently apply some form of the restrictive standard for resolving sovereign immunity questions. Western nations typically restrict a foreign sovereign’s immunity from suit based on how the state is acting, rather than its disclosed purpose. Consider an Austrian Supreme Court case to see if the Austrian court should have also found sovereign immunity if it had applied the above 100

Victory Transport, Inc. v. Comisaria General de Abastecimientos y Transportes, 336 Federal Reporter 2d 354, 360 (2d Cir. 1964).

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standard. The plaintiff was an Austrian citizen whose automobile was damaged in a collision with a car owned by the US government in Austria. The driver of the US car was delivering mail to the US embassy. The lawyer for the US claimed sovereign immunity from suit in the Austrian courts, premised on the underlying purpose of the trip. The lower court, and the Austrian Supreme Court, allowed the case to proceed, however. It was the act of driving itself, rather than its underlying purpose, that would shape the scope of sovereign immunity in Austrian foreign sovereign immunity analysis. Any qualified driver can drive a car on an Austrian highway. Negligence on the highway, not the underlying purpose of delivering US government mail, therefore vitiated sovereign immunity for the US in the Austrian courts. As stated by the Austrian Supreme Court: We must always look at the act itself which is performed by State organs, and not at its motive or purpose. We must always investigate the act of the State from which the claim is derived. Whether an act is of a private or sovereign nature must always be deduced from the nature of the legal transaction . . . the action taken or the legal relationship arising [as from the collision on an Austrian highway] . . . [T]he act from which the plaintiff derives his claim for damages against the defendant is not the collection of mail but the operation of a motor car . . . and action as a road user. By operating a motor car and using the public roads the defendant moves in spheres in which private individuals also move.101

The Austrian courts emphasized the nature of the particular act that resulted in the damage to the Austrian plaintiff – not the US government’s underlying purpose for using the Austrian highways. The act in question was picking up and then delivering embassy mail. The Austrian court distinguished between private and sovereign acts. The delivery of mail to the US embassy in Austria could be considered a sovereign act of the US government; however, the underlying act was merely driving a car on an Austrian highway. That was characterized as a “private” act. Judges typically apply a two-step process when analyzing the scope of sovereign immunity: (1) is the entity claiming this defense a “state” for purposes of a sovereign immunity analysis?; and (2) is the entity’s conduct, which is the reason for the suit, really sovereign, or essentially commercial in nature? If the activity is “sovereign,” then the case is normally dismissed. If “commercial,” then the state is acting in a way that a private citizen trader

101

Collision with Foreign Government Owned Motor Car, Supreme Court of Austria, reported in International Law Reports 40 (1961): 73.

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may act, thus requiring the state to litigate the underlying claim on the merits. Most sovereign immunity questions involve acts of a recognized state, or one of its agencies, undertaking some activity abroad that results in a suit against it in another nation’s courts. An aggrieved individual has the power to immediately file a suit to recover the alleged losses. Resorting to one’s home country for diplomatic representation may be far more timeconsuming – assuming that the home state is willing to undertake its citizen’s plea for help. A dramatic example is presented in the case excerpt below. When reading it, consider whether sovereign immunity should be discarded as a vintage anachronism because it is a holdover from an era when states did not do business to the extent that they do today. On the other hand, sovereign immunity may serve a utilitarian purpose in international relations. When a judicial entity proceeds with such a suit, there is always the risk that the proceedings may offend the sensibilities of another nation. Some situations are best handled via executive branch diplomacy.

SAUDI ARABIA V. NELSON Supreme Court of the United States, 507 U.S. 349 (1993) [Excerpted case available at www.cambridge.org/FPIL7]

Claims regarding Saudi Arabia’s violations of international law still abound, especially in the wake of the September 11, 2001 terrorist attacks. In September 2005, a New York federal court considered claims filed by survivors of the September 11 attacks and insurance carriers against Saudi princes and a charitable organization – previously labeled a Specially Designated Global Terrorist Entity by the US Treasury Department. The claims of US victims’ families were given further support in 2016 with the passage of the Justice Against Sponsors of Terrorism Act (JASTA). This law allows citizens to sue states in US federal courts “if they are found to have played any role in terrorist attacks that killed Americans on United States soil.”102 This expansive move, opposed by then president Obama, resulted in the filing of a case by over 1,000 survivors of the 9/11 attacks against Saudi 102

J. Steinhauer, M. Mazzetti, and J. Hirschfield Davis, “Congress Votes to Override Obama Veto on 9/11 Victims Bill,” New York Times, September 29, 2016, www.nytimes.com/2016/ 09/29/us/politics/senate-votes-to-override-obama-veto-on-9-11-victims-bill.html accessed May 3, 2022.

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Arabia, despite the fact that there is no evidence that Saudi officials were connected to or even aware of the planned attacks on the World Trade Center and the Pentagon.103

6 Individuals in International Law Thus far we have focused on states as the primary actor and subject of international law. Only states can appear before the ICJ, for example. Yet, individuals play a significant role in international law as well, even if they cannot directly pursue claims as plaintiffs at the international level. A state can lodge a diplomatic claim or institute proceedings in an international tribunal on behalf of its citizens who are harmed by another country. In 1928, the Permanent Court of International Justice explained that “[r]ights or interests of an individual the violation of which rights causes damage are always in a different plane to rights belonging to a State, which rights may also be infringed by the same act. The damage suffered by an individual is never, therefore, identical in kind with that which will be suffered by a State; it can only afford a convenient scale for the calculation of the reparation due the State [whose citizen has been harmed].”104 Traditional doctrine espouses the following remedy for individual plaintiffs harmed by the action of a state: their home state may choose to pursue a claim in an international venue – via diplomacy, judicial, or some related process – for harm done to them by a foreign state. The Permanent Court of International Justice characterized such claims in the following terms: “By taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a state is in reality asserting its own rights – its right to ensure, in the person of its subjects, respect for the rules of international law.”105 Morbid though they are, airplane crashes provide a good illustration of the link between states and individuals, and the ways in which states must come to the assistance of individuals at the international level. In July 2014, 103

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M. Mazzetti, “Claims of Saudi Role in 9/11 Appear Headed for Manhattan Court,” New York Times, September 30, 2016, www.nytimes.com/2016/09/30/us/saudi-arabia-9-11legal-battle.html accessed May 3, 2022. Case Concerning the Factory at Chorzow (Germany v. Poland), 1928 PCIJ, Ser. A, No. 17 (Judgment of September 13, 1928). Mavrommatis Palestine Concessions, PCIJ, Ser. A, No. 2 (1924), reported in International Law Reports 2 (1924): 27. See also that “rules creating individual rights and obligations . . . [are] enforceable by the national courts.” Danzig Railway Officials Case, PCIJ, Ser. B, No. 15, International Law Reports 4 (1928): 287.

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Malaysian Air flight MH17, en route to Kuala Lumpur after departing from Amsterdam, was shot down over eastern Ukraine. Everyone onboard – 283 passengers and fifteen crew members – was killed, 193 of them Dutch.106 The plane went down in a hotly contested part of Ukraine, held by pro-Russian separatists supported by the Russian government. It was eventually determined that the Boeing 777 airplane was hit by a BUK missile, likely supplied by Russia, though it is not clear that MH17 was specifically targeted. An international team of experts was called in to investigate the crash and reconstruct the tragedy, though delays and continued hostility in the region made the investigation difficult. Families of the victims waited for bodies and belongings of their loved ones to be repatriated, and for someone to claim responsibility for the needless deaths. This is a complicated case for many reasons.107 Who, exactly, would families of the victims hold responsible, and how would they seek reparations? The attack came from eastern Ukraine, which had been embattled territory since at least the 2014 Russian invasion of Crimea. Was Ukraine responsible? Or was it Russia, who had supported the rebels who allegedly shot the plane down and manufactured the missile that hit it? Did Ukraine or Russia bear responsibility for not informing airlines of possible danger in eastern Ukrainian airspace? If the Netherlands, home state of the majority of the victims, took action against Russia, what might that do to the alreadytense relationship between Russia and the EU? The legal complexity of the case, the multiple sources of information and disinformation,108 as well as its geopolitical sensitivity, made it difficult for the victims’ families to pursue a remedy on their own. The Netherlands eventually placed blame for the disaster on Russia and is bringing a case against Russia in the ECtHR on behalf of all of the victims.109 A separate trial against four Russians and a Ukrainian accused of involvement in the disaster is being conducted in The

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“MH17 Plane Crash: What We Know.” BBC News (February 20, 2020) www.bbc.com/news/ world-europe-28357880 accessed May 3, 2022. For an exhaustive treatment of the legal possibilities surrounding this incident, see M. de Hoon, “Navigating the Legal Horizon: Lawyering the MH17 Disaster,” Utrecht Journal of International and European Law 33, No. 84 (2017): 90–119. Y. Golovchenko and J. Adler-Nissen, “Who Spread Disinformation about the MH17 Crash? We Followed the Twitter Trail,” Monkey Cage (blog), Washington Post, September 18, 2018, www.washingtonpost.com/news/monkey-cage/wp/2018/09/20/who-spread-informationdisinformation-about-the-mh17-crash-we-followed-the-twitter-trail/ accessed May 3, 2022. M. Gillett, “Netherlands Takes Russia to European Court of Human Rights Over MH17 Flight Downing,” Jurist (blog), University of Pittsburgh School of Law, July 11, 2020, www .jurist.org/news/2020/07/netherlands-goes-to-european-court-of-human-rights-inmh17-case-against-russia/ accessed May 3, 2022.

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Hague, though none of the accused have been extradited to the Netherlands.110 Deep connections between states and individuals drive much of international law. States are able to operate on a legal plane that individuals cannot inhabit, but individuals feel the effects of state action or inaction. In this section of this chapter, we investigate the ties between individuals and states, exploring the reciprocal relationship between these actors and the rights and responsibilities they have to each other.

6.1

Nationality

An individual’s nationality, often referred to as citizenship, is a bond between an individual and a state that establishes their reciprocal rights and duties. This bond was once an automatic attribute of mere residence within the Roman Empire (except for certain “barbarians,” who were not considered legal residents). In AD/CE 212, the Edict of Caracalla conferred Roman citizenship on all individuals who lived within the area controlled by the empire. There was no distinction based upon place of birth, parental citizenship, or whether one wished to become a Roman citizen or abandon that citizenship.111 This section analyzes contemporary citizenship rules, state competence in such matters, and the related consequences of citizenship. The four major components of this subject are parentage, birth, naturalization, and dual nationality. The related topics of statelessness and refugees will be treated in the next sections. Nationality is a legal, political, and social link between the individual and the state. In 1955, the ICJ defined nationality as “a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties. It may be said . . . that the individual upon whom it is conferred . . . is in fact more closely connected with the population of the State conferring nationality than with that of any other State . . . .”112 Nationality establishes mutual expectations for both the state that confers it and the individual who acquires it. For example, the state has the right to require its citizens to serve in its military forces. The state may also tax an 110

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Associated Press, “MH17 Trial: Dutch Government to Take Russia to Top European Court,” 9News Australia, July 11, 2020, www.9news.com.au/world/mh17-trial-netherlands-totake-russia-to-european-court-of-human-rights/1f17f8c0-7983-4cf1-a340-545f8bf45142 accessed May 3, 2022. E. Paras, “A Brief History of Conflict of Laws,” Ch. 15, in E. Paras, Philippine Conflict of Laws, 7th ed. (Manila: Rex Book Store, 1990), 438. Nottebohm Case (Liechtenstein v. Guatemala), 1955 ICJ Reports 4.

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individual for earnings accrued anywhere in the world. On the other hand, the individual is entitled to certain expectations based on his or her nationality. One of the most important of these rights is state protection of the individual. The home state normally assists its nationals when they are mistreated by another state or its agents in another country. In the MH17 example relayed earlier, Dutch families whose loved ones were killed in the airplane disaster in Ukraine reasonably expected that the Netherlands would assist them, either via the courts or through diplomacy. Is nationality a matter of national law or international law? If giving or withholding nationality were not subject to international legal norms, then a state would be free to deprive its citizens of citizenship against their wishes. In 1923, the Permanent Court of International Justice proclaimed that states generally had unlimited discretion when making nationality decisions. Exceptions included those situations where there was a treaty obligation to confer, or the inability to confer, nationality under the particular circumstances. In one of the two prominent cases, France conferred French nationality on residents of Tunis and Morocco, notwithstanding a British protest on behalf of British citizens living in those territories. The Court was asked to decide whether this was a matter of national discretion, which fell exclusively within France’s authority. The Court responded that this matter involved an issue arising under international law, although the conferring of nationality was normally a matter committed to the discretion of each state’s national law. Thus, “nationality is not, in principle, regulated by international law, [however] the right of a State to use its discretion is nevertheless restricted only by obligations which it may have undertaken towards other States. In such a case, jurisdiction which, in principle, belongs solely to the State [i.e., conferring nationality on residents of its territories] is limited by rules of international law.”113 In the same year, the Court added an important limitation in a Polish case: “One of the common problems which presented itself in connection with the protection of minorities, was that of preventing these States from refusing their nationality, on racial, religious or linguistic grounds, to certain categories of persons, in spite of the link which effectively attached them to the territory allocated to one or [the] other of these States.”114 In 1939, Stalin and Hitler signed a non-aggression treaty containing a secret protocol placing

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Nationality Decrees in Tunis and Morocco (Advisory Opinion), PCIJ, Ser. B, No. 4 (1923), 1 World Court Rep. 145. Acquisition of Polish Nationality (Advisory Opinion), Permanent Court of International Justice, Ser. B, No. 7, at 79 (1923 case interpreting nationality provision of World War I peace treaty between the Allied Powers and Poland).

6 Individuals in International Law

various nations, including Estonia, under Soviet influence. Stalin ordered the deportation of 60,000 Estonian nationals to Siberia after taking away their Estonian citizenship. This was one of the war-related events that would later stimulate international pressure to limit the wide latitude of discretion exercisable by states in nationality matters. The results of such pressures included postwar refugee and genocide treaties that now pose further impediments. How is nationality acquired? Individual nationality, or citizenship, is acquired in three ways: (1) passively, by parentage; (2) passively, by being born in a state that considers a child born there its citizen; and (3) actively, by naturalization of an individual who voluntarily changes allegiance from one state to another.

6.1.1

Parentage

Citizenship derived from parentage is a rule drawn from ancient Roman law. A child’s citizenship was that of the parents. This rule is referred to as jus sanguinis, or “blood rule,” for establishing citizenship. A child born of Roman parents in any region of the world not under Roman control was nevertheless a Roman citizen. The jus sanguinis basis for acquiring nationality is often applied in Europe, Latin America, and many Englishspeaking countries.

6.1.2

Birth

Many countries apply a nationality-by-birth rule. This is the rule known as jus soli, or “soil rule,” for determining citizenship. In the Middle Ages, birth within certain European territories automatically vested the newborn with that nation’s citizenship. Until 1983, a child born in the UK, whose parents were visiting Italian citizens, was a British citizen under the immigration and nationality laws of the UK. This child would also have been an Italian citizen because Italy follows the blood rule. Since 1983, however, UK citizenship requires at least one parent to be a British citizen. Nationality determinations are often complicated by the simultaneous applicability of the laws of the country of the parents and the child’s country of birth. Assume that a Japanese couple has a baby during a visit to the US. Application of the parentage or jus sanguinis blood rule would make the baby a citizen of Japan. Application of the jus soli or soil rule would make the baby a citizen of the US. This child is a citizen of both countries and may have to choose one of two citizenships upon attaining adult status. To alleviate such problems in Europe, the Council of Europe’s 1997 European Convention on Nationality provides that everyone has a right to nationality. A treaty party must automatically grant its nationality to persons having at

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least one parent who is a national of that state, which does not apply to persons born abroad. In that instance, the European Convention on Nationality provides that there is an obligation to facilitate the acquisition of that state’s nationality (although not automatically).115 This 1997 Convention contains only general principles, but no specific rules on nationality. Europe has had a long history of statelessness associated with state succession. The May 2006 Council of Europe Convention on the Avoidance of Statelessness in Relation to State Succession is the prescribed remedy, building on the earlier 1997 Convention. Under various global treaties, everyone has the right to nationality so as not to be stateless. Under Article 2 of this contemporary regional treaty: “Everyone who, at the time of the state succession, had the nationality of the predecessor state and who has or would become stateless as a result of the state succession has the right to the nationality of a state concerned . . . .” Article 5 builds upon the ICJ Nottebohm case (discussed below) in terms of the factors for the grant of nationality by the successor state: 1. A successor state shall grant its nationality to persons who, at the time of the state succession, had the nationality of the predecessor state, and who have or would become stateless as a result of the state succession if at that time: a. they were habitually resident in the territory which has become territory of the successor state; or b. they were not habitually resident in any state concerned but had an appropriate connection with the successor state. 2. For the purpose of paragraph 1, subparagraph b, an appropriate connection includes, inter alia: a. a legal bond to a territorial unit of a predecessor state which has become territory of the successor state; b. birth on the territory which has become territory of the successor state; c. last habitual residence on the territory of the predecessor state which has become territory of the successor state.116

There are a number of new European states, for example, the post-Cold War united Germany, Czech Republic, and Slovakia. The above treaty provisions precluded them from withholding nationality on some discriminatory basis.

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European Convention on Nationality, Done at Strasbourg, November 6, 1997, International Legal Materials 37 (1998): 47. Council of Europe Convention on the Avoidance of Statelessness in Relation to State Succession, Open for signature May 19, 2006, CETS No. 200, www.coe.int/en/web/ conventions/full-list/-/conventions/treaty/200 accessed May 3, 2022.

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The right to a nationality can also be treaty-based. In September 2005, the Inter-American Court of Human Rights (IACtHR) – the powerful human rights court affiliated with the OAS – considered the first case wherein it addressed the right to a nationality under the American Convention on Human Rights.117 Two girls were born in the Dominican Republic. Their mothers were Dominican nationals and theirs fathers were Haitian nationals. The Dominican Republic’s constitution provides that all persons born in its territory are Dominican nationals, but when the girls’ mothers sought to obtain their official birth certificates, they were denied their registrations. They each had an unofficial birth document from their birthplaces. An officer of the local civil administration denied the girls their official birth certificates. He did so on the grounds that they did not have the necessary documents to establish their Dominican citizenship. These girls were denied birth certificates and later school registration based on apparent discrimination against their mixed ethnic background. Their families lived in fear that their children would be forced to leave the country at any time in the absence of a certificate of nationality. The Dominican Republic maintained that, first, the decision not to grant the girls’ birth certificates was based on the fact that they failed to produce the necessary documents – which allegedly had nothing to do with discriminatory intent. Additionally, there was no policy of deporting Haitians in the Dominican Republic, so the families’ allegations of fear and distress were unfounded. The IACtHR held that under the American Convention on Human Rights, Article 20 provides that nationality is a fundamental human right from which a state party cannot derogate. The Convention provides for the right of nationality in two respects: (1) nationality must be granted to a person who has established a link between the state and the individual; and (2) state parties must ensure that the individual is not deprived of his or her nationality in an arbitrary manner. The Dominican Republic has still refused to uphold this ruling, and the issue of nationality on the island that is home to both Haiti and the Dominican Republic is still unresolved. As Gamboa and Bingham write: In defiance of the court’s ruling, in the past decade, successive Dominican governments have actively pursued policies of deprivation, denial and discrimination in access to nationality. Starting with a 2004 migration law, the Dominican Republic has implemented a series of legislative, judicial and

117

Case of the Girls Yean and Bosco v. Dominican Republic, Inter-American Court of Human Rights, Judgment of September 8, 2005.

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2 States and Individuals administrative changes designed to make obtaining documentary proof of Dominican nationality a legal and bureaucratic impossibility for thousands of Dominicans of Haitian descent. In early 2010, a revised constitution that fundamentally altered the right to Dominican nationality entered into force, making the stateless status of Dominicans of Haitian descent permanent and irreversible.118

Dominican Republic president Danilo Medina attempted to resolve this issue in 2014, by passing a law that aimed to protect children whose parents had registered them in the Dominican Republic unlawfully. The IACtHR found this attempt to rectify the situation unsatisfactory as well. In response, the Dominican Republic withdrew its recognition of the IACtHR’s competence.119 The situation remains unresolved.

6.1.3

Naturalization

Individuals may actively change their nationality through the process of naturalization. The national law of the country from which nationality is sought establishes its naturalization requirements. In a notable passage from a US Supreme Court opinion: “It is an accepted maxim of international law that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe.”120 States have the power to refuse to grant citizenship to those seeking it. For example, marriage by a citizen of one nation to the citizen of another is a common basis for seeking naturalization so as to unite the spouses and any children they may have. But states are free to choose the circumstances under which they will or will not admit new citizens. Naturalization, undertaken for reasons not related to habitual residence in the naturalizing country, is a major problem under many local immigration laws. Granting citizenship under these circumstances does not necessarily entitle an individual to claim that he or she is a national of the naturalizing state for all purposes. The less-restrictive nationality laws of one state may be in conflict with the more demanding laws of another. In 1955, the ICJ addressed this recurring problem in the following landmark case:

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L. Gamboa and L. Bingham, “Internal Exile: The Plight of Haitians of Dominican Descent,” World Politics Review (January 13, 2015) www.worldpoliticsreview.com/articles/14847/ internal-exile-the-plight-of-dominicans-of-haitian-descent accessed May 3, 2022. 120 Ibid. Nishimura Ekiu v. United States, 142 U.S. 651, 659 (1892).

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NOTTEBOHM CASE (LIECHTENSTEIN V. GUATEMALA) International Court of Justice, 1955 ICJ Reports 4 NOTE: Nottebohm was a German citizen residing in Guatemala. He operated a successful business in both Guatemala and Germany before World War II. Guatemala’s laws discriminated against foreign citizens and business entities that were nationals of countries with which it was at war. German citizens could not do business in Guatemala. Just before Guatemala declared war against Germany, Nottebohm went to Liechtenstein and applied for citizenship. His purpose was to avoid the discriminatory laws against foreign citizens so that he could continue his lucrative business in Guatemala. There was no state of war between Guatemala and Liechtenstein. Liechtenstein waived its usual three-year waiting period when it granted citizenship to Nottebohm. He immediately took an oath of allegiance, became a naturalized citizen of Liechtenstein, and was issued a passport prior to leaving for Guatemala. When Nottebohm attempted to return to Guatemala as a citizen of Liechtenstein, however, he was unable to reenter. His property in Guatemala was seized by the government. Guatemala still considered Nottebohm a German national and would not recognize Liechtenstein’s grant of nationality. In 1946, Liechtenstein first asserted its right to protect Nottebohm, whom it considered to be its naturalized citizen. In 1951, after unsuccessful negotiations with Guatemala, Liechtenstein instituted this suit in the International Court of Justice. Liechtenstein wanted to recover for damages to Nottebohm caused by Guatemala’s treatment of a person that Liechtenstein considered its citizen. The Court’s opinion in this famous case addresses the requirements for the international recognition of citizenship conferred under national law. The legal question included whether Liechtenstein could present this claim on behalf of Nottebohm, and in turn, whether Guatemala had to recognize Nottebohm as a citizen of Liechtenstein. COURT’S OPINION: [T]he Court must ascertain whether the nationality conferred on Nottebohm by Liechtenstein . . . bestows upon Liechtenstein a sufficient title to the exercise of protection in respect of Nottebohm as against Guatemala. In this connection, Counsel for Liechtenstein said: “the essential question is whether Mr. Nottebohm, having acquired the nationality of Liechtenstein, that acquisition of nationality is one which must be recognized by other States.”

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NOTTEBOHM CASE (LIECHTENSTEIN V. GUATEMALA) (cont.) Guatemala expressly stated that it could not recognize that Mr. Nottebohm, a German subject habitually resident in Guatemala, has acquired the nationality of Liechtenstein without changing his “habitual residence.” There is here an express denial by Guatemala of Nottebohm’s Liechtenstein nationality. The naturalization of Nottebohm was an act performed by Liechtenstein in the exercise of its domestic jurisdiction. The question to be decided is whether that act has the international effect here under consideration. International arbitrators have given their preference to the real and effective nationality, that which accorded with the facts, that based on stronger factual ties between the person concerned and one of the States whose nationality is involved. Different factors are taken into consideration, and their importance will vary from one case to the next: the habitual residence of the individual concerned is an important factor, but there are other factors such as the centre of his interests, his family ties, his participation in public life, attachment shown by him for a given country and inculcated in his children, etc. [I]nternational law leaves it to each State to lay down the rules governing the grant of its own nationality. On the other hand, a State cannot claim that the rules it has laid down are entitled to recognition by another State unless it has acted in conformity with this general aim of making the legal bond of nationality accord with the individual’s genuine connection with the State which assumes the defence of its citizens by means of protection as against other States. According to the practice of States, to arbitral and judicial decisions and to the opinion of writers, nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties. It may be said to constitute the juridical connection of the fact that the individual upon whom it is conferred either directly by the law or as the result of an act of the authorities, is in fact more closely connected with the population of the State conferring nationality than with that of any other State. Conferred by a State, it only entitles that State to exercise protection vis-à-vis another State, if it constitutes a translation into juridical terms of the individual’s connection with the State, which has made him a national. At the date when he applied for naturalization Nottebohm had been a German national from the time of his birth. His country had been at war for

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NOTTEBOHM CASE (LIECHTENSTEIN V. GUATEMALA) (cont.) more than a month, and there is nothing to indicate that the application for naturalization then made by Nottebohm was motivated by any desire to dissociate himself from the Government of his country [Germany]. He had been settled in Guatemala for 34 years. He had carried on his activities there. It was the main seat of his interests. He returned there shortly after his naturalization, and it remained the centre of his interest and of his business activities. He stayed there until his removal as a result of war measures [passed by Guatemala] in 1943. He subsequently attempted to return there, and he now complains of Guatemala’s refusal to admit him [now that he claims Liechtenstein rather than German nationality]. In contrast, his actual connections with Liechtenstein were extremely tenuous. No settled abode, no prolonged residence in the country at the time of his application for naturalization: the application indicates that he was paying a visit there and confirms the transient character of this visit by its request that the naturalization proceedings should be initiated and concluded without delay. If Nottebohm went to Liechtenstein in 1946, this was because of the refusal of Guatemala to admit him. No indication is given of the grounds warranting the waiver of the condition of residence. There is no allegation of any economic interests or of any activities exercised or to be exercised in Liechtenstein, and no manifestation of any intention whatsoever to transfer all or some of his interests and his business activities to Liechtenstein. These facts clearly establish, on the one hand, the absence of any bond of attachment between Nottebohm and Liechtenstein and, on the other hand, the existence of a long-standing and close connection between him and Guatemala, a link which his naturalization in no way weakened. That naturalization was not based on any real prior connection with Liechtenstein, nor did it in any way alter the manner of life of the person upon whom it was conferred in exceptional circumstances of speed and accommodation. In both respects, it was lacking in the genuineness requisite to an act of such importance, if it is to be entitled to be respected by a State in the position of Guatemala. It was granted without regard to the concept of nationality adopted in international relations. Naturalization was asked for not so much for the purpose of obtaining a legal recognition of Nottebohm’s membership in fact in the population of Liechtenstein, as it was to enable him to substitute for his status as a

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NOTTEBOHM CASE (LIECHTENSTEIN V. GUATEMALA) (cont.) national of a belligerent State [Germany] that of a national of a neutral State [Liechtenstein], with the sole aim of thus coming within the protection of Liechtenstein. Guatemala is under no obligation to recognize a nationality granted in such circumstances. Liechtenstein consequently is not entitled to extend its protection to Nottebohm vis-à-vis Guatemala.

The ICJ dismissed Liechtenstein’s claim filed on behalf of Nottebohm. He was a citizen of Liechtenstein under its national law. Under international law, however, Liechtenstein could not confer its citizenship on Nottebohm for the purpose of requiring other countries to treat him as if he were a citizen of Liechtenstein. As a result, Guatemala could appropriately characterize Nottebohm as a German citizen – remaining free to apply its discriminatory laws against the citizen of a country with which Guatemala was at war. The court never decided the merits of this claim regarding Guatemala’s alleged mistreatment of Nottebohm. He was not represented by a country with which he had the effective link of nationality. Liechtenstein therefore did not have the legal capacity to bring this claim. Only Germany possessed the right to question Guatemala’s discriminatory treatment of Nottebohm, which it did not invoke during or after the war. But the Nottebohm case is often cited for its restatement of the factors for assessing international recognition of naturalization by another state: residence, center of interests, family ties, participation in public life, and attachment shown for a particular state. Citizenship can be bought in some places, which seems to fly in the face of Nottebohm. Several tiny Caribbean islands have schemes under which passports can be obtained for a price: St. Kitts and Nevis, St. Lucia, Antigua and Barbuda, Dominica, and Grenada all offer citizenship for a few hundred thousand dollars and sizable investments. Citizenship can even be bought in some European countries (e.g., Portugal, Malta), though the price rises to the millions of dollars.121 In these countries, responsibilities as a citizen are considered fulfilled by a donation in exchange for citizenship. The time it 121

L. B. Bloom, “Want to Escape from America? 12 Countries Where You Can Buy Citizenship,” Forbes (July 28, 2020) www.forbes.com/sites/laurabegleybloom/2020/07/28/ escape-america-countries-buy-citizenship-second-passport/#7ce0704f7f74 accessed May 3, 2022.

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takes for an application to be processed and a passport issued varies from a few months to a few years, depending on the country.

6.1.4

Dual Nationality

A dual national possesses the citizenship of more than one state. An individual may: (1) be born in a state that applies the jus soli rule of automatic nationality by birth; and (2) simultaneously acquire the parents’ citizenship when their home state applies the jus sanguinis rule that the nationality of the parents trumps the birth location. Once discouraged, dual and even multiple nationalities are becoming more normal – and states are now accommodating their increasingly mobile populations with benefits like absentee voting and the extension of benefits and consular protections.122 As Harpaz and Mateos note, nationality has become “non-exclusive and non-territorial,” and even “strategic”: Responding strategically to their position within a global constellation of citizenship opportunities, individuals may now use dual citizenship to secure new opportunities for social and physical mobility. The strategic citizenship approach posits that in many cases, citizenship acquires the value that is independent of the place of residence. A second passport may carry a wide range of potential uses: asset building, an exit strategy, risk diversification, intergenerational wealth transmission, family protection, welfare benefits, increased opportunities, tax avoidance and other uses.123

Dual or multiple nationality is an option given by those states that allow their nationals to emigrate and acquire a new nationality without forfeiting their original citizenship status. In 2020, Norway joined the growing number of countries promoting dual nationality. In the early months of the new Norwegian law, applications for citizenship in this wealthy, stable country skyrocketed, despite the fact that Norway still has fairly steep citizenship requirements that have not been diminished. New dual citizens – who need not relinquish their citizenship in their first country – must be residents of Norway for seven years and be proficient in Norwegian.124

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123 124

As summarized in Y. Harpaz and P. Mateos, “Strategic Citizenship: Negotiating Membership in the Age of Dual Nationality,” Journal of Ethnic and Migration Studies 45 (2019): 843. Ibid., 849. For official citizenship requirements, see www.udi.no/en/word-definitions/dual-citizenship/ accessed May 3, 2022.

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An individual may encounter some unusual burdens as a result of dual nationality. One of them is being subject to the jurisdiction of two countries, each of which considers that person its national. Each nation might then command that individual to return, such as when his or her testimony is needed. Both nations may wish to tax the income of such individuals or press them into military service. It is also entirely possible that the states to which an individual claims to belong have laws that conflict, putting the individual in a difficult situation. Such individuals may not be able to predict which state will protect them if they are harmed in a third state – or by the other state of which they are a citizen. For example, a famous international arbitration decision (the Canevaro case, 1949) denied Italy the right to espouse a claim on behalf of an Italian citizen born of Italian parents. He was an Italian national under the law of Italy. He was Peruvian, however, by birth. The tribunal refused to recognize Italy’s attempt to bring a claim on his behalf against Peru. As described earlier, various attributes flow from the bond of nationality between a state and its citizens who happen to be abroad. An individual’s home state may be expected to provide diplomatic protection in a dispute involving mistreatment of the individual by another nation that considers that person an alien. Here, Peru was in the awkward position of purporting to protect a Peruvian national against action taken by Italy for this dual national who was also an Italian citizen.125 Another problem with dual nationality is the potential for expulsion during time of war. Ethiopia expelled a large number of Ethiopian nationals who obtained Eritrean citizenship, for example, after the Eritrean portion of Ethiopia became independent – followed by a war between these two countries. Ethiopia thus deprived them of their Ethiopian nationality. International law does not permit a nation to arbitrarily deprive its citizens of their nationality. Eritrea therefore sought relief from Ethiopia in the Permanent Court of Arbitration in The Hague. The Eritrea–Ethiopia Claims Commission therein rejected Eritrea’s claim. International humanitarian law gives belligerents the power to expel nationals of the enemy state during times of conflict. Thus: Ethiopia lawfully deprived a substantial number of dual nationals of their Ethiopian nationality following identification through Ethiopia’s security committee process. Ethiopia could lawfully expel these persons as

125

Canevaro Case (Italy v. Peru), 2 Reports of International Arbitral Awards 397 (1949).

6 Individuals in International Law nationals of an enemy belligerent, although it was bound to ensure them the protections required by Geneva Convention IV and other applicable international humanitarian law. Eritrea’s claim that this group was unlawfully expelled is rejected.126

Some multilateral treaties have attempted to ameliorate the adverse impact of dual citizenship although they have accomplished little. For example, the 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws was the first multilateral treaty to address dual nationality.127 While it restates the basic nationality rules already discussed, none of its provisions resolves the dilemma posed for the individual dual national when two nations claim that person as their citizen. Some relief was available via the wording of the 1930 Hague Protocol Relating to Military Obligations in Certain Cases of Double Nationality.128 This treaty provides a model for avoiding competing military service claims in the case of dual nationals. If it had been adopted by a sufficient number of countries, it would have eliminated double military service for individuals who were dual nationals. Additionally, the 1964 Paris Convention Concerning the Exchange of Information with Respect to Acquisition of Nationality was designed to assist dual nationals. While useful for the purpose of acquiring information, none of its provisions addresses inconsistent obligations for dual nationals.129 The most effective device for avoiding inconsistent burdens remains a bilateral treaty that specifically addresses dual nationality issues. The classic problem emerges when two states draft an individual into their respective armies. The Netherlands–Belgian Agreement of 1954, for example, concerning the military service of young men possessing both Belgian and Netherlands nationality, is a good illustration of international cooperation. It avoids the potential unfairness of having to serve in two armies just because an individual is a dual national. Military service for one nation automatically precludes military service obligations in another nation.130

126

127 128

129

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Eritrea Ethiopia Claims Commission, Civilians Claims – Eritrea’s Claims 15, 16, 23 and 27–32, para. 82 (December 17, 2004) https://pca-cpa.org/en/cases/71/ accessed May 3, 2022. Convention of April 12, 1930, League of Nations Treaty Series 179 (1938): 89. Protocol of April 12, 1930, League of Nations Treaty Series 178 (1937): 227. Note: this series does not report all treaties in chronological order. See K. Sik, “The Netherlands and the Law Concerning Nationality,” in K. Sik et al, eds., International Law and the Netherlands (Alphen aan den Rijn: Sijtoff & Noordhoff, 1980), 3, 7. Exchange of Notes at The Hague of June 9, 1954, 216 UNTS 121 (1955).

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6.2

Statelessness

Individuals are stateless when they lack the nationality of any state. Loss of one’s original citizenship that is typically conferred by birth or parentage – without obtaining a new citizenship – renders the individual stateless. Such individuals cannot claim the bond of citizenship with any state to protect them. There is no state to come to the aid of an individual in need of diplomatic representation. During and after both world wars, numerous people became stateless. Many were refugees who lost their citizenship after fleeing from their native lands. They were not citizens of the state where they had found temporary refuge. Many fled certain Eastern European countries to avoid political persecution only to find that they had been deprived of their original citizenship for doing so. But the phenomenon of statelessness is not limited to the two world wars. Many refugees fled Cuba in the 1960s, and Vietnam in the 1970s, because of political persecution. They lost their citizenship as a result of their decision to flee. They were stateless before they underwent any naturalization proceedings in the countries where they found temporary or permanent refuge. More recently, massive voluntary and involuntary migration due to economic uncertainty and war has left many people without homes to return to and, in some cases, without states to protect them. The ongoing conflict in Syria provides an illustration: One of the many problems Syrian refugees face is statelessness. Children of refugees from countries such as Syria can often be born stateless, as the child is born outside the parent’s country, and nationality laws do not allow the mother’s citizenship to be passed to the child. Additionally, the parents may be unable to bring documentation from Syria, making it difficult to register the birth of their child in another country. Without such documentation, the child may never be registered and thus may be denied access to basic services, including healthcare. While lacking documentation alone does not make a child stateless, without proof of birth or identity of parents, the child has a significantly higher risk of being stateless.131

The significance of statelessness is that affected individuals encounter great difficulty in traveling and obtaining work. The absence of identity documents, like a birth certificate or passport, typically precludes an alien from entering or working in most countries. It can materialize in very charged contexts, such as the sensitive Olympic dispute involving Cuba and the US.

131

D. Howard, “Analyzing the Causes of Statelessness in Syrian Refugee Children,” Texas International Law Journal 52 (2017): 284.

6 Individuals in International Law

PEREZ V. INTERNATIONAL OLYMPIC COMMITTEE Court of Arbitration for Sport, Ad Hoc Division: Sydney Olympic Games, Case Arbitration No. Syd 5 (September 19, 2000) [Excerpted case available at www.cambridge.org/FPIL7]

International organizations have attempted to alleviate the problems caused by statelessness. In 1921, the League of Nations established the Office of the High Commissioner of Refugees in response primarily to people made stateless by the Russian Revolution of 1917. Members of the UN would later establish the UN Relief and Rehabilitation Administration to deal with the statelessness resulting from World War II. Several treaties therefore address, but have yet to resolve, this recurring problem. The goal of the 1930 Hague Protocol Concerning Statelessness was to provide nationality to those deprived of it because of political dissension or military conflict. This draft treaty never became effective because too few states ratified it. The 1948 Universal Declaration of Human Rights, although not a binding treaty, nevertheless established a moral obligation that discourages UN member states from intentionally creating statelessness. The 1948 Declaration of Human Rights thus articulated the UN’s aspiration for comprehensive post-World War II nationality laws. Article 15.1 provides: “Everyone has the right to a nationality.” Article 15.2 follows with its ambitious call for a world wherein “[n]o one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.” Several other treaties are worth mentioning here for their attempts to ensure nationality for various groups of people: the UN Convention on the Reduction of Statelessness (1975) obliges its signatories to grant their citizenship to stateless people who are willing recipients and found within their borders; additionally, it removes the state discretion to deprive inhabitants of citizenship except on grounds that are not associated with race, religion, and political beliefs. The Convention on the Rights of the Child (1989) provides that a birth certificate is a child’s primary right because it is evidence of an official identity and nationality. The European Convention on Nationality (1997) prohibits the arbitrary withdrawal of nationality and eases the path for acquiring a new one. The ILC’s Draft Articles on Nationality of Natural Persons in Relation to the Succession of States (1999) provides: “Every individual who, on the date of the succession of States, had the nationality of the predecessor State, irrespective of the mode of acquisition of that

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nationality, has the right to the nationality of at least one of the States concerned, in accordance with the present draft articles.”132

6.3

Refugees

State treatment of refugees is a problem that overlaps with statelessness and many areas of human rights. The plight of refugees is a predicament that has received much attention due to two world wars, as well as the more recent crises related to wars in the Middle East combined with economic crises in Africa and Latin America. Shortly after World War II, it was evident that refugee problems had not ended – and in many cases, they had just begun. The number of refugees has grown tremendously, with the UN estimating that over 80 million people have been forced from their homes by mid-2021.133 If Anne Frank exemplified the difficulties faced by refugees in World War II, the tiny body of three-year old Aylan Kurdi washed up on the shores of Turkey is the portrait of more recent refugee sorrows.134 Who are refugees under international law? The 1951 Refugee Convention and its related protocols do three things to answer this question. They define refugees, determine their legal status, and provide the administrative and diplomatic machinery for implementing protective treaty provisions. Article 1.A.(2) of the 1951 Refugee Convention defines a refugee as any person who “owing to [a] well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable, or . . . unwilling to return to it.” The objective of refugee law is to establish and maintain the fundamental rights of the individual. The primary job of the UN High Commissioner for Refugees – established in 1950 by a General Assembly resolution – is to promote, organize, and supervise international protection for refugees who

132 133

134

Article 1, Right to a Nationality, UN Doc. A/CN.4/L.573 (May 27, 1999). United Nations High Commissioner for Refugees, “Refugee Data Finder,” www.unhcr.org/ refugee-statistics/ accessed May 3, 2022. The famous photo of Kurdi’s body made the plight of Syrian refugees attempting a dangerous escape to Europe via the Mediterranean Sea painfully clear. For more details about Kurdi’s family’s attempts at escape as well as the story behind the boy’s death at sea, see H. Smith, “Shocking Images of Drowned Syrian Boy Show Tragic Plight of Refugees,” The Guardian, September 2, 2015.

6 Individuals in International Law

lack national protection.135 The former Commissioner, Guy Goodwin-Hill, captured the spirit of this objective: As was the case with some of the inter-war arrangements, the objective of the 1951 Convention and the 1967 Protocol is to both establish certain fundamental rights . . . and to prescribe certain standards of treatment. The refugee may be stateless and therefore, as a matter of law, unable to secure the benefits accorded to nationals of his or her country of origin. Alternatively, even if nationality is retained, the refugee’s unprotected status can make obtaining such benefits a practical impossibility. The Convention consequently proposes, as a minimum standard, that refugees should receive at least that treatment which is accorded to aliens generally.136

Refugee issues resurfaced with a renewed fury after the Cold War, in Bosnia, Rwanda, and Kosovo, and again in 2015 with the massive influx of refugees into Europe and North Africa as a consequence of the wars in Syria and Afghanistan. These sad situations have come to exemplify the individual’s traditionally passive role in international law. They have also underscored some of the weaknesses of the 1951 Refugee Convention, and highlight some of the major issues that remain unresolved for refugees, such as the plight of their families who may wish to join them later or the unique situation of internally displaced people (IDPs) – individuals who have been forced from their homes but who still live within their home country.137 For example, families of refugees are not explicitly addressed in the 1951 Refugee Convention, but state practice has evolved to consider them as part of refugee rights, even among states that did not sign on to the Convention or the 1967 Protocol. Additionally, regional human rights conventions echo the importance of the family unit and family unity. 138

135

136

137

138

S. Kanako, “Genuine Protection of International Refugees: A Study of the Influence of Western States on the Mandate of the UNHCR,” in B. Chimni, M. Masahiro, and S. Subedi, eds., Asian Yearbook of International Law 11 (2006): 89. G. Goodwin-Hill, The Refugee in International Law, 2nd ed. (Oxford: Clarendon Press, 1996), 298. UN High Commissioner for Refugees, “Global Trends in Forced Displacement,” www.unhcr .org/globaltrends2018/ accessed May 3, 2022. F. Nicholson, “The Right to Family Life and Family Unity of Refugees and Others in Need of International Protection and the Family Definition Applied,” United Nations High Commissioner for Refugees, Division of International Protection (2018) www.unhcr.org/ cgi-bin/texis/vtx/search?comid=3e5210567&cid=49aea9390&tags=PPLA accessed May 3, 2022.

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6.3.1

Non-refoulement: Refugee Convention Ambiguity?

The principle of non-refoulement – from the French phrase for not returning a refugee to a country where they will likely face persecution or death – is perhaps the most ambiguous part of the 1951 Refugee Convention and Protocol. Article 33.1 provides as follows: No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.139

Case studies help to illustrate the lack of clarity in this article. In 1991, a group of military leaders displaced the government of Jean-Bertrand Aristide, the first democratically elected president in the history of the small island state of Haiti. Haitians fled the country in large numbers, often on rickety, overflowing boats bound for the US. Following the coup, the US Coast Guard suspended repatriations for a period of several weeks and the US imposed economic sanctions on Haiti. In the meantime, the Haitian exodus expanded dramatically. During the next six months, the Coast Guard interdicted more than 34,000 Haitians. Because so many of them could not be safely processed on Coast Guard cutters, the Department of Defense established temporary facilities at the US Naval Base in Guantánamo, Cuba, to accommodate them during the screening process. In May 1992, the US Navy determined that no additional migrants could safely be accommodated at Guantánamo. This set the stage for the US action that could be interpreted as a violation of international law. President Clinton directed the Coast Guard to intercept vessels illegally transporting passengers from Haiti to the US and to return those passengers to Haiti without first determining whether they may qualify as “refugees” under the 1951 UN Refugee Convention. This reaction posed the question of whether such forced repatriation to Haiti violated the US Immigration and Nationality Act (INA) and Article 33 of the UN Protocol Relating to the Status of Refugees. The US Immigration Act was supposedly amended to codify the US treaty commitment under the 1951 Refugee Convention. The treaty gap that triggered this litigation involved how to apply the term “return.”140 Did the French-language treaty term refouler broadly require a

139

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“Convention Related to the Status of Refugees,” opened for signature July 28, 1951, UNTS I-2545, https://treaties.un.org/doc/Treaties/1954/04/19540422%2000-23%20AM/Ch_V_ 2p.pdf accessed May 3, 2022. See H. Kahn, “Legal Problems Relating to Refugees and Displaced Persons,” in Hague Academy of International Law, Recueil des Cours 149 (1976): 287, 318.

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determination of refugee status for all returns, even on the high seas – or just those returns occurring after the asylum seeker arrived within the territory (or territorial waters) of a state that is a party to the 1951 Refugee Convention? The text and the history of the US legislation, like that of Article 33 of the UN Convention, are completely silent on the applicability of returns undertaken outside territorial borders or waters. The drafters of the 1951 Convention and the parties to the companion Protocol – like the drafters of the conforming 1980 US immigration law amendment – apparently did not contemplate that any state would ever gather fleeing refugees and then return them to the very country from which they desperately sought to escape. The plight of these Haitian refugees eventually reached the US Supreme Court. The Haitians argued that the 1967 Protocol’s broad remedial goals prohibit a nation from repatriating refugees to their potential oppressors – whether or not the refugees are the objects of the US return within or beyond US territory. But the Supreme Court majority in Sale v. Haitian Centers Council (1993) found that no treaty can impose uncontemplated extraterritorial obligations on those who ratify it, regardless of the general humanitarian intent of the treaty. Because the text of Article 33 did not authorize a signatory’s “returns” outside of its territory, it could not be interpreted to prohibit such actions.141 The majority decision was not universally supported. Louis Henkin, then president of the American Society of International Law, remarked: the Supreme Court has adopted an eccentric, highly implausible interpretation of a treaty. It has interpreted those treaties . . . not as other state parties would interpret them, not as an international tribunal would interpret them, [and] not as the US Supreme Court would have interpreted them earlier in our history when the justices took the law of nations seriously, when they appeared to recognize that in such cases US courts were sitting in effect as international tribunals.142

The Court’s decision in this case led to a multitude of new questions. Did the Court’s majority effectively violate the “spirit” of the Article 33 “refouler” provision? Did the US Supreme Court majority’s restrictive interpretation of the treaty’s refoulement provision violate US obligations under the Refugee Convention? Alternatively, should such situations be left to the discretion of

141 142

Sale v. Haitian Centers Council, 509 U.S. 155 (1993). Further analysis of Professor Henkin’s point is available in M. Rogoff, “Interpretation of International Agreements by Domestic Courts and the Politics of International Treaty Relations: Reflections on Some Recent Decisions of the United States Supreme Court,” American University Journal of International Law and Policy 11 (1996): 559.

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each state to apply either a broad or a narrow construction? Should the treaty be amended to clarify this point? If so, would there be a danger in reopening the treaty to national interpretations which could water down what rights are already expressed in the Convention and Protocol? Such questions persist, as illustrated below. Between 2007–2009, Italy and Libya concluded several agreements to repel unauthorized immigration from the sea. Italy’s policy was to return undocumented migrants and asylum seekers who had crossed the Mediterranean Sea (from Italy back to Libya). Many boats were intercepted on the high seas – a preview, in many ways, of what was to come with the European migrant crisis in 2015. In the early 2000s, passengers were taken back to Libya without a prior individualized assessment of their immigration situation or asylum hearings. In 2012, the ECtHR issued a monumental ruling that Italy had violated the European Convention on Human Rights (ECHR). Its unanimous decision held that Italy had breached its obligation to protect these applicants from torture and inhuman or degrading treatment, as well as the prohibition of collective expulsion of non-nationals. The Grand Chamber of the Court also awarded each applicant €15,000 in compensation.143 The significance of this case is that the applicants never entered Italian territorial waters – thus resolving (for Europe) the question of whether the Refugee Convention applies on an extraterritorial basis.

CASE OF HIRSI JAMAA AND OTHERS V. ITALY European Court of Human Rights, Application No. 27765/09, Judgment (February 23, 2012)

72. In keeping with the essentially territorial notion of jurisdiction, the Court has accepted only in exceptional cases that acts of the Contracting States performed, or producing effects, outside their territories can constitute an exercise of jurisdiction by them within the meaning of Article 1 of the Convention. ... 74. Whenever the State through its agents operating outside its territory exercises control and authority over an individual, and thus jurisdiction, the State is under an obligation under Article 1 to secure

143

Case of Hirsi Jamaa and Others v. Italy, ECHR Application No. 27765/09.

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CASE OF HIRSI JAMAA AND OTHERS V. ITALY (cont.) to that individual the rights and freedoms under Section 1 of the Convention that are relevant to the situation of that individual . . . 75. There are other instances in the Court’s case-law of the extraterritorial exercise of jurisdiction by a State in cases involving the activities of its diplomatic or consular agents abroad and on board craft and vessels registered in, or flying the flag of, that State. In these specific situations, the Court, basing itself on customary international law and treaty provisions, has recognised the extra-territorial exercise of jurisdiction by the relevant State. ... 77. The Court observes that by virtue of the relevant provisions of the law of the sea, a vessel sailing on the high seas is subject to the exclusive jurisdiction of the State of the flag it is flying. This principle of international law has led the Court to recognise, in cases concerning acts carried out on board vessels flying a State’s flag, in the same way as registered aircraft, cases of extra-territorial exercise of the jurisdiction of that State (see paragraph 75 above). Where there is control over another, this is de jure control exercised by the State in question over the individuals concerned. ... 79. Moreover, Italy cannot circumvent its “jurisdiction” under the Convention by describing the events at issue as rescue operations on the high seas. In particular, the Court cannot subscribe to the Government’s argument that Italy was not responsible for the fate of the applicants on account of the allegedly minimal control exercised by the authorities over the parties concerned at the material time. ... 81. The Court observes that in the instant case the events took place entirely on board ships of the Italian armed forces, the crews of which were composed exclusively of Italian military personnel. In the Court’s opinion, in the period between boarding the ships of the Italian armed forces and being handed over to the Libyan authorities, the applicants were under the continuous and exclusive de jure and de facto control of the Italian authorities. Speculation as to the nature and purpose of the intervention of the Italian ships on the high seas would not lead the Court to any other conclusion.

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7 States and Foreign Nationals Early in this chapter we discussed state responsibility for wrongdoing. This final section of this chapter continues that discussion and connects it to individuals. Specifically, this section addresses state responsibility to foreign nationals (also sometimes referred to as “aliens”), who may work, travel, do business, or even live in states of which they are not citizens. The development of the law of state responsibility for injury to foreign nationals had its roots in the writings of one of the foremost commentators of the eighteenth century. Emmerich de Vattel expressed this theme in his influential book on the law of nations: 71. . . . Private persons who are members of one nation, may offend and illtreat the citizens of another, and may [thus] injure a foreign sovereign . . . Whoever uses a [foreign] citizen ill, indirectly offends the state, which is bound to protect this citizen; and the sovereign of the latter should avenge his wrongs, . . . since otherwise the citizen would not obtain the great end of the civil association, which is, safety. 72. But . . . the nation or the sovereign ought not to suffer the citizens to do an injury to the subjects of another state, much less to offend that state itself: and this, not only because no sovereign ought to permit those who are under his command to violate the precepts of the law of nature, which forbids all injuries – but also because nations ought mutually to respect each other, to abstain from all offence, from all injury, from all wrong . . . If a sovereign, who might keep his subjects within the rules of justice and peace, suffers them to injure a foreign nation either in its body or its members, he does no less injury to that nation than if he injured it himself. In short, the safety of the state, and that of human society, requires this attention from every sovereign. If you let loose the reins to your subjects against foreign nations, these will behave in the same manner to you; and, instead of that friendly intercourse which nature has established between all men, we shall see nothing but one vast and dreadful scene of plunder between nation and nation.144

His articulation was adopted by many international tribunals and commentators as the rationale for recognizing state responsibility for injury to aliens. The US Supreme Court, for example, has cited Vattel as the authoritative source of the law of nations.145 144

145

E. Vattel, The Law of Nations II (New York: Oceana, 1964) (translation of original 1758 edition), available at: www.loc.gov/rr/frd/Military_Law/Lieber_Collection/pdf/DeVattel_ LawOfNations.pdf accessed May 3, 2022. United States Steel Corp. v. Multistate Tax Commission, 434 U.S. 452, 463 n. 12 and n. 13 (1978).

7 States and Foreign Nationals

This branch of state responsibility relied on the internal tort law applied by many states. Tort law governs civil wrongs by an individual for unreasonable conduct that harms another individual. If someone takes the property of another without justification, that person is liable under the internal tort law of many nations. Writers and jurists believed that a state should be similarly liable when its unreasonable acts or omissions harmed aliens. Such protection was necessary because national law typically insulated the state from the claims of its own citizens. Several attempts have been made to codify the law of state responsibility for injuries to foreign individuals and corporations.146 The first was the 1929 Draft Convention on Responsibility of States for Damage Done on Their Territory to the Person or Property of Foreigners.147 However, one of the most extensive presentations of the law of state responsibility toward aliens was published in 1961: the Draft Convention on the International Responsibility of States for Injury to Aliens. This convention exemplifies the developed state view that underdeveloped states have a significant interest in importing foreign investment and technological assistance and can profit by the just treatment of foreign corporations and employees. The dominant perspective is that both developed and lesser-developed states should encourage the fair and non-discriminatory treatment of their citizens while abroad.

7.1

Categories of Injury

What specific state conduct triggers responsibility for injury to aliens? Classification is not exactly an easy task. But customary violations may be stated with comparative ease: 1. non-wealth injuries; 2. denial of justice, including what is sometimes characterized as separate subcategories of wrongful arrest and detention, and lack of due diligence; 3. confiscation of property; and 4. deprivation of livelihood.

7.1.1

Non-Wealth Injuries

This form of state responsibility evolved from the unreasonable acts or omissions of state agents, which caused death or physical injury to foreign 146 147

Note that corporations are addressed in Chapter 11. The Law of Responsibility of States for Damage Done in Their Territory to the Person or Property of Foreigners, American Journal of International Law 23, Special Supplement 131 (1929): 131–239.

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citizens. A 1983 report by the Panel on the Law of State Responsibility of the American Society of International Law defined non-wealth injury as “an injury inflicted by a State upon an alien either 1. directly through some act or omission causing physical or other personal injury to or the death of an alien, or 2. indirectly through some failure to act, including the failure under certain circumstances to prevent injury inflicted by another party, the failure to provide the injured alien with an effective remedy, or the failure to pursue, prosecute, and punish the responsible party.”148 This category of harm is distinguished from the other types of state responsibility by its physical attributes. While a non-wealth injury can have economic consequences, the harm is not directed at the victim’s pocketbook. In October 1965, for example, Indonesian army forces conducted a campaign directed at Chinese nationals in Indonesia. Chinese citizens were beaten, arrested without cause, and murdered. In addition, Indonesia’s army issued permits allowing civilians to demonstrate for the purpose of persecuting Chinese nationals. The Chinese government sought and received assurances from Indonesia’s central government that this violence would end. Had the Indonesian government refused the Chinese demands, it would have incurred further responsibility for physical non-wealth injuries to China’s nationals.

7.1.2

Denial of Justice

A state’s discriminatory application of its domestic laws to a foreign citizen (alien) is described as a “denial of justice.” Essentially, this occurs when the standard procedures of justice that apply to the benefit of a local citizen are withheld from an alien. The doctrine was once an often-used pretext for foreign intervention in other states to supposedly protect the rights of their own citizens. Currently, there is no uniform definition of the term “denial of justice.” National and international tribunals have nevertheless found a denial of justice in countless cases.149 There are some limitations, however. In Latin American states, a denial of justice can occur only when the state has completely refused access to its courts – or its courts will not take the necessary steps to render a decision. The regional perspective is that there can never be a denial of justice based on the quality or unsatisfactory nature of the procedures used by the tribunal when it is deciding an alien’s claim. If 148

149

G. Yates, “State Responsibility for Nonwealth Injuries to Aliens in the Postwar Era,” in R. Lillich (Reporter), International Law of State Responsibility for Injuries to Aliens (Charlottesville, VA: University Press of Virginia, 1983), 213, 214. The classic articulation is available in O. Lissitzyn, “The Meaning of the Term ‘Denial of Justice’ in International Law,” American Journal of International Law 30 (1936): 632.

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there is some access to some tribunal that will ultimately decide the particular matter, then a foreign citizen cannot complain about the quality of justice although different procedures apply in his or her own home state.150 Paulsson, however, insists that the current denial-of-justice doctrine is more narrow and thus less ambiguous. Any substantive unjust outcome of a case brought by a foreign citizen in the legal system of a state would not now be called a “denial of justice” as before, but rather constitute a breach of other international legal obligations. In this situation, the state could be held liable under the broader “state responsibility” doctrine. In his words, “[d]enial of justice is always procedural.”151 7.1.2.a International Minimum Standard (IMS) A subcategory of denial of justice is the unreasonable arrest and detention of an alien. Incarceration is thereby unlawful (under international law) when it discriminates against aliens. States must not unreasonably depart from generally accepted confinement procedures. An arresting state would be liable if it failed to give a reason for the arrest or detention of an alien defendant or if trial were delayed for an unreasonable time after arrest. Can a state incur liability for a denial of justice when it treats foreign citizens in the same way that it treats its own citizens? A variation on the denial-of-justice theme arises when a state treats a foreign citizen in a substandard way and then defends on the basis of equal treatment of all individuals in the same circumstances. This problem triggers the daunting question of whether there is an IMS below which no state may fall in its treatment of all individuals including its own citizens. The comparatively poor treatment of individuals is not discriminatory as long as there is no discrimination against aliens. Both foreign and local citizens are subjected to the same type of (bad) treatment. If an IMS does exist, however, that state would not be able to use equality of treatment to justify falling below the IMS regarding the treatment of both foreign and local citizens. The historical maturation of such a standard has been limited by economic and political differences between developed and developing states. What is probably the most definitive (and equally broad) statement defining the IMS was made by US Secretary of State Elihu Root in 1910: Each country is bound to give to the nationals of another country in its territory the benefit of the same laws, the same administration, the same protection, and 150

151

Latin American perspective: I. Puente, “The Concept of ‘Denial of Justice’ in Latin America,” Michigan Law Review 43 (1944): 383. Jan Paulsson, Denial of Justice in International Law (Cambridge: Cambridge University Press, 2005), 98.

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2 States and Individuals the same redress for injury which it gives to its own citizens, and neither more nor less: provided the protection which the country gives to its own citizens conforms to the established standard of civilization. There is [however] a standard of justice very simple, very fundamental, and of such general acceptance by all civilized countries as to form a part of the international law of the world. The . . . system of law and administration shall conform to this general standard. If any country’s system of law and administration does not conform to that standard, although the people of the country may be content to live under it, no other country can be compelled to accept it as furnishing a satisfactory measure of treatment of its citizens.152

An IMS has been uniformly asserted in the following circumstances: the complaining state asserts that the responsible state departed from generally accepted standards of justice for the latter’s treatment of all individuals, both foreign and domestic. The responding state typically counters its actions by relying on the “national treatment” standard set forth in the 1933 Montevideo Convention on Rights and Duties of States (ratified mostly by Latin American nations). A foreign citizen is thereby entitled to no better treatment than the local citizens of the responding state. Equal treatment of local and foreign nationals precludes any international liability for injury to an alien. There is no clear consensus about the existence or scope of the IMS, partially because of the comparative economic positions of the states usually involved in these controversies. One of the few but enlightening cases applying the so-called IMS is the following 2003 North American Free Trade Agreement (NAFTA) panel case.

IN THE PROCEEDING BETWEEN THE LOEWEN GROUP, INC. AND R. L. LOEWEN (CLAIMANTS) AND UNITED STATES OF AMERICA (RESPONDENT) International Centre for Settlement of Investment Disputes, June 26, 2003, Case No. ARB(AF)/98/3 [Excerpted case available at www.cambridge.org/FPIL7]

152

E. Root, “The Basis of Protection to Citizens Residing Abroad,” Proceedings of the American Society of International Law 4 (Washington, DC: American Society of International Law, 1910), 20–21.

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7.1.2.b Lack of Due Diligence A state may incur responsibility under international law although the principal actor is not an agent of the state. A state’s failure to exercise due diligence to protect a foreign citizen is wrongful if the unpunished act of a private individual is a crime under the laws of that state (or generally recognized as criminal conduct elsewhere in the principal legal systems of the world). Responsibility then arises under international law if that state fails to apprehend or control the individual who has committed the crime against the foreign citizen. A famous example is the 1979 storming of the US embassy in Iran by Iranian citizens. Iran’s leader denied that his government had arranged for them to storm the embassy and take US citizens hostage because they were foreign citizens from a disfavored nation. Iran nevertheless incurred state responsibility for failing to take any action to stop the crowds from stampeding the persons and property of these foreign citizens. A more common example of such state responsibility is the indifference of lower-echelon officials in circumstances where a local citizen would be given prompt assistance. States are expected to control such officials when they act, or fail to act, in a way that would protect a local citizen and thus unreasonably discriminate against an alien who does not receive like treatment.

7.1.3

Confiscation of Property

There is a significant conflict between traditional Western expectations and contemporary non-Western models, regarding whether either international law or host state law should apply. The state generally possesses inherent power over persons and things within its borders. It may thus nationalize property belonging to foreigners (and local citizens). But under the traditional Western view, a nationalization must be undertaken for a “public” purpose. It must also be accompanied by “prompt, adequate, and effective” repayment for the property taken by the government.153 There is no public purpose when the government takes property that merely adds to the personal holdings of a dictator. Providing some compensation does not mean that the compensation is adequate. A nationalization violates the Western-derived formula if the terms of the compensation are less favorable than those provided to citizens of the host state, or the amount of compensation is below the fair market value of the property. 153

This formulation appears in the diplomatic notes exchanged between Mexico and the US in 1938. See American law Institute, Restatement (Third) of the Law of the Foreign Relations Law of the United States 2 (St. Paul: ALI Publishers, 1987), section 712 for extensive commentary and examples.

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In a case with major immense political undertones, Fidel Castro orchestrated the revolutionary takeover of Cuba in 1959. The US subsequently imposed a quota on the amount of Cuban sugar importable into the US. Castro characterized the US sugar quota as an act of “aggression, [done] for political purposes.” The Cuban government then nationalized the sugar interests of US individuals and corporations, but not of Cuban-owned sugar interests. Cuba was willing to pay for the nationalized sugar interests in its own government bonds – payable twenty years later, at a rate of interest well below that of similar bonds. This type of compensation was legal under the laws of Cuba. The US Department of State viewed it as inadequate, however, referring to it as “manifestly in violation of those principles of international law which have long been accepted by the free countries of the West. It is in its essence discriminatory, arbitrary and confiscatory.” Payment in longterm bonds, at a comparatively low rate of interest, was neither prompt nor adequate. The State Department claimed that Cuba’s purpose was discriminatory because Cuba took US property as a political response to the US import quota imposed on Cuban sugar.154

7.1.4

Deprivation of Livelihood

Another category of state responsibility for injury to aliens is the unreasonable deprivation of a foreign citizen’s ability to enjoy a livelihood. The withdrawal of his or her ability to continue practicing a certain occupation is an unacceptable deprivation if done for a discriminatory purpose. The US Supreme Court case of Asakura v. City of Seattle is a useful illustration. Under a treaty between Japan and the US, the citizens of both countries were entitled to enjoy equal employment rights with the citizens of each country. The city of Seattle subsequently passed a pawnbroker ordinance providing that “no such license shall be granted unless the applicant be a citizen of the United States.” The Court determined that this ordinance “makes it impossible for aliens to carry on the business. It need not be considered whether the State, if it sees fit, may forbid and destroy business generally. Such a law would apply equally to aliens and citizens . . . .” The ordinance improperly discriminated against aliens in violation of the treaty specifically providing for equal treatment of Japanese citizens working in the United States. If the court had ruled against the plaintiff Japanese pawnbroker who challenged the ordinance, the US would have incurred state responsibility for depriving foreign citizens of a livelihood during peacetime.155 154 155

Facts and quotes appear in Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964). 265 U.S. 332 (1924).

Thinking Ahead

Thinking Ahead The opening paragraphs of this chapter detail the complicated situation of Hong Kong, a city that has been transferred between two powerful states with two different systems of government. The concepts presented in this chapter put a sharper point on the problems Hong Kong faces. China could aggressively act to fold Hong Kong completely into Beijing’s orbit before the 2047 end date, eliminating any traces of democratic governance the city has developed while it was a UK possession and since the UK returned it to China. If this happens, will other states recognize China’s actions in defiance of the agreement it made with the UK in 1997? In the meantime, who is responsible for protecting citizens in Hong Kong who are detained by Chinese officials? These are questions of interpretation of international law with no easy answers. The state and the individual have a close relationship, as this chapter demonstrates. The state, imbued with the rights and responsibilities of sovereignty, impacts the lives of those within it in innumerable ways, and changes in state status can lead to massive changes related to nationality and citizenship. When a state decides when, and if, to recognize a new state or government, that decision is not only political, but also personal. While it is tempting to think of the state in purely legal terms, it is important to recognize that it is not just a concept: it is also a home. The next chapter delves into the business of states in international law – treaties – and the people who carry it out – diplomats. States have the power to enter into relationships with other states via treaties. When they do, they are restricting their own sovereignty in order to achieve some goal. Treaties are promises between states, guarantees of predictable behavior made by professional diplomats who enjoy protections of the state they represent. As we explore in the pages that follow, international law requires that promises be kept. Once a promise is made, it is difficult to turn back on it.

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On January 31, 2020, after three years of deliberation and delay, the United Kingdom (UK) saw the first tangible result of the referendum it held in June 2016: Brexit was reality, and the UK was set to be officially divorced from the European Union (EU). In the weeks before, British Members of the European Parliament (MEPs) packed up their offices in Brussels and said goodbye to colleagues. In the last European Parliament session in which British MEPs would take part, the formal Withdrawal Agreement was signed and a teary rendition of “Auld Lang Syne” was sung as MEPs joined arms and swayed to the music. For many British MEPs, the moment was a sad one. For MEPs like Euroskeptic Nigel Farage, who had long been the orchestrator of the Brexit movement, it was time for celebration. “I hope Brexit begins the end of the whole European project. It’s not just undemocratic. It’s anti-democratic,” he said in his final speech to the chamber.1 The British exit from the EU was unprecedented, and very clearly shows how difficult it is for a state to withdraw from its treaty obligations. When a state decides to sign a treaty, that decision comes with both rights and responsibilities that are not easy to dismiss. Joining the EU meant, for the British, giving up more sovereignty over their national affairs than they could stomach. But it took them over forty years of membership to act on it – and even when they did eventually act, it took well over four years for their “marriage” with the EU to end for good. The fight to dissolve the relationship was one that turned on the central questions that drive this chapter: what kind of power do treaties – such as the 1972 Treaty of Accession that brought the UK into the EU – have over the states that sign them? Under what circumstances can states renege on their treaty obligations? As the UK case demonstrates, it is much easier to get into a treaty relationship than it is to get out of it, no matter how skilled the army of diplomats. 1

European Union, Debates. European Parliament, January 29, 2020, Nigel Farage, www .europarl.europa.eu/doceo/document/CRE-9-2020-01-29-INT-1-090-0000_EN.html accessed May 3, 2022.

Introduction

Introduction In many ways, treaties are the Swiss Army knife of international law: they can be used for a wide variety of purposes and under a wide variety of circumstances. The Treaty of Versailles ended World War I. The Treaty of Rome created what eventually came to be the EU. The Convention on the Law of the Sea is a treaty that governs ocean navigation and use. The Treaty of Alliance in 1778 established the partnership between the Americans and the French in the American Revolutionary War, and the later Louisiana Purchase Treaty transferred the Louisiana Territory from France to the US. These are just a few of the thousands of examples of the ways in which treaties have shaped how states come to formal agreement with each other. They are the primary tool of statecraft. The UN International Law Commission (ILC) characterized the word treaty as a “generic term covering all forms of international agreement in writing concluded between states.”2 Article 2.1 of the 1969 Vienna Convention on the Law of Treaties (VCLT), the primary document on the nature of treaties, defines a treaty as “an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.”3 The VCLT does not address oral agreements because of the comparative prominence of written instruments as a basis for creating contemporary international obligations. Treaty disputes have adversely affected international relations on many occasions and in a variety of contexts, and there have been many issues of interpretation with the formation, observation, and termination of treaties. The United Nations (UN) thus developed the VCLT as a code to govern international agreements: it is a treaty on treaties. It governs written treaties made after 1980, when the convention was ratified by the required minimum number of states to become effective. It provides the best insight into the treaty practice of states and is the core of this chapter on the treaty system.

2

3

“Comment (2) to Art. 2, International Law Commission, Commentary on the Vienna Convention on the Law of Treaties, in Official Documents – United Nations Reports of the International Law Commission,” American Journal of International Law 61 (1967): 248, 287. The ILC study did not address “oral” agreements, because of the comparative prominence of written instruments as a basis for international obligations. Vienna Convention on the Law of Treaties, opened for signature on May 23, 1969, UNTS Vol. 1155: 331, https://treaties.un.org/doc/Treaties/1980/01/19800127%2000-52%20AM/ Ch_XXIII_01.pdf accessed May 3, 2022.

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Throughout this chapter we rely on the VCLT to guide a discussion of how treaties are made and the obligations they create for their signatories.

1 Treaty Classification Treaty classification systems always face the danger of oversimplification. Nevertheless, four common distinctions illustrate the general nature of most treaties: oral versus written; bilateral versus multilateral; law-making versus contractual; and self-executing versus declaration of intent.

1.1

Oral versus Written

The VCLT was drafted in terms of written treaties. While most treaties are written, states routinely incur international obligations based on oral agreements. State representatives may orally incur a binding international obligation. In a prominent example, Denmark and Norway established Denmark’s sovereignty over eastern Greenland in a manner that was far less formal than a written treaty. The right to this vast area had been disputed since the 1819 termination of the union between what is now Denmark and Norway. In a recorded conversation in 1919, the Norwegian Minister of Foreign Affairs and a Danish diplomat agreed that Norway would not object to Danish control over all of Greenland, including the disputed portion of its eastern coast. The Permanent Court of International Justice (precursor to the International Court of Justice (ICJ)) held that this oral understanding resulted “in the settlement of this [sovereignty] question.”4 The Court accorded great weight to the context in which this particular conversation occurred. Although certainly not as formal as a written treaty, this agreement was nevertheless binding on Norway because of the subject-matter of this diplomatic discussion. Two diplomats had orally resolved a question falling within the negotiating authority conferred upon them by their respective states. A document does not have to be a formal treaty to create international obligations. In 1994, the ICJ reviewed documents related to a maritimeboundary dispute. These were the 1987 exchanges of letters between the King of Saudi Arabia and the Emir of Qatar, the 1987 letters between the King of Saudi Arabia and the Emir of Bahrain, and a 1990 document entitled “Minutes,” signed at Doha by the Ministers for Foreign Affairs of Bahrain, Qatar, and Saudi Arabia. These exchanges constituted international 4

Legal Status of Eastern Greenland (Denmark v. Norway), 1933 PCIJ Ser. A/B, No. 53.

1 Treaty Classification

agreements which obligated the state parties to abide by the terms of those agreements, including the undertaking to submit their long-term maritimeboundary dispute to the Court.5

1.2

Bilateral versus Multilateral

A bilateral treaty establishes mutual rights and obligations between two states. It normally affects only them, but not others. Other states typically derive no benefits or duties from such a treaty. The states entering into this type of treaty do not intend to establish rules that contribute to the progressive development of international law. For example, there are hundreds of bilateral extradition treaties (see Chapter 5). Each one lists the circumstances under which the two treaty parties agree to return criminals to the state requesting extradition. The respective states do not intend to make a change to international practice; they are merely agreeing on which crimes are subject to mutual extradition. Bilateral treaties do not confer benefits on or create obligations for nonparties unless that is the express intent of the contracting parties – the treaty must explicitly say so. Nor does a multilateral treaty necessarily do that. However, its contents may be evidence of accepted state practice which lies within the parallel universe of customary international law.6 A multilateral treaty, on the other hand, is an international agreement among three or more states. Most of the military, political, and economic organizations discussed in this book were created by multilateral treaties. They expressed the rights and duties of the member states and the competence of the particular organization created by their treaty.

1.3

Law-Making versus Contractual

Treaties might also be distinguished as either “law-making” or “contractual.” A law-making treaty creates a new rule of international law designed to modify existing state practice. The 1982 UN Law of the Sea Treaty contains a number of new rules governing jurisdiction over the oceans. Although it 5

6

Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), ICJ General List No. 87, Judgment of March 16, 2001, www.icj-cij.org/en/case/ 87/judgments accessed May 3, 2022. The general rule against creation of third-party obligations is exhaustively examined in C. Chinkin, “States as Third Parties to Treaties: Formal Prescriptions,” Ch. 2, in C. Chinkin, Third Parties in International Law (Oxford: Clarendon Press, 1993), 25. Potential exceptions are also addressed in A. Verdross, Volkerrecht, 5th ed. (Vienna: Springer Verlag, 1964), 143–144. An English-language restatement of the Verdross position is provided in G. I. Tunkin, Theory of International Law (Cambridge, MA: Harvard University Press, 1974), 93 (Butler translation from Russian).

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codifies (restates) some previously existing rules that states applied in their mutual relations, this multilateral treaty also contains some novel lawmaking provisions. For example, the new International Seabed Authority was created to control the ways in which the ocean’s resources are globally (re)distributed. Free “transit passage” would replace the otherwise applicable regime of restricted “innocent passage” through the territorial waters of coastal states. Ratification of some of the associated provisions would change state practice, which previously had not required either an equitable redistribution of global resources or transit passage.7 On the other hand, some treaties are merely “contractual.” For example, an import–export treaty sets forth the terms of a contract, which the state parties agree to for a specified period of time. For example, under the World Trade Organization (WTO) regime, State X agrees to charge an 8 percent tariff on incoming State Y wine. State Y may export up to 100,000 bottles of wine per year to State X. This arrangement is a simple contract. It does not purport to create, alter, or abrogate any of the norms that govern international trade. An entire treaty, or parts of it, may break new legal ground. The North American Free Trade Agreement (NAFTA) associated Canada, Mexico, and the United States (US) into a large free trade area. That development was “law-making” because it created a new international organization (which now continues since 2020 as the US–Mexico–Canada Agreement, or USMCA). Yet there was nothing novel or law-making about their reduction of trade barriers to form a common economic market. Many other countries, as in the EU, had already done so. In this sense, NAFTA merely created an international contract governing the respective goods and services exchange among the state parties, just like a private contract would do between three merchants engaged in a similar cross-border transaction. One could distinguish the 1995 WTO, however. It replaced the established 1947 General Agreement on Tariffs and Trade (GATT) process. The physical bulk of the WTO process merely continued the GATT process of publishing national tariff schedules. But establishing an authoritative WTO process also involved fresh law-making because of the way in which nations therein decided to resolve their international trade disputes.8

1.4

Self-Executing versus Declaration of Intent

A treaty may be further classified as “self-executing” when it expressly imposes immediate obligations. A self-executing treaty requires no further action to impose binding obligations on its signatories – it is instantly 7 8

For a fuller discussion of the UN Convention on the Law of the Sea, see Chapter 4. The GATT and WTO are examined in detail in Chapter 11.

1 Treaty Classification

incorporated into both international law and the internal law of each treaty member by the express terms of the treaty. There is no need for additional executive or legislative action by the state parties to immediately create binding legal obligations.9 Alternatively, a treaty may be a declaration of intent. Such a treaty contains general statements of principle which set forth a hortatory standard of achievement for all parties. These types of treaties require individual state action before any of the parties incur actual legal – as opposed to moral – obligations under the treaty. Bilateral treaties concluded by two states are normally self-executing. The contracting states would have no treaty if they were unable to agree to all of its terms. The same is not true with a multilateral treaty. Most multilateral treaties are not self-executing. The state drafters who sign them intend them to be statements of principle, which do not impose immediate legal obligations to act in a particular way. Such treaties are intended to articulate mutually agreeable goals or standards of achievement. Each participant must undertake some subsequent act under its internal law for the stated standard to then ripen into a binding legal obligation. If all treaties were self-executing, few states would participate. States are so varied in their capacities (i.e., economic, political, military, cultural) that it would be impossible for them to perform their treaty obligations in good faith. In the United States, the question of whether international treaties are self-executing or not has come before the US Supreme Court on several occasions. The US Constitution states that treaties entered into by the US “shall be the Supreme Law of the Land.”10 Does this provision make them immediately enforceable? The 2004 ICJ Avena order directed the US – and its various states, which were holding fifty-one Mexican defendants on death row – not to execute them until each of their cases could be reviewed.11 Per the ICJ’s preliminary order, each US state court where the individual defendants were incarcerated was to determine the impact of the failure of law-enforcement authorities to provide these detainees with access to their local consular officials, as required by Article 36 of the 1963 Vienna Convention on Consular Relations. The ICJ’s

9

10 11

Enabulele and Okojie argue that the notion of the “self-executing” treaty is likely a fiction, and suggest instead that there are three categories of treaty: “(i) those that need not be enforceable domestically, such as the UN Charter; (ii) those that are required to be enforced domestically by express language, such as the African Charter; and (iii) those which, though do not expressly require domestic application, their object and purpose cannot be truly fulfilled without domestic application.” A. Enabulele and E. Okojie, “Myths and Realities in ‘Self-Executing Treaties,’” Mizan Law Review 10, No. 1 (2016): 1–37, 32. Constitution of the United States of America, Article VI, clause 2. The Avena decision is discussed in greater detail later in this chapter.

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external directive was barred under US law, however. The defendants had all failed to raise this issue before their convictions. Specifically, they or their legal counsel failed to seek the closest consul. These men are on death row in various US states and several have already been executed. The specific question for the US Supreme Court in a second reconsideration of the prior state-court convictions was whether the Vienna Convention on Consular Relations was self-executing. If so, the criminal defendants were undoubtedly entitled to a treaty-based right to challenge their convictions on this new ground. If the treaty was thus self-executing, these treaty beneficiaries would have the personal right to invoke its protection when the state authorities failed to provide them with their Article 36 right to a consul:

MEDELLÍN V. TEXAS US Supreme Court, 128 S.Ct. 1346 (2008) [Excerpted case available at www.cambridge.org/FPIL7.]

In January 2009, the ICJ issued its final judgment in Mexico’s case against the US. After Medellín’s execution, Mexico sought to finalize this case at the ICJ. Mexico sought an interpretation of the earlier provisional decision, barring the US from executing Medellín (and others) without a post-conviction review. The ICJ denied that petition. In that round, the ICJ determined that there was nothing more for it to decide, and that the US was free to choose how it would implement its 2004 decision requiring US review of the convictions of the remaining Mexican nationals for “Vienna Convention error.” Medellín’s implications for US performance of existing and future international treaty obligations depend on how the Supreme Court’s analysis of treaty self-execution is understood. In response to Medellín, the American Bar Association (ABA) and American Society of International Law (ASIL) formed the ABA–ASIL Joint Task Force Policies on Implementing Treaties under US Law. The task force concluded that, by non-self-execution, the Court meant at least that a treaty provision is not subject to judicial enforcement absent implementing legislation. Under Medellín, a non-self-executing treaty “does not by itself give rise to domestically enforceable federal law.”12 The Court also distinguished the issue of self-execution from the issue of

12

R. Bettauer, “ABA Adopts ABA-ASIL Joint Task Force Policies on Implementing Treaties under U.S. Law,” ASIL Insights 14, No. 10 (May 6, 2010).

1 Treaty Classification

private rights of action, suggesting that even self-executing treaties will often not confer privately enforceable rights. Non-self-execution therefore presumably must mean more than simply the lack of a private right of action.13 “Thus, as of now, states remain able to disregard Vienna Convention claims not raised at trial,” Kuykendall and Knight note, “and even to execute Avena litigants who never received the ICJ-mandated review and reconsideration of their claims, despite the fact that doing so violates binding international legal obligations.”14 Other prominent treaties have been deemed to be non-self-executing.15 Human rights treaties, for example, cannot be supposed to be self-executing, as states must take some action (or stop taking harmful actions) in order to fulfill their obligations. This is not without controversy. Consider the Deferred Action for Childhood Arrivals (DACA) policy in the US, passed during the Obama Administration in order to offer protections for people brought to the US illegally as children. DACA was the subject of multiple attacks by the Trump Administration, which vowed to rescind DACA protections and deport those who had been protected by the law. Many DACA recipients had never known a home outside of the US.16 The law was brought before the US Supreme Court, which ultimately decided that the law could (at least temporarily) stand.17 However, the US is a signatory to the International Covenant on Civil and Political Rights (ICCPR; discussed in full in Chapter 7), whose Article 12.4 states that “[n]o one shall be arbitrarily deprived of the right to enter his own country.” This, as Lynch notes, also encompasses arbitrary banishment.18 The US is also a party to the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), which notes in Article 2(C) that “[e]ach State Party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and

13 14

15

16

17

18

For a succinct but authoritative analysis, see ibid. G. Kuykendall and A. Knight, “The Impact of Article 36 Violations on Mexicans in Capital Cases,” Saint Louis University Law Journal 62, No. 4 (Summer 2018): 811. For a full and excellent discussion of the development of the doctrine of non-self-execution in the United States, see D. Sloss, The Death of Treaty Supremacy (New York: Oxford University Press, 2016). US Department of Homeland Security, “Memorandum on Recission of Deferred Action for Childhood Arrivals (DACA),” by Elaine Duke, September 5, 2017, www.dhs.gov/news/2017/ 09/05/memorandum-rescission-daca accessed May 3, 2022. N. Totenberg, “Supreme Court Rules for DREAMers, Against Trump,” NPR, June 18, 2020, www.npr.org/2020/06/18/829858289/supreme-court-upholds-daca-in-blow-to-trumpadministration accessed May 3, 2022. T. Lynch, “The ICCPR, Non-Self-Execution, and DACA Recipients’ Right to Remain in the United States,” Georgetown Immigration Law Journal 34 (2020): 328.

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regulations which have the effect of creating or perpetuating racial discrimination wherever it exists.” Since the Trump Administration’s potential rollback of DACA would clearly have an impact on a defined group of people, effectively banishing them from the only home they have ever known, would the US be in violation of international law if Trump had been able to make good on threats to cancel the program altogether? This is still an open question in the US, as the DACA situation is not yet resolved. A non-self-executing treaty requires further legislation to implement it, but even absent that legislation, a treaty is a treaty: when a state signs and ratifies an international treaty, it is obliged to honor it (pacta sunt servanda), selfexecuting or not. Despite the fact that the ICCPR and ICERD are non-selfexecuting, they still create obligations for state parties. As Lynch explains, even though Congress has made no laws to explicitly implement the ICCPR, the ICCPR is not irrelevant. A more sophisticated understanding appreciates that even [non-self-executing] treaties have power as international obligations of the United States and as one of the supreme laws of the land pursuant to the Supremacy Clause. A more sophisticated understanding also leads us to ask what “non-self-executing” really means. And what does it mean for a [non-selfexecuting] treaty to be the supreme law of the land? What did the US treaty makers really intend? Regarding the legal status of the ICCPR within the domestic context of the United States, it seems that the US treaty makers envisioned a particular [non-self-executing] status. Outside this particular [nonself-executing] status, the ICCPR has legal force and relevance. In fact, depending on the exact content of the non-self-executory nature of the ICCPR in the United States, the executive and the judiciary might at times be permitted – or even obligated – to act in light of Article 12.4.3.19

2 Treaty Formation, Performance, and Cessation How are treaties formed? How do states determine the degree to which they will be bound by them? How can we determine if states are fulfilling their obligations under the treaties they sign? Can states get out of treaties? This section of this chapter details answers to these questions. The chronological phases in the formation and implementation of a multilateral treaty are negotiation, signature, ratification, reservations (if any), entry into force, and registration. 19

Ibid., 380–381.

2 Treaty Formation, Performance, and Cessation

2.1

Negotiations

The emergence of a multilateral treaty often begins when an international organ such as the UN General Assembly decides to study some problem of global concern. The Assembly might resolve that the problem should be the subject of an international conference. State representatives commence the treaty process with preliminary negotiations during an international conference. Most nations of the world first met in 1974, for example, to draft an international law of the sea treaty. These initial discussions expanded over the course of the next eight years, during which many nations negotiated their respective positions on proper use of the oceans and their natural resources. These representatives drafted and redrafted a “constitution” of the oceans. They produced a final treaty text, which was satisfactory, at least in principle, to the participants. In any international conference, representatives must possess the authority to negotiate on behalf of their respective states. Not unlike diplomats who present their credentials to host state authorities, conference participants are normally vested with “full powers” by the state they represent. A document from each state’s government is presented to a chair or conference committee at the beginning of the conference. That document normally vests the representative with powers to negotiate, provisionally accept, or perform any act necessary for completing this initial phase of the treaty process. The “full power” instrument facilitates assurances that conference developments will be acceptable to the governments that will one day have to decide whether to ratify the final draft of the treaty text negotiated by their respective conference representatives. Article 8 of the Vienna Convention on the Law of Treaties (VCLT) provides that any “act relating to the conclusion of a treaty performed by a person who cannot be considered . . . as authorized to represent a State for that purpose is without legal effect unless afterwards confirmed by the competent authority of the State.” This language theoretically creates the potential for abuse, whereby a state representative can enter into a treaty, and the home state can subsequently disavow the authority of its representative. In practice, however, the representative’s presentation of documentary powers at the inception of a conference contains clear notification to all participants about the extent of a particular delegate’s powers (which may be limited by the dispatching government). The VCLT also contains provisions protecting state delegates from coercion. In the 1960s, many of the new states and former colonies in Africa and Asia advocated the proposition that “unequal treaties” were no longer acceptable under international law. One prominent forum for advocating this perspective was the drafting negotiations for the VCLT. Article 2.4 of the

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UN Charter requires all members to “refrain in their international relations from the threat or use of force . . . [which is] inconsistent with the purposes of the United Nations.” If force was illegal in international relations, then coercion in the treaty process should invalidate the legality of any treaty forced upon these former colonies whose bargaining power was no match for their former occupiers. The result of the VCLT negotiations was the incorporation of two articles applicable to treaties concluded after the effective date of the VCLT (January 27, 1980). Article 51 provides that the “expression of a State’s consent to be bound by a treaty which has been procured by the coercion of its representative through acts or threats directed against him shall be without any legal effect” (emphasis added). Article 52 provides that a “treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations” (emphasis added). Although coerced treaties that had been concluded prior to the VCLT were presumed valid by some writers, Articles 51 and 52 expressly negated that presumption for subsequent treaties. As stated by the ICJ, there “can be little doubt, as is implied in the Charter of the United Nations and recognized in Article 52 of the Vienna Convention on the Law of Treaties, that under contemporary international law an agreement concluded under the threat or use of force is void.”20 Some ambiguity about the scope of the term “force” was offset at the conclusion of the VCLT. The delegates adopted the separate Declaration on the Prohibition of Military, Political, or Economic Coercion in the Conclusion of Treaties. They therein stated that the UN Conference on the Law of Treaties “solemnly condemns the threat or use of pressure in any form, whether military, political, or economic, by any State in order to coerce another State to perform any act relating to the conclusion of a treaty in violation of the principles of the sovereign equality of States and freedom of consent . . . .”21 This Declaration was actually made independently of the VCLT rather than directly expressed within the text of the Article 52 prohibition of force in the conclusion of treaties. This exclusion – which more precisely defined force, but in the supplemental text not officially a part of the VCLT itself – was a compromise. It ameliorated Western opposition to non-military duress as a basis for invalidating a treaty. Because the VCLT itself defines coercion only

20

21

Fisheries Jurisdiction (UK v. Iceland), 1973 ICJ Reports 1, at 14 (decided after 1969 VCLT conference, but before the VCLT’s 1980 effective date). UN Doc. A/CONF. 39/26, contained in Documents of the Conference, at 285, May 22, 1969. The text is reprinted in International Legal Materials 8 (1969): 733.

2 Treaty Formation, Performance, and Cessation

by reference to the “principles of international law embodied in the Charter of the United Nations,” it is difficult to determine when a treaty would be void on the basis of duress in its creation.

2.2

Signature

The next significant step in the treaty process is opening the treaty for signature. States and any participating international organizations are invited to sign (which is not the same as ratification, as we shall see). A state that signs a treaty has agreed, in principle, to the general wording of the articles appearing in the text of its final draft. Under Article 81 of the VCLT model for multilateral treaties, “[t]he present Convention shall be open for signature by all States Members of the United Nations . . . and by any other State invited by the General Assembly to become a party to the Convention . . . .” States that did not participate in the drafting conference may subsequently accede to a treaty. That state thereby consents to be bound, albeit in principle, like any states that signed the treaty at or near the conclusion of the drafting conference. Alternatively, accession may express a state’s willingness to accept the treaty’s obligations as being immediately binding without the necessity of ratification (discussed in the next section). Unanimous and immediate consent of all states is possible, but quite atypical – for reasons addressed in Section 2.4 below. Fully embracing the treaty’s commitments normally evolves through two related stages. The first stage is provisional acceptance of the treaty by the conference delegates. This stage expresses consent to the general wording of the final conference draft. Unless otherwise specified, the signature of a representative on a multilateral treaty merely indicates that his or her state agrees in principle with the essence of the treaty. Final acceptance would follow when a state expresses its willingness to be legally bound by the treaty’s terms, expressed in that state’s ratification of the treaty.

2.3

Ratification

Post-conference ratification is the most typical mode for each state’s full acceptance of a treaty, though treaties can specify the way in which states must articulate their consent to be bound. The conference delegate has already submitted the provisionally accepted treaty text to the proper authority in his or her state for final approval. Ratification is then determined in accordance with each state’s internal laws on treaty acceptance. Brierly provides a useful explanation for the necessity of post-conference ratification by each potential state party: “[T]he interests with which a treaty deals are often so complicated and important that it is reasonable that an opportunity

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for considering the treaty as a whole should be reserved. A democratic state must consult public opinion, and this can hardly take shape while the negotiations, which must be largely confidential, are going on.”22 As classically articulated in a 2005 US federal Court of Appeals decision, drawing upon some leading international law treatises: The ratification process, in whatever form it may take serves several functions. First and foremost, “it affords a state the chance to scrutinize closely the provisions of a complicated agreement” after signing it. “The need for an institution such as ratification is principally that, for various reasons, states need time after agreement has been reached upon a definitive text of a treaty before they feel able to commit themselves to it.” In addition, in the time between signing and ratification, States are able . . . (1) to effect changes in domestic law that may be necessary for the implementation of a treaty, (2) to seek and obtain the consent of legislative bodies as may be required, and (3) to re-examine the relevant provisions before committing to them.23

2.4

Reservations

What happens if a state agrees to most of a treaty’s provisions, but has a compelling reason to reject some of them? Acceptance of a multilateral treaty is usually not an “all-or-nothing” proposition. A reservation is a state’s unilateral variation from the language of some general term contained in the negotiated text. Notwithstanding ratification of the overall treaty, a state may exclude, or modify, the legal effect of its obligations, which would otherwise arise under the general language of the “model” article in the final draft of the treaty. The reserving state is expressing its agreement with the text generally; but it does not wish to become obligated on all terms. A state’s provisional acceptance at the drafting conference does not preclude it from tendering a reservation although it may have signed the treaty. A reservation to a specific provision in a treaty is a conditional consent. If the reservation is acceptable to the other parties, it limits the scope of the reserving state’s general consent to the rest of the treaty. The reserving state is not bound by what it thus identifies as an “objectionable” treaty provision. It is bound by all other terms of the ratified treaty to which it has not submitted a reservation. In the case of a bilateral treaty between just two states, of course reservations are generally nonexistent: any reservation is effectively a fresh proposal, which is a counter-offer to change their treaty.

22 23

J. L. Brierly, The Law of Nations, 6th ed. (London: Oxford University Press, 1963), 319–320. Avero Belgium Ins. v. American Airlines, Inc., 423 F.3d 73, 80 (2d Cir. 2005) (citing Oppenheim and Brownlie treatises).

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Both states must agree on all terms of a bilateral agreement. Otherwise, it cannot become uniformly applicable for each treaty party. Why are reservations permitted? They are, in essence, a compromise to promote greater participation in an overall agreement. Broad participation is better than limited participation by only those few states that might be willing to accept every term in a draft treaty. For example, few states would agree to be sued in the ICJ if they were unable to make reservations to the final draft treaty provision regarding the ICJ’s competence to hear and decide its own cases. Article 36.6 of the Statute of the ICJ provides that any disputes over the Court’s jurisdiction, or power to hear the particular case, are to be determined by the Court itself. Every UN member is automatically a party to this statute, which is itself a treaty. States often object to the Court’s jurisdiction to hear a case that has just been filed against them. These states may do so if they have previously decided not to give their full consent to Article 36.6 of the ICJ Statute. Many states tendered reservations to this treaty-based competence of the ICJ to decide its own jurisdiction. They reserved the question of the Court’s power to hear a case unto themselves whenever they would be summoned as a defendant in a future case before the Court. This common reservation precludes the ICJ from deciding its own jurisdiction under the ICJ’s Statute. Without the possibility of such a treaty reservation, a number of major powers would not have recognized a distant court – sitting in Europe – as having the absolute power to hear all international controversies. Reservations like this one accommodate the special interests of states that would not otherwise participate in the overall process of international adjudication by the ICJ. Half a loaf is better than none. Such conditional assent cannot be used in all treaties. The drafting conference negotiators may decide to insert a prohibition against reservations within the express language of the final treaty text. The 1995 Agreement for Implementation of the Provisions of the UN Convention on the Law of the Sea of December 10, 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks prohibits reservations.24 Predictably, such a provision can limit effective participation. While the US Senate gave its approval to this treaty in 1996, members of that body warned other nations that this should not be construed as US acquiescence in future treaties containing a comparable provision.25

24 25

UN Doc. A/Conf. 164/37 (1995), reprinted in International Legal Materials 34 (1995): 1542. “[T]he Senate’s approval of this treaty should not be construed as a precedent for acquiescence to future treaties containing such a provision.” See M. Nash Leicht, “Contemporary Practice of the United States Regarding International Law,” American Journal of International Law 90 (1996): 270.

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Many treaties say nothing about the possibility of the parties being able to tender reservations to the final text. Silence normally cannot be construed as supporting or defeating the right to become a party while attempting to do so via a reservation to a key text provision. This can yield a very sensitive debate. The classic example is the UN Genocide Convention.26 The principles enshrined in this 1948 instrument were unanimously adopted by all UN members in the aftermath of Nazi Germany’s Holocaust. Many states, however, did not ratify the Genocide Convention. Despite the care taken to define the crime in the Convention itself, the term “genocide” has meant different things to different people. States were thus reluctant to accept it without knowing what specific obligations might one day materialize. They feared that the absence of a reservation provision in the Genocide Convention might one day subject them to scrutiny on grounds that they had never contemplated. The US, for example, did not become a party until nearly forty years later (1986) because of prior senatorial concern about the meaning and application of its various terms. The ICJ Reservations Case addresses this issue. In 1948, the UN General Assembly unanimously adopted the Convention on Genocide. It materialized first as a General Assembly resolution. It would not become binding on UN members – directly via treaty ratification and later under customary international law – until the minimum number of state ratifications were submitted to the UN. In 1950, the year before the Convention entered into force, the UN General Assembly requested an advisory opinion from the ICJ. There was no provision on the extremely sensitive question of whether reservations would be permitted. If reservations were to be allowed, then states could theoretically exclude certain forms of genocide from their consent to be bound by this treaty. The General Assembly asked the Court to interpret the Genocide Convention to determine whether a state might ratify the Convention and yet simultaneously tender a limiting reservation to this classic humanitarian treaty.

RESERVATIONS TO THE CONVENTION ON GENOCIDE International Court of Justice, 1951 ICJ Reports 15 (1951) NOTE: The Court chose to articulate a somewhat abstract analysis of this sensitive question. Noting the apparent divergence of state views on the possibility of reservations to this particular treaty, the ICJ decided that it

26

Convention on the Prevention and Punishment of the Crime of Genocide of December 9, 1948, UNTS Vol. 78 (1951): 277, https://treaties.un.org/doc/Treaties/1951/01/19510112% 2008-12%20PM/Ch_IV_1p.pdf accessed May 3, 2022.

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RESERVATIONS TO THE CONVENTION ON GENOCIDE (cont.) implicitly contained the right to become a party and to simultaneously present a reservation – as long as it was “compatible” with the language and purpose of the treaty. The relevant portion of the opinion follows – unsigned by any member of the Court. COURT’S OPINION: [T]he precise determination of the conditions for participation in the [Genocide] Convention constitutes a permanent interest of direct concern to the United Nations which has not disappeared with the entry into force of the Convention. ... It is well established that in its treaty relations a State cannot be bound without its consent, and that consequently no reservation [by one state] can be effective against any [other] State without its agreement thereto. It is also a generally recognized principle that a multilateral convention is the result of an agreement freely concluded upon its clauses and that consequently none of the contracting parties is entitled to frustrate or impair, by means of unilateral decisions or particular agreements, the purpose and raison d’être of the convention. To this principle was linked the notion of the integrity of the convention as adopted, a notion which in its traditional concept involved the proposition that no reservation was valid unless it was accepted by all the contracting parties without exception, as would have been the case if it had been stated during the negotiations. This concept, which is directly inspired by the notion of contract, is of undisputed value as a principle. However, as regards the Genocide Convention, it is proper to refer to a variety of circumstances which would lead to a more flexible application of this principle. Among these circumstances may be noted the clearly universal character of the United Nations under whose auspices the Convention was concluded, and the very wide degree of participation envisaged by Article XI of the [Genocide] Convention. Extensive participation in conventions of this type has already given rise to greater flexibility in the international practice concerning multilateral conventions. More general resort to reservations, very great allowance made for tacit assent to reservations, the existence of practices which go so far as to admit that the author of reservations which have been rejected by certain contracting parties is nevertheless to be regarded as a party to the convention in relation to those contracting parties that have

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RESERVATIONS TO THE CONVENTION ON GENOCIDE (cont.) accepted the reservations – all these factors are manifestations of a new need for flexibility in the operation of multilateral conventions. It must also be pointed out that although the Genocide Convention was finally approved unanimously, it is nevertheless the result of a series of majority votes. The majority principle, while facilitating the conclusion of multilateral conventions, may also make it necessary for certain States to make reservations. This observation is confirmed by the great number of reservations which have been made in recent years to multilateral conventions. In this state of international practice, it could certainly not be inferred from the absence of an article providing for reservations in a multilateral convention that the contracting States are prohibited from making . . . reservations. Account should also be taken of the fact that the absence of such an article or even the decision not to insert such an article can be explained by the desire not to invite a multiplicity of reservations. The character of a multilateral convention, its purpose, provisions, mode of preparation and adoption, are factors which must be considered in determining, in the absence of any express provision on the subject, the possibility of making reservations, as well as their validity and effect. ... The Court recognizes that an understanding was reached within the General Assembly on the faculty [ability] to make reservations to the Genocide Convention and that it is permitted to conclude [therefrom] that States becoming parties to the Convention gave their assent thereto. It must now determine what kind of reservations may be made and what kind of objections may be taken to them. The solution of these problems must be found in the special characteristics of the Genocide Convention. The origins and character of that Convention, the objects pursued by the General Assembly and the contracting parties . . . furnish elements of interpretation of the will of the General Assembly and the parties. The origins of the Convention show that it was the intention of the United Nations to condemn and punish genocide as “a crime under international law” involving a denial of the right of existence of entire human groups, a denial which shocks the conscience of mankind and results in great losses to humanity, and which is contrary to moral law and to the spirit and aims of the United Nations (Resolution 96(I) of the General

2 Treaty Formation, Performance, and Cessation

RESERVATIONS TO THE CONVENTION ON GENOCIDE (cont.) Assembly, December 11th, 1946). The first consequence arising from this conception is that the principles underlying the Convention are principles which are recognized by civilized nations as binding on States, even without conventional obligation. A second consequence is the universal character both of the condemnation of genocide and of the cooperation required “in order to liberate mankind from such an odious scourge” (Preamble to the Convention). The Genocide Convention was therefore intended by the General Assembly and by the contracting parties to be definitely universal in scope. It was in fact approved on December 9th, 1948, by a resolution which was unanimously adopted by fifty-six States. The objects of such a convention must also be considered. The Convention was manifestly adopted for a purely humanitarian and civilizing purpose. It is indeed difficult to imagine a convention that might have this dual character to a greater degree, since its object on the one hand is to safeguard the very existence of certain human groups and on the other to confirm and endorse the most elementary principles of morality. In such a convention the contracting States do not have any interests of their own; they merely have, one and all, a common interest, namely, the accomplishment of those high purposes which are the raison d’être of the convention. Consequently, in a convention of this type one cannot speak of individual advantages or disadvantages to States, or of the maintenance of a perfect contractual balance between rights and duties. The high ideals which inspired the Convention provide, by virtue of the common will of the parties, the foundation and measure of all its provisions. The foregoing considerations, when applied to the question of reservations, and more particularly to the effects of objections to reservations, lead to the following conclusions. The object and purpose of the Genocide Convention imply that it was the intention of the General Assembly and of the States which adopted it that as many States as possible should participate. The complete exclusion from the Convention of one or more States would not only restrict the scope of its application, but would detract from the authority of the moral and humanitarian principles which are its basis. It is inconceivable that the contracting parties readily contemplated that an objection to a minor reservation should produce such a result. But even less could the contracting parties have intended to sacrifice the very object of the Convention in favor of a vain

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RESERVATIONS TO THE CONVENTION ON GENOCIDE (cont.) desire to secure as many participants as possible. The object and purpose of the Convention thus limit both the freedom of making reservations and that of objecting to them. It follows that it is the compatibility of a reservation with the object and purpose of the Convention that must furnish the criterion for the attitude of a State in making the reservation on accession as well as for the appraisal by a State in objecting to the reservation. Such is the rule of conduct which must guide every State in the appraisal which it must make, individually and from its own standpoint, of the admissibility of any reservation. Any other view would lead either to the acceptance of reservations which frustrate the purposes which the General Assembly and the contracting parties had in mind, or to recognition that the parties to the Convention have the power of excluding from it the author of a reservation, even a minor one, which may be quite compatible with those purposes. It has nevertheless been argued [independently of these proceedings] that any State entitled to become a party to the Genocide Convention may do so while making any reservation it chooses by virtue of its sovereignty. The Court cannot share this view. It is obvious that so extreme an application of the idea of State sovereignty could lead to a complete disregard of the object and purpose of the Convention.

There would be a devastating impact on human rights if there were a flood of reservations to the various human rights treaties – in the absence of provisions regarding whether reservations are permissible.27 There are now 152 state parties to the Genocide Convention, with over twenty-five of them tendering reservations with their ratifications. The most common reservation involves objections to Genocide Convention Article IX. It “requires” state parties to submit relevant disputes to the ICJ. Many countries, on the other hand, have registered objections to these reservations. Some states have objected to a reservation from a specific state. Some states refuse to accept any of the reservations, deeming them all to be incompatible with the object and purpose of the Genocide Convention. 27

For fascinating analyses, see L. Lijnzaad, Reservations to UN-Human Rights Treaties: Ratify and Ruin? (Dordrecht: Martinus Nijhoff, 1995), and J. Gardner, ed., Human Rights as General Norms and a State’s Right to Opt Out: Reservations and Objections to Human Rights Conventions (London: British Institute of Comparative Law, 1997).

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Over a half-century after the ICJ’s Reparations case, the ICJ addressed the Congo’s case against Rwanda, regarding the alleged genocidal killing of 3,500,000 Congolese. The Court again considered the matter of Genocide Convention reservations. Both the Congo and Rwanda were parties to the Genocide Convention. Rwanda, however, was one of the above nations that had filed a reservation objecting to the ICJ resolution of such disputes. The Congo argued that such a reservation was fundamentally inconsistent with a state’s acceptance of the Genocide Convention. Rwanda could not merely agree in principle to the Convention and then object to resolution of genocidal disputes by the ICJ. The Congo thus argued that “the object and purpose of the Convention are precisely the elimination of impunity for this serious violation of international law.” Rwanda could not inconsistently “call on the United Nations Security Council to set up an international criminal tribunal to try the authors of the genocide committed against the Rwandan people, while at the same time refusing to allow those guilty of genocide to be tried when they are Rwandan nationals or the victims of the genocide are not Rwandans.”28 Rwanda also responded to the Congo’s claim that Article 120 of the Statute of the International Criminal Court (ICC) prohibits any reservations. Rwanda argued that the ICC treaty had no bearing whatsoever on this issue. First, Rwanda is not a party to the ICC Statute. Second, that the states forging the ICC Statute “chose to prohibit all reservations to that treaty in no way affects the right of States to make reservations to other treaties which, like the Genocide Convention, do not contain such a prohibition.”29 The ICJ seized upon Rwanda’s reservation in its February 2006 holding that the ICJ did not have the power to proceed with this case. Mindful of the above state reservation practices in the interim, the Court essentially echoed its earlier Reservations jurisprudence. Thus: “Rwanda’s reservation to Article IX of the Genocide Convention bears on the jurisdiction of the Court, and does not affect substantive obligations relating to acts of genocide themselves under that Convention. In the circumstances of the present case, the Court cannot conclude that the reservation of Rwanda in question, which is meant to exclude a particular method of settling a dispute . . . is to be regarded as being incompatible with the object and purpose of the Convention.”30

28 30

29 Ibid. Ibid. Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Rwanda), General List No. 126 (February 3, 2006), para. 67. Paragraph 68 goes on to refer to earlier ICJ cases wherein it had previously confirmed the ability of states to tender reservations to the Genocide Convention – typically, regarding dispute resolution, as opposed to substantive limitations as to particular groups or situations.

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The ILC produced Draft Guidelines on Reservations to Treaties that were provisionally adopted in 2001. This project was designed to clarify mostly procedural issues related to reservations, especially when a state ratifies a treaty and then wishes to later augment its earlier position with a limiting interpretation of its existing reservation. Some scholars have questioned the value of treaties – particularly human rights treaties – that have a significant number of reservations, understandings, and declarations (RUDs) attached to them. As Hill notes in his analysis of RUDs attached to the ICCPR: The prevalence of RUDs in human rights law indicates that while states are keen to publicly embrace human rights norms, they also view unconditional ratification as potentially costly. The possibility of entering RUDs means that governments can have it both ways, expressing general support for the notion of human rights while being noncommittal from a formal, legal standpoint.31

The essential tension in reservations to treaties, then, is this: is the benefit of having a large group of states ratify a treaty worth the cost of having that same treaty potentially weakened through multiple reservations?

2.5

Entry into Force

The next phase of the treaty process is entry into force. Participants may have provisionally accepted the treaty’s final draft language at the drafting conference, followed by final acceptance of the treaty via their individual ratifications. Unlike bilateral treaties where only two states have to agree on all terms for a treaty to come into force, multilateral treaties usually require greater indicia of international consensus before they are binding. An “entry into force” provision ensures that an agreed-upon minimum number of states ratify the treaty before it becomes binding on those who have signed. The manner and date of entry into force is determined from the particular treaty’s express provisions. Multilateral treaties normally enter into force when a minimum number of ratifications are deposited at some central location, such as the UN. The 1948 Genocide Convention, for example, did not enter into force until twenty states had deposited their ratifications with the UN Secretary-General. The Paris Agreement (discussed in detail in Chapter 10) entered into force only after fifty-five states representing at least 55 percent of global greenhouse gas emissions had signed, a threshold that was reached on October 5, 2016.32 31

32

D. Hill, Jr., “Avoiding Obligation: Reservations to Human Rights Treaties,” Journal of Conflict Resolution 60, No. 6 (2016): 1130. World Resources Institute, “Paris Agreement Tracker,” May 11, 2016, www.wri.org/faqsabout-how-paris-agreement-enters-force accessed May 3, 2022.

2 Treaty Formation, Performance, and Cessation

States that have not ratified a treaty are not bound by its terms just because it has entered into force. They may be bound by its underlying norms if the treaty codifies the existing practice of most states, or if the treaty itself shapes regular state practice. They may consent to be bound by submitting a subsequent ratification/accession.

2.6

Registration

Treaties must be registered, meaning that they are normally sent to the UN Secretariat or another appropriate international institution most directly involved with the object of the particular treaty. Both of the Vienna Conventions, which govern the treaties of states and of international organizations, mention this obligation.33 Article 102 of the UN Charter provides that “[e]very treaty and every international agreement entered into by any Member of the United Nations after the present Charter comes into force shall as soon as possible be registered with the Secretariat and published by it.” Finding treaties that have been deposited is easy via the UN website.34 The publication of treaties is typical, but not always accomplished. Certain countries, especially those with the economic capacity to do so, publish all of their treaties. While some government representatives might prefer to engage in “quiet” diplomacy and treaty negotiations, the product of their efforts must be subject to public scrutiny. The US Congress therefore requires publication in the comprehensive source US Statutes at Large. Once published therein, US laws and treaties “shall be legal evidence of laws . . . treaties, and international agreements other than treaties [that is, executive agreements].”35 There is a peculiar difference between the League of Nations Covenant and the UN Charter regarding the registration requirement embraced by both documents. Article 18 of the Covenant contained an outright bar, which vitiated the legality of unregistered treaties. Secret treaties were thus characterized as being void from the outset. Article 102 of the UN Charter, on the other hand, provides that a party to an unregistered treaty may not “invoke that treaty or agreement before any organ of the United Nations.” This does not “void” the treaty. It declares that the particular instrument cannot be used in any proceedings involving the UN, such as judicial proceedings in the ICJ.

33

34

35

States: VCLT, Art. 80.1. Organizations: Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, opened for signature March 21, 1986, UNTS Vol. II., UN Doc. A/CONF.129/15, Art. 81.1. The UN maintains an easily searchable database of all treaties deposited with it: http:// treaties.un.org accessed May 3, 2022. 1 U.S. Code §112.

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3 Treaty Observance There are several yardsticks for determining whether a state has made good on its treaty obligations: good faith performance of national treaty obligations; changed circumstances justifying non-performance; express and implied consent to suspension or termination of a treaty; material breach by one party justifying another’s non-performance; impossibility of performance; and conflict with a peremptory norm of international law. We will briefly discuss each of these in turn.

3.1

Good Faith Treaty Performance

Under Article 2.2 of the UN Charter, “Members . . . shall fulfill in good faith the obligations assumed by them in accordance with the present Charter.” The universal character of this norm was aptly articulated by the former Dutch ambassador to the United Nations in 1967: The principle of good faith itself . . . extends beyond the scope of this article and is generally recognized as expressing a fundamental concept underlying the entire structure of the international public order. It applies to the observance and interpretation of treaties and even to the obligation not to frustrate the object of a treaty prior to its entry into force, as well as to the fulfillment of obligations arising from other sources of international law. Particularly in the context of the law of treaties the principle of good faith . . . clearly emerges as having a fundamental and universal nature.36

A state must not act in a way which would frustrate the purpose of a treaty that it has signed or ratified. It may not pass subsequent internal legislation that is inconsistent with those obligations. For example, in a US–UK treaty delineating the fishing rights of US citizens in Canadian waters, the UK’s post-treaty regulations limited those rights in a way that was not contemplated by the wording of the treaty. The arbitrators in this famous proceeding noted that such regulations had to be “drawn according to the principle of international law that treaty obligations are to be executed in perfect good faith, therefore excluding the right to legislate at will concerning the subjectmatter of the treaty, and limiting the exercise of sovereignty of the States . . . to such acts as are consistent with the treaty . . . .”37

36

37

P.-H. Houben, “Principles of International Law Concerning Friendly Relations and Cooperation among States,” American Journal of International Law 61 (1967): 703, 725. North Atlantic Coast Fisheries Arbitration, Permanent Court of Arbitration No. VII (1910), Royal Institute of Foreign Affairs 11 (1932): 167.

3 Treaty Observance

Various cases decided by the ICJ illustrate the problems with applying the unassailable good faith performance standard. In two significant cases, the ICJ dealt with what it perceived to be tardy claims not made in good faith. In the 1960 Case Concerning the Arbitral Award Made by the King of Spain, a bilateral treaty required Honduras and Nicaragua to arbitrate their boundary dispute. Spain’s king was the agreed-upon arbitrator after the treatydesignated arbitrator failed to act. When the king decided this boundary dispute in 1960, neither country objected to his decision. Years later, Nicaragua challenged the validity of his award because the king “was not designated arbitrator in conformity with the provisions of the . . . Treaty [which] had elapsed before he agreed to act as arbitrator.” Honduras responded that Nicaragua was acting in bad faith, having waited too long to assert this potential bar to enforcement of the king’s award. The ICJ held that Nicaragua could not in good faith raise such procedural problems so many years after the arbitration was complete and the treaty purpose fulfilled. In the words of the ICJ: “It would be contrary to the principle of good faith governing the relations between States were it [Nicaragua] permitted now to rely upon any irregularity in the appointment to invalidate the Award. Its conduct up to the moment of the Award operated in my opinion so as to preclude it thereafter from doing so . . . .”38 In another illustration, Cambodia and Siam (now Thailand) agreed to a boundary delimitation made by a “Mixed Commission” of individuals from Thailand and Cambodia. The Commission’s work was completed in 1907. A subsequent dispute arose over an important religious site – the Preah Vihear Temple – situated at the border, but not mentioned in surveys conducted by the Commission’s officers. The surveys apparently placed the temple area within the territory comprising French Indochina (included in what is now Cambodia). The Commission members from Siam received copies of the surveys and did not object at the time to that body’s findings. Years later, Thailand refused to cede authority over the area to Cambodia – even going so far as occupying the areas around the Temple. In the 1960 proceedings before the ICJ, Thailand had two objections to the treaty-based boundary of 1907: first, the surveys were not actually the work of the treatydesignated Commission; second, they contained material errors in the placement of the Thai–Cambodian boundary. The ICJ rejected Thailand’s claim for two reasons: It was not made in good faith because of the tardiness in asserting it; also, Thailand had apparently acquiesced in the boundary line fixed by the Commission decades before it presented an objection. Both

38

Honduras v. Nicaragua, 1960 ICJ Reports 192 (Judgment of November 18, 1960).

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forms of conduct led to the Court’s useful articulation regarding the importance of good faith performance: The primary foundation of this principle is the good faith that must prevail in international relations, inasmuch as inconsistency of conduct or opinion on the part of a State to the prejudice of another is incompatible with good faith. Again, I submit that such inconsistency is especially inadmissible when the dispute arises from bilateral treaty relations. A secondary basis of the principle is the necessity for security in contractual relationships. A State bound by a certain treaty to another State must rest in the security that a harmonious and undisturbed exercise of the rights of each party and a faithful discharge of reciprocal obligations denote a mutually satisfactory state of things which is permanent in character and is bound to last as long as the treaty is in force. A State cannot enjoy such a situation and at the same time live in fear that some day the other State may change its mind or its conduct and jeopardize or deny rights that for a long time it has never challenged. A continuous and uncontroverted fulfillment of a treaty is tantamount to a pledge, a security renewed day by day that the treaty rights, passiveness or any form of express or tacit acquiescence, and other disputes have been decided against litigant States on the general basis of inconsistency between the claims of States and their previous acts.39

In 2011, Cambodia asked the ICJ to revisit that judgment, and noted that while Thailand “recognizes Cambodia’s sovereignty over the temple itself, it does not appear to recognize the sovereignty of Cambodia over the vicinity of the temple.”40 In 2013 the Court delivered its judgment, essentially reiterating what it had said in 1962 and referring back to the original 1907 treaty: Cambodia’s territory included the Temple itself and the area surrounding it. Thailand was thus ordered to withdraw.41 Access to the Temple from Thailand remains limited or nonexistent. Various organizations have attempted to articulate a standard for resolving questions about the precise content of the vague “good faith performance” yardstick – often referred to as pacta sunt servanda (treaties will be honored). The ILC commenced its study of this “norm” shortly after the UN 39

40

41

Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand), 1962 ICJ Reports 6 (Judgment of June 15, 1962). UN News, “UN Court Rules for Cambodia in Preah Vihear Temple Dispute with Thailand,” November 11, 2013, https://news.un.org/en/story/2013/11/455062-un-court-rulescambodia-preah-vihear-temple-dispute-thailand accessed May 3, 2022. ICJ, Request for the Interpretation of the Judgement of June 15, 1962 in the Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand), General List 151, November 11, 2013.

3 Treaty Observance

was created. The ILC’s first work product on this subject was the Draft Declaration on the Rights and Duties of States. Article 13 provided that every “State has the duty to carry out in good faith its obligations arising from treaties . . . and it may not invoke provisions in its constitution or its [internal] laws as an excuse for failure to perform this duty.”42 This limitation was almost too acceptable because it was not a functional description of the norm’s supposed content. Two decades later, some of the Vienna Convention on the Law of Treaties (VCLT) delegates argued in favor of eliminating the term from international treaty law because of its perennial ability to mean different things to different people.43 The wording chosen for Article 26 of the VCLT was general enough to achieve a consensus. It provides that every treaty “is binding upon the parties to it and must be performed by them in good faith.” That language is no more specific than any earlier attempt to define good faith. Thus, good faith performance of treaty obligations does not mean literal compliance and should be assessed by reference to the circumstances of each particular case.

3.2

Treaty Suspension and Termination

Once a state has signed and ratified a treaty, is there any way to get out of it? Terminating or suspending a treaty is difficult, but still possible under very specific conditions.

3.2.1

Changed Circumstances

A treaty is no longer binding if there has been a “fundamental change in circumstances,” also referred to as the doctrine of rebus sic stantibus. While a treaty is a solemn contract between states, a party may invoke changed circumstances as an excuse for suspending or terminating that contract. The VCLT’s essential provision on this is found in Article 62.1, which reads as follows: A fundamental change in circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty unless: (a) the existence of those circumstances constituted an

42

43

See Proposed Article 13, Report of the International Law Commission Covering Its First Session, contained in UN GAOR, 4th Session, Supp. No. 10, Doc. A/925, at 8 (1949). See Dalton, “The Treaty on Treaties,” 516–517. The proposed exclusion is therein reported by members of US Department of State participants in the VCLT.

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3 Treaties and Diplomacy essential basis of the consent of the parties to be bound by the treaty; and (b) the effect of the change is radically to transform the extent of obligations still to be performed under the treaty.

Commentators, diplomats, and jurists do not agree on the precise circumstances for properly invoking this basis for avoiding treaty obligations. Chinese scholar Wang Yao-t’ien dubbed changed circumstances as a contrivance fashioned by capitalist states to abrogate treaties at will. “In international relations, sometimes it is necessary to revise or abrogate a treaty in the light of fundamental change of circumstances. However, capitalist states frequently use this principle as a pretext to justify their unilateral [abrogation] of treaties. Generally, the process should be: When a fundamental change of circumstances occurs, the contracting states should seek revision or reconclusion of the original treaty through diplomatic negotiation.”44 Lizzitzyn agrees on the slippery nature of changed circumstances: “Its practical importance may at times be exaggerated; but nations dissatisfied with the status quo continue to regard it as a welcome device for escaping from burdensome treaties, while others fear it as a threat to stability and to their interests. Terminology has complicated the problem. . . . Governments, in asserting the right, have variously employed or refrained from employing such terms as rebus sic stantibus.”45 Changed circumstances does not permit an outright unilateral abrogation of treaty commitments. When circumstances beyond the control of the parties necessitate the alteration of a treaty commitment, the remedy is usually suspension or termination of the treaty – depending on the nature and extent of the conditions which have changed. The reality may be that the state claiming changed circumstances may no longer want to fulfill commitments that have become inconvenient or not as beneficial as anticipated. During the 1960s, the drafters of the VCLT attempted to clarify the legal contours of the changed circumstances doctrine. The drafting committee articulated its concern as follows:

44

45

Spectrum of views: The quoted characterizations are contained in Brierly, The Law of Nations, 338 (clearly reasonable); Briggs, “The Attorney General Invokes Rebus Sic Stantibus,” American Journal of International Law 36 (1942): 89, 93 (alleged principle); M. Akehurst, A Modern Introduction to International Law, 7th ed. (London: Routledge, 1997), 145 (unsuitable). Chinese view: This excerpt is from International Trade Treaties and Agreements (Peking: 1958) and is reprinted in J. Cohen and H. Chiu, eds., People’s China and International Law (Princeton: Princeton University Press, 1974), 1257. O. Lissitzyn, “Treaties and Changed Circumstances (Rebus Sic Stantibus),” American Journal of International Law 61 (1967): 895.

3 Treaty Observance Almost all modern jurists, however reluctantly, admit the existence in international law of the principle . . . commonly spoken of as the doctrine of rebus sic stantibus. . . . Most jurists, however, at the same time enter a strong caveat as to the need to confine the scope of the doctrine within narrow limits and to regulate strictly the conditions under which it may be invoked; for the risks to the security of treaties which this doctrine presents . . . [are] obvious. The circumstances of international life are always changing and it is easy to allege that the changes render the treaty inapplicable.46

The existence of the changed circumstances doctrine has been reluctantly conceded in international litigation. The Permanent Court of International Justice grudgingly recognized its vitality. The Court refused to assess its contours, however, ultimately choosing not to apply it.47 In the early 1970s, the ICJ effectively characterized Iceland’s changed circumstances defense as an unacceptable attempt to unilaterally terminate its treaty obligations. The segment of this case dealing with changed circumstances is presented below. It echoes the sentiment of the VCLT (which came into force seven years after this case was decided) that renegotiation or judicial settlement is the preferred alternative to unilateral termination supposedly based on “changed circumstances.” The dissenting opinion, on the other hand, vividly portrays the perennial problem associated with larger nations historically taking advantage of smaller ones.

FISHERIES JURISDICTION CASES (GERMANY V. ICELAND) International Court of Justice, 1974 ICJ 175 (July 25, 1974) [Excerpted case available at www.cambridge.org/FPIL7]

3.2.2

Consensual Termination

States typically enter into treaties of indefinite duration. Some treaties, however, terminate by their own terms – in conformity with the expressed (usually written) desire of the treaty parties. For example, the expiration of a specified time of duration is a routine basis for termination. The People’s Republic of China (PRC) commonly makes treaties that remain in force only for a designated period. For example, the 1950 Sino–Soviet Treaty of

46

47

International Law Commission Commentary on Draft Article 59 VCLT (now Art. 62), 428–429. See The Free Zones of Upper Savoy and the District of Gex (Switzerland v. France), 1929 PCIJ, Ser. A, No. 22, and Ser. A/B No. 46, 2 World Court Reports 448 (1971).

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Friendship, Alliance, and Mutual Assistance provided that the “present treaty will be valid for thirty years. If neither of the contracting parties . . . desire[s] to renounce the treaty, it shall remain in force for another five years and will be extended in compliance with this rule.”48 Treaties that do not expire under their own terms typically contain provisions for advance notification of termination. A treaty may be terminated or suspended even when it does not contain revocation or notice provisions. The participants may simply repeal it in another treaty. Under Article 58 of the VCLT, two (or more) nations may suspend a treaty as it relates to their mutual obligations to one another. Treaty parties can effectively disapprove a treaty by implication. If a subsequent treaty is silent about the continued validity of a prior treaty on the same subject, termination or suspension can be implied from the circumstances. The state parties may enter into a later agreement on the same subject-matter as an earlier treaty. If provisions in the second treaty conflict with the first, then the first is canceled via the implied consent of the parties. The supposedly conflicting provisions must be incompatible in order to terminate the earlier treaty by implication. Examples include the 1939 Permanent Court of International Justice case wherein a majority of the Court had decided that two related agreements were compatible. Justice Anzilotti’s dissent succinctly stated the general requirements for implicit treaty abrogation: There “was no express abrogation [of the 1931 treaty]. But it is generally agreed that, beside express abrogation, there is also tacit abrogation resulting from the fact that the new provisions are incompatible with the previous provisions, or that the whole matter which formed the subject of these latter [understandings] is henceforth governed by the new provisions.”49 Under Article 59(b) of the VCLT, the parties may consent by implication to treaty termination when a subsequent treaty is “so far incompatible with the earlier one that the two treaties are not capable of being applied at the same time.” Failure to comply with a treaty is another basis for implied consent to a treaty’s termination. A treaty can be negated by implication when all of the parties unabashedly ignore it. The absence of objections constitutes an implied understanding that the treaty is no longer in force.

48 49

Translation provided in Cohen and Chiu, People’s China, 1166, 1167. Electricity Company of Sofia and Bulgaria (Belgium v. Bulgaria), 1939 PCIJ, Ser. A/B, No. 77, at 64 (dissenting opinion of Judge Anzilotti).

3 Treaty Observance

3.2.3

Material Breach

One party’s treaty breach may allow the other(s) to consider the treaty as either suspended or terminated.50 The breach must be material, not minor. Under Article 60 of the VCLT, the material breach of a bilateral treaty by one party permits the other party “to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part.” Material breach of a multilateral treaty similarly entitles “the other parties . . . to suspend the operation of the treaty . . . in the relations between themselves and the defaulting State [but not between one another] . . . .” The clearest example of a material breach under Article 60 would be an outright repudiation of a treaty. The other party would then be authorized to suspend or terminate its own obligations under that treaty. In practice, it is often difficult to establish what constitutes a material breach and which party is actually responsible for the breach. In 1966, North Vietnam claimed that South Vietnam had materially breached the Geneva Accords. That international agreement, agreed to by representatives of both governments, called for a cessation of hostilities in Vietnam, the reduction of military forces, and reunification through free elections. The North Vietnamese claimed that South Vietnam had materially breached the Accords, premised on the introduction of US military forces into the southern portion of the country. The US justified South Vietnam’s departure from the Geneva agreement on the basis of a material breach by North Vietnam. The US claimed that the “substantial breach of an international agreement by one side [North Vietnamese aggression in South Vietnam] permits the other side to suspend performance of corresponding obligations under the agreement. South Vietnam was allegedly justified in refusing to implement the provisions of the Geneva Accords,” which otherwise would have required it to limit expanded military involvements and to arrange unification elections. South Vietnam thus claimed that the introduction of military personnel into the southern portion of the country “was justified by the international law principle that a material breach of an agreement by one party [North Vietnam] entitles the other [South Vietnam] at least to withhold compliance . . . until the defaulting party is prepared to honor its obligation.”51 North Vietnam and South Vietnam thus accused each other of

50

51

See generally, M. Gommaa, Suspension or Termination of Treaties on Grounds of Breach (Hague: Martinus Nijhoff, 1996). The US government’s brief is reprinted in US Department of State, “The Legality of United States Participation in the Defense of Viet-Nam,” American Journal of International Law 60 (1966): 565, 585, 577. For additional detail, see American Society of International Law, The Viet-Nam War and International Law (Princeton: Princeton University Press, 1968).

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materially breaching their respective commitments under the Geneva Accords. In a 1972 ICJ case, Pakistan complained that India materially breached several aviation treaties. An Indian aircraft had been hijacked and diverted to Pakistan. India then revoked Pakistan’s right to fly over Indian territory. For reasons unrelated to the merits of this case, the ICJ did not resolve whether India breached the aviation treaties when it refused to allow Pakistani aircraft in Indian airspace. It did find, however, that the Indian suspension of Pakistan’s treaty rights to pass over Indian territory, and to land in India, constituted material breaches of this aviation treaty.52

3.2.4

Impossibility of Performance

A treaty party may invoke impossibility of performance as a basis for suspending or terminating its obligations. Article 61 of the VCLT provides that impossibility “results from the permanent disappearance or destruction of an object indispensable for the execution of the treaty.” The drafters of the VCLT used the following examples: submergence of an island that is the object of a treaty relationship; the drying up of a river; and the destruction of a dam or hydroelectric installation indispensable for the execution of a treaty. The permanent or temporary impact of such circumstances would terminate (or suspend) rights and obligations arising under a treaty governing their use.53 It is quite likely that climate change will soon become a major contributor to impossibility of performance claims. A fundamental change that radically alters the nature of treaty obligations has been characterized by some jurists as impossibility of performance – setting it apart from “changed circumstances,” as discussed earlier. Although there are similarities, the criteria employed for applying “impossibility” differ. Every impossibility of performance involves a changed circumstance, but not every changed circumstance constitutes impossibility of performance. The changed circumstances doctrine may excuse difficulty of performance, while impossibility excuses only that performance that would be totally impossible. This excuse exonerates one or both parties from treaty performance when the relevant circumstance renders the treaty meaningless.54 Assume that Spain and Portugal establish their respective rights to fish in an area on either side of a boundary in the international waters off their 52

53

54

Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), 1972 ICJ Reports 46 (Judgment of August 18, 1972). International Law Commission Commentary on Draft Article 58 VCLT (now Art. 61), Comment (2), at 427. Lissitzyn, “Treaties and Changed Circumstances (Rebus Sic Stantibus),” 1967.

3 Treaty Observance

adjacent coasts. They agree to regulate their respective fishing fleets on either side of the line separating Spain’s area from Portugal’s area. The purpose of this treaty is to maintain the equal distribution of the resources near their respective coasts. If the fish unexpectedly migrate into Portugal’s area, then the treaty would be suspended. The changed circumstance is that fish are temporarily unavailable in equal numbers to both Spain and Portugal. Spain’s fishermen might be permitted to fish in Portugal’s area of the high seas because of the treaty’s mutually agreed purpose of equitable distribution. The same fishing treaty would be terminated under the impossibility doctrine if all of the fish were permanently driven away by contamination of the treaty area. The treaty would be meaningless because the object of that agreement would no longer exist.55

3.2.5

Conflict with Peremptory Norm

A new treaty is void ab initio if it instantly conflicts with a peremptory norm of international law. Article 53 of the VCLT defines jus cogens as a norm which is “accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.” These are also referred to as peremptory norms. However, the VCLT does not provide examples of what constitutes such a norm, though there is agreement that the prohibition of slavery, torture, and genocide, for example, count among them. The ILC’s Draft Articles on State Responsibility provide no substantive clues regarding which norms fall within this category. Article 26 states only that “[n]othing in this Chapter precludes the wrongfulness of any act of a State which is not in conformity with an obligation arising under a peremptory norm of general international law.” Article 40 follows with “the international responsibility which is entailed by a serious breach by a State of an obligation arising under a peremptory norm of general international law . . . [which] is serious if it involves a gross or systematic failure by the responsible State to fulfill the obligation.” Some jurists and commentators deny the functional existence of jus cogens because even the most generally accepted rules have not achieved universality. Tunkin explains that the “arguments of opponents of jus cogens can be reduced to the fact that such principles are possible only in a wellorganized and effective legal system, and since international law is not such a system, the existence of principles of general international law having the 55

See American Law Institute, Restatement Second of the Foreign Relations Law of the United States, §153, Illustration 1 (St. Paul: West, 1965). Unlike the prior Restatement, the new Restatement Third does not use illustrations in the replacement §336.

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character of jus cogens is impossible.”56 One can make a reasonable theoretical argument that applying jus cogens (assuming that it actually exists) would render certain treaties void. When two states have entered into a treaty in which they agree to invade another country, that agreement violates the most fundamental UN Charter article: Article 2.4’s prohibition on the use of force in international relations. Such a treaty would violate an undisputable Charter norm. Today, Stalin and Hitler’s then-secret 1939 agreement to divide Europe could not legitimately circumvent the Article 2.4 prohibition of force.

3.2.6

Conflict between Parties

It is not uncommon for states to sever their diplomatic or consular relations. That circumstance does not necessarily affect their respective treaty rights and obligations. Article 2.3 of the Vienna Convention on Consular Relations, for example, provides that the “severance of diplomatic relations shall not ipso facto [automatically] involve the severance of consular relations.” Article 73 of the VCLT similarly provides: “[T]he present Convention shall not prejudge any question that may arise in regard to a treaty . . . from the outbreak of hostilities between States.” War and other hostile relationships do not necessarily terminate treaty obligations of parties to the conflict. The US war with Germany, for example, did not terminate the 1923 US treaty obligation to transmit property of deceased individuals to German citizens.57 States are expected to continue to perform certain treaty obligations, such as the Geneva Conventions of 1949 dealing with Red Cross monitoring and the treatment of prisoners of war. In 1997, the ICJ famously adjudicated the following dispute between Hungary and Slovakia. Hungary relied on various VCLT provisions – resulting in termination of the 1977 Budapest Treaty between Hungary and (what was then) Czechoslovakia:

CASE CONCERNING THE GABCIKOVO-NAGYMAROS PROJECT (HUNGARY V. SLOVAKIA) International Court of Justice, 1997 ICJ Reports 7, 37 International Legal Materials 162 (1998) [Excerpted case available at www.cambridge.org/FPIL7]

56

57

Judicial denial: see ILC Commentary on Draft Article 50 VCLT (now Art. 53), Comment (1), 409. Academic denial: Tunkin, Theory of International Law, 149. Clark v. Allen, 331 U.S. 503 (1947).

4 Diplomacy

4 Diplomacy If treaties are the primary tool of statecraft, who wields that tool? While heads of state and government are often in the limelight, the “work” of crafting international agreements and building international relationships is done by diplomats. In this section, we examine the role of the diplomat and diplomacy in international law, as well as the specific limitations and protections given to them and their places of work abroad. Diplomacy is undergoing one of the most fundamental changes since its inception. Once exclusively the preserve of states, it now includes many other official and unofficial means to pursue a state’s interest and larger sets of issues that transcend state borders. The primary way that diplomats have helped to build international law is through the creation of inter-state treaties and other binding instruments of international law. Treaties are the means by which diplomats can create a lasting legacy for not just themselves, but their states, and a rational means to address needs of states and the international system. Koremenos and her collaborators have explained, using a combination of theory and diplomatic case studies, how diplomats create highly complex “institutions” through treaties, regimes and other international agreements, and why it is rational for them to do so.58 But there are several other ingredients for effective diplomacy. Diplomats are actors who: ▪ have the ability to speak for their states and enter into binding agreements for them; ▪ are committed to a long-term process and have a high tolerance for stressful and often tedious negotiations; ▪ have the means to travel and spend long periods of time to negotiate often arcane and technical details of proposed agreements; ▪ have specialized knowledge in defined issue areas (e.g. environmental regulations, arms control, computer networks, etc.) and the ability to anticipate future trends in these areas; ▪ can raise their sights and seek to build institutions that could benefit groups beyond those in their own states, while not sacrificing core state interests; and ▪ are aware of cultural sensitivities and have learned not to box opponents into a corner from which they cannot emerge without embarrassment.

58

B. Koremenos, C. Lipson, and D. Snidal, eds., The Rational Design of Institutions (Cambridge: Cambridge University Press, 2003).

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However, diplomacy, like so much else in the twenty-first century, is being conducted increasingly online and at a more frenetic pace. This “new” diplomacy is not always conducted like the old model of state-accredited “diplomats” as in the above list. It is also being conducted by both “superempowered individuals,”59 non-state actors and ordinary citizens alike.60 One analyst has even suggested that the new diplomacy is “a set of skills and processes which can be learnt” rather than belonging inherently to a “traditional diplomatic class.”61 Some of these individuals and non-state groups (i.e., non-governmental organizations, or NGOs) take the larger view, described above, but some are clearly self-interested. Thus, the system of diplomacy is undergoing reconstruction. Whose interests will be served? How can the new diplomats be held accountable and by what standards? To get at these fundamental questions let us review how diplomatic practices became formalized, the nature of diplomatic and consular functions, including controversial examples of diplomatic “immunity,” how those functions served state interests, specific examples of how the external practices are changing, while concluding that these changed external forms may be somewhat misleading.

4.1

Evolution of Diplomacy

After often bloody conflict, Greek armies would choose a “legate” to make diplomatic representation to the opposing side, often calling for a ceasefire or a peace treaty negotiation. Thus began the practice of “diplomatic immunity,” because if the legate (or a group of diplomats, the legation) were assassinated, costly hostilities would resume. One of the earliest relevant documents describes formal practices dating back to the ninth century BC among Greek city-states. That document describes at least three ranks of diplomatic officials, including “ministers,” those of middling rank, and messengers. These documents also describe diplomatic exchanges, including protection for all diplomats, including messengers, who often brought unpleasant news from distant lands.62 59

60

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62

For the concept of the “super-empowered individual” as a key player in international affairs, see T. Friedman, The Lexus and the Olive Tree: Understanding Globalization (New York: Random House, 2000). J. Kelley, Agency Change: Diplomatic Action Beyond the State (Lanham: Rowman & Littlefield, 2014). R. Vickers, “The New Public Diplomacy: Britain and Canada Compared,” British Journal of Politics and International Relations 6, No. 2 (2004): 183. B. Murty, “Diplomacy in Historical Perspective,” in B. Murty, The International Law of Diplomacy: The Diplomatic Instrument and the World Public Order (New Haven, CT: New Haven Press, 1989), 3.

4 Diplomacy

We can trace the modern practice of diplomacy to the Italian peninsula of the fifteenth century, and the works of Cardinal Richelieu of France. These ideas spread to the rest of Europe. The Italians first established permanent representatives to other political units called “ambassadors.” Anderson helps explain why these practices first took root in the Italian peninsula: These [diplomatic practices] formed the basis of a system of interstate relations recognizable as the direct ancestor of the one[s] which exist today . . . [M]ost of the Italian peninsula was divided between a fairly small number of relatively well-organized states . . . These competed with one another intensely for power, for territory, [and] in the last analysis, for survival. It was therefore essential for their rulers to . . . be as well informed as possible about each other’s policies and ambitions . . . Fifteenth-century Italy, then, was in miniature what [was to follow in] most of western Europe and [led to what modern diplomacy] was to become.63

After the Napoleonic Wars in the early nineteenth century, the Congress of Vienna (1815) helped codify diplomatic practices and raised its status from a somewhat disreputable activity (akin to cloak-and-dagger spying) to a valued state practice that could help prevent or lessen future large-scale inter-state conflict, or “preventive diplomacy.” This served the longer-term interest of the international community, at least in Europe. As Morgenthau classically observed, the main function of diplomacy is to use all means short of war to promote a state’s interest. The converse may also be true: diplomats are supposed to use all means at their disposal to avoid war itself and other forms of conflict, including conflict in international courts. In 1957, the ICJ articulated this practical norm when India objected to Portugal’s premature filing of a case against India in the ICJ. The Court’s formulation of this principle was that “Portugal, before filing her application in the present case, did not comply with the rule of customary international law requiring her to undertake diplomatic negotiations and continue them to the point where it was no longer profitable to pursue them . . . .”64 The diplomatic function is not only to prevent the premature resort to third-party resolution. It is to prevent disputes from escalating into violent conflicts. In a classic article, Scott claimed that the US had pioneered a “new diplomacy” based on appeal to lasting principles, including supposedly universally accepted notions of justice and the importance of neutrality. Other hallmarks included the use of international law and not force to settle 63 64

M. Anderson, The Rise of Modern Diplomacy 1450–1919 (London: Longman, 1993), 2–3. See the Right of Passage Case (Preliminary Objections), 1957 ICJ Reports 125, 130.

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disputes, and the creation of a new international tribunal, which came to fruition about twenty years after the article was written.65 Today, almost every recognized state in the world has relations with almost every other recognized state, either bilaterally through individual embassies (or “missions”) in the other states, or multilaterally through the UN or the “good offices” of another state.

4.2

Diplomatic Relations

States, due to history or intention, may not have direct diplomatic relations with other states. One of the longest examples was the rupture in relations that occurred after Fidel Castro took over the island nation of Cuba in 1959 until President Barack Obama restored relations in 2014 (only to have them downgraded by his successor, President Trump). Some states have never had full diplomatic relations: for example, Taiwan (the Republic of China) and mainland China (the PRC). Under the “one China, two systems” formula the two states have pledged to change their relationship in the future, though that seems increasingly unlikely. When two states agree to establish diplomatic relations, they first exchange representatives, who usually work in the respective capitals of the other state. The representative is often referred to as “ambassador,” “minister,” or “chief of mission.” A chargé d’affaires or “deputy chief of mission” is normally the second-ranking official in the delegation. He or she takes charge of the mission and the premises in the absence of the primary diplomat. No state has established diplomatic offices in every other state of the world. Many consulates and embassies (missions) have closed for financial reasons. The US, for example, maintains approximately 140 missions abroad. It hosts about 130 foreign embassies in Washington, DC. The US also maintains more than 100 “consular posts” to deal with commercial and routine matters (like visas) throughout the world. Certain states, however, can afford embassies in only a few places. Financially challenged states must sometimes use the same diplomatic premises as a number of others. Conversely, some states have no diplomatic presence and often rely on their UN mission in New York (or Geneva) to promote their diplomatic interests in other countries. The host state may close or withhold occupancy of an embassy – without necessarily breaking diplomatic relations. This is all part of a nuanced and often fraught process of “signaling” of displeasure by one state to another or a tit-for-tat response to a similar action in the other state(s), 65

J. Scott, “America and the New Diplomacy,” International Conciliation 1 (1909): 247–258.

4 Diplomacy

using means short of war. For example, the US closed Rwanda’s Washington embassy in July 1994. President Clinton explained that the US was not breaking formal ties with Rwanda, but attenuating relations to a lower level of interaction. He explained that the “United States cannot allow representatives of a regime that supports genocidal massacres to remain on our soil.”66 Critics complained that this was in lieu of more forceful actions by the Clinton Administration against Rwanda. After two states formally establish diplomatic relations, they then send and receive ambassadors to the other state, which are then “accredited” or recognized as the sole, direct representative from one state to another. There is usually an official ceremony in which the ambassador presents “credentials” to the head of state, who officially receives them. This reception, or approval of a foreign state’s diplomat, is confirmed by an agrément. If granted the title Ambassador Extraordinary and Plenipotentiary (AEP), the ambassador is entitled (within certain limits) to craft policy on the ground and respond to changing conditions with adaptations to policy without waiting for formal instructions from the sending government. Problems can arise in treaty negotiations, however, if the ambassador “exceeds” the instructions they have been given. All diplomats, in addition to an AEP, must seek accreditation with the host government. In one of the few cases on this matter (US v. Sissoko), a Gambian citizen in Florida pled guilty to the charge of paying a gratuity in violation of US law. Gambia had designated this individual as a Special Advisor to the Special Mission in the US. Gambia therefore claimed diplomatic immunity for Mr. Sissoko against the charges under the Vienna Convention on Diplomatic Relations. A federal judge denied that request, however. Gambia had not submitted Mr. Sissoko, or his credentials, for certification by the US Department of State. Thus, there had been no performance of the accreditation process set forth in the Convention and the governing host State Diplomatic Relations Act. There is a UN Convention on Special Missions. As it had not been signed by Gambia, it could not be proffered by this “Special Advisor” as evidence of his diplomatic status.67 Accreditation can also become a problem during the postwar occupation by another country. Shortly after the first phase of the 2003 Iraq War, there were a number of foreign diplomats in Baghdad. These diplomats had been accredited to, and by, the regime of Saddam Hussein. Many still resided in

66

67

“Statement on the Closing of the Embassy of Rwanda, July 15, 1994” Public Papers of the Presidents: Administration of William J. Clinton, Book 1 (Washington, DC: US Government Printing Office, 1994), 1257. U.S. v. Sissoko, 995 Fed. Supp. 1469 (Southern District of Florida, 1997).

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former mission residences in Iraq. The US State Department’s position was as follows: “They’re accredited to a regime that is no longer existent, and, therefore, their accreditation would have lapsed.”68 The location of the diplomatic premises may signal a political rift. Foreign missions are normally located in the capital city of the host state. Massachusetts Avenue, in Washington, DC, is commonly referred to as “Embassy Row.” There are many foreign missions on that street. Many other states have a similar practice of hosting embassies in the same city or area. In Israel, most states have located their diplomatic premises in Tel Aviv. They do not recognize Jerusalem as the capital of Israel, as claimed by Israel since 1950. Palestine, too, claims Jerusalem as its capital, which makes the situation even more complicated. Prompted by financial incentives in 1993, the largely Muslim State of Kyrgyzstan established its embassy in Jerusalem – which is also a religious center for Muslims. Only El Salvador and Costa Rica had previously maintained embassies in Jerusalem. However, despite warnings of violence and a potential rupture in the peace process between the Israelis and Palestinians, the US moved its mission to Israel from Tel Aviv to Jerusalem in 2018 under President Trump, timed to coincide with the seventieth anniversary of the foundation of the state of Israel.69 The Biden Administration will likely maintain the Jerusalem embassy location, while also supporting both statehood for Palestinians and support for Israel.70

4.2.1

Breaking and Restoring Diplomatic Relations

As noted above, states have several options short of an outright rupture of relations between them. In addition, State A can “recall” an ambassador for “consultations,” or choose to leave an ambassador’s post unfilled to signal extreme displeasure with State Y. It can expel lower-level diplomats, and those operating under diplomatic cover. However, in more extreme cases, State A may wish to terminate relations with State Y. In that case, the ambassador is declared persona non grata (not welcome) and forced to leave the country. This is the most important step in rupturing relations, usually followed by the closure of the mission itself. Not all states follow this customary practice of merely withdrawing a particular diplomat’s acceptability. Contrary to international law, diplomats are sometimes held captive and have even been prohibited from exiting the 68 69 70

See F. Kirgis, “Diplomatic Immunities in Iraq,” ASIL Insights (June 2003). S. Farrell, “Why Is the U.S. Moving Its Embassy to Jerusalem?,” Reuters, May 7, 2018. “U.S. to Keep Embassy in Jerusalem: Biden’s Top Diplomat,” January 20, 2021, www .aljazeera.com/news/2021/1/20/us-secretary-of-state-blinken-us-embassy-to-remain-injerusalem accessed May 3, 2022.

4 Diplomacy

host state. The example of the hostage-taking of US diplomats by Iran in 1980 is well known. During its Cultural Revolution, the PRC withdrew the diplomatic status of a representative in the Indian embassy and forbade his departure until he was punished for the “crimes” with which he had been charged. In a similar episode during the same period, a Dutch chargé d’affaires in China was declared persona non grata. Rather than facilitating his return to the Netherlands, China did not grant this officer an exit visa until after five months of confinement. In response to this episode, Chinese diplomats in the Netherlands remained secluded in their offices – to avoid having to testify about this affair to Dutch officials. China’s actions violated both the customary practice of states and the fundamental diplomatic treaty (see Section 4.3). This incident illustrates how host states can readily interrupt and interfere with the normal conduct of diplomatic relations. Suspension or termination of diplomatic relations is a discretionary state practice. International law does not require a legal basis for such disruptions. States may abruptly refuse to deal with each other. The sending and host states may opt to recall their respective diplomatic agents. During the student demonstrations in Beijing in 1989, the US did not break diplomatic relations with China. The US did prepare its diplomats to leave Beijing for their safety – an action designed to demonstrate the US protest of the massacre of students seeking democratic reform in China (in Tiananmen Square). Similarly, Russia expelled US diplomats in response to increasing US sanctions against Russia for election interference and cyber-attacks.71 Even when state-to-state relations are officially broken, states often need or want to continue to deal with each other, especially in matters of trade or practical affairs. Even though publicly at odds, the states may also be privately seeking a reconciliation or some other mutual objective. One of the more common devices for this shadowy form of diplomacy is to employ the diplomatic corps of third-parties who enjoy good relations with both hostile states. As described by Berridge: “Intermediaries are valued by hostile states seeking some kind of accommodation when at least one of the parties regards the political price of direct talks as unacceptably high, or believes that the participation of a third-party in any negotiation with its enemy will bring it material gain and additional security from any settlement.”72 For many years the Swiss and former Czech embassies in Havana

71

72

A. Roth, “Russia Expels 10 U.S. Diplomats as Part of Retaliation for Sanctions,” The Guardian, April 16, 2021, www.theguardian.com/world/2021/apr/16/russia-expels-10-usdiplomats-etaliation-sanctions accessed May 3, 2022. G. Berridge, Talking to the Enemy: How States without “Diplomatic Relations” Communicate (New York: St. Martin’s Press, 1994), 129.

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exchanged information on behalf of the US and Cuban governments. This is also known as using third-party “good offices,” which may include international organizations like the UN, or a classic “neutral” state like Switzerland. Other means of conducting diplomacy when formal relations are broken include disguised embassies, meeting in distant countries, and “working funerals” when diplomats come together over the death of a prominent official. These techniques were used for many years to conduct business between Israelis and Palestinians, and the British government and the Irish opposition group, Sinn Fein. Diplomatic relationships can also be suddenly restored. In July of 2008, Kuwait named its first ambassador to Iraq since the 1991 Persian Gulf War. Iraq had opened its embassy in Kuwait in 2003, led by a chargé d’affaires (sub-ambassador). Each country did so, notwithstanding Al-Qaeda’s threatening Arab countries who opened embassies in Iraq, because of the perceived collaboration with US military forces in Iraq. Three months later, the Arab League resumed its diplomatic mission in Iraq. The previous envoy quit in January 2007 because Arab nations had failed to do more to ease the suffering of the Iraqi people. The US severed relations with Libya and designated it as a “terrorist” nation because of the 1988 Lockerbie incident. In that episode, Libyan intelligence agents blew up a Pan Am plane over Scotland, killing 270 passengers. Libya’s bombing was retaliation for the 1986 US bombing of Tripoli. That incident was designed to kill Libya’s leader. In May 2006, the US restored diplomatic ties with Libya. After ten years, the US removed Libya from its list of states engaged in terrorism. Libya’s government had previously paid 10 million dollars to the families of each passenger. The US has since praised Libya for its role in assisting the US fight against Al-Qaeda in the aftermath of 9/11. This temporary thaw was not sufficient, however, to save Libyan strongman Gaddafi; the US led a multilateral effort through NATO to hold him accountable in front of the ICC. This effort ultimately led to Gaddafi’s death at the hands of a local militia member, plunging Libya into further chaos.

4.3

Diplomatic Functions

The 1961 Vienna Conventions on Diplomatic Relations and the 1963 Vienna Conventions on Consular Relations still serve as the core instruments governing diplomacy, and they serve as a prime reference for this section. The primary duty of those officials accredited by their states to the rank of full ambassador is to represent the interests of that state. One can reach the rank of full AEP either by climbing the career ladder of a state’s foreign

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ministry, or directly through political appointment by the head of state. In the US, jockeying for what is perceived as a plum AEP position is often intense with an incoming presidential administration. In the US, about onethird to one-half of the ambassadors are political appointees; the careerists make up the balance.73 In that role, the ambassador normally deals with counterparts in the host state’s government, including the host state’s head of government. Such duty does not preclude also striving to further the interests of multiple states, or even a world interest, as long as it does not directly conflict with the interests of the home state. However, the duties of the ambassador and embassy staff also include more down-to-earth matters such as assisting the citizens of the home state who are in the same state to which the ambassador is accredited (i.e., the host state). Routine matters, like the issuance of visas and passports, are normally handled by lower-ranking officials, like consular and foreign-service officers. However, at times citizens of the home state are harmed while in the host state, and the ambassador may need to intervene to assist with criminal defense, freedom from incarceration, or to assist with funeral arrangements and transfer of any property between the host state and the home state. A partial listing of the legitimate duties of top diplomats, including the ambassador, would include: ▪ representing the sending state in the receiving state; ▪ protecting the interests of the sending state and of its nationals, within the limits permitted by the receiving state’s internal laws and international law; ▪ negotiating with the government of the receiving state; ▪ ascertaining by lawful means the conditions and developments in the receiving state, and reporting them to the government of the sending state; and ▪ promoting friendly relations between the sending state and the receiving state by prodding the development of their economic, cultural, and scientific relations.74 As this list makes clear, the responsibilities of top diplomats are broad indeed. “Promoting friendly relations” in the host state encourages envoys to engage

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M. Viser and A. Gearan, “Ambassador Candidates Jockey for Plum Posts,” The Washington Post, February 15, 2021. “Vienna Convention on Diplomatic Relations,” opened for signature on April 18, 1961, UNTS Vol. 500:95, at Article 3. https://treaties.un.org/doc/Treaties/1964/06/19640624% 2002-10%20AM/Ch_III_3p.pdf accessed May 3, 2022.

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in creative institution-building that can enhance quality of life for citizens in multiple states.

4.3.1

Multilateral Diplomacy: Summits

Ever since Presidents Theodore Roosevelt and Woodrow Wilson personally took the diplomatic helm75 at the Sino–Russian Peace talks, and Paris Peace Conference of 1918 to end World War I, respectively, heads of state have increasingly engaged in high-stakes summit diplomacy. Such “summitry” has the major advantages of bringing attention to issues that otherwise might be ignored, and the promise that there may be a relatively quick solution to the international problem highlighted because no one has greater authority to speak for a state than its chief executive. The downside – danger, even – is that the head of state/government, who may not be familiar with vital details, could sacrifice the state’s security and/or prosperity to a more skillful negotiator and better-prepared counterpart from another state(s). The perils of summitry can be illustrated by US Presidents Ronald Reagan and Donald Trump. President Reagan at the US–USSR (now Russia) summit in Reykjavik, Iceland, was almost convinced by Soviet president Gorbachev to eliminate all intermediate nuclear force weapons throughout the world, which would have immediately placed all European allies at great risk of Soviet invasion and control. Once he returned to the US, Reagan’s aides had to “clarify” (i.e., undo) the verbal commitments he had made in the Icelandic capital. Fortunately, the agreement had not been finalized. Even his closest advisers claim that President Trump was repeatedly misled by his Russian counterpart, Vladimir Putin (e.g., in their summit in Helsinki, Finland in July 2018) on a range of issues, including the abandonment of foundational arms-control agreements; accepting Putin’s reassurances that Russia had not interfered in US elections; and similar reassurances that Russia was not targeting and offering bounties on individual US armedforces personnel.76 Similarly, a widely publicized summit between Trump and the dictator of North Korea, Kim Jong Un, in February of 2019 elevated the status of Kim without resulting in any significant gains for the US or

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Of course, monarchs and other heads of state have signed treaties for years, but personally negotiating the minute details was usually seen as beneath the dignity of the chief executive before US presidents Theodore Roosevelt and Woodrow Wilson. John Bolton, The Room Where It Happened: A White House Memoir, 1st ed. (New York: Simon and Schuster, 2020). See especially pages 66 and 180.

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regional security.77 Less publicized were his summits with his Chinese counterpart, Xi Jinping, in which he was also outmaneuvered.78 The promise of summitry can be illustrated by French president Charles de Gaulle in the EU accession negotiations, and by US president Jimmy Carter at Camp David. De Gaulle represented that country ably and forcefully in many summits, but none more so than the negotiations that resulted in the accession of France to the then-European Community (now EU). He was able to minimize France’s monetary and military commitments to the new European regional organization, and to maximize France’s freedom to act in international affairs. US president Jimmy Carter demonstrated a very different, but nonetheless effective, style in bringing together two implacable foes – the Israelis and Egyptians – at the presidential retreat of Camp David to help thaw relations between the two parties, resulting in mutual state recognition and the settlement of the territorial sovereignty of the Sinai Peninsula. Summits have now become a regular feature of international politics. Leaders now consult on a periodic basis about matters of mutual interest. The leaders of the Group of Seven, or “G-7” (G-8 if Russia is included) industrialized nations meet annually to address matters of economic concern. Heads of state in the western hemisphere regularly meet in an annual “Summit of the Americas” to discuss issues of mutual concern; most often control of transnational crime and drug proliferation, climate change, and energy cooperation. Former heads of state may take on a diplomatic role as well, although not necessarily acting as a direct representative of their home country. In April 2008, former US president Jimmy Carter once again sought peace in the Middle East. He went to Cairo to meet with officials from Hamas, the Palestinian militant organization now in control of Gaza. He urged Hamas to control the rockets that are frequently fired from Gaza into Israel. He then proceeded to Syria for talks with Hamas and the Syrian president. This “private mission” alternative aids governments that do not wish to be perceived as negotiating with terrorists. He has undertaken similar missions to North Korea.

4.3.2

Diplomacy through International Organizations

International organizations often undertake diplomacy to ease tensions that could lead to war or to provide humanitarian assistance. Organizations like

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“Trump-Kim Summit Breaks down after North Korea Demands End to Sanctions,” BBC World News, 2019, www.bbc.com/news/world-asia-47398974 accessed May 3, 2022. Bolton, The Room Where It Happened. See especially Ch. 10.

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the UN, EU, and North Atlantic Treaty Organization (NATO) were designed to be settings in which multiple diplomats could gather and deal with problems that transcend particular states, and work on mechanisms that might become institutionalized to deal with similar problems in the future. In addition, the UN Secretary-General often takes his/her own initiative to conduct some of the world’s behind-the-scenes diplomacy when international crises are brewing. In May 2008, Secretary-General Ban Ki-moon attempted to convince Myanmar’s ruling military government to allow the international community to provide relief to its citizens after devastating typhoons killed possibly more than 100,000 people. However, many of the more routine tasks of diplomacy are handled by consular officials.

4.3.3

Consulates and Consular Officials

Each state may only have one official embassy (or “mission”) in each host (receiving) state. However, a sending state may have one or more consulates in the host state with or without a mission. If there is a mission, the consulate(s) report to the mission, and they deal more with commercial, legal, and cultural affairs than does the mission. Consulates may or may not be headed by accredited diplomats. Sometimes they have an office of “honorary consul” who is usually a citizen of the host (receiving) state who possesses expertise in host state business matters, and who helps promote international trade between the two states. Consulates – which are sometimes seen as a stepping-stone to full diplomatic relations – have a longer history in international law than do full missions. The forerunner of the modern consul appeared almost as early as people began to trade. The Preamble to the 1963 Vienna Convention on Consular Relations acknowledges that “consular relations have been established between peoples since ancient times.” As described by Lee: Among the many political contributions of the Greek city-states . . . [include] the early development of the consular system; the prostates and the proxenos are considered forerunners of the modern consuls. The prostates were chosen by Greek colonists to live abroad to act as intermediaries in legal and political relations between the foreign (Greek) colony and the local government [of a distant land]. About the sixth century BC the Egyptians allowed Greek settlers . . . to select prostates, who administered Greek law to the Greeks. In the same period, similar institutions could be found in certain parts of India. During the first millennium BC, proxenoi were appointed in the Greek citystates to look after the interests of the appointing [city-]State. The proxenos, though more a political than commercial agent, has been likened to the modern

4 Diplomacy honorary consul, and was [thus] chosen from the nationals of the receiving State.79

Internationally agreed-upon duties and expectations of consular officials are spelled out in the Vienna Convention on Consular Relations of 1963 as follows: ▪ protecting in the receiving state the interests of the sending state and of its nationals, within the limits permitted by international law; ▪ furthering the development of commercial, economic, cultural, and scientific relations . . . and otherwise promoting friendly relations . . . ; ▪ ascertaining by all lawful means conditions and developments in the commercial, economic, cultural, and scientific life of the receiving state, and reporting thereon to the government of the sending state and . . . other persons interested; ▪ issuing passports and travel documents to nationals of the sending state, and visas or appropriate documents to persons wishing to travel to the sending state; ▪ helping and assisting nationals, both individuals and bodies corporate [business interests], of the sending state . . . ; ▪ safeguarding . . . the interests of minors and other persons lacking full capacity who are nationals of the sending state . . . ; ▪ . . . representing or arranging appropriate representation for nationals of the sending state before the tribunals and other authorities of the receiving state . . . where such nationals are unable to assume the defense of their [own] rights and interests . . . [including the transmission of judicial documents or the taking of evidence] for the courts of the sending state . . . ; ▪ exercising rights of supervision and inspection provided for in the laws and regulations of the sending state [for] vessels having the nationality of the foreign state, as well as aircraft registered in that state; ▪ assisting vessels and aircraft . . . and their crews, taking statements regarding the voyage of a vessel, examining and stamping the ship’s papers, and . . . conducting investigations into any incidents that occurred during the voyage . . . ; and ▪ performing any other functions entrusted to a consular post by the sending state which are not prohibited by the laws . . . of the receiving state . . .80

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L. Lee, “Historical Evolution,” Ch. 1 in L. Lee, Consular Law and Practice, 2nd ed. (Oxford: Clarendon Press, 1991), Volume 4. “Vienna Convention on Consular Relations,” opened for signature on April 24, 1963, UNTS Vol. 596:261, at Article 5. https://treaties.un.org/doc/Treaties/1967/06/19670608%201036%20AM/Ch_III_6p.pdf accessed May 3, 2022.

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Consulates thus perform a wide variety of practical functions, such as gathering information relevant to international trade, investigating alleged infractions of commercial treaties, supervising international shipping, and assisting citizens of a state in a foreign country. Seagoing vessels must be registered to a particular country and fly that country’s flag. Consuls authenticate the registration papers of their home state’s ships in the host state. Consuls help their home state’s nationals resolve host state customs and immigration problems. Consuls also provide needed services to fellow citizens who become ill or indigent while in the host state. They take charge of the estates of deceased home state nationals and arrange for property distribution under the host state’s laws. Unlike top-level diplomats, consuls often directly assist their fellow nationals with personal problems – such as obtaining legal representation in host state courts. Such assistance is often desperately needed, yet not always understood, by citizens traveling to another state whose legal system is far different than their own. As an example, about 2,500 American travelers are detained abroad each year, and visitors to the US are also often unaware of their rights. As of July 2001, only four of the 123 foreign prisoners who had been sentenced to death in the previous twenty-five years were promptly told that they could seek help from their home state’s consulate. At least fifteen of these foreign prisoners had been executed since 1976, many from states where the death penalty does not exist. The following case from the ICJ illustrates how the US is expected to provide reciprocal assistance to aliens (foreign nationals) who live in or travel to the US.

CASE CONCERNING AVENA AND OTHER MEXICAN NATIONALS (MEXICO V. UNITED STATES OF AMERICA) International Court of Justice, General List No. 128 (March 31, 2004) [Excerpted case available at www.cambridge.org/FPIL7]

Article 36 of the 1963 Vienna Convention on Consular Relations thus provides for consular notification upon “request” when a state agent arrests a foreign national. This “requirement” has spawned a number of clashes between the following parties: the US and the ICJ; President Bush and the governor of Texas; and the Chief Justice of the US Supreme Court and the US president. Recall an earlier case in this chapter, Medellín v. Texas. That case addressed which treaties are “self-executing” versus those that require

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implementing legislation to trigger an individual’s right to directly seek enforcement of a treaty provision. Fearing that Jose Medellín would be executed without benefit of his Article 36 right to consult with the consulate, Mexico again sought relief from the ICJ in June 2008.81 The US Supreme Court denied relief on that ground in the Medellín decision. Mexico asked the ICJ to issue an order that would direct the US not to execute Medellín without further review. In July, the ICJ ordered the US to take all necessary measures to ensure that Jose Medellín and other named Mexican nationals currently on death row in Texas were not executed – pending settlement of the dispute between Mexico and the US over the interpretation of the judgment in the ICJ’s above Avena case.82 The issue became moot. This defendant was executed in August 2008.

4.4

Diplomatic Extraterritoriality and Asylum

One of the most powerful tools of diplomats is the legal fiction that embassies (missions) and the ground upon which they are located are legally part of the sending state (or extraterritorial) and not the host (receiving) state in which they reside. This helps protect not only the diplomatic personnel working there, but allows the mission to provide protection, or diplomatic asylum, to persons that the sending state deems worthy. Even if this fiction is acknowledged in general, however, specific questions arise in international law as to its application. What is the effect of an act undertaken in a foreign embassy or consulate when the legal consequences differ from the law of the host state (where the building is located)? May a foreign state give diplomatic asylum within those premises, when to do so would offend the host state? Some background is helpful. Medieval “Christian” sending state consuls exercised full civil and criminal jurisdiction over their fellow nationals located in non-Christian states. This exclusion from the jurisdiction of local tribunals was claimed under the convenient legal fiction of “extraterritoriality.” Foreign nationals could thus invoke the protection of the more favorable laws of their own home states. The Sino–Russian Treaty of Nerchinsk of 1689 provided that criminals would be delivered to the consular officers of their own countries for prosecution. The Franco–US Consular Convention of 1788 similarly provided for consular jurisdiction of the

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“Request for Interpretation of Judgment” (June 5, 2008) was Mexico’s second ICJ proceeding regarding the Avena case, www.icj-cij.org/docket/files/139/14582.pdf accessed May 3, 2022. For further legal analysis of post-Avena developments, see J. Paust, “Medellin, Avena, The Supremacy of Treaties, and Relevant Executive Authority,” Suffolk Transnational Law Review 31 (2008): 209ff.

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respective nations over civil disputes between Frenchmen when both were in the US and between Americans when both were in France. The Japanese– American Treaty of 1858 was a model for a number of similar pacts that provided for this extraterritorial regime, conferring jurisdiction to resolve such disputes on foreign consular officers located in the host state.83 Contemporary courts reject this historical fiction by applying a pragmatic analysis of premise immunity. In that vein, Article 27 of the 1963 Vienna Convention on Consular Relations requires that host countries protect the premises of foreign embassies and associated property. As an example of the contrasting interpretations, under the historical view, Egypt’s consulate in London would have been characterized as being located on “Egyptian” soil. The contemporary approach is that the Egyptian consulate in London is located in England for all relevant purposes, but still must be protected. A recent case illustrates the importance of premise immunity in gruesome fashion. Journalist Jamal Khashoggi, a Saudi Arabian citizen, walked into the Saudi Arabian consulate in Istanbul, Turkey on October 2, 2018. He hoped to obtain a certificate from the consulate confirming his earlier divorce, as he planned to marry a Turkish woman. At the time he visited the consulate, he was a journalist for the Washington Post, a leading US newspaper. Khashoggi never came back out of the consulate that day. He had vanished. His fiancée waited outside the consulate for ten hours, but to no avail.84 The reports on what happened to him are varied, but all point to a plan hatched at the highest levels of the Saudi government. The Turkish government shared disturbing (but not authenticated) audio in which “two Saudi officials are apparently heard discussing how to cut up and transport Khashoggi’s body just minutes before the journalist entered the consulate.”85 The brutal attack appeared coordinated. Khashoggi’s body was never recovered; it is alleged that he was dismembered and the pieces of his body transported to the nearby Saudi Consulate General’s residence, where it was burned over the course of three days in an outdoor oven designed to reach over 1,000 degrees.86 As Milanovich writes, Saudi Arabia clearly violated Article 55 of the Vienna Convention on Consular Relations when it allowed its agents to 83 84

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L. Lee, “Extraterritoriality,” in Lee, Consular Law and Practice, 7. “Jamal Khashoggi: All You Need to Know About Saudi Journalist’s Death,” BBC News (February 24, 2021) www.bbc.com/news/world-europe-45812399 accessed May 3, 2022. Ibid. “Khashoggi’s Body Likely Burned in Large Oven in Saudi Home.” Al Jazeera, March 4, 2019, www.aljazeera.com/news/2019/03/04/jamal-khashoggis-body-likely-burned-in-largeoven-at-saudi-home/?gb=true accessed May 3, 2022.

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conduct activities in the consulate that were not only against Turkish law, but also not tied to the duties of the consulate. But Turkey also violated Article 31 of the Vienna Convention on Consular Relations when it surveilled the premises, leading to the audiotape. And yet, the Vienna Convention on Consular Relations notes that the consulate is not completely inviolable; it allows for the premises to be entered without consent “in case of fire or other disaster requiring prompt protective action.”87 Arguably, if Turkey was aware of the threat to Khashoggi’s life (which it might have been), surveilling the premises may have been permissible. After the murder, Turkey could have ordered Saudi officials to remain in the country or have insisted on investigating the murder scene (the consulate) much earlier than it did – nothing in international law prevented them from doing either. Indeed, in its caution to respect diplomatic and consular immunities and inviolability, Turkey may have overlooked its responsibilities under international human rights law. The most likely explanation for Turkey’s hesitation is that it did not wish to have a confrontation with Saudi Arabia and potentially expose its own diplomats to retaliation.88

4.4.1

Diplomatic Asylum

A refugee in a host state may request that a foreign (sending) state provide them protection from local arrest or extradition. In that instance, a foreign state may decide to grant asylum (protection) to those seeking refuge in a host state for a variety of reasons: on humanitarian grounds; or to protect the seeker from arrest or likely torture in the host state, or extradition to another state. This action can sometimes cause friction in the relationship between the sending and receiving states. During the 1989 Tiananmen Square demonstrations in the PRC, for example, the US granted asylum to China’s top dissident. He and his wife stayed in the US embassy in Beijing. Chinese authorities had ordered his arrest for treason, demanding that the US government surrender him to the local authorities waiting outside the US embassy in Beijing. At the same time, the Chinese sealed their international borders to prevent any clandestine escape attempts. The case of Julian Assange of Wikileaks fame, addressed in Chapter 5, Section 2.1, is another good example of a high-profile individual seeking protection on embassy grounds.

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Vienna Convention on Consular Relations, Article 31, Section 2 at page 13. For a thorough treatment of the diplomatic and human rights implications of this case, see M. Milanovich, “The Murder of Jamal Khashoggi: Immunities, Inviolability, and the Human Right to Life,” Human Rights Law Review 20 (2020): 1–49.

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Other sensational asylum cases have generated the popular (but exaggerated) belief that individuals are routinely granted such refuge in foreign embassies. Political relations may be harmed, however, when asylum is granted. A classic case was that of Hungary’s Cardinal Jozsef Mindszenty, who remained within the premises of the US embassy in Budapest, Hungary, for fifteen years. He had been arrested for anti-government activities in 1948, jailed in 1949, and mistakenly freed for several days during a popular revolt in 1956. He then sought refuge in the US embassy. Although the US did not normally grant asylum, it considered this particular request to be a special case because of his heroic resistance to (as the US saw it) Communist occupation and oppression in Hungary. Mindszenty remained in the embassy under a grant of diplomatic asylum from 1956 to 1971, when Hungary finally agreed to his safe passage out of Hungary and to the Vatican. This is just one of several examples of the Vatican taking an active role in asylum and diplomatic matters. In the leading international judicial opinion on diplomatic asylum, the ICJ articulated the general principle that state practice does not recognize a right of asylum. Diplomatic asylum has been granted with some frequency, however, in Latin America, influenced by Catholic doctrines among other practices. The following case presents a unique scenario. The ICJ failed to acknowledge the regional custom of granting asylum, a decision for which it would be criticized for years to come.

ASYLUM CASE (COLOMBIA V. PERU) International Court of Justice, 1950 ICJ Reports 266 (1950) [Excerpted case available at www.cambridge.org/FPIL7]

The ICJ decided that Haya de la Torre’s asylum should be terminated because Colombia could not properly grant it. Colombia’s unilateral decision that de la Torre was engaged in “political activity,” rather than a “common crime” against Peru, was not entitled to recognition by other countries, the Court held. Although the ICJ ruled that Colombia’s granting asylum was not legally valid, Peru’s citizen was effectively sheltered anyway in the Colombian embassy. Peru could not enter the Colombian embassy to force his surrender. Colombia, on the other hand, could not force Peru to grant de la Torre safe passage through and then out of Peru. After this decision, Colombia and Peru ultimately negotiated an end to the stalemate by permitting de la Torre to leave Peru for Colombia.

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Four years after this judgment, Peru ratified the Caracas Convention on Diplomatic Asylum. Article 2 therein provides that “every State has the right to grant asylum . . . .” Article 4 adds that it “shall rest with the State granting asylum to determine the nature of the offense [common crime versus political act] or the motives for the persecution.” These provisions require treaty signatories to recognize unilateral grants of asylum rather than depend on a distant court’s interpretation or application of the general international law that may differ from a regional state practice.89 The ICJ’s judgment in the Asylum Case was criticized by many states – especially in Latin America. In that region, diplomatic asylum was a common practice. Commentators characterized the Court as suffering from the continuing influence of irrelevant European judicial perspectives. A representative criticism by a Brazilian author is as follows: From a Latin American point of view, [the judgment] contains certain affirmations which simply went to prove that the Court was not qualified to pass judgment since it had examined a typical Latin American juridical institution [diplomatic asylum] exclusively from a European and biased point of view. . . . Just as the [reasoning] . . . of the International Court of Justice on the question of the international status of South-West Africa made most Afro-Asian States distrust the court, the Haya de la Torre case alienated most Latin American States, contributing to the atmosphere of ill-will which characterizes the relations of most States with the principal judicial organ of the United Nations [the ICJ].90

4.5

Diplomatic Immunity

From the earliest diplomatic legations, international practice has recognized (but not always practiced) that those accredited as diplomats must enjoy special protections – immunities – in order to carry out their functions and to prevent massacres or other disastrous outcomes between states from occurring. However, granting immunity, and its potential for abuse, can be controversial among the general public. The following section explores two interrelated questions: first, what is the extent to which the sending state and 89

90

See the Comment, “Diplomatic Asylum in the United States and Latin America: A Comparative Analysis,” Brooklyn Journal of International Law 12 (1987): 111. Quoted material is from G. Do Nascimento e Silva, Diplomacy in International Law (Leiden, Netherlands: Sijthoff, 1972), 104–106. Note that in the African cases referred to in the quote (Ethiopia and Liberia v. South Africa, 1966 ICJ Reports 6), the ICJ held that the plaintiff states did not have a sufficient interest or standing to represent the rights of persecuted natives in South Africa, thereby dismissing the suit and leaving those indigenous peoples without an effective remedy.

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its representatives may invoke immunity from prosecution in the host state? Secondly, how can states search for alternative remedies to prosecution when a diplomat engages in conduct unbecoming his or her position? Brownlie explains (echoing some of the language of the US Constitution) the rationale for diplomatic immunity as follows: The essence of diplomatic relations is the exercise by the sending government of state functions on the territory of the receiving state by license of the latter. Having agreed to the establishment of diplomatic relations, the receiving [host] state must take steps to enable the sending state to benefit from the content of the license. The process of giving “full faith and credit” to the license results in a body of “privileges and immunities.”91

This vintage practice, now known as diplomatic immunity, has additional roots in the trial and error of medieval state practice that gradually recognized the need for safe passage through third states. In the fifteenth and sixteenth centuries, a ruler who hoped to defeat an alliance between two other rulers would literally select their respective emissaries as targets. He needed only to kill or imprison any intermediary who was passing through his kingdom to thwart such an alliance. In the fifteenth century, for example, two French envoys were murdered on orders from Spain’s Emperor Charles V. As a result, a Spanish ambassador was subsequently imprisoned in France for four months while he was proceeding through France on a mission to England. Incidents such as these ultimately led to state recognition of diplomatic immunities and privileges.92 Unfortunately, many other states long failed to appreciate the practicality of not “shooting the messenger.” Ultimately, certain states began to codify their expectations about diplomatic immunity in their internal laws. England’s Diplomatic Privileges Act of 1708, for example, was a direct result of the arrest and detention of the Russian ambassador by English authorities. The Act was designed “to prevent like insolences for the future.”93 The spread of European influence through colonialism and trade spread the European practices on immunity further. As Frey and Frey recount in their seminal work on the history of diplomatic immunity:

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I. Brownlie, Principles of Public Interntional Law, 6th ed. (Oxford: Oxford University Press, 2003), 343. B. Murty, “Claims to Formal Basis of Capability,” Ch. 7 in B. Murty, The International Law of Diplomacy: The Diplomatic Instrument and the World Public Order (New Haven, CT: New Haven Press, 1989), 333; 424–425. For further historical discussion of the Russian Ambassador’s detention, see Empson v. Smith 2 All England Rep. 881, 883 (1965).

4 Diplomacy [T]he establishment of resident envoys is exclusively a Western development and . . . the expansion of European powers across the globe brought in its wake European international law. Admittedly, in other civilizations some envoys stayed in their host country for long periods. For example, in China in the sixteenth century, envoys from Russia and Central Asia remained in the capital for three or four years; in the eighteenth century, they remained even longer. This practice remained anomalous, however, and was never institutionalized [i.e., in a multilateral treaty].94

Consular immunity is more limited than ambassadorial immunity. The ambassador and his or her immediate staff are normally granted full immunity from the jurisdiction of the host state. Consular officers enjoy less insulation from host state arrest or civil litigation. One reason for this distinction is that they usually represent less sensitive interests than ambassadors. As restated by Sawicki, “members of the consulate enjoy the immunity only in relation to official acts considered as [an] expression of a sovereign State . . . .”95

4.5.1

The Diplomatic Pouch

Another diplomatic immunity practice dating from the Middle Ages is that of the diplomatic “pouch” or bag. Long before electronic communication, the primary way that states and their accredited diplomats could share candid views (including intelligence) and transmit instructions was the lowly bag. Similar to the rationale for not shooting the messenger, this type of bag gained immunity from being seized and its contents examined by foreign states. This immunity was held to apply to both the host state and third-party countries through which the diplomat was transiting. Like other immunities, however, this one is subject to abuse. What, exactly constitutes a pouch or bag, and is there any limitation on either its contents or its size? In a case from the Netherlands in 1973, an Algerian diplomat’s baggage was seized and it was found to contain five hand grenades, five guns, eight kilograms of explosive and twenty-one letter bombs. The Israeli government, believing that these weapons were bound to support an attack on its embassy in Brazil, argued that pouches in transit were not subject to diplomatic immunity, and that the agent was not properly accredited (to Algeria). These arguments were rejected by a Dutch court, but it noted that

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L. Frey and M. Frey, The History of Diplomatic Immunity (Columbus, OH: Ohio State University Press, 1998), 5. S. Sawicki, “Diplomatic Immunity,” in Polish Yearbook of International Law (1986): 119–120. Emphasis original.

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the concealment of such a large weapons cache was nonetheless a “flagrant abuse” of diplomatic immunity and was therefore not protected. The question of size limitations on the pouch was tested in 2000 when Zimbabwe impounded a seven-ton (14,000 pound) shipment from the UK. The British vigorously contested the opening of this “diplomatic bag,” citing Article 35 of the Vienna Convention on Consular Relations, and recalled its ambassador in protest. The extraordinary amount of service to the world community provided by diplomats is occasionally overshadowed (at least in public opinion) by a few well-publicized cases of the abuse of diplomatic immunity. In those cases, states are forced to confront the two questions raised at the outset of this section. States understandably seek to work out details away from the public eye, but sometimes they must come up with suitable “face-saving” arrangements under a media spotlight. One such alternative is simply to declare that a diplomat, or other personnel associated with a foreign diplomatic mission, is/are persona non grata and must immediately leave the host state. This is far better than arresting and charging these personnel in the criminal courts of the host state. Such action would invite a simple tit-for-tat arrest and detention of the host state’s diplomats in the sending state’s court system. A second alternative is insuring a diplomat’s conduct by a sending state. An insurance agent would then assume liability for the sending state’s diplomat(s), thus freeing the sending state’s diplomat(s) from defending against the threat of (possibly near-constant) lawsuits in the host country. The insurance agent would offer monetary compensation for claims made in the host state, thus freeing the diplomat(s) to conduct business unimpeded. The US State Department has offered guidelines for so-called “compulsory diplomatic insurance.”96 A third alternative is for the sending state to “waive,” or lift, the protection of diplomatic immunity for diplomats charged with serious criminal offenses in the host state, allowing them to be prosecuted in the host state, and if found guilty, to serve the appropriate sentence. Such waivers have been increasingly exercised in the last few decades. In June 2019, the wife of an American intelligence officer serving in the UK killed teenager Harry Dunn in a collision with his motorcycle. Through a special agreement between the US and the UK in 1995, diplomatic immunity was extended to intelligence officers. The 1961 Vienna Convention on Diplomatic Relations extends this immunity to their immediate families. As the wife of a protected officer, 96

US Department of State, “Regulations on Compulsory Liability Insurance for Diplomatic Missions and Personnel” (1980).

Thinking Ahead

Ms. Sacoolas claimed that she was immune from prosecution in the UK.97 She flew to the US after the accident, and Dunn’s family demanded that she be returned to the UK. In the end, the US and UK negotiated a new agreement that waived diplomatic immunity for family members of embassy staff. The agreement, however, was not retroactive, so Ms. Sacoolas will likely escape punishment for Mr. Dunn’s death.98 More often, however, it is the diplomatic personnel that need protection in the host country. In 1997, the UN’s General Assembly promulgated the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons Including Diplomatic Agents.99 This Convention requires the extradition and prosecution of anyone who perpetrate violent crimes (e.g., hijackings, assassinations, physical harm) against these protected persons, regardless of their claimed motive or justification.

Thinking Ahead Treaties are promises made by states in the attempt to regularize their relationships with one another. As such, these agreements are difficult to renege, and the Vienna Convention on the Law of Treaties – the treaty on treaties – outlines the rules surrounding them. This chapter detailed the process through which states make agreements, how those agreements go into effect, and how they can be rescinded. As the opening paragraphs related to Brexit demonstrate, treaties are serious undertakings: once a state has signed a treaty, it is difficult to “unsign” it. The last section of this chapter established the centrality and importance of diplomats and diplomatic practice to the creation and execution of much of international law. They are often instrumental in the drafting and passage of treaties. They also attempt to resolve disputes using all means short of war and violence, and thus are vital to ordering international relations, seeking peace, and preventing human rights tragedies. Occasionally, however, they do abuse the privileges and immunities that have been enshrined in 97

98

99

G. Berridge, “The Sacoolas Affair: Diplomatic Immunity or Special Immunity?,” June 10, 2020. Diplo (blog) www.diplomacy.edu/blog/sacoolas-affair-diplomatic-immunity-orspecial-immunity accessed May 3, 2022. M. Colchester, “U.S. and U.K. Tighten Diplomatic Immunity Rules after Teen’s Death,” Wall Street Journal, July 22, 2020. Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, Including Diplomatic Agents, opened for signature on December 14, 1973, UNTS Vol. 1035: 167, https://treaties.un.org/doc/Treaties/1977/02/19770220%2011-31%20PM/ Ch_XVIII_7p.pdf accessed May 3, 2022.

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international law to help them in their vital work. In those cases, states have a number of alternatives that can protect the vast majority of diplomats who do not abuse these immunities, while allowing face-saving solutions to those who have been aggrieved by the actions of the few misguided diplomats so charged. Treaties are a tool through which states (via diplomats) manage state sovereignty. In the next two chapters, we examine different conceptions of sovereignty: what is the actual, physical limit of a state’s sovereignty? Can a state extend its sovereignty into other sovereign states? Treaties are an important part of the answers to these questions.

4

Range of Sovereignty

Beginning around 1974 and accelerating under the current leadership of President Xi Jinping, China has embarked upon a vigorous campaign to claim much of the ocean space – including the vast resources under the surface – that lies hundreds of miles east and south of China, as being part of the sovereign territory of that state. In 1974, China and Vietnam had a brief skirmish over the Paracel Islands; China ejected Vietnam from these rocks (“features”) that they both claim east of Vietnam in the South China Sea. China occupied Fiery Cross Reef in 1987 (a jagged rock six-feet wide and two-feet tall at high tide) and dislodged Vietnam from part of the Spratlys in 1988. The Philippines lost Mischief Reef to Chinese occupation in 1995 and Scarborough Shoal in 2012. China laid claim to James Shoal in 2014, lying within Malaysia’s Exclusive Economic Zone under the UN’s Convention on the Law of the Sea (UNCLOS). China’s claims to all these features seem to rest upon assertions that they constitute “historic fishing areas” of China, a claim not recognized under the Law of the Sea. In 2009, China submitted to the United Nations (UN) an ambitious claim to about 90 percent of the entire South China Sea, based on the “Nine-Dashed Line”1 map, which extends over 600 miles in places east and south of the Chinese coast, almost reaching the coastlines of the Philippines and Malaysia, and enclosing all of Taiwan’s territorial sea. It is an area through which over one-half of the world’s maritime trade passes every year.2 To bolster its claims, China “created” new land by dumping millions of cubic feet of sand and dirt on top of reefs and rocks, many of them naturally submerged and not meeting the definition of islands under international law. On top of these artificial islands, they have built military bases, airstrips, and

1

2

A. T. Carpio, “The South China Sea Dispute: Philippine Sovereign Rights and Jurisdiction in the West Philippine Sea,” Philippine Law Journal 90, No. 3 (2016): 467–469. This map was based on a vague 1947 Chinese map with eleven dashed lines forming a rough U-shape encompassing the entire South China/West Philippine Sea. Ibid., 472.

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radar stations to enforce their bold sovereignty claims.3 These military installations would allow China to exclude the right of transit by any other country in its claimed areas. China has also claimed sovereign “territorial seas” around each of these “new” land features. Many of these militarized artificial islands are conveniently located near areas rich in oil, minerals, and other resources needed to fuel Chinese industrial production. In doing so, China has ignored strong claims that other regional states make over the same areas, including Japan, Malaysia, Vietnam, and the Philippines. Each of these states has militarized this ocean area to reinforce their respective claims to sovereign territory in the South China Sea. Finally, China has also ignored the relevant principles of the widely accepted UNCLOS, which China ratified in 1996. The issue appeared to be headed to a (partial) legal resolution in July of 2016 with the case between China and the Philippines held before the Arbitral Tribunal authorized under UNCLOS. The Tribunal ruled decisively in favor of the Philippines on almost all its claims against China.4 Overall, the Tribunal ruled against the legality of the “Nine-Dashed Line” map as constituting “historic” sovereign territory claims and the corresponding “maritime entitlements” claimed by China. It was a ruling that also rejected some of the claims made by Vietnam and Taiwan as well.5 China’s refusal (so far) to accept the outcome of the Tribunal’s ruling6 demonstrates the limitations of the current international law of territorial sovereignty. Still, a precedent has been established that China will find hard to ignore over the long haul, and face-saving measures can be devised to achieve compliance without embarrassment.7 The actions of China as a rising Great Power and economic powerhouse will have profound implications for international law.

Introduction Ever since the Treaty of Westphalia in 1648, one of the most crucial concerns of states is how to safeguard their sovereignty – supreme legal authority 3

4

5

6

7

J. Perlez, “China Building Airstrip on 3rd Artificial Island, Images Show,” New York Times, September 15, 2015. G. B. Fernandez, “The Timor Sea Dispute: A Note on the Process, Resolution, and Application in the West Philippine Sea,” Philippine Law Journal 93, No. 1 (2020): 29–55. K. Sellars, “Rocking the Boat: The Paracels, the Spratlys, and the South China Sea Arbitration,” Columbia Journal of Asian Law 30, No. 2 (2016): 261. The language of the UNCLOS treaty, which China ratified, appears to mandate that China must accept the Tribunal’s decision. See Carpio, “The South China Sea Dispute,” 537. Ibid., 545.

Introduction

vested in the government of a recognized, independent, and territorially based state. The idea of “territory” is key to this chapter. What territory does a state control by virtue of being a recognized state in the international system, including land, sea, and air? In a time of renewed space exploration, how might those principles be extended to outer space? It is easy to confuse extraterritorial jurisdiction, the subject of the next chapter, with the territorial sovereignty of states. It may be helpful to think of sovereignty as something that is inherent to states as states, while extraterritorial jurisdiction is the effective control (over people, vessels, business and communication networks, some physical assets, etc.) that states can exercise outside of their formal territorial sovereignty. States seek such external control to pursue fugitives from their judicial systems, and importantly to promote shared goals such as increasing economic growth and development, safeguarding human rights, and protecting the environment, among others. While both are subject to change under international law, extraterritorial jurisdiction tends to fluctuate more than sovereignty due to state practice, legal rulings, declarations by international organizations, and technological advances. Sovereignty helps promote stability and predictability for a human population that is not possible when there are multiple authorities that claim control over the same population trying to enforce overlapping, and often conflicting, sets of rules.8 The best example of such chaos remains the Thirty Years’ War that ravaged Europe preceding the Treaty of Westphalia. The contemporary theoretical justification for state sovereignty remains strongly rooted in the jurisprudence of “Positivism” (see Table 0.1). However, the concept of sovereignty continues to evolve, and, as readers are aware, sovereignty is not a problem-free concept. The purpose of this chapter is to acquaint readers with the current practice of territorial sovereignty under international law while not suggesting that this system is the only arrangement of sovereignty that is possible or the most desirable. Readers are encouraged to refer to Table 0.1, and to consult with the additional bibliography available on the companion website, for theoretical and conjectural discussions of the notion of sovereignty. There are two essential types of sovereignty: internal and external. Internal sovereignty is expressed through the domestic legal systems of states, while external sovereignty is expressed by maintaining rigorous independence from other states, the principle of “non-interference” enshrined in Article 2(7) of the UN Charter. A Latin phrase expresses the 8

R. Jackson, Sovereignty: Evolution of an Idea (Cambridge: Polity Press, 2007), see especially Ch. 2.

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idea of both internal and external sovereignty well: rex est imperator in regno suo (‘the king is emperor in his own realm’).9 In this chapter we will explore in concrete detail how such sovereignty is manifested in control of the territorial assets of a state.

1 Gaining and Losing Territorial Sovereignty In the contemporary state system, there are four basic types of territory. The first three can be gained, maintained, or lost by sovereign states; the last is “off limits” to states: ▪ exclusive sovereign territory that is recognized to be owned by a state; ▪ terra nullius that is capable of being owned by a sovereign state(s), but which is not yet under sovereign control; ▪ trust territory that is not owned by any state due to its special status under international law; and ▪ res communis, or the common territory of humankind, that cannot be owned by state(s). In addition to the four types of territory, there have been six main methods by which states have gained or lost territory that we detail in this section: (1) military conquest; (2) occupation; (3) cessation; (4) prescription; (5) accretion; and (6) arbitration or adjudication.

1.1

Exclusive Sovereignty

What is the range of territorial sovereignty that a recognized state is supposed to have? A state has “absolute title” to all the land and waters, including the resources above and below them (within limits), that are encompassed within its internationally recognized boundaries or frontiers. The theoretical limits to the airspace above a state is known as the Kármán Line (about 64 miles above sea level), and to the land below to where the earth’s crust meets its mantle, but these limits are not fixed in international law.10 Some states, like China, have long held “title” to the lands that it occupies, for others, like South Sudan, the conveyance of title and exclusive sovereignty is very new.

9 10

Jackson, Sovereignty, 20. Legal Subcommittee, “Historical Sumary on the Consideration of the Question on the Definition and Delimitation of Outer Space” (UN General Assembly, 2002) www.unoosa .org/pdf/reports/ac105/AC105_769E.pdf accessed March 15, 2021.

1 Gaining and Losing Territorial Sovereignty

Of course, the state can recognize and delegate titles to its citizens for a portion of these lands and waters, but the state is the ultimate grantor and guarantor of those titles. The Treaty of Westphalia, and later, the Treaty of Utrecht, abhorred undefined territory and portrayed international boundaries as inviolable.11 Below we detail some of the ways that these boundaries are established and adjusted. The Westphalian ideal state is composed of just one civic “nation” that is enclosed by the borders of a recognized country. For example, the borders of the modern state of France roughly follow the historic location of the Frankish tribes that long occupied that physical territory in Western Europe, and modern French citizens, no matter where they were born supposedly embrace this civic nationalism.12 This ideal explains why many texts use the term “nation state” as if the terms “nation” and “state” were interchangeable.13 Unfortunately, many “nations,” defined as a group of people who share some self-identified common trait(s) and who wish to be politically independent, believe themselves to be “trapped” or unrepresented in the larger state. Ethnic groups within multinational states often co-exist uneasily. The tension between territorial sovereignty and ethnic nationalism is a continuing challenge to the international law of sovereignty to the present.

1.2

Terra Nullius and Res Communis

Two other types of territory may not be under the control of state sovereignty for different reasons. Terra nullius is supposedly unoccupied and/or unclaimed land, literally “nobody’s land.” Res communis is land held “in common to all humankind” or as “the common heritage of humankind,” and thus should not be claimable by states.

1.2.1

Terra Nullius

At present, virtually no inhabitable land is now either unoccupied or unclaimed, so it is difficult to make a new claim of sovereignty using terra nullius. At one time, however, no recognized state controlled these lands. These locations were referred to, in earlier colonial eras, as terra nullius. They were conveniently characterized as belonging to no country, but capable of being legally acquired by the colonial European powers even if already 11

12

13

P. Hocknell, Boundaries of Cooperation: Cyprus, De Facto Partition, and the Demolition of Transboundary Resource Management (London: Kluwer Academic Publishers, 2001), 2. France has challenges, however, with assimilating immigrants. See A. M. Messina and G. Lahav, The Migration Reader: Exploring Politics and Policies (Delhi: Viva Books, 2007). In this text, we use the terms “state” and “country” to signify a recognized juridical territory in international law, although sometimes the term “nation” is used to mean the same thing.

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inhabited. International law, after all, was shaped by the more powerful European states. They effectively determined when an existing state was competent to designate certain territories as terra nullius. In 1885, for example, the states attending the Conference of Berlin declared that most of the African continent was terra nullius. The inhabitants of that continent were supposedly incapable of governing themselves. They were subject to varying sovereign claims. These frontiers had varying sizes. By 1900, they had almost disappeared. Open spaces were replaced by linear boundaries. Such line drawing was often achieved via deceptively convenient means, such as latitude and longitude, or subjectively determined administrative districts. This opportune device too often ignored the divisive splintering of ethnic groups on opposite sides of what was effectively an artificial border – spawning cross-border ethnic violence that would wreak havoc even up to the present. In a 1971 International Court of Justice (ICJ) case, South Africa argued that it continued to possess the sovereign right to control South-West Africa (now Namibia). The people of that “protectorate” were supposedly incapable of governing themselves. The Court seized this opportunity to unreservedly declare a “blunder” by those states that, almost 100 years before, had characterized African territory as terra nullius. As stated by the Court: African law illustrated . . . the monstrous blunder committed by the authors of the Act of Berlin, the results of which have not yet disappeared from the African political scene. It was a monstrous blunder and a flagrant injustice to consider Africa south of the Sahara as terrae nullius, to be shared out among the Powers for occupation and colonization, even when in the sixteenth century Victoria had written that Europeans could not obtain sovereignty over the Indies by occupation, for they were not terrae nullius. By one of fate’s ironies, the declaration of the 1885 Berlin Congress which held the dark continent to be terrae nullius [empty lands, plural] related to regions which had seen the rise and development of flourishing States and empires. One should be mindful of what Africa was before there fell upon it the two greatest plagues in the recorded history of mankind: the slave-trade, which ravaged Africa for centuries on an unprecedented scale, and colonialism, which exploited humanity and natural wealth to a relentless extreme. Before these terrible plagues overran their continent, the African peoples had founded states and even empires of a high level of civilization . . .14

14

Namibia (South-West Africa) Advisory Opinion, 1971 ICJ Reports 55.

1 Gaining and Losing Territorial Sovereignty

As a condition for establishing its right to claim sovereignty, a state must normally establish that the particular zone was, in fact, terra nullius and thereby available for occupation and the ensuing claim to title. The ICJ’s 1974 Western Sahara case analyzed this prerequisite in a dispute between Spain and Morocco over control of a portion of the western Sahara Desert. This area is a sparsely populated desert flatland. It is bordered by Morocco and Algeria to the north, Mauritania to its east and south, and the Atlantic Ocean on its western coast. Since the UN-sponsored ceasefire agreement of 1991, most of the Western Sahara territory has been controlled by Morocco, with the remainder under the control of the Polisario Front (which has been formally recognized by a number of countries regarding sovereignty over the area it controls). The Court confirmed the international expectation that mere occupation (see below) is not enough to justify a claim of sovereignty over an occupied area. It also must have been terra nullius if the claimant state seeks exclusive sovereign control. The Court therein traced the history of the term and demonstrated that it did not apply in this case: [The] expression “terra nullius” was a legal term of art employed in connection with “occupation” as one of the accepted legal methods of acquiring sovereignty over a territory . . . [and it] was a cardinal contention of a valid “occupation” that the territory should be terra nullius “a territory belonging to no-one” at the time of the act alleged to constitute the “occupation.” . . . A determination that the Western Sahara was terra nullius at the time of colonization by Spain would be possible only if it were established that at that time the territory belonged to noone in the sense that it was then open to acquisition through the legal process of “occupation.” ... In the present instance, the information furnished to the Court shows that at the time of colonization Western Sahara was inhabited by peoples which, if nomadic, were socially and politically organized in tribes and under chiefs competent to recognize them.15

In 2004, the UN determined that the people of this area were entitled to its natural resources as a feature of their right to self-determination. In 2006, UN Security Council Resolution 1720 recalled its prior resolutions on Western Sahara. Its purpose was to reaffirm the UN’s continuing commitment to achieving: (1) a lasting and politically viable solution providing for the self-determination of its people; and (2) the need to respect the then

15

Western Sahara, 1975 ICJ Reports 4, 12, 38–39.

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fifteen-year-old military agreement between Morocco and the Polisario Front – the people’s non-governmental organization (NGO) backed by Algeria – regarding their ceasefire. Recent years have seen increasing instability in the region. In 2020, the United States (US) under President Trump formally recognized Moroccan sovereignty over Western Sahara, even as Morocco and the Polisario Front reignited hostilities in the region.16

1.2.2

Res Communis

This category of territory will supposedly never be legally owned or controlled by any state. It is typically referred to as being res communis, or land that is the common heritage of humankind. It belongs to no one. It must remain available for all to use. Under international law, the entire community of states must have unfettered access to such areas. These territories cannot be lawfully controlled by any country or group of countries without the approval of the community of states. The clearest examples of res communis are the high seas and outer space, as discussed later in this chapter. One of the criteria that makes these areas likely to be held res communis is that they are supposedly inhospitable to permanent human occupation; although people might visit these areas, no one would want to live there. Difficulties arise, however, over whether the lack of long-term human habitation is a permanent condition, or whether res communis will change with advances in technology that allow for more permanent settlement in these spaces. The examples of Antarctica, the “high seas,” and outer space illustrate this legal dilemma. States have long occupied Antarctica, and private companies have set up deep-sea mining and extraction operations.17 Trying to get ahead of the concern that today’s res communis will become tomorrow’s contested sovereign territory, the UN has promulgated major treaties to protect Antarctica, the high seas, and outer space as res communis. We will treat the high seas and outer space below in separate sections, but we will briefly examine the Antarctic Treaty of 1959 here. This treaty provides that states shall not recognize, dispute, or establish territorial claims there, and no new claims may be asserted by parties to this treaty.18 As Vigny explains: “[T]he legal status of Antarctica, established by Article 4 of the 16

17 18

Associated Press, “Morocco Launches Military Operation in Western Sahara,” U.S. News & World Report, November 13, 2020, www.usnews.com/news/world/articles/2020-11-13/ morocco-launches-military-operation-in-western-sahara accessed March 20, 2021. E. Sahurie, The International Law of Antarctica (Dordrecht: Martinus Nijhoff, 1992), 420. For the text of the Antarctic Treaty, see American Journal of International Law 54 (Supp. 1960): 476; International Legal Materials 19 (1980): 860.

1 Gaining and Losing Territorial Sovereignty

Antarctic Treaty, impedes the exercise of the traditional State jurisdiction, based on the principle of territoriality, in this area.”19 In addition, the Treaty encourages scientific research and free transit of the area by all states. Given the res communis nature of Antarctica, one might have theoretical difficulty with establishing a liability regime for this no man’s land. The 1959 Antarctic Treaty does not address liability. However, an environmental protocol now addresses liability arising from environmental emergencies. The majority of activities there are conducted by state agents carrying out scientific research in Antarctica. Should liability, if any, be determined by reference to the laws of the state (or states) of which the responsible individual(s) is a citizen? The flag of his/her vessel? The closest country? These matters remain to be worked out. The Arctic Circle is the northernmost region of the world. It does not fall within the ambit of the 1959 Antarctic Treaty and therefore does not enjoy res communis protections. It is part ice cap. But unlike the Antarctic, it encompasses a sizable segment of land subject to various territorial claims by the eight countries that surround it: Canada, Finland, Greenland, Iceland, Norway, Russia, Sweden, and the US.

1.3

Trust Territories

During the period of the collapse of empires and the rapid decolonization after the world wars, there were large swaths of territory that were not subject to the sovereignty of any state because they were given special status. They were effectively controlled by external powers, either under a “mandate” by the League of Nations or held “in trust” granted by the Trusteeship Council of the UN. During this period, about 130 new states have emerged, many of them from these trust territories. The idea was to avoid reimposing colonial control by one state over these territories because they were to be administered under the authority of the leading public international organization. Each of the mandates or trusts had an expiration date after which time the territory was to be turned over to a government or governments of new sovereign states created out of those territories. The administrating state(s) could not, by themselves, adjust boundaries. The grand (but arguably neo-colonial) design was to promote the self-determination of the inhabitants, that is that the inhabitants could decide in an uncoerced election by whom they wished to be governed. No state, including the protecting state in whose care such a territory had been placed by the organization, could claim title to such land. The territory was 19

P. Vigny, “A Liability Regime for Antarctica,” Italian Yearbook of International Law 15 (Leiden: Martinus Nijhoff, 2005): 217–218.

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under a temporary disability to engage in self-governance, usually because it lacked political infrastructure. All of these mandates and trusts have now expired, and the UN’s Trusteeship Council itself ceased to function in 1996. However, there are several other states that are in danger of collapse and are being administered in part by external organizations. Kosovo, Somalia, the Central African Republic, Western Sahara, and Yemen are but a few examples.

1.4

Methods of Obtaining Sovereign Territory

We now turn from the types of territory that could be available for states to the methods that states can use to claim sovereign title to them.

1.4.1

Military Conquest

Most of the earth’s inhabitable surface is now under the control of sovereign states. In a prior time, however, much of the earth’s territory was not carved up. During that earlier time, the first four methods of territorial adjustment were used more frequently than they are now. Military conquest was recognized (or not forbidden) by international law as a legitimate means of acquiring territory to be annexed to that of an existing state, or to create a new state from it. For example, much of the land that now makes up the west of the US was acquired through the military defeat of Mexico in 1848 under the terms of the Treaty of Hidalgo (Mexico, in turn, had taken it from the indigenous peoples who had earlier occupied that land). Other examples include Belgium’s annexation of the Congo in 1908, Japan’s takeover of Korea in 1910, Germany’s annexation of Austria in 1939, and Russia’s seizure of the Kuril Islands from Japan at the end of World War II. In most of these examples, the land was “given back,” except for Russia’s possession of the Kuril Islands, which has prevented Russia and Japan from signing a formal peace treaty. In a series of treaties and cases before and after the ratification of the UN Charter, legal recognition of sovereign territory obtained through conquest is no longer valid, although title granted to land earlier acquired by force is generally recognized.20 Although there have been scofflaws, as with Henkin’s earlier observation, most states have observed this norm most of the time. That is why the wresting away of Crimea in 2014 under military

20

See the Kellogg-Briand Pact of 1928; the UN Charter, especially Articles 2.6 and 2.7; the UN General Assembly Resolution 2625 (1970), “Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States,” and UN Security Council Resolution 662 (1990), among other instruments.

1 Gaining and Losing Territorial Sovereignty

pressure by Russia from the sovereign state of Ukraine has been so widely condemned and not recognized by most other states in the world.21 The clearest modern rejection of the idea of acquisition of sovereign territory through military conquest was UN Security Council Resolution 662 (1990) that did not recognize Iraq’s purported takeover of the neighboring state of Kuwait. However, it took an overwhelming opposing coalition military force, led by the US, to enforce this UN resolution. In contrast, there are two situations in which this apparently ironclad norm against military conquest is still problematic. The first is, if there were to be a future large-scale military clash resulting in military conquest of territory, how would such border changes be adjusted and recognized under international law? The second is the problem how to solve self-determination claims (especially armed liberation movements) of the many ethnic subnationalities in the world, the Kurds being a prominent example. Korman explains further: Given that a right of conquest is no longer recognized, what is to be done about a state . . . which has no real existence or central authority capable of maintaining orderly government in its territory, and whose violent intercommunal hatreds are likely to lead to a permanent state of war, with all the dangers to international order which that entails? . . . While old-fashioned partition . . . must, in the late twentieth century, be regarded as an unacceptable and barbaric solution, has contemporary international society devised any alternative procedures for preserving the interest of order in a case of this kind? Does an insistence on the legitimacy of impractical boundaries, in the name of preserving the territorial integrity of a state whose ethnic composition makes it inherently ungovernable, not tend to exacerbate rather than alleviate the problem?22

The answer here is not entirely clear, but there are other methods for territorial adjustment detailed below that do not involve direct military conquest. We now turn to those methods.

1.4.2

Prolonged Occupations

Historically, the mere “discovery” of terra nullius (even if already inhabited) allowed a legal claim to be made to sovereign control over it. Planting a flag

21

22

“Ukraine Crisis: EU Ponders Russia Sanctions over Crimea Vote,” BBC World News (March 17, 2014) www.bbc.com/news/world-europe-26607466 accessed March 28, 2021. S. Korman, “The Right of Conquest: The Acquisition of Territory by Force,” International Law and Practice (1996): 306.

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or similar device might be sufficient to prove such a claim.23 This was known as an “original” claim to territory (versus “derived” claims from other methods, such as cessation, below). However, by the late eighteenth century, it was understood that permanent settlements and “effective control” were necessary for a “colorable” (or legitimate) claim to a sovereign title. Most of colonization was, therefore, the obtainment of sovereignty over territory through prolonged occupation, usually backed up by the threat or use of force (although the fiction was maintained that this was “peaceful” occupation). Following the doctrine of “acts a titre a souverain,”24 the usual pattern was that colonizing powers would first enter the country (supposedly peacefully), then set up administrative outposts for a long period of time to demonstrate that they had “effective control” over a territory. The ICJ has repeatedly stated that occupation is “legally an original means of peaceably acquiring sovereignty over territory.”25 The European powers in the 1800s carefully protected their respective colonial claims to the territories of the African Continent. The 1885 Berlin Conference, in which well-established African tribes were deemed incapable of self-governance, echoed the then-prevailing state practice that any form of occupation should be immediately communicated to the other colonial powers. Formal notification to all signatories was designed to prevent or ameliorate problems of successive discoveries of the same territory. What it means to establish “effective” control was clarified in the 1933 Greenland case between Denmark and Norway over which of the two states had sovereign claim to eastern Greenland. The Court declared that sovereign claims to territory often depend “upon continued display of authority, involv[ing] two elements each of which must be shown to exist: the intention and will to act as sovereign, and some actual exercise or display of such authority.” Denmark did not physically occupy the contested portion of eastern Greenland. It did not establish settlements or send governmental officials to administer the area. Yet Denmark’s title was successfully predicated upon “the peaceful and continuous display of authority over the island.”26 This was an effective occupation during the several centuries that Denmark engaged in diplomatic exchanges with other governments concerning

23

24 25

26

Russia did something similar by planting a titanium flag 2.5 miles under the Polar icecap in 2008. “Acts consistent with sovereignty.” See Botswana v. Namibia, 1999 ICJ Reports 1045. Western Sahara (Spain v. Morocco), 1975 ICJ Reports 3, citing the Permanent Court of International Justice Legal Status of Eastern Greenland Case, PCIJ Ser. A/B, No. 53 (1933) [hereinafter Greenland Case]. Ibid.

1 Gaining and Losing Territorial Sovereignty

eastern Greenland. These acts demonstrated the requisite degree of dominion to support Denmark’s claim to sovereignty. Despite the clarity of the above UN declarations against the use of force to achieve territorial sovereignty, there are still a number of troubling instances of prolonged military occupations by states. The intention of most of these occupations is apparently not to obtain title to the land (sovereign control) but rather to control or pacify the population that dwells there. Most of the time, these external takeovers of territory are described as being temporary in nature. Some last far longer than initially predicted. As noted by Roberts, an implicit assumption is that “military occupation is a provisional state of affairs, which . . . will be transformed into some other status through negotiations conducted at or soon after the end of the war. However, many episodes during this [twentieth] century have called into question the assumption that occupations are of short duration.”27 Prolonged occupations, whether “belligerent”28 or not, are therefore supposed to be a passing situation until a permanent settlement can be reached, and the goals and means that can be used by the occupying state(s) are limited under international law. As prescribed by Articles 47 and 64 of the 1949 Geneva Conventions: ([Art.] 47) persons who are in the occupied territory shall not be deprived . . . of the benefits of the present Convention by any change introduced . . . into the institutions or government of the said territory . . . nor by any annexation. . . . ([Art.] 64), [the occupying power may] subject the population . . . to [penal] provisions which are essential to enable the Occupying Power . . . to maintain the orderly government of the territory. . . .29

Further elaboration on the “dos and don’ts” for occupiers has been synthesized by the Institute for International Law, drawing on a variety of international legal sources in the following guidance: ▪ Belligerent occupation does not transfer sovereignty over territory to the occupying power.

27

28

29

A. Roberts, “Prolonged Military Occupation: The Israeli-Occupied Territories 1967–1988,” in E. Playfair, ed., International Law and the Administration of Occupied Territories: Two Decades of Israeli Occupation of the West Bank and the Gaza Strip (Oxford: Clarendon Press, 1992), 28. Belligerent occupations are described as ones in which the external force(s) were not invited in by competent authority, in contrast to most UN peacekeeping operations. E. Benvenisti, The International Law of Occupation (Princeton, NJ: Princeton University Press, 1993), 7, 98.

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▪ The occupying power can only dispose of the resources of the occupied territory to the extent necessary for the current administration of the territory and to meet the essential needs of the population. ▪ The occupying power assumes the responsibility and the obligation to maintain order and to guarantee the security of the inhabitants of the territory and to protect its historical heritage, cultural property, and basic infrastructure essential to the needs of the population. ▪ The occupying power has the obligation to meet the basic needs of the population. ▪ The occupying power has the obligation to respect the rights of the inhabitants of the occupied territory which are guaranteed by international humanitarian law and international human rights law.30 There are many cases we could highlight of prolonged occupations. For our purposes, three contemporary cases show that prolonged occupation (backed by at least implicit threat of the use of force) still occurs even after the UN’s prohibition of the use of military conquest to obtain territory. 1.4.2.a Palestinian Territories The perennial problem in international relations and international law is Israel’s occupation of Palestinian-inhabited territories in the West Bank and the Gaza Strip. This struggle dates to the founding of Israel in 1948. A related problem is that some of the current state of Israel’s sovereign territory was obtained through military conquest, even though Israel (plausibly) claimed that its actions were defensive in these wars. These include areas of the Golan Heights, the Galilee, east Jerusalem, and the Sinai Peninsula.31 The closest that territorial sovereignty issues came to being resolved was the Wye River Agreement in 1998 brokered by President Clinton, but it dissolved in a wave of mutual recriminations.32 What significant actions under international law have been taken? First, the UN recommended the “partition” of Palestine to form two new states, an “Arab” and a Jewish” state, when the British mandate (from the League of Nations) over Palestine expired in 1948.33 Israel agreed but the Palestinian

30

31 32

33

Institut de Droit International, “Declaration on the Use of Force” (Bruges, 2003) www.idi-iil .org/idiE/declarationsE/2003_bru_en.pdf accessed March 8, 2021. The Sinai was later legally ceded to Israel in the Camp David Accords. M. Asser, “Middle East Analysis: Wye Deal Coming Off the Rails?,” BBC World News, December 7, 1998, http://news.bbc.co.uk/2/hi/middle_east/229487.stm accessed March 26, 2021. United Nations General Assembly, “Resolution on the Future Government of Palestine (Partition Resolution of November 29, 1947),” in Walter Laqueur and Barry Rubin, eds., The Arab-Israeli Reader, 7th ed. (New York: Penguin Books, 2008), 69–77.

1 Gaining and Losing Territorial Sovereignty

side rejected this proposal, so it did not become effective.34 Israel unilaterally declared its existence as an independent state in May 1948. In 1967, after the Six-Day War, the UN Security Council formulated Resolution 242, whereby Israel was advised to: (1) withdraw its armed forces from territories gained as a result of the war; (2) terminate all claims or any belligerent occupation; and (3) respect “the sovereignty, territorial integrity and political independence of every state in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force.”35 The Security Council has since issued further resolutions referring to this resolution, but to no effect. In 1968, the Palestinians refused to recognize either the partition or the state of Israel.36 The legal problems of the occupation were compounded with the Israeli settlement policy allowing citizens of Israel proper to set up permanent residence in the occupied territories. These moves have been condemned by successive UN resolutions including a near unanimous vote (131–3) in the General Assembly in 1997. The settlement policy also clearly violates Article 49 of the Geneva Conventions, which states that an occupying state may not “transfer parts of its own civilian population into territory it occupies.” The building of a “security wall” by Israel, starting in 2003, complicated matters even further because it bisects Palestinian territories, and much of it is built upon non-sovereign territory.37 The initial plan was for it to extend most of the length of the West Bank, or about 403 miles, but so far it is located mostly in and around Jerusalem. In response, the UN General Assembly, acting under its UN Charter authority, referred the matter to the ICJ for an Advisory Opinion. Follow the link below to access that opinion.

LEGAL CONSEQUENCES OF THE CONSTRUCTION OF A WALL IN THE OCCUPIED PALESTINIAN TERRITORY International Court of Justice, General List No. 131 (2004) [Excerpted case available at www.cambridge.org/FPIL7]

34

35

36

37

The initial UN partition plan, with modifications, is now the basis of the proposed “Two State” solution under consideration. United Nations Security Council, “Resolution 242,” in W. Laqueur and B. Rubin, eds., The Arab-Israeli Reader, 7th ed. (New York: Penguin Books, 2008), 116. Palestine National Council, “The Palestinian National Charter (July 1968),” in W. Laqueur and B. Rubin, eds., The Arab-Israeli Reader, 7th ed. (New York: Penguin Books, 2008), 117–121. See especially sections 2 and 19. “Bethlehem Security Wall Row,” BBC World News (February 19, 2003) http://news.bbc.co .uk/2/hi/middle_east/2781115.stm accessed March 24, 2021.

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This ICJ opinion has solved neither the question about the wall, nor the larger Israeli-Palestinian territorial struggle. Israel chose to ignore it. The UN General Assembly set up a body to register claims from the affected Palestinians. The Israeli Supreme Court has ruled that parts of the wall are “legal,” and parts are illegal, depending on whether, “it [the wall segment] represents a proportional balance between the security-military need and the rights of the local population. If its [the Court’s] answer regarding a particular segment of the fence is positive, it shall hold that that segment is legal.”38 Thus, the operative rule for the Israeli court is based upon the domestic political and military needs of Israel, and not upon international law. This is not a long-term solution. The Palestinian Liberation Organization (PLO) that had represented Palestinian interests (since 1968) split into two major factions, Hamas and Fatah, in 2007. Fatah controls the Palestinian Authority.39 Legally, this weakened the Palestinian position. Who speaks for the Palestinian people? With whom could Israel negotiate? Even if a negotiated “final” settlement of territorial sovereignty issues were reached, could the Palestinian side honor and enforce it? For its part, the Palestinian Authority tried to achieve a solution under international law by seeking recognition as a state through membership at the UN and other organizations, starting in the fall of 2011. At that time, the Palestinian Authority claimed it would now accept the UN’s original partition plan, and Resolution 242 “as a very difficult and painful step,” toward peace, while decrying Israel’s “colonial” settlement policy and asserting that it no longer had any faith in the bilateral peace talks with Israel. That bid was effectively ended with a promised US veto in the UN Security Council in the fall of 2012. Israel insisted that the Palestinian Authority had to negotiate directly with it, and it discounted the settlement policy or the wall as impediments in achieving a permanent peace guaranteeing mutual territorial sovereignty.40 However, the Palestinian Authority continues to pursue an “outside” strategy by securing recognition by states (135 as of 2015) and further membership in international organizations.41 It may take a change in

38

39

40

41

Mara’abe v. Prime Minister of Israel, HCJ, 7957/04, International Legal Materials, 45 (2006): 202. The governing split mirrors the territorial split: Hamas controls the Gaza strip along the Mediterranean while the Palestinian Authority/Fatah controls the West Bank adjacent to Jordan. “Mid-East Crisis: Abbas vs Netanyahu at UN,” BBC World News (September 24, 2011) www .bbc.com/news/world-middle-east-15045119 accessed March 29, 2021. J. Rudoren, “News Analysis: Palestinians Seen Gaining Momentum in Quest for Statehood,” New York Times, January 5, 2015.

1 Gaining and Losing Territorial Sovereignty

leadership on both sides to resolve these underlying sovereignty issues, as renewed hostilities in 2021 demonstrated.42 1.4.2.b Russian Occupation of Crimea Perhaps the most troublesome contemporary occupation is that of the 2014 Russian takeover of Crimea from Ukraine. Unlike the other cases mentioned here, this appears to be a case of the intentional obtainment of permanent “new” sovereign territory through military conquest, and prolonged subsequent occupation, which is clearly forbidden under international law. Repeated protests and sanctions by the US, the European Union (EU) and others have so far failed to dislodge Russian occupation of Crimea.43 Russia makes two arguments in support of its actions: (1) that Crimea never really belonged to Ukraine; and (2) the “cession” (see Section 1.4.3) of territory to Russia was legal because a 2014 plebiscite allowed for “self-determination” of the territory by its inhabitants. The ancillary argument that Crimea will be “better off” under Russia, is a political-economic argument, not a legal one.44 Self-determination as a legal basis for acquiring new sovereign territory remains a fraught concept in international law, both legally and based on logistical challenges.45 For example, who is eligible to vote? Under whose auspices? How would the ballot be worded to give voters a real choice? How does one guarantee that the vote has not been coerced? Would a single vote suffice, or should a series of votes be taken, spaced out over a sufficient length of time to ascertain the “genuineness” of the decision taken? In the case of Kosovo there were repeated polls taken under the auspices of neutral UN administration, very different than the situation in Crimea, where a single snap plebiscite was taken under military coercion by the occupying power, on a ballot lacking a choice for maintaining the status quo (staying with Ukraine).46 42

43

44

45

46

Following the jurisprudence of Constructivist Legal Theory (see Table 0.1), views can and do change with changing circumstances and dialogues. For example, in 1975 the UN General Assembly passed Resolution 3379, which equated the Zionism in the Jewish state with racism, but the UN General Assembly rescinded that view sixteen years later in Resolution 46/86. E. Ashford, “Not-So-Smart Sanctions: The Failure of Western Restrictions Against Russia,” Foreign Affairs 95, No. 1 (2016): 114–23. J. Burke and S. Panina-Burke, “The Reunification of Crimea and the City Sevastopol with the Russian Federation,” Russian Law Journal 5, No. 3 (2017): 29–68. L. F. Damrosch and S. D. Murphy, eds., International Law: Cases and Materials, 6th ed. (St. Paul, MN: West Publishing Co., 2014), 307–319, 1164–1169. “Ukraine Crisis: EU Ponders Russia Sanctions over Crimea Vote,” BBC World News (March 17, 2014) www.bbc.com/news/world-europe-26607466 accessed March 29, 2021. For more on Crimea, see the following: P. Tzeng, “Sovereignty over Crimea: A Case for State-to-State Investment Arbitration,” Yale Journal of International Law 41, No. 2 (2016): 459–468.; C. R.

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In any case, the requirements of an occupying power toward the civilian population are clear in the 1949 Geneva Convention and the summary of the Institute for International Law (above). Contrary to the “better off” argument, Russia has failed to provide for the basic needs of the population, including drinking water. After a drought ravaged Crimea in 2020–2021, Russia promised to spend around $700 million to bring in potable water for the entire population, but instead water rationing has prevailed.47 1.4.2.c US Occupation of Afghanistan The year 2021 marked the end of the longest occupation in US history: the twenty years that the US military was in Afghanistan. Although few other states objected when the US military intervened to apprehend the instigators behind the attacks of September 11, 2001 on the US and to hold their Afghan hosts accountable, no one foresaw a twenty-year occupation. The US claimed that its occupation of Afghanistan ended with the 2005 democratic elections and the installation of a new government. The US also claimed that they were engaged in a multinational humanitarian intervention (along with NATO and other partners) to help protect the population from attacks by the Taliban, establish human rights for Afghani women and girls, and help build the capacity for self-government. However, many Middle Eastern countries characterized the following as clear evidence of a continued form of occupation: (1) the continued presence of US military forces; (2) civilians working for entities such as the US Central Intelligence Agency; and (3) a US-dependent government. The first and third conditions ended with the US withdrawal from Afghanistan and the rapid collapse of the US-backed government in August of 2021. However, even with that formal withdrawal, several questions remain for international law and sovereignty, among them: (1) should there be a time limit to occupation, and what are the consequences if any reasonable time limit is exceeded? and (2) should there be compensation for those whose lives were disrupted, and, if so, how would that compensation be determined? The answers to these and other related questions will have to await future determination under international law.

1.4.3

Cession and Joint Decision

In rare instances, a state might formally give a portion, or even all, of its territory to another state. An international agreement that deeds territory

47

Rossi, “Impaled on Morton’s Fork: Kosovo, Crimea and the Sui Generis Circumstance,” Emory International Law Review 30, No. 3 (2016): 353–390. A. Troianovski, “Where Ukrainians Are Preparing for All-Out War with Russia,” New York Times, May 8, 2021.

1 Gaining and Losing Territorial Sovereignty

from one state to another is called a cession. This might occur for several reasons: the state is no longer able to effectively control that territory, as a result of a loss in a war, as a goodwill gesture, or that the state has simply collapsed and wishes for another state to take over its territory. However, as stated at the beginning of this chapter, this goes against the basic principles of what it means to be a state and is exceedingly rare in the post-World War II period. In prior times, there are many examples of coerced cession when governing authorities gave up all or part of the territory due to losing a war, a secret deal, military pressure, blackmail, etc. Today, coerced cession is not allowable under international law except as a postwar settlement and/or if the territory had been acquired through aggression in the first place. An interesting example of problems with cession comes in the Island of Palmas (United States v. The Netherlands) case (1928). The Permanent Court of Arbitration (in the Netherlands) addressed the viability of transferring title by cession. The US unsuccessfully claimed sovereignty over an island in the Philippine archipelago, based on the 1898 Treaty of Paris between Spain and the US. Spain did not have proper title to the Island of Palmas at the time it ceded its treaty rights to the US (because the Netherlands had “effectively controlled” the territory for the prior two centuries). Spain could not, therefore, cede more rights to the US than Spain itself possessed. The opinion generally addressed the way in which title by cession is established: [Titles] of acquisition of territorial sovereignty in present-day international law are either based on . . . occupation or conquest, or, like cession, presuppose that the ceding [grantor] and the cessionary [grantee] Power, or at least one of them, have the faculty of effectively disposing of the ceded territory. . . . The title alleged by the United States of America . . . is that of cession, brought about by the Treaty of Paris, which cession transferred all rights of sovereignty which Spain may have possessed in the region indicated in Article III of the said Treaty and therefore also those concerning the Island of Palmas or Miangas.48

Cession spawns smoldering hostility when it is forced on the granting state because it has lost a war. Germany was required to cede land to Poland and Czechoslovakia after World War I. The ceded territories contained more than 1,000,000 ethnic Germans. There may have been a legally sufficient transfer of title to these territories, but the German minority refused to consider itself subject to Polish or Czech rule. Germany, in turn, refused to formally renounce these regions although it had been forced to do so by the Treaty of Versailles. Poland and Czechoslovakia were determined

48

1928 Permanent Court of Arbitration No. XIX, 2 Rep. Int’l Arb. Awards 829 (1949).

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to create homogeneous societies in their states, but there were lingering socio-economic differences between the new “Polish” Germans and “Südetendeutsch” (‘Germans of the southland’) in Czechoslovakia and the previously established citizens. The drive to re-patriate these “lost” Germans became one of the major reasons Germany used to justify its aggression and reverse-cession demands that began World War II.49 There are several other names for related methods for the informal transfer of sovereign territory under international law: renunciation, acquiescence, and estoppel. The distinction between these terms is sometimes rather blurred. They do share a common denominator. A state may not assert a territorial claim in a manner that is inconsistent with its conduct. In the 1968 Rann of Kutch arbitration, for example, Pakistan implicitly relinquished its title to an area on its common border with India. For more than 100 years, Pakistan’s predecessor did not react to obvious assertions of sovereignty (by first England and then India) in this disputed border area. The arbitrators determined that Pakistan had acquiesced in India’s exercise of sovereignty over the suddenly disputed area. Pakistan could not reclaim this land after another state had peacefully occupied it for so long a period of time. Such actions can be voluntary or involuntary. A twentieth-century addition to the practice of assigning sovereign territory is the assertion that a group of victors in a major war can redistribute land as they see fit under a doctrine known as “Joint Decision.” The underlying principle is that the losing states “ceded” at least some of their territory by waging war against the prevailing “community” of states. This is what happened at the conclusion of both world wars. The forerunner of the ICJ, the Permanent Court of International Justice, approved this practice after World War I.50

1.4.4

Prescription

The distinction between cession and prescription is that the latter is based upon the “long term, effective and peaceful possession” of an area by another state without objection by the first state, thus transferring title from one state to another. Prescription is not universally accepted as a method for acquiring sovereign title. Some jurists earlier rejected the view that prescription is recognized under international law. They asserted that one state could not legally claim title by merely taking over another’s territory. Abandonment was an 49

50

History Channel Editors, “Munich Pact Signed,” History.com, 2020, www.history.com/thisday-in-history/munich-pact-signed accessed March 30, 2021. Jaworzina Boundary, PCIJ, Ser. B, No. 8 (1923).

1 Gaining and Losing Territorial Sovereignty

unacceptable legal fiction; indeed, how does one analyze the motives of the state that has supposedly given up those claims? How loudly would the dispossessed state have to object for those objections to disrupt a claim of prescriptive transfer of territory? The purported acquiescence in the prescriptive rights of the new occupant was characterized as merely a face-saving device. How “effective” would the possessing state have to be in exercising sovereignty to claim it by prescription?51 Most states, however, now recognize prescription as a valid basis for claiming sovereignty over territory. One practical reason is that ineffective or excessively delayed opposition to hostile occupation conveniently removes defects in sovereign claims to disputed territory. Prescription is thus a common means for resolving longterm border disputes. The ICJ addressed the underlying practicalities when it resolved what had been a six-decade boundary dispute between France (on behalf of Cambodia) and Thailand (formerly Siam). Each claimed sovereign rights to the area surrounding a sacred temple on the Thailand–Cambodian border. In the 1962 Case Concerning the Temple of Preah Vihear, Thailand’s title claim was based upon a 1904 treaty. That agreement did not, however, undermine Cambodia’s occupation of the disputed area, as evidenced by Cambodian military troops seizing this border temple in 1954. The ICJ affirmed the utility of prescription, as a device for acquiring title to land, on the basis that this scenario: appears to have amounted to a tacit recognition by Siam of the sovereignty of Cambodia . . . over [the Temple] Preah Vihear, through a failure to react in any way, on an occasion that called for a reaction in order to affirm or preserve title in the face of an obvious rival claim. . . . In general, when two countries establish a frontier between them, one of the primary objects is to establish stability and finality. This is impossible if the line so established can, at any moment . . . be called in question . . . indefinitely [because] finality would never be reached . . .52

The Court’s above language was revisited in 2011. Cambodia requested an interpretation of the 1962 judgment and provisional measures against Thailand for the claimed violation of the Court’s earlier decision in favor of Cambodia. Forty years earlier, the Court had ruled that Thailand was obligated to withdraw its military or police forces, and any other guards or keepers, stationed at or near the Temple in “Cambodian territory.” Thailand now claims that Cambodia’s sovereignty is confined to the Temple, but not the surrounding area. 51

52

There are many examples of cases that raise this question. See Clipperton Island, 26 AJIL 390 (1932); Botswana v. Namibia, 199 ICJ Reports 1045. Case Concerning the Temple of Preah Vihear, 1962 ICJ Reports 6.

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One can at least appreciate the ephemeral nature of a supposed resolution based on prescription. Even a judicial resolution by the ICJ is no guarantee of an end to a dispute. A June 2008 standoff rekindled this dispute after Cambodia obtained the June 2008 UN Educational, Cultural and Social agency designation of the Temple Preah Vihear as a World Heritage Site. Notwithstanding the 1904 treaty and the 1962 court decision in favor of Cambodia, both Thailand and Cambodia still maintain a small contingency of military troops stationed in the immediate area, subject to ultimate resolution via diplomatic means. In October 2008, Thai and Cambodian military forces exchanged rocket and rifle fire in a confrontation over control of this temple. In 2013, however, the ICJ ruled that the area belongs to Cambodia and that all Thai military forces must leave.53

1.4.5

Accretion

This occurs when new land becomes available through a natural process, e.g., a newly created volcanic island, lava flows, alluvial deposits, change in a riverbed, etc. In the case of a volcanic island(s), no formal act of acquisition is usually necessary because this additional territory is adjacent to an existing maritime state. For example, when a volcanic island emerged within the territorial seas of Japan, it was quickly recognized as part of the sovereign territory of Japan. However, accretion can sometimes occur both very gradually and very suddenly, as is the case when rivers form an international boundary. Rivers tend to change course gradually over time, but they can also change course rapidly due to an earthquake and/or flood. In those cases, borders are usually adjusted to reflect gradual changes in a river’s flow, but borders remain fixed to the original border if there is a rapid change. That was the solution reached in the 1962 dispute between the US and Mexico over their international border formed by the Rio Grande River. The original treaties date back to 1848 and 1852. Here is a portion of the arguments: The contention on behalf of the United States of Mexico is that this dividing line was fixed, under those treaties, in a permanent and invariable manner, and consequently that the changes which have taken place in the river have not affected the boundary line which was established and marked in 1852.

53

“Preah Vihear Temple: Disputes Land Cambodian, Court Rules,” BBC News (November 11, 2013) www.bbc.com/news/world-asia-24897805 accessed March 31, 2021; see also International Court of Justice, Request for the Interpretation of the Judgment of June 15, 1962 in the Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand), General List 151, November 11, 2013.

1 Gaining and Losing Territorial Sovereignty On behalf of the United States of America it is contended that . . . if the channel of the river changes by gradual accretion, the boundary follows the channel, and that it is only in a case of a sudden change of bed that the river ceases to be the boundary, which then remains in the abandoned bed of the river.54

The arbitral panel sided with the US position, and the US resolved the matter some years later by transferring a piece of territory created by the sudden river flooding, known as the Chamizal tract, to Mexico.

1.4.6

Boundary Resolution

A final, non-military, means of adjusting sovereign territory occurs through the use of some neutral third-party to resolve a disputed boundary/frontier. As noted by Ratner, judges and arbitrators have managed to “draw lines – across mountains, deserts, rivers, and human settlements – where mere politicians had never succeeded.”55 Of course, those lines could not be drawn without state consent to the proceedings that drew them. Although this approach might appear to be the most rational and least-costly method for settling boundary disputes, states do not often utilize these methods. A study of 348 boundary disputes from 1945–1996 showed that only thirty of them were settled by either judicial or arbitral means.56 The ICJ has resolved more territorial disputes than any other issue before that court, although the number of states agreeing to its jurisdiction declined after adverse decisions were rendered. The peaceful resolution of such disputes is often complicated because judges, arbitrators, or diplomats must rely on documents that are centuries old. In a 1953 ICJ case, England and France both claimed the exclusive right to two islets within the English Channel. The ICJ analyzed a number of medieval treaties in its effort to establish which state was entitled to this territory: the Treaty of Lambeth of 1217, the Treaty of Paris of 1259, the Treaty of Calais of 1360, and the Treaty of Troy of 1420. The ICJ even considered a papal declaration in 1500, which transferred the Channel Islands from the French Diocese of Coutances to the English Diocese of Winchester. None of these documents specifically mentioned the disputed

54

55

56

Award by the United States–Mexico International Boundary Commission Constituted by Treaty of June 24, 1911, Reports of the International Arbitral Awards, Vol. 11 (1962): 309. S. Ratner, “Land Feuds and Their Solutions: Finding International Law Beyond the Tribunal Chamber,” American Journal of International Law 100 (2006): 808. T. Allee and P. Huth, “Legitimizing Dispute Settlement: International Legal Rulings as Domestic Political Cover,” American Political Science Review 100 (2006): 219, 220–221.

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islets. The Court ultimately granted title to Great Britain based on its acts of possession. Uti possidetis juris is an expedient instrument, originating in Roman law. It later facilitated border resolutions in Latin America, Africa, Asia, the former Soviet Union, and Yugoslavia. The principle defines the borders of newly sovereign states on the basis of prior, externally imposed administrative frontiers. European powers, for example, divided up Africa according to “spheres of influence.” The administrative units that these European colonizers imposed upon Africa were based on the convenience to the colonizers, and did not reflect underlying geographical, ethnic, or other preexisting boundaries. Upon independence, following uti possidetis, the new states’ borders became roughly equivalent to the previous administrative zones. The resulting cross-border ethnic division effectively encouraged groups to attempt secession from the states they now found themselves under. However, such reunification efforts met with severe resistance from the international community, which was intent on establishing and maintaining concrete borders.57

2 Maritime Sovereignty 2.1

Brief History

Sovereignty over maritime resources adjacent to and beyond the land mass of a state has undergone significant changes over the last 400 years, and especially in the last thirty years. These changes have not been linear. At first, oceans beyond the coastlines were completely open to any who could ply their waters, both with those who would prey on trade, as well as those who would conduct it. They were truly “free.” Then came a time of expansive claims to most of the world’s oceans by colonial powers, notably the Portuguese and the Spanish. At one time, Spain claimed the entire Pacific Ocean. In reaction (around the mid-seventeenth century) came the “freedom of the seas” principle that was designed to counter the monopolies that these few states claimed: The claim of the Dutch to free navigation . . . [evinces the] common interest in navigation and fishing [which] triumphed over monopoly, and that the great principle of “freedom of the seas” became in this sense universally accepted.58 57

58

For representative cases applying uti possidetis to Africa, see Burkina-Faso/Mali, 1986 ICJ Reports 544; Burkina-Faso/Niger, 2013 ICJ Reports 44, 73, 84. M. McDougal and N. Schlei, “The Hydrogen Bomb Tests in Perspective: Lawful Means for Security,” Yale Law Journal 64 (1964): 648, 661–662.

2 Maritime Sovereignty

An example of this pushback was the 3-mile claim of maritime sovereignty for all states made by a Dutch jurist who refused to recognize the expansive sovereignty claims of the Great Powers of the time.59 Hugo Grotius also elaborated the concept of res communis and “open seas” to apply to the oceans. The “freedom” principle devolved into two practices that favored seafaring states: unlimited access to the resource of the seas and the sovereignty of vessels of the flag state. Pharand elaborates: That legal regime was characterized by two basic principles: the freedom of the seas and the sovereignty of the flag State. The expression “freedom of the seas” designated mainly two types of freedom, fishing and navigation. It was thought that biological resources of the sea were inexhaustible and that any State, having the necessary fishing capability, could simply go out and help itself without any restriction whatever. As for the sovereignty of the flag State, it meant that the country under whose flag the ship was sailing had exclusive jurisdiction over all activities aboard the ship. Certainly this was the case when the ship was on the high seas . . . beyond the traditional three-mile territorial sea. Aside from two exceptions covering slave trade and piracy, this principle of sovereignty of the flag State remained untouched. In a nutshell this represented the state of the law of the sea until after World War II.60

Since World War II, a contrary trend has been developing. This trend is being driven by expanding military/security objectives of littoral (coastal) states and the ability of technology to harvest resources from the ocean, at greater and greater depths. The resulting pattern is that coastal states continue to push their claims of sovereign control further and further out and to control the resources that lie within, up to and including the minerals under the seabed. These new “territorial seas” were typically created and recognized by state-to-state treaties on an uneven basis. The worst of the old system of unrestricted access to fisheries on the high seas continued, resulting in serious depletion of marine stocks. The developing littoral states were left out of both the ability to extract high-seas resources or to shape maritime law. Attard explains the resulting hodge-podge of the late twentieth century as a worst of both worlds:

59

60

C. van Bynkershoek, “De Dominio Dissertatio [Possession of the Sea Dissertation],” in J. Brown Scott, ed., Classics of International Law (Washington, DC: Carnegie Endowment for International Peace, 1923), 44. D. Pharand, “The Law of the Sea: An Overview,” in D. Pharand and U. Leanza, eds., The Continental Shelf and the Exclusive Economic Zone: Delimitation and Legal Regime (Dordrecht: Martinus Nijhoff, 1993), 5.

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4 Range of Sovereignty the division of the oceans . . . on the basis of sovereignty . . . is a solution as dangerous and as obsolete as the maintenance of an unrestricted concept of the freedom of the seas. Clearly, therefore, neither [the] sovereignty nor freedom [alternatives] today provide an acceptable basis for a viable regime to regulate uses of the sea beyond the territorial sea.61

2.2

UNCLOS

The UN stepped up in this context with two main objectives in mind: (1) limit the absolute freedom of the high seas; and (2) incorporate Global South, especially littoral-state, perspectives. The multilateral treaty that emerged, which could be termed a new “constitution for the oceans,” was UNCLOS. Proposed in 1982 after an eight-year drafting process, it entered into force in 1994. The US was not a signatory at the time. Below we follow the basic contours of UNCLOS to elaborate each of the seven major water zones covered in that treaty: (1) Internal Waters; (2) Territorial Sea; (3) High Seas; (4) Contiguous Zone; (5) Exclusive Economic Zone, or EEZ; (6) Continental Shelf; and (7) the Deep Seabed. The general principle is that state control is maximized the closer the maritime zone is to its land mass; zone 1 allows much more control than zone 7. For a visual representational overview of these zones, please see Figure 4.1.

2.2.1

Internal Waters

Article 8.1 of UNCLOS defines these as the “waters on the landward side of the baseline of the territorial sea.” As with its land, a state has the sovereign International Airspace High Seas National Airspace 200 Exclusive Economic Zone 24

Land

Contiguous Zone 12 Territorial Sea

Coastal Baseline Continental Shelf

Deep Seabed

Figure 4.1 Sea zones 61

D. Attard, The Exclusive Economic Zone in International Law (Oxford: Clarendon Press, 1987), 308–309.

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right to control its bays, rivers, and other internal waters. Like repelling foreign invaders from its soil, a state has a strong interest in monitoring the military and commercial activities of foreign vessels within its internal waters. As depicted in Figure 4.1, the coastal baseline is the point where the sea intersects with the edge of the land at the seacoast. The baseline is a geographical yardstick for distinguishing internal waters from the sea and the starting point for measuring the various ocean water zones. Two settings complicate the application of the exclusive jurisdiction of the coastal state over its internal waters. One is the problem of jurisdiction over events occurring on a foreign vessel while it is in port. The other scenario involves conflicting rights in certain large coastal bays because they contain more open seas than the typical bay. 2.2.1.a Ports For the purpose of separating a state’s internal waters from the territorial waters off its coast, a port extends to the outermost permanent harbor facility forming an integral part of that harbor’s system. A long entryway consisting of natural twists and turns is a part of the port. An artificial buoy area constructed outside of the mouth of that entryway, however, is usually not part of the port. Each state has the absolute right to control the internal waters contained within its ports. Customary practice has incorporated some limitations, however. When a foreign warship enters internal waters with permission, the port authorities do not board it for mutual security reasons. Neither state wants to subject its military secrets to unnecessary scrutiny when its naval vessels enter a foreign port. A different limitation applies to merchant and other private vessels. They have the implied right to enter the internal waters of another state without express permission. They are routinely boarded, however, for customs or immigration purposes. The UNCLOS does not cover the important jurisdictional problem associated with a member of a foreign crew who commits a crime while in port (as opposed to one committed on a ship passing through the territorial sea). When the vessel’s sailors go ashore, they subject themselves to the laws or jurisdiction of the coastal state. When a crime is committed onboard a foreign vessel in a port, however, either the laws of the coastal state or the laws of the state to which the vessel is registered (the flag state) might be applied. The ancient rule was that any ship entering another country’s port became subject to the latter’s complete control. Modern customary and treaty practice have altered that rule. In the case of crimes that do not affect the port’s tranquility, the flag state – rather than the port state – usually has the primary jurisdiction to prosecute the criminal. That concession facilitates the smooth progress of international commerce. It also avoids undue

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interference with a ship’s movements by the port state. But when the onboard crime causes a significant intrusion upon the port’s tranquility, the perpetrator becomes subject to prosecution by the port state. Not all states automatically cede jurisdiction over onboard crimes to the flag state. In some regions, all crimes occurring within the internal or territorial waters trigger the coastal nation’s competence to prosecute foreign sailors (absent the usual treaty exception for military personnel). Under customary practice, the flag state is competent to act if the port state chooses not to prosecute. For example, a court in Argentina had to determine the question of Argentina’s jurisdiction over a theft that occurred onboard an Argentine merchant vessel at anchor in the port of Rio de Janeiro, Brazil. The ship left the Brazilian port and returned to Argentina with the thief still onboard. The thief was prosecuted in the Argentine court system. Although his lawyer argued that Argentina had no jurisdiction because the crime occurred in Brazil, the court disagreed in the following terms: According to the rules of public international law . . . offences committed on board a private ship fall within the jurisdiction of the courts of the flag State if the ship is on the high seas, and fall within the jurisdiction of a foreign State only in the event that such offences have been committed while the ship is in the [internal or] territorial waters of that other State. . . . [The court then decided that Argentina nevertheless had jurisdiction because this] principle is not an absolute rule . . . for if the foreign State does not choose to exercise its right to institute proceedings because it considers that the act has not affected the community at large or the peace of the port (as maintained in French and Italian doctrine), the flag [State] may then assert full authority over the ship for the purpose of restoring order and discipline on board or protecting the rights of the passengers.62

The rights of the port and flag states are not always left to judicial interpretation under customary international law. The respective jurisdictional rights are often agreed to by treaty. Such treaties typically cede primary jurisdiction to the flag state. They frequently contain a “port tranquility” exception, permitting the port state to prosecute foreign sailors in specified situations. What type of criminal conduct activates the “port tranquility” exception to the primary jurisdiction of the flag state? The US Supreme Court addressed this question in the following illustration, since relied on by over 100 courts and administrative bodies.

62

In Re: Bianchi, Camara Nacional Especial [special chamber of the national court of Argentina], 24 International Legal Reporter 173 (1961) (decided 1957).

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MALI V. KEEPER OF THE COMMON JAIL OF HUDSON COUNTY (WILDENHUS CASE) Supreme Court of the United States, 120 U.S. 1 (1887) [Excerpted case available at www.cambridge.org/FPIL7]

2.2.1.b Bays The waters of a bay are important to the security of states, and they may contain rich marine resources, so states are naturally proactive in safeguarding them. Article 10 UNCLOS offers the following definition of a bay: “[A] well-marked indentation whose penetration . . . constitute[s] more than a mere curvature of the coast. An indentation . . . [must be] as large as, or larger than, that of a semicircle whose diameter is a line drawn across the mouth of that indentation.” The mouth of the bay is formed by the line between the two furthest land extensions, known as headlands or promontories. Because the territorial sea limit is 12 miles, if the semicircle formed by the mouth is greater than 24 miles, then the bay also contains international waters at the center of its mouth. Challenges occur, however, when bays are so large that they are difficult to distinguish from the high seas. The demarcation of the waters of the bay where it meets the deep sea is difficult to ascertain by mariners and pilots alike. An illustration of this phenomenon took place in 1986 in the midst of heightened tensions between the US and Libya. US warplanes and ships were attacked over the Mediterranean Sea in an indentation known as the Gulf of Sidra that penetrates some 100 miles inland from the furthest promontories on Libya’s coast and is about 300 miles across. Because of that immense width, US military pilots believed that they were in international airspace, while Libya declared the whole area was a bay. Libyan dictator Qhadafi declared a line across the two promontories marked a “line of death” that no other state’s vessels could cross without explicit permission. Bays may contain fisheries, hatcheries, military bases, port facilities, and the like, so they can be of economic and strategic importance to the country that claims territorial sovereignty over them. As elaborated by the arbitral panel in the North Atlantic Coast Fisheries case between the US and the United Kingdom (UK): the geographical character of a bay contains conditions [that] concern the interests of the territorial sovereign to a more intimate and important extent than do those [interests] connected with an open coast. Thus, conditions of national security and integrity, of defense, of commerce and of industry are all vitally concerned with the control of the bays penetrating the national coastline.

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4 Range of Sovereignty This interest varies, speaking generally, in proportion to the penetration inland of the bay.63

An historic bay may contain only internal waters (as opposed to the “territorial” waters discussed below) although its mouth may be wider than the above 24 miles limitation of the UNCLOS. Over a long period of time, a state may claim exclusive sovereignty over a large bay that would normally contain one or more of the other categories of ocean waters (see Figure 4.1) – because the distance between its natural entrance points is more than 24 miles across. If other states do not dispute such a claim, they effectively acquiesce in the coastal state’s treatment of the large historic bay as consisting of only internal waters. One of the classic disputes is the long-term US objection to Canada’s claim that Hudson Bay is an “historic” bay, allegedly consisting solely of internal waters. It is 50 miles wide at its mouth. As stated by the Canadian Minister of Northern Affairs and Natural Resources in 1957, “the waters of Hudson Bay are Canadian by historic title. . . . Canada regards as inland waters all the waters west of a line drawn across the entrance to Hudson Strait . . . .”64 The US characterizes most of the Hudson Bay as international waters, however, on the basis that the US has consistently disputed Canada’s claim that it is exclusively internal waters. The international status of this bay has not been resolved since neither nation has a strong enough interest to bring the matter to a conclusion.

2.2.2

Territorial Seas

Under UNCLOS, the territorial sea extends outward 12 nautical miles65 from the maritime country’s coastline. A coastal state exercises sovereignty over this portion of its territory, essentially to the same extent that it does so over its landmass. Its range of sovereignty includes the air over the territorial sea belt adjacent to the coast, the seabed below, and the subsoil within this zone. As noted above, this was not always the case. Bold, unilateral expansions of exclusive sovereignty crested during the fifteenth and sixteenth centuries. The range of some state claims extended deep into what is now considered

63

64

65

“Tribunal of the Permanent Court of Arbitration,” reprinted in Senate Document No. 870, Vol. I, 61st Congress, 3rd Session (1912): 64. “Excerpt of 1957 Canadian Parliamentary Debate,” reprinted in H. Kindred et al., International Law Chiefly as Interpreted and Applied in Canada, 6th ed. (Toronto: Edmond Montgomery Publishing, 2000), 869. A nautical mile is slightly longer than a standard land mile. It is 1.15 miles, or about 6,076 feet. That is also equivalent to 1.851 kilometers.

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the high seas. For much of the nineteenth and early twentieth centuries, however, the “3-mile rule” (supposedly based upon the firing range of a cannon) was loosely adhered to. After World War II, states, mostly in the developing world, began to proclaim much greater territorial seas. They wanted more control of the maritime resources adjacent to their coasts. In 1952, Chile, Ecuador, and Peru claimed a territorial sea of 200 nautical miles from their coasts. In 1956, several Latin American countries attended the meeting of the Inter-American Council of Jurists in Mexico City. They adopted the following principle, which differed from the then-prevailing yardstick for a uniform approach to measuring the territorial sea: The distance of three miles as the limit of territorial waters is insufficient, and does not constitute a general rule of international law. Therefore, the enlargement of the zone of the sea traditionally called ‘territorial waters’ is justified. Each State is competent to establish its territorial waters within reasonable limits, taking into account geographical, geological, and biological factors, as well as the economic needs of its population, and its security and defense.66

Such statements generated worldwide pressure to expand the historical 3-mile limit. The predecessor to the 1982 UNCLOS conference was held in 1958 in Geneva and attempted to standardize the 3-mile limit, but the limit was widely ignored. Accepting this new customary state practice, Article 3 of UNCLOS holds that every “State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles.” The US (although not a signatory to UNCLOS) attempted to discourage the adoption of this broader new standard by initially adhering to the earlier 3-mile limit. In 1988, however, US president Reagan effectively adopted the 12-mile standard for that influential state.67 The UNCLOS treaty resolved some but not all territorial sea issues. Now, all maritime states who ratify the treaty, regardless of their resources, must exercise sovereign control over the 12-mile adjacent strip of water.68 This means, at minimum, that they must chart the waters, warn all others of 66

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US Naval War College, “Documents 1955,” International Law Situation and Documention 50 (1957): 244. Emphasis added. “Presidential Proclamation on the Territorial Sea of the United States,” Weekly Compilation of Presidential Documents 24 (1989): 1661, reprinted in International Legal Materials 28 (1989): 284. Some scholars refer to the obligatory nature of sovereignty over all territorial seas (and related zones) that are contiguous to a state as the doctrine of appurtenance, a doctrine that predates UNCLOS, but which is contested in caselaw.

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navigational hazards, and render assistance to those needing aid or rescue in those seas. But not all disputes have been resolved by UNCLOS. For example, Greece and Turkey have a long-standing dispute over the island of Kastellorizo/Meis in the Aegean Sea that remains unresolved. After World War II, this tiny island right off Turkey’s coast was transferred to Greece, although the island itself is far away from mainland Greece. Technically, then, Greece has control over the sea just off the shore of Turkey. Turkey naturally disputes this and – unlike Greece – is not a signatory to UNCLOS. Additionally, the Greeks and Turks dispute the nearby island of Cyprus, which has been unhappily divided between them since 1974, and results in a further overlapping claim to portions of the Aegean. The situation is complicated by the fact that oil and gas reserves have been discovered deep in the seabed.69 Who has drilling rights to whatever might lie beneath the waves? Although there are potential solutions outside of UNCLOS, this simmering conflict may devolve into violence. However, UNCLOS helped solve many other disputes arising from imprecise definitions of sea zones in maritime customary international law up to that point. These included the location of the “baseline,” the “breadth” of the territorial sea, what constitutes “innocent” passage, and the extent to which there exists a right to pass through straits that formerly contained international waters. 2.2.2.a Baseline The territorial sea begins where the ocean’s edge meets a state’s coastline. Under Article 5 of the UNCLOS, the “normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast as marked on large-scale charts officially recognized by the coastal State.” The baseline is the yardstick for marking the inner boundary of the various coastal sea zones described in this chapter (see Figure 4.1). The demarcations on the coastal state’s official baseline charts do not mandate international recognition of the state’s placement of the baseline. Coastal baselines must follow the general direction of the coast. However, unusual and sharp land contours make it difficult to establish indisputable baselines. Article 7.3 of the UNCLOS espouses the general principle that “the sea areas lying within the [base]lines must be sufficiently closely linked to the land domain to be subject to the regime of internal waters.” This language, of course, begs the question of proper baseline placement for the inner edge of the territorial sea on erratic coastlines.

69

A. Kluth, “International Law Can’t Solve the Greco-Turkish Island Problem,” Washington Post, October 19, 2020.

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Earlier, the ICJ furnished guidelines, not bright lines, in its 1951 AngloNorwegian Fisheries case. When Norway announced the location of its baselines after World War II, it included a substantial portion of what were previously international fishing areas within its internal and territorial waters. Norway has many ramparts of rocks and small islets that interrupt the natural course of its coastline. Norway drew straight baselines, conveniently encompassing the rocks and islets off its coast, rather than using the traditional method of tracking the contour of its irregular coastline. By placing its baselines at the outer edge of these rock and islet configurations, Norway thus claimed a greater share of the common fishing area than Great Britain was willing to recognize. British fishermen had operated off Norway’s coast (within the straight baseline area set by Norway) since the early 1900s. The ICJ ruled that, “[i]t is the land which confers upon the coastal State a right to the waters off its coasts. It follows that while such a State must be allowed the latitude necessary in order to be able to adapt its delimitation to practical needs and local requirements, the drawing of baselines must not depart to any appreciable extent from the general direction of the coast.”70 The majority of the ICJ’s judges thereby approved Norway’s straight baseline method in these unusual circumstances because the resulting straight lines were sufficiently aligned with the general direction of the Norwegian coast. Although this method did not produce a perfect replica of the coastal nation’s coastline, it was accepted in international practice (opinio juris) and thus became part of customary international law to help fill in the blanks left by UNCLOS. Figure 4.2 illustrates the Court’s description of the method that Norway used to establish its baselines. The quadrupling of the territorial waters zone had two major effects upon maritime law. First, it limited freedom of the seas because littoral countries could regulate more activities due to the 9-mile expansion from 3 to 12 nautical miles. That development complicated the existing rules of “innocent passage.” Second, many straits, through which ships pass from one part of the high seas to another, no longer contain international waters (high seas). Ships passing through such waters suddenly became subject to regulation by the coastal states on either side of the strait. 2.2.2.b Innocent Passage This long-standing doctrine of maritime law seems to be uncomplicated. Normal trade is predicated upon the ability of innocent passage. Article 18.1 of UNCLOS defines innocent passage as “navigation through the territorial sea for the purpose of: (a) traversing

70

Anglo-Norwegian Fisheries Case (England v. Norway), 1951 ICJ Reports 116 (1951).

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Straight Baseline

Internal Waters

Twelve-Mile Limit of Territorial Sea

Territorial Sea

Figure 4.2 Straight baseline method

that sea without entering internal waters . . . or (b) proceeding to or from internal waters.” When is passage “innocent”? Commercial shipping and the delivery of humanitarian aid are widely held to be innocent passage and can be protected when threatened by piracy as it has been off of the Horn of Africa. However, military transit of another state’s warships does not satisfy that concept. The US and the Soviet Union almost came to blows in 1986 when US warships equipped with espionage capabilities entered the Black Sea via the Turkish straits. The former USSR protested this entry as unnecessarily provocative and a violation of its territorial sovereignty.71 Article 19 of UNCLOS states that “innocent” passage means a passage that is “not prejudicial to the peace, good order, or security of the coastal State.” The passing vessel may not stop or anchor unless incidental to ordinary navigation or undertaken for the purpose of the authorized entry into a foreign port. A vessel may thus proceed to or from a port and render assistance to persons, ships, or aircraft needing emergency assistance. To further clarify the concept, Article 19 requires foreign vessels to ascertain and comply with the innocent-passage regulations promulgated by coastal states. Regulations relating to customs, immigration, and sanitation protect the coastal state’s interests in its territorial waters. An ocean liner carrying passengers into another country’s territorial waters must comply 71

The US and the USSR subsequently decided that commercial vessels could enter their respective ports and pass through territorial waters. A minimum of two days’ notice was required. This 1990 agreement expressly excluded “war vessels.” See “Agreement Regarding Certain Maritime Matters between the Government of the United States of America and the Government of the Union of Soviet Socialist Republics,” US Treaties and Other International Agreements Series, No. 11453 (1990).

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with local tax laws affecting its cargo, passport regulations affecting its passengers, and waste-offloading requirements. Despite the guidelines of Article 19, a series of military incidents demonstrates that the rules are still somewhat elastic and subjective. Iran has captured both European and US sailors and held them for days before releasing them, claiming each time that these crews had strayed into Iranian territorial waters.72 Potentially far more disruptive are the increasingly assertive claims of territorial sovereignty over waters in the South China Sea by China. States sometimes disagree about whether certain conduct poses a threat. A “threat” can take many forms, often being in the eyes of the littoral-state beholder. There are, of course, clear breaches. A foreign military ship authorized to enter the territorial waters of another state could then undertake military exercises upon arrival. Submarines might navigate below the surface in territorial waters, undetected by the coastal authorities. Less threatening activities can be labeled as threats by a coastal country. Foreign vessels can also collect hydrographic information, conduct research, fish, or disseminate propaganda via electronic means. During the Cold War, Soviet “fishing” trawlers with elaborate electronic devices onboard hovered just outside the US 3-mile territorial water limits to gather information. Suppose that a private vessel called Greenpeace distributes leaflets or displays signs against nuclear weapons to ships passing through the territorial waters of a major nuclear power. That state’s coast guard vessel may stop the dissemination of such information because the activities of the Greenpeace would not be considered innocent. The UNCLOS provisions are ambiguous, but they are far better than no guidelines at all. There are reciprocal obligations for innocent passage under UNCLOS that bind the maritime state as well. Article 24 imposes a duty not to “impair” the innocent passage of foreign ships. The coastal country cannot impose navigational requirements that effectively deny the right of innocent passage. Failure to publicize dangers to navigation in the state’s official navigational charts, for example, would make territorial sea passage impractical and dangerous. The same article also prohibits littoral states from promulgating regulations that discriminate against the ships or cargo of a particular nation, or ships carrying cargo to or from certain nations. The Arab embargo of Israeli shipping and goods breached this provision of the treaty. Article 24 builds upon the famous 1949 Corfu Channel Case’s principle that one

72

“UK in ‘discreet Talks’ with Iran,” BBC World News (March 27, 2007) http://news.bbc.co.uk/ 2/hi/uk_news/6500583.stm accessed March 31, 2021.

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state cannot allow the use of its sovereign territory, even by nongovernmental groups, in a manner that interferes with innocent passage.73 2.2.2.c Strait Passage A “strait” is a narrow body of water that connects two larger bodies of water. The second major effect of the expansion of territorial waters was to transfer many of these straits to sovereign state control away from the earlier freedom of the seas concept. The Strait of Gibraltar, for example, connects the Mediterranean Sea and the Atlantic Ocean. There are extraordinary implications regarding anything that would limit or close such straits. The Strait of Hormuz on the Persian Gulf is the transshipment point for millions of barrels of oil every day. If Iran were to carry out its threat to respond to an attack by laying mines in that strait – 21 miles wide at its narrowest point – there would be worldwide pandemonium. One-fifth of the world’s oil, and 90 percent of Persian Gulf oil, is transported through this strait. Oil prices would skyrocket. Many of the world’s straits are wider than 24 miles, meaning at least some portion lies outside territorial seas. However, others are narrower. As a result of the UNCLOS augmentation of coastal jurisdiction by nine additional miles, approximately 116 of these comparatively narrow international straits which formerly contained high seas suddenly embodied territorial seas only. Under customary state practice, coastal states would appropriately apply their “innocent-passage” rules to such waters. Under the UNCLOS “strait passage” articles, however, the coastal state’s innocent-passage rules do not apply to these special straits. Military and commercial vessels are entitled to free transit in them, just as if those special straits still contained slices of high seas within them as they did before the adoption of the 12-mile territorial seas rule. Article 38.2 of UNCLOS states what it calls transit passage may be undertaken: “solely for the purpose of continuous and expeditious transit of the strait between one part of the high seas . . . and another part of the high seas.” For their part, coastal countries may not impede such transit because of the narrowness of such a key navigational strait.74 Climate change may open up currently covered-over waters that could serve as a strait and push the development of maritime law. An example is 73

74

Corfu Channel Case, Judgment, ICJ Reports 4 (1949). The key quotation is: “The obligations incumbent upon the Albanian authorities consisted in notifying, for the benefit of shipping in general, the existence of a minefield in Albanian territorial waters and in warning the approaching British warships of the imminent danger to which the minefield exposed them.” For a discussion of the differences between “innocent” and “strait passage,” see N. Oral, “Transit Passage Rights in the Strait of Hormuz and Iran’s Threats to Block the Passage of Oil Tankers,” ASIL Insights 16 (2012).

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the previously mythical “Northwest Passage” sought by maritime explorers to provide a shortcut between Europe and Asia. It is now projected that by 2030 or so enough sea ice will have melted north of Canada in the Arctic Circle to free up a route that could shorten shipping by about 6,000 miles or 9,000 kilometers (versus the Panama Canal). Canada currently claims most of this potential strait, while the US disputes the claim under UNCLOS strait passage provisions.75

2.2.3

High Seas

Also known as “international waters,” these oceans contain 80 percent of the planet’s life forms, cover 71 percent of its surface and absorb more carbon dioxide than all of the world’s forests. They consist of that part of the oceans not subject to the territorial sovereignty of any state. While littoral states have exclusive control over their territorial waters, they still have some control over zones defined by UNCLOS further seaward from their territorial seas. The further out from the coastal baseline, the less power that these countries (legally) have. The two additional zones are the Contiguous Zone (CZ) and the Exclusive Economic Zone (EEZ). However, the “high seas” begin at the edge of the territorial sea and mark the most fundamental division under UNCLOS. As noted above, the principle of absolute freedom of the high seas held sway for several centuries. The pendulum began to swing the other way in 1958, and, with the passage of UNCLOS, freedom of the seas is no longer absolute. During the 1974–1982 UNCLOS process, the territorial sea was quadrupled, the size of the CZ was doubled, and a 200-mile EEZ was created. The impact has been a “territorialization” of the oceans, once thought to belong to all. One result of these expansions and the creation of the new economic zone was the extension of coastal sovereignty into the high seas. Most of the remainder is scheduled for control by an International Seabed Authority, which regulates all resource-extraction activities in the far reaches of the oceans under the UNCLOS regime described below. As this takes place, the high seas could hardly continue to be characterized as res communis (belonging to all). As stated by Ngantcha, The Law of the Sea has traditionally been aimed at protecting the international community’s interests over the inexhaustible uses of ocean space. To this end, the main pillar of the law has been freedom of the sea – with the implication that

75

J. Kraska, “The Law of the Sea Convention and the Northwest Passage,” International Journal of Marine and Coastal Law 22 (2007): 257.

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4 Range of Sovereignty seagoing vehicles may freely roam the oceans. When much of the ocean space was considered res communis, this tenet was considered unquestionable. The “territorialization” of the ocean space, i.e., its division into zones of coastal State sovereignty and/or jurisdiction, has put a stop to the “old” system of “free” global maritime communication and transportation. Consequently, the international networks of trade and commerce, naval mobility, overflight, etc., have come to depend upon the national maritime spaces of third States for purposes of passage.76

2.2.4

Contiguous Zone

Coastal state sovereignty is exclusive in the territorial sea belt immediately adjacent to its landmass. A maritime country may also exercise limited jurisdiction in the CZ. It extends from the baseline to 24 nautical miles from the coast. As depicted in Figure 4.1, the outer edge of the territorial sea is also the midpoint of the CZ. Why is there a CZ? Sovereign rights in the CZ allow a coastal state to effectively preserve various national policies. Under Article 33.1 of UNCLOS, the activities of foreign countries or their vessels in the CZ are subject to the coastal state’s jurisdiction for the express purposes of enforcing “customs, fiscal, immigration, or sanitary laws.” Enforcement of such laws is not an unreasonable infringement of the international right to navigate freely through the CZ. For example, maritime countries wish to curtail human trafficking and narcotics smuggling. However, smugglers will often “hover” just beyond territorial seas looking for an opportunity to dash to an obscure port not well-patrolled by a state’s coast guard to deliver their contraband. The CZs codified an earlier exception to the 3-mile rule known as “hovering laws” that allowed greater jurisdiction (than the territorial seas) for the limited purpose of enforcing anti-smuggling and anti-narcotics laws. There is another important distinction between the territorial sea and the CZ. Unlike territorial waters where a coastal country must exercise its sovereign control, a state has to expressly declare its claim to jurisdiction over a CZ. This places the burden on coastal states to justify any extension of sovereignty beyond their territorial seas. A major difference between the two zones is that a coastal state could not claim exclusive sovereignty over its CZ for all purposes. It can monitor and exclude hovering (e.g., the staging of

76

F. Ngantcha, The Right of Innocent Passage and the Evolution of the International Law of the Sea: The Current Regime of “Free” Navigation in Coastal Waters of Third States (London: Pinter, 1990), 1.

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illicit narcotics operations) activities there. It cannot limit passage that was otherwise not harmful to a littoral state’s interests. In sum, by expanding earlier notions of the territorial sea to 12 miles and the CZ to 24, two important matters of maritime law were settled. First, existing state practice was codified, and secondly, the simmering disputes over the acceptable breadth of the CZ were resolved and standardized.

2.2.5

Exclusive Economic Zone

One of the most innovative, and yet controversial, changes to maritime law was created by UNCLOS in granting a 200-mile EEZ (from the baseline) to maritime states. It was innovative because it recognized the legitimate needs of coastal countries, especially developing states, to exploit adjacent ocean waters for their economic benefit. It was controversial because it provided no objective standard for how to determine boundaries of overlapping EEZs or to adjudge what “allowable” economic activities might be undertaken by flagged vessels of other states. This sea zone is a product of the tension between historical expectations associated with freedom of the seas and modern pressures to lessen the disparities among states and overall exploitation of ocean resources. After World War II, the more developed nations used their superior technology to extract the rich seafood and mineral resources contained in the sea and under the ocean’s floor. Many of these natural resources were located just beyond the territorial seas of the lesser-developed nations. They witnessed the resulting depletion of these natural resources, virtually within sight but beyond their grasp. Even some developed nations were concerned about protecting the resources off their own coasts from unlimited exploitation by other economic powerhouses. The sovereignty equation struck in the EEZ does not preclude all activity in this portion of the high seas which could be characterized as being “economic.”77 Although the EEZ is now firmly established in international law, the vagueness of the 1982 Convention – typical of any multilateral treaty where a wide degree of consensus is sought – masks continued disagreement about the respective rights of different states in overlapping EEZs. The difficulty in reaching any agreement over the eight-year negotiating period was partially overcome by employing vague language, thereby enabling all participants to claim that their varied objectives had been achieved. The problem of overlapping jurisdictions continues until the present and is often “solved” on a case-by-case basis, without a resulting broad legal 77

M. Markowski, The International Law of EEZ Fisheries: Principles and Implementation (Groningen: Europa Law Publishers, 2010).

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principle that could become part of customary international law. Their shorelines may be less than 400 nautical miles from another nation. Or, adjacent nations may share an irregular geographical land configuration, which necessarily limits their respective abilities to claim a full 200-nauticalmile swath of ocean waters without crossing over into one another’s EEZs. Under Article 74 of UNCLOS, states with opposing or adjacent coastlines are thus expected to resolve any inconsistent claims to their respective EEZs “by agreement on the basis of international law . . . in order to achieve an equitable solution.” Chile and Peru are adjacent countries on the Pacific coast of South America. Because the coast takes a sharp western turn at the point of their common border, their claimed EEZs necessarily overlap, forming a large triangle of disputed waters. The ICJ was tasked with adjudicating their opposing EEZ claims in the following case.

MARITIME DISPUTE JUDGMENT (PERU V. CHILE) International Court of Justice, 2014 ICJ Reports 3 [Excerpted case available at www.cambridge.org/FPIL7]

The Court utilized a “three-step equidistance method” that devised a new maritime boundary based on UNCLOS principles that recognized both Chile’s prior claims (up to Boundary Marker 1) and expanded Peru’s EEZ. Chile was unhappy with the result, however. As a result of this case, the “losing” side (Chile) has withdrawn from its earlier acceptance of compulsory jurisdiction of the ICJ (continuing a larger trend78), and thereby considerably weakening the precedent-setting power of the World Court in maritime-boundary cases.79 The second area of controversy under the EEZ regime of UNCLOS is the question of the scope of the purported “exclusive” economic power of the adjacent sea state. Under Article 56 of UNCLOS, the adjacent coastal state enjoys sovereign rights in the EEZ for the purposes of “exploring and

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Colombia withdrew from the Pact of Colombia giving the ICJ “compulsory jurisdiction” over several Latin American countries after Colombia received an adverse decision in the earlier Nicaragua v. Colombia maritime boundary case. See also Chapter 6, Section 3.1.3. U. S. Burney, “International Court of Justice Defines Maritime Boundary Between Perú and Chile,” ASIL Insights 18, No. 3 (2014) www.asil.org/insights/volume/18/issue/3/ international-court-justice-defines-maritime-boundary-between-peru-and accessed March 31, 2021.

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exploiting, conserving and managing the natural resources . . . of the waters superjacent to the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water.” An example is that of high-seas fishing. The flagged vessels of other countries operating in that zone are thus subject to licensing fees for fishing in the EEZ. Failure to register has consequences. Offending vessels can be towed to the nearest port of the state controlling the EEZ, and fines assessed. However, Article 56 provides no objective yardstick for measuring the discretion of the coastal state to exclude the activities of other states’ flagged vessels in its EEZ. For example, the coastal country may determine the “allowable catch” of fish to be taken by other states from its EEZ while providing no concrete standard to define just what constitutes an allowable catch. Under Article 62, when a state fails to determine its EEZ’s allowable catch or does not have the “capacity to harvest the entire allowable catch, it shall, through agreements . . . give other states access to the surplus of the allowable catch.” This article requires the coastal state to provide access to the surplus by other nations. Unfortunately, this provision means no more than an agreement to agree later – without the benefit of guidelines to define specifically another state’s right of access to the surplus resources of the EEZ. The notion of “surplus” catch established by each state for its convenience (and not by some objective global standard) also would tend toward overfishing and ecosystem depletion. The imprecision in the language of the EEZ regime, especially concerning jurisdiction and economic control, is seemingly forever in need of judicial interpretation. UNCLOS provides for an in-house body for doing so, the International Tribunal for the Law of the Sea (ITLOS), located in Hamburg, Germany.80 Cases below illustrate the decisions it has reached in addressing the questions that arise under the EEZ rights of littoral states. Article 292 of UNCLOS demonstrates another area of confusion. What type of activity would result in a violation of a littoral state’s fishing regulations of its EEZ? From its first judgment in 2000 on Article 292, the Tribunal has 80

For details and evaluation of this tribunal, see P. Rao and R. Khan, eds., The International Tribunal for the Law of the Sea: Law and Practice (The Hague: Kluwer, 2001); H. Caminos, “The Creation of Specialized Courts: The Case of the International Tribunal for the Law of the Sea,” in N. Ando, E. McWhinney, and R. Wolfrum, eds., Liber Amicorum: Judge Shigeru Oda, Vol. 1 (Hague: Kluwer, 2002): 569; P. Rao, “The International Tribunal for the Law of the Sea: An Evaluation,” in Rao and Khan, eds., The International Tribunal for the Law of the Sea, 667; and P. Rao and P. Gautier, eds., The Rules of the International Tribunal for the Law of the Sea: A Commentary (Leiden: Martinus Nijhoff, 2006).

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wrestled with this issue. The holding revealed a divided tribunal with four dissents and one concurring opinion.

APPLICATION FOR PROMPT RELEASE – THE CAMOUCO (PANAMA V. FRANCE) International Tribunal for the Law of the Sea Judgment of February 7, 2000, Tribunal Case No. 5 [Excerpted case available at www.cambridge.org/FPIL7]

In a similar proceeding, in Hoshinmaru, the Tribunal ruled that the case did not turn on jurisdiction as Camouco did, but rather on the amount of a monetary fine that should be paid by the owners of the Japanese flagged vessel to Russia for taking the wrong type of fish, after permission had been earlier given to fish for another species in Russia’s EEZ. The Tribunal found that Russia’s original demand was excessive, reducing the fine from 22 million rubles to 10 million (about $393,000) to be paid by the ship’s owner.81 On the other hand, ITLOS has noted that, “some coastal states are demanding, in their domestic legislation, prior notification by vessels intending to enter their exclusive economic zones even if only for the purpose of transiting them in application of the freedom of navigation which is guaranteed by article 58, paragraph 1, of the United Nations Convention on the Law of the Sea.”82 China has joined this trend in trying to force ships and aircraft to first seek permission before transiting a super-sized EEZ that it claims it controls (recall the introduction to this chapter). China not only claims sovereignty over islands (and the surrounding ocean) more than 200 miles off the Chinese coast, but also around what had been rocks and submerged sea formations in deep-ocean spaces. Furthermore, China is challenging the right of passage – innocent or not – through those waters without its express permission. Unfortunately, if allowed to stand, these new “sovereign” areas would disrupt trade across long-standing sea lanes. China has gone so far as to construct artificial reefs, airstrips, and even military bases upon at least seven sites, often bringing in

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The Hoshinmaru Case (Japan v. Russian Federation, 2007), ITLOS Case No. 14, www.itlos .org/en/main/cases/list-of-cases/case-no-14/ accessed March 31, 2021. See the Juno Trader Case (Saint Vincent and the Grenadines v. Guinea-Bissau), ITLOS Case No. 13, “Declaration of Judge Kolodkin,” 48, www.itlos.org/en/main/cases/list-of-cases/ case-no-13/ accessed March 31, 2021.

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D

Miles 0

Outer Limit of the 12-Mile Territorial Sea

G

12

H F B

C E

A

B Straight baseline on indented coast fringed with islands. A indentation is larger than C Indentation is smaller a semicircle whose diameter than area of semicircle is two closing lines, and is drawn on closing line. therefore a bay. Thus bay Therefore this is not a closing lines (which total bay. less than 24 miles) are baselines. D An island generating its own territorial sea.

G Low tide elevations. One is less than 12 miles from the coast and therefore forms the baseline. The E Baseline is a line drawn other is more than 12 across the mouth of the miles and therefore does river that flows directly not affect the construction into the sea. of the baseline. F Harbor works forming part of the baseline. H On the rest of the coast the baseline is the lowwater mark.

Figure 4.3 Bay, baseline, harbor, island, and territorial sea

millions of cubic feet of earth and sand in massive operations to do so. Despite promises to halt such construction in 2015, it has continued.83 Since then, other states with claims in the area, such as the Philippines,84 Japan, and Malaysia have all lodged protests and/or sent out their military forces to challenge these claims. In 2016, an arbitral panel ruled against Chinese claims to sovereignty over the submerged reefs in a “resounding victory” for the Philippines’ counterclaim, but it is unclear what, if any practical effect, this ruling will have.85 To summarize the maritime zones, and to illustrate the conflict over maritime sovereignty in the South China/West Philippines Sea, refer to Figure 4.3. In China’s view, the “islands” that it has built up through massive loads of imported fill material would fulfill the requirements of UNCLOS, depicted in feature “D” in Figure 4.3, and thus generate their own sovereign territory and at least a 12-mile territorial sea all around each of the claimed islands. That interpretation has been decisively rejected by the Arbitral Tribunal constituted under Annex VII (Article 298) of UNCLOS because such “islands” are not naturally formed and in their natural state were not capable of supporting “sustained human habitation.” Secondly, China’s “historic claims” (such 83 84

85

Perlez, “China Building Airstrip on 3rd Artificial Island, Images Show.” F. Villamor, “Philippines Sends Defense Chief to Disputed South China Sea Island,” New York Times, April 21, 2017. K. Sellars, “Rocking the Boat: The Paracels, the Spratlys, and the South China Sea Arbitration,” Columbia Journal of Asian Law 30, No. 2 (2016): 221–262.

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as the “Nine-Dashed Line” map) are invalid under UNCLOS.86 The zones, including the EEZ, must follow the coastal baseline illustrated in detail in Figure 4.3. As described in feature “G,” any islands that are more than 12 miles from the coastal baseline may not be used to extend the coastal baseline claim and thus the EEZ. Do the EEZs deliver the hoped-for economic development of maritime Global South states? From one perspective, these developing countries have achieved an increase in their national sovereignty over important resources, and they have obtained some funding through fees charged for fishing and other extraction in their EEZs. From another perspective, however, the level of development has failed to meet expectations because it takes an already high level of sovereign wealth to fully reap the benefits of an EEZ. As noted by Pardo: It should be noted that adequate scientific capability, appropriate technology and substantial financial resources are required to effectively develop offshore resources, particularly mineral resources; thus, only wealthy countries and a few large developing countries such as China, Brazil, India and a few others have the means themselves to engage in significant offshore development. This could mean that marine areas under the jurisdiction of many small developing countries . . . could be exploited in practice predominantly for the benefit of technologically advanced countries with far-reaching political consequences.87

The adoption of EEZs has also had the effect of placing one-third of the world’s ocean space, containing over 90 percent of the world’s fisheries, under the sovereignty of the coastal countries of the world. This has vast implications for the long-term and sustainable management of these vital ocean resources for the future.

2.2.6

The Continental Shelf

The ocean floor area extends out from the coastline, but it varies widely in its configuration. For some countries, like the US, the ocean remains relatively shallow off its coast, and its “Shelf” extends out for a great distance, for hundreds of miles in some areas. For others, the ocean floor drops suddenly to great depths and is difficult to reach without advanced technology. Based on the geomorphology of the US Continental Shelf, and recognizing the resources lying above and below the Shelf, US president Truman led in the 86 87

Carpio, “The South China Sea Dispute.” A. Pardo, “The Convention on the Law of the Sea: A Preliminary Appraisal,” in F. Snyder and S. Sathirathai, eds., Third World Attitudes toward International Law (Dordrecht: Martinus Nijhoff, 1987), 737, 741, 747 n.32.

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development of a novel doctrine of maritime law. In 1948, he declared limited sovereignty over the resources on the US Continental Shelf for 200 miles, measured from the baseline of both its east and west coasts. President Truman did not claim exclusive sovereignty in this area of the high seas, however. He expanded coastal sovereignty for the limited purpose of controlling economic activity in the waters over the Shelf. Other nations retained the right to pass freely through the high seas over these shelves. They could not fish there, however, without observing new US coastal fishing regulations. This Continental Shelf Doctrine was later adopted by some other nations and was the central theme of the 1958 UN Convention on the Continental Shelf.88 For other states that have smaller contintental shelves that drop away rapidly, a different approach made sense. Chile, Ecuador, and Peru, for example, have shelves extending out to only a few miles from their coastlines. They took a more direct approach to preserving adjacent economic resources in the high seas. In 1952, these states claimed a 200-mile-wide territorial sea. Unlike the US, they claimed exclusive territorial sovereignty in this extended area adjacent to their coasts. They perceived little difference between their claim of exclusivity and the US claim of more limited sovereignty over its respective shelves. Under UNCLOS, the continental shelf is defined as: “seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural extension of its land territory.”89 The range of the continental shelf may vary from (a minimum of ) 200 nautical miles from the coastal baseline to 350 nautical miles, depending on the natural extension of the coastal state’s underwater landmass. The continental shelf depicted in Figure 4.1 naturally slopes off, as is the case with countries like the US where there is no sudden drop. What happens when two or more countries share or have overlapping continental shelves? What are their respective rights? UNCLOS essentially adapts the principles from the decision earlier reached by the ICJ in the 1969 North Sea Continental Shelf Cases. In that case, Germany, Denmark, and the Netherlands each disputed the respective continental shelf delimitations off their coasts in the North Sea. The Court stated that there was no obligatory method of delimitation. However, the delimitation was to be

88

89

The United Nations, Convention on the Continental Shelf, UNTS 400 (1961): 311. For additional background on this convention, see D. Pharand and U. Leanza, eds., The Continental Shelf and the Exclusive Economic Zone: Delimitation and Legal Regime (Dordrecht: Martinus Nijhoff, 1993). Article 76, UNCLOS.

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arranged “by agreement in accordance with equitable principles . . . in such a way as to leave as much as possible to each party all those parts of the continental shelf that constitute a natural prolongation of its land territory into and under the sea, without encroachment on the natural prolongation of the land territory of the other[s].”90 UNCLOS (in Article 83.1) codifies this idea and provides for an adjudicatory body in Article 76.8, the UN Commission on the Limits of the Continental Shelf (UNCLCS), to apply those “equitable principles” of “natural prolongation” in order to resolve disputes in this area. A country has a tenyear period within which to make claims to extend its 200 nautical mile zone further. An extraordinary claim was made by Russia in 2002 that its Continental Shelf extended out some 1,240 miles because the Lomonosov and Mendeleev underwater ranges are “natural extensions” of its landmass. This was the claim that supported Russia’s implantation of the titanium disk on the ocean floor on the Continental Shelf claimed by Canada in 2007. This claim is probably unsupported in international law, however, since Article 76.3 notes that the combined “seabed and subsoil of the shelf, the slope, and the rise” can only extend as far as 350 nautical miles at the most. After its 2002 application was rejected by the UNCLCS, Russia re-submitted its claim to that body in 2015 claiming an extension of “only” 350 nautical miles from the coastal baseline, but 463,000 square miles in total.91 As of this writing, the matter has not received final adjudication. The Arctic will remain an area of increasing contestation unless the parties can come to a mutual agreement and/or UNCLOS rules are updated. In addition to Russia, there are competing claims from Canada, Denmark, and the other Scandinavians states to sovereignty and control. China has intervened and sides with Russia to help press its claims. In addition, about 13 percent of the world’s untapped oil reserves, and 30 percent of its natural gas are in the Arctic.92 In July 2008, Canada announced plans for an army training center and deep-sea port over its portion of the Arctic floor. Other adjacent nations have various claims as well. But no one country has an exclusive territorial claim. Parts of the underlying land mass are located within some of the above states’ 200-mile EEZs.

90 91

92

The North Sea Continental Shelf Cases, 1969 ICJ Reports 3, 53. C. M. Macneill, “A Trip to Lomonosov Ridge: The Arctic, UNCLOS, and ‘Off the Shelf’ Sovereignty Claims,” Journal of Environmental Law and Litigation 35 (2020): 227–260. G. Carlson, “International Law in the Arctic: Looming Conflicts over Resources, Shipping, and Regional Influence,” Currents: Journal of International Economic Law 24, No. 2 (2021): 92–115.

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2.2.7

The Deep Seabed

Technology now makes it possible to reach the greatest depths of the oceans where the bulk of valuable mineral resources are located. Not only do these resources include petroleum, but scarce minerals such as manganese and rare earth minerals that are key to the electronic devices and vehicles of the future. The race for these assets began in earnest after World War II when leaps in ocean-exploration technology occurred. Valuable ore deposits beyond the territorial sea became increasingly accessible and were extracted on a first-come, first-served basis. The coastal state could exercise exclusive sovereignty in the territorial sea, limited sovereignty in the CZ, but no further control in the high seas. Under international law, the high seas beyond these zones were res communis – belonging to no one, and thus accessible by all. Many coastal states could not obtain, nor could they prevent, other countries from extracting mineral resources under these waters just beyond their sovereign control. In response, the UN proposed Resolution 2749 (1970) declaring the deep seas to be the “Common Heritage of Mankind.” Management, exploitation, and distribution of the resources of the ocean area beyond the national control of the coastal states should be governed by the international community rather than by the predilections of the more technologically advanced states and their multinational corporations. To this end, the UN General Assembly called for the convening of a new Law of the Sea conference that would reflect this change in attitude and draft articles for consideration by the international community.93 The resulting provisions of UNCLOS on the deep seabed are perhaps the most significant change from the old “freedom of the seas” maritime principles. First, the 1982 Law of the Sea Treaty provisions on resources in the deep seabed, Part XI (Articles 136–153), address what is called the “Area.” The Area is defined as the ocean floor and its subsoil “beyond the limits of national jurisdiction.” Article 136 provides that the “Area and its resources are the common heritage of all mankind.” This is the space under the oceans that does not otherwise fall within any of the zones described earlier in this section of the book. Secondly, UNCLOS creates the International Seabed Authority, known as ISA, or simply “the Authority,” to control almost all aspects of deep-seabed mining, and the related “Enterprise,” to carry out the activities regulated by the Authority. The ISA consists of all national participants in UNCLOS. It is 93

UN General Assembly, Resolution 2749 (XXV), General Assembly Official Records (GAOR), 25th Session, Supplement No. 29 (1970): 24. Also available in International Legal Materials 10 (1971): 220.

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based in Jamaica and funded by assessed contributions from UN members. The ISA is expected to organize and control all economic activities in the Area. Mineral resources within it are beyond national jurisdiction (outside of the EEZ of 200 miles) and thus within the Authority’s control. It was this provision that so angered some maritime states, particularly Global North littoral countries. It was a principal reason that the US elected not to join UNCLOS. The Authority began its operations in 1996. It enjoys semi-autonomous status under the UN system. The ISA is responsible for organizing, monitoring, and controlling specific issues covered in Part XI of the Convention. Part XI of the treaty focuses on activities such as mining and other extractive activities on the international seabed beyond the limits of national jurisdiction of coastal states. A partial listing of specific ISA tasks follows: ▪ reviewing work plans for seabed exploration and exploitation – particularly in the area of solid, liquid, or gaseous mineral resources; ▪ monitoring compliance with the rules, regulations and procedures for seabed exploration and exploitation; ▪ promoting and monitoring scientific research, data collection and the development of sustainable marine technology; and ▪ developing recommendations on mining standards for the protection and preservation of the marine environment. In order to carry out these international maritime directives on the deep-sea floor, the Enterprise facilitates and monitors the actual commercial extraction activities in the Area. The Enterprise will charge fees to all mining operations, whether public or private. The fees will be used to fund the ISA and the Enterprise. In addition, the Enterprise is supposed to collect and share deep-sea extraction technology to break up the monopoly that has been enjoyed by the Global North maritime states. This charge is specified in the language of Article 150, which tasks the Enterprise with ensuring the: enhancement of opportunities for all . . . irrespective of their social and economic systems or geographical location, to participate in the development of the resources of the Area and the prevention of monopolization of activities in the Area.94

For those states that are already parties to the 1982 Convention, there is no specific time frame for either the Enterprise’s commencement of mineral production or the Authority’s equitable distribution of Enterprise-generated 94

The United Nations, “UNCLOS Development of Resources of the Area: Article 150,” UNTS XI, No. 3 (1996).

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revenues. Upon ratification by a sufficient number of nations, however, the Authority began its every-five-year review of progress made toward these production and distribution goals. There will be another international review conference fifteen years after the Authority begins its commercial production of minerals in the Area. That conference will monitor the Authority’s progress toward exploration, exploitation, conservation, and distribution of the resources from the ocean areas beyond national control.

2.2.8

Global North Objections to UNCLOS

Some twenty-five years after its inception, the Authority and Enterprise have not carried out many operations despite a growing need for the prized maritime resources that they could extract. Part of the answer lies in the persistent objections by several Global North countries, most notably the US, which still has refused to ratify the larger UNCLOS treaty. From the beginning, it was the deep-seabed provisions that the US objected to. After its 1982 debut, US president Reagan refused to consider the treaty because of concerns with Part XI of the treaty on mining of the deep seabed. He asserted that it did not adequately protect US free-market interests (the UK and Germany had similar concerns). Critics also perceived UNCLOS dispute resolution as subjecting the US to the oversight of unaccountable UN institutions, such as the ITLOS, above. However, every US president from Clinton to Obama has urged the Senate to ratify UNCLOS. The Senate has yet even to take up the treaty for consideration. Clinton proactively renegotiated the deep-seabed mining control provisions,95 and the UN General Assembly addressed these and other concerns of objecting maritime Great Powers, granting them access to the deep seabed “on reasonable terms and conditions.”96 These changes resulted in UNCLOS being ratified or accepted by almost every other objecting power, including Germany, the UK, Russia, China, NATO, the Organization for Economic Cooperation and Development (OECD), and the EU. The US remains one of the

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96

The special 1994 “Agreement” negates mandatory technology transfer, production limitations, more onerous financial obligations for the private enterprises of the economically powerful mining states, and the subsidized “Enterprise,” which could otherwise compete unfairly with existing commercial enterprises. The objective was to reclaim a free-market regime. See Annex I to “Consultations of the Secretary-General on Outstanding Issues Relating to the Deep Seabed Mining Provisions of the United Nations Convention on the Law of the Sea,” UN Doc. A/48/950 (1994) (revising UN Doc. SG/LOS/ CRP.1/Rev.1), reprinted in International Legal Materials 33 (1994): 1309. ”Law of the Sea Forum: The 1994 Agreement on Implementation of the Seabed Provisions of the Convention on the Law of the Sea,” American Journal of International Law 88 (1994): 687.

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few countries not to ratify UNCLOS, probably because there is not a large domestic constituency to do so, and therefore little pressure on elected Senators to move it forward. These Senators also seem unaware that they could negotiate treaty “reservations” that would clarify limitations on US participation in UNCLOS as a precondition for ratification, a mistake that readers of this text would not make! At a more general level, and after taking into consideration contrary perspectives, UNCLOS should be rated as one of the most successful multilateral treaties of all time. The ambitious provisions of UNCLOS have not all been implemented, but each of the following steps already taken are all positive developments. First, it has been ratified (or acceded to, via later acceptances) by 167 countries. It has been signed (but not ratified) by fourteen other states. Secondly, the UN General Assembly accepted a renegotiated Part XI on deep-seabed mining. That resulted in the US deciding to sign both side agreements (Part XI and Fish Stock Agreements), although it has yet to ratify UNCLOS as a whole. Third, there is now a functioning Law of the Sea Tribunal, which facilitates the convention’s regime for compulsory dispute resolution. Despite these many positive accomplishments, one significant area in which UNCLOS is deficient is protection of deep-sea marine life. We consider UNCLOS’s protections of the world’s deep-sea environment in Chapter 10.97

2.3

Combating Piracy, Terrorism, and Crime on the High Seas

Despite piracy on the high seas being identified as a crime against humanity, even in antiquity, there still remains no international enforcement or judicial body dedicated to combating piracy. Article 101 of UNCLOS defines piracy as, “any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or passengers of a private ship or a private aircraft . . . on the high seas, against another ship . . . or against persons or property aboard such ship . . . .” However, UNCLOS leaves it up to individual states to combat piracy and other criminal activities on the high seas and to try any suspects that are apprehended in their own courts or the courts with the nearest jurisdiction (Article 105). Kenya has created such a

97

The major initiative to protect deep-seas fisheries has come from the UN’s Food and Agricultural Organization (FAO) that adopted a “Voluntary Guidelines for Flag State Performance” to prevent “Illegal, Unreported and Unregistered” (IUU) fishing in February 2013. See Y. Takei, “Is there a Major Role for the Law of Responsibility in International Fisheries Management?,” Opinio Juris (blog), May 29, 2013, http://opiniojuris.org/2013/05/ 29/law-of-the-sea-symposium-is-there-a-major-role-for-the-law-of-responsibility-ininternational-fisheries-management/ accessed March 31, 2021.

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court to deal with the frequent seizure of pirates off its coasts and the coasts of other regional maritime states, like Somalia. The hijacking of the Achille Lauro cruise ship in 1986 by the PLO and the subsequent murder of a Jewish-American passenger spurred the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA). The SUA has been amended numerous times to include more actions within its ambit, but these amendments make clear that the actions must be specifically “politically motivated” acts against high-seas ships and passengers. This definition helps clarify the distinction with “piracy,” above.98 Smuggling and human trafficking on the high seas are crimes, but most of the passengers on these rickety vessels are not criminals but desperate refugees. Who is responsible for rendering assistance (Search and Rescue, or SAR) when these unseaworthy vessels sink? Once again, UNCLOS puts the responsibility on both the flag state of the vessel, and on the coastal state if the boat is within their maritime zones. However, the penalties, if any, to states for “non-performance” of these humanitarian duties, as a pair of cases in the European Court of Human Rights show, are not clear.99 The common thread running through this section is that to be truly effective, high-seas efforts to combat piracy, terrorism, and crime should be conducted by a multinational force and tried in an international court(s). Although such proposals have been made, the current international political environment is not conducive to such a regime or treaty.

3 Airspace Sovereignty We now move from the horizontal to vertical aspect of territorial sovereignty. We analyze both states’ rights and responsibilities in three air and space zones: (1) domestic (national) airspace; (2) external airspace; and, in Section 4 of this chapter, (3) outer space. The third category is undergoing the most rapid change at present. As is clear with so many other issues throughout this text, there is an underlying tension between the ultimate goals of the

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K. Heller, “Response to Kontorovich and Gallagher about Piracy (Updated),” Opinio Juris (blog), February 27, 2013, http://opiniojuris.org/2013/02/27/a-response-to-kontorovichand-gallagher-about-piracy/ accessed March 31, 2021. S. Trevisanut, “Law of the Sea Symposium: Search and Rescue Operations at Sea: Who Is in Charge? Who Is Responsible?,” Opinio Juris (blog), May 28, 2013, http://opiniojuris.org/ 2013/05/28/law-of-the-sea-symposium-search-and-rescue-operations-at-sea-who-is-incharge-who-is-responsible/ accessed March 31, 2021.

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law – to promote free trade and exchange or to promote individual or national benefits.

3.1

Domestic Airspace

International law was virtually silent on airspace sovereignty until just over 100 years ago. States either made no claims on the airspace above their surface territory, or made extravagant, indefensible claims. The advent of sustained aerial flight pushed international law to develop rules that had three main goals: first, to protect a country’s sovereign rights and potential to profit in this new arena; secondly, public safety, including avoiding aerial collisions; and, finally, to assess responsibility for those who violated the rules. Since hostile military aircraft could more rapidly approach a country’s airspace than armies or warships, there was extreme urgency for new rules. At first, however, it was state practice – customary international law – that filled the vacuum. Almost immediately after the beginning of aviation, states claimed airspace to be within the definition of their sovereign territory. Domestic legislation imposed various limitations on international air travel. It prohibited the unauthorized entry of aircraft. These laws restricted freedom of navigation, types of importable cargo, and conditions of passenger travel. States soon recognized the need to enter into international treaties for the purposes of establishing mutual expectations and facilitating international trade.

3.1.1

Paris Convention

This first attempt at regulating airspace was essentially a charge to state signatories to the convention to begin to legislate in this area and to standardize expectations in order to lay the groundwork for a later comprehensive international airspace-treaty regime. The potential for drastically expanded trade was already becoming clear. Article I of this 1919 treaty provided that, “every Power has complete and exclusive sovereignty over the airspace above its territory.” Article 15 continues that each state party to the convention should “make conditional on its prior authorisation [sic] the establishment of international airways and the creation and operation of regular international air navigation lines, with or without landing, on its territory.”100 Note, however, the lack of specificity in these articles; new, more comprehensive, international law would soon be needed. In addition, the US was not a signatory, thus weakening its adoption and enforcement. 100

League of Nations Treaty Series 11 (1922): 173.

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3.1.2

The Chicago Convention of 1944

This treaty remains the cornerstone of international aviation law up until the present, along with agreements made subsequent to it. Most of the world’s states are parties to the convention. We will treat it in some depth here. Its foundational provisions are as follows: Article 1 The contracting States recognize that every State has complete and exclusive sovereignty over the airspace above its territory. Article 2 For the purposes of this Convention the territory of a State shall be deemed to be the land areas and territorial waters adjacent thereto under the sovereignty . . . of such State. ... Article 5 Each contracting State agrees that all aircraft of the other contracting States, being aircraft not engaged in scheduled international air services, shall have the right . . . to make flights into or in transit non-stop across its territory and to make stops for non-traffic purposes without the necessity of obtaining prior permission, and subject to the right of the State flown over to require landing. Article 6 No scheduled [commercial] international air service may be operated over or into the territory of a contracting State, except with the special permission or other authorization of that State . . .

These articles strike a balance between a state’s need to prevent unknown incursions while encouraging commercial aviation and still allowing nonstop “overflights” at high altitudes. Military aircraft are treated separately. Each type of aircraft is treated below. 3.1.2.a Private Aircraft Non-commercial private aircraft enjoy the general right to fly into or over state territory (Article 5 above). They may land for refueling and other purposes without prior permission. An English citizen may land to refuel his plane at a French airport while en route to Germany. That pilot must, however, file a flight plan at the flight’s point of origin. France may require an alteration of that flight plan if the intended flight path interferes with any French regulation or security concerns. 3.1.2.b Commercial Aircraft State practice is more restrictive in the case of commercial aircraft (Article 6 above). They may not fly over or land in the territory of another country without advance routing or landing arrangements. Otherwise, the impacted state may undertake necessary measures to divert an intruding aircraft or require it to land. The Chicago Convention established the International Civil Aviation Organization (ICAO) and charged it with regulating international commercial aviation. The ICAO promotes

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“the safe and orderly growth of international civil aviation throughout the world . . . [by] development of airways, airports, and air navigation facilities . . . [and avoidance of] economic waste caused by unreasonable competition.” The organization’s member states are encouraged to use a neutral tribunal to resolve disputes involving the ICAO’s administrative decisions. Article 84 provides that states may appeal such decisions “to an ad hoc arbitral tribunal agreed upon with the other parties to the dispute or to the Permanent Court of International Justice.” For example, Iran appealed a 1989 ICAO decision to the ICJ that held that the US was not responsible for the accidental shooting down of an Iranian commercial jetliner.101 The 1944 Chicago Convention did not resolve many of the problems associated with the scheduling of air services. The commercial airlines of the world formed a private organization called the International Air Transport Association (IATA) in 1945, which has focused its work on achieving the Chicago Convention goal of avoiding “unreasonable competition.” The IATA is essentially a cartel of private airlines attempting to avoid destructive or excessive competition among international airlines – an unusually competitive business. The IATA, for example, ensures that flights to the same destination by competing airlines do not leave the same airport at the same time. Such competition would ultimately destroy one or more of the competitors. In a related development, “Open-Skies Agreements”102 create a free market for aviation services and promote the commercial growth of aviation. These agreements give the airlines of two or more countries the right to operate air services from any point in one country to any point in the other, as well as to and from third countries. These rights enable airlines to network by using strategic points across the globe. An example is the US–Kenyan open-skies agreement (2008). It permits airlines in both countries to determine routes and destinations based on demand. It also does not limit either the number of carriers or the number of flights that may serve both nations. This reduced degree of governmental regulation not only allows “free” skies, but also ensures that market demand drives this process, rather than governments. There have been cycles in commercial aviation between free-market reforms and anti-competitive measures designed to promote a national flag carrier and/or to have airline service to more destinations. In the 1980s there

101 102

This suit was ultimately dismissed in 1994. S. J. Fox and R. Ismail, “The Skies the Limit: Open Skies – With Limitations,” European Journal of Comparative Law and Governance 4, No. 1 (2017): 6. The first such agreement occurred in 1992 between the US and the Netherlands.

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were a series of successful legal actions that allowed “upstart” low-cost carriers to break up the near monopolies that a few big carriers had previously enjoyed.103 By the turn of the twenty-first century, however, many had gone out of business or merged with larger airlines. In addition, many states subsidize their “flag carriers” (e.g., Air France) which distorts the market for non-state-owned airlines. Courts have blocked such subsidies when they are found to be excessive.104 The US and EU are currently pondering what the best approach might be to reduce the generous subsidies that Arab Gulf states give to their flag carriers.105 Who is responsible in the case of delays or the loss of property or life by international commercial air carriers? Before the Chicago Convention this question was addressed by the 1929 Warsaw Convention. The purpose was to provide standardization and speed up claims as it “seeks to limit international air carriers’ potential liability in case of accidents, facilitate speedy recoveries by passengers, [and] unify laws in treaty countries.”106 It (partially) addressed a perennial airline passenger complaint: delays in flights and baggage delivery. Articles 19, 20, and 21 shield the airlines from responsibility if they were not directly responsible for the delays; that is, if they were caused by acts of nature, the passenger’s negligence, or some third-party, and if the airline took “all necessary steps” to avoid delay. Only an “unreasonable delay” of flights would allow passengers to claim damages.107 3.1.2.c State and Military Aircraft The Chicago Air Convention makes limited provision for “public” aircraft. Under Article 3, public aerial vehicles are defined as: “Aircraft used in military, customs and police services shall be deemed to be State aircraft,” and further notes (in Article 3(c)) that “[n]o State aircraft . . . shall fly over the territory of another State or land thereon without the authorization by special agreement.”108 103 104

105

106

107

108

For an example, see Laker Airways v. Sabena, 731 Federal Reporter 2d 909 (DC Cir. 1984). The European Court of Justice blocked a 1994 plan for France to provide about $3.3 billion to Air France. S. H. Moon, “Gulf Airline Subsidization: Should the European Union and the United States Collaborate to Combat This Alleged Threat,” Georgia Journal of International and Comparative Law 47, No. 1 (2018): 233–246. L. Goldhirsch, The Warsaw Convention Annotated: A Legal Handbook, 2nd ed. (The Hague: Kluwer Law International, 2000). I. Diederiks-Verschoor, “The Liability of the Carrier under the ‘Warsaw System,’” in I. Diederiks-Verschoor, An Introduction to Air Law, 8th rev. ed. (Boston: Kluwer Academic Publishers, 2006), Section 2.8. One such “special agreement” is the Open Skies Treaty (not to be confused with the Open Skies Agreement in the previous section) that allowed almost unlimited overflights by special military aircraft of other state’s territory. It was signed by twenty-five states.

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Unlike private aircraft, state aircraft cannot enter another state’s sovereign airspace without express prior consent. Overflight agreements are often made on a case-by-case basis between friendly countries. Before making an emergency landing in another state, a military pilot must seek permission to enter that state’s airspace (and then to land). This requirement prevents one state from sending its planes on a hostile mission under the pretext of a feigned emergency. Military flight agreements, such as those governing a state aircraft’s entry into foreign airspace during joint military exercises, are normally made by formal agreements between affected states well before the exercise. But what if a military pilot is in genuine distress and in danger of crashing? Article 3 is silent, but Article 25 (for commercial aircraft) provides that “each . . . State undertakes to provide such measures of assistance to aircraft in distress as it may find practicable.” There are gray areas, most notably caused by the sixty-year gap between the passage of the Chicago Convention and UNCLOS. The Chicago Convention could not foresee the dramatic expansion of territorial sovereignty granted under UNCLOS and thus is silent about air sovereignty over oceans.109 This gap has allowed some states, notably China, to claim that military aircraft must both announce themselves and seek permission to overfly marine areas claimed by that country, including submerged reefs that China has built up to be artificial islands, claiming that each is entitled to its own UNCLOS air zone (above).110 If that claim was accepted, large swaths of ocean in the South China Seas would become subject to China’s self-described “air identification zones,” interrupting international air routes. The Permanent Court of Arbitration (PCA) that heard a challenge to China’s actions rejected the Chinese position, but China has refused to abide by the decision.111 Until this area of airspace law is clarified, China and the public aircraft of states that transit the area appear to be on a collision course.112 The important question of the upper limits of airspace has yet to be resolved. This is the invisible dividing line that can be claimed as part of the sovereign territory of a state and the area beyond which it cannot be claimed because it is res communis. Can military “overflights” be allowed right at that limit, or in the “space between” sovereign airspace and outer

109

110 112

However, the US and Russia withdrew in tit-for-tat actions in 2020 and 2021, respectively. See Amy F. Woolf, “The Open Skies Treaty: Background and Issues,” Congressional Research Service (2021): 1–3. D. Cluxton, “The Chicago Convention 1944 in an UNCLOS 1982 World: Maritime Zones, Continental Shelves, Artificial Islands, and Some Other Issues,” University of La Verne Law Review 41, No. 2 (2019): 137–197. 111 Ibid. The Republic of Philippines v. China, PCA Case No. 2013-19 (2016). Carpio, “The South China Sea Dispute,” 459–555.

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space?113 Proposed limits range between 83 and 120 kilometers (about 54 to 78 miles) above sea level, but “no agreements on substantive legal issues relating to definition and delimitation of outer space are apparent . . . ,” according to a UN Legal Subcommittee tasked with addressing the question.114 The following classic case illustrates the tension associated with the presence of foreign state aircraft flying directly over another state’s territory, even for a plane with no weapons systems.

POWERS CASE Military Collegium of the Soviet Supreme Court (1960), Union of Soviet Socialist Republics, 30 International Law Reports 69 (1966) [Excerpted case available at www.cambridge.org/FPIL7]

Several questions arise from this case, namely: (1) Did the US violate Soviet airspace? (2) Did any other country incur state responsibility for violation of international airspace law? and (3) Was the USSR exaggerating the threat posed by an unarmed plane?

3.1.3

Excessive Force

Such a scenario (the Powers case) demonstrates another lacuna in international airspace law: it is not clear what specific countermeasures are allowed to the state whose airspace has been violated whether by public or private aircraft. States are legally entitled to resist encroachments into their airspace. Usual methods include verbal warnings, being forced to land, and/or after-action fines. Unfortunately, a number of states have used deadly force to shoot down civilian airliners that have strayed into their airspace. Two egregious examples stand out: the Soviet downing of a Korean Airlines (KAL Flight 007) 747 in 1983, killing all 269 passengers onboard, and the Cuban shootdown of a small (two-seat) private plane in 1996. Both provoked multiple legal proceedings in the search for justice. In the KAL 007 flight shootdown, 113

114

For a discussion of the 11-mile grey area between “useable” sovereign airspace and outer space, see M. Schladebach, “Fifty Years of Space Law: Basic Decisions and Future Challenges,” Hastings International and Comparative Law Review 41, No. 2 (2018): 262. Legal Subcommittee, “Historical Sumary on the Consideration of the Question on the Definition and Delimitation of Outer Space” (UN General Assembly, 2002), 7, www.unoosa .org/pdf/reports/ac105/AC105_769E.pdf accessed March 31, 2021.

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the US raised the matter to the UN Security Council and the ICAO, and over 100 civil lawsuits were filed by families of the KAL flight.115 The US refrained from taking the matter to the ICJ however, and it was ultimately settled through a finding of negligence against KAL because its pilots failed to notice that they were in Soviet airspace for several hours. The former Soviet Union never admitted responsibility. A similar denouement occurred in the Cuban shootdown. Suits involving such incidents have reached the US Supreme Court on more than one occasion. States are not legally entitled to use excessive force to compel the landing of a commercial airliner over-flying its sovereign airspace using a pre-filed flight plan. Thus, in 2021, the government of Belarus was in gross violation of the Chicago Convention (and other agreements) when it forced the unscheduled diversion, using a fighter jet, of a Ryanair jet to its airport in order to extract an opposition figure from that flight. The action caused the imposition of harsh sanctions against Belarus and a ban on EU overflights by Belarusian airlines by the EU’s Council. These actions had the effect of severing all commercial airlinks between Belarus and most of the rest of Europe.116

3.1.4

Missiles

Due to their speed and trajectory, missiles represent an extraordinary threat to states in their path. Whether they travel part of the time outside of the atmosphere (and thus beyond a state’s airspace limit) or not, whenever they enter their ultimate target’s airspace, they have violated the targeted state’s sovereignty. By the time that a targeted state is aware that they have entered their airspace it may be too late to take effective countermeasures. States therefore undertake vigorous efforts to prevent the stationing of missiles within the range of their countries. A separate question is whether states can test-fire missiles in a res communis area, e.g., the high seas. Formal international law is silent on this question; however, it is permissible under customary international law, according to Kirgis: It would be a stretch to argue that customary international law prohibits the testing of unarmed missiles over the oceans, unless ships at sea or other lawful users of ocean space or air space are harmed. Customary international law

115

116

G. Fitzgerald, “The Use of Force against Civil Aircraft: The Aftermath of the KAL Flight 007 Incident,” Canadian Yearbook International Law 22 (1984): 291. A. Troianovski, “Belarus Is Isolated as Other Countries Move to Ban Flights,” New York Times, May 24, 2021.

3 Airspace Sovereignty reflects the practice of nation-states, and that practice for many years has encompassed missile testing over the high seas by the United States and others.117

Armed missiles would be another matter. In practice, it is often difficult to ascertain whether a missile carries an explosive payload within. Secondly, missiles can stray off course over another state’s airspace, which demonstrates how risky it is to test missiles in close proximity to other states, as North Korea has repeatedly done. Despite attempts to do so, the “regulation” of armed missiles has not been treated in formal international law, but rather has been the subject of state-to-state negotiations and UN Security Council resolutions.

3.2

External Airspace

Although the Chicago Convention remains fundamental, it soon became apparent that it was incomplete. Could a state exercise jurisdiction over offenses allegedly committed by its citizens aboard a commercial aircraft registered under its flag flying over external airspace (international waters or the airspace of another state)? If not, who would? Gaps in treaties began to limit the ability of state prosecutors to bring actions committed aboard civil aircraft. In 1950, a case had to be dismissed against a US passenger who had assaulted a fellow American on a US-registered airline flying over international waters.118 The Chicago Convention vests jurisdiction with the state where the incident occurs, but that did not apply in this case. It became apparent that a new standard international approach was needed.

3.2.1

The Tokyo (1969), Hague (1970), and Montreal (1971) Conventions

The principle under Tokyo was to “follow the flag,” borrowed from the earlier freedom of the seas doctrine (see page 215). Under Article 3 of the Tokyo Convention, the “State of registration of the aircraft is competent to exercise jurisdiction over offences and acts committed onboard [and each participating State] shall take such measures as may be necessary to establish its jurisdiction as the State of registration over offences committed onboard aircraft registered in such State.”119 This treaty emphasizes the jurisdiction of 117

118 119

F. L. Kirgis, “North Korea’s Missile Firings,” ASIL Insights, 2006, www.asil.org/insights/ volume/10/issue/18/north-koreas-missile-firings accessed March 31, 2021. Emphasis added. U.S. v. Cordova, 89 Fed. Supp. 298 (E.D. N.Y. 1950). UNTS, “Tokyo Convention on Offences and Certain Other Acts Committed on Board Aircraft” 704 (1969).

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the aircraft’s state of registration (the flag state) rather than that of the airspace of the state where the offense is committed. Under Article 4, the state that had formerly had jurisdiction under the Chicago Convention cannot interfere with the flag state’s jurisdiction except in the following circumstances, which are explained in more detail in Chapter 5 on extraterritorial jurisdiction: 4(a) The offense has an effect on the territory of such State (territorial principle). 4(b) The offense has been committed by or against a national or permanent resident of such State (nationality and passive personality principles). 4(c) The offense is against the security of such State (protective principle).

The Hague Convention added another jurisdictional principle for prosecuting crimes on international flights: the universality principle. This principle holds that certain crimes are sufficiently heinous to be considered crimes against all states, and therefore any and every state would have jurisdiction to capture and punish the perpetrator(s) of such crimes. In this instance hijacking was such a crime. Article 4 enables all signatories to “take all necessary measures to establish jurisdiction” over the perpetrator(s) while Article 8 notes that the offense” shall be treated” as if it had occurred within the territory of the responding state(s). As might be expected, some states that are sympathetic to the cause(s) espoused by the hijackers have evaded their Hague Convention responsibilities. For example, perpetrators can be given a mock trial that results in a dismissal or allows the accused simply to escape.120 The 2010 Beijing Convention (and related Beijing Protocol) enhanced and updated the Hague Convention in the light of 9/11 in the US. The gist of these updated treaties is to embrace and prosecute a wider range of offenses in the context of aviation.121 It also expanded jurisdiction and strengthened extradition and mutual assistance regimes. The Montreal Sabotage Convention similarly adds the offenses of bombing or sabotaging international aviation as triggering “universal jurisdiction.” The most notable and sustained case under the Montreal Convention was the Libyan bombing of Pan Am Flight 103 over Lockerbie, Scotland in 1988.

120

121

For a list of examples, see W. Slomanson, “ICJ Damages: Tort Remedy for Failure to Punish or Extradite International Terrorists,” West International Law Journal 5 (1974): 121. D. van der Toorn, “September 11 Inspired Aviation Counter-Terrorism Convention and Protocol Adopted,” ASIL Insights 15, No. 3 (2011) www.asil.org/insights/volume/15/issue/ 3/september-11-inspired-aviation-counter-terrorism-convention-and-protocol accessed March 31, 2021.

4 Space Law and Responsibility

Under Montreal, Libya had the responsibility either to fully prosecute the perpetrators or to extradite them to the UK for trial there. Libya resisted either treaty obligation. Only after both the UN Security Council and the ICJ ordered the accused to be turned over did Libya do so, some ten years later.122

4 Space Law and Responsibility Humankind has been a spacefaring race since 1961, with the first person in outer space, after launching the first object into space in 1957. Since that time, space has exerted an ineluctable draw on both scientists and lay people alike, sensing that our shared destiny lies beyond planet earth. Like all new areas, the fundamental questions remain to be addressed in law: Who gets to go there? For what purpose? Whose interests will be served? In that short time, the number and types of vehicles, both public (state) and private, have mushroomed. About that time, the UN General Assembly (UNGA) issued a series of resolutions and sponsored five treaties that, when taken together, can be said to form the basis for a “Space Charter” (Table 4.1). The fundamental principles are that space is res communis, and that space should not be militarized. However, much work remains to be done to fully define terms and flesh out the principles vaguely articulated.

4.1

The Res Communis Space Treaties

Out of the five treaties that have been executed, two conventions form the backbone of the current space charter and amplify the idea that not just the Moon, but all celestial bodies (at least in the solar system) are the common heritage of humankind. These two conventions appear below.

4.1.1

The Outer Space Treaty (1967)

This is the foundational treaty in the corpus of international space law. The four subsequent treaties are all elaborations and specifications of it.123 By 2017, 105 states had ratified it, including all of the spacefaring states.124 Perhaps its single most consequential legal doctrine (borrowing from the 1959 Antarctic Treaty) is to declare outer space to be res communis, or the common heritage of humankind. It was also very forward looking in its 122

123

For a full recitation of the facts of the case and the ensuing trial, see Her Majesty’s Advocate v. al Megrahi and Fhimah, in the High Court of Justiciary at Camp Zeist, Case No: 1475/99 (2001). 124 Schladebach, “Fifty Years of Space Law.” Ibid., 247.

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Table 4.1. Space “charter” 1958 UNGA Resolution

Res. 1348(XIII): Peaceful use of outer space and avoidance of national rivalries in outer space

1959 UNGA Resolution

Res. 1472(XIV): Freedom of space exploration and it establishes the Committee on the Peaceful Uses of Outer Space

1961 UNGA Resolution

Res. 1721(XIV): Space to be used for benefit of all humankind

1962 UNGA Declaration

General Assembly Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space: Resolved to conclude a nuclear test ban treaty; did not specifically recognize military use of outer space (3 ILM 157)

1963 Treaty

Treaty Banning Nuclear Weapon Tests in Atmosphere, Outer Space and Under Water: No nuclear explosions are permitted in outer space (2 ILM 883)

1963 UNGA Resolution

Res. 1884(XVIII) Regarding Weapons of Mass Destruction: US and USSR are not to station nuclear or other weapons of mass destruction in outer space (2 ILM 1192)

1967 Treaty

Outer Space Treaty: Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies: no weapons of mass destruction allowed; no military bases or maneuvers in space, although use of military for science; implicit acceptance of conventional weapons (6 ILM 386)

1968 UN Treaty

Rescue of Astronauts; the return of Astronauts and the Return of Objects Launched into Outer Space

1971 Liability Treaty

International Liability for Damage Caused by Space Objects: Launching state liable for damage caused by falling space debris (10 ILM 965)

1974 UNGA Resolution

Registration on Objects Launched into Outer Space

1979 UNGA Treaty

Moon Treaty: Clarifies ambiguities in 1967 Outer Space Treaty; Moon subject to same demilitarization regime as other bodies. “Peaceful purposes” remains undefined (18 ILM 1434) (20 ILM 477; 26 ILM 232)

treatment of private individuals in space, liability for space accidents (Article VIII), and a concern for preserving the “environment” of outer space. Two contemporary questions arise from this more than fifty-year-old pact: commercialization and militarization. A considerable discussion has emerged among legal scholars about whether there is a legal difference between

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wording in the Antarctic Treaty and the Outer Space Treaty centering around the word “province,” as in this quotation from Article 1 of the Outer Space Treaty: “[T]he exploration and use of Outer Space shall be the province of all mankind,” compared to the phrase, “in the interest of all mankind” from the Antarctic Treaty (emphasis added). There is a consensus among scholars, however, that there are three major implications in the Outer Space Treaty: (1) no state may claim or exercise sovereignty over any part of outer space or its resources; (2) the exploration and use of the Moon shall be carried out for the benefit of all states, whatever their level of development; and (3) no part of the Moon, above or below its surface, shall become the property of any state, international organization or NGO, or any individual.125 Beyond that consensus, however, private companies have and will continue to push states to write and interpret space law to their advantage, as well as erect private law and codes to fill in the gaps of extant space law.126 Secondly, is the question of militarization of outer space. Despite lurid science fiction and the threats in the 1980s by US president Reagan to deploy space-based weaponry, Article IV of the Outer Space Treaty prohibits the placement of any weapons of mass destruction in orbit around the earth, the Moon or any other “celestial body” (within the solar system). In addition, the establishment of military bases, and any type of military maneuver is forbidden, with one interesting exception: military personnel can be used to further “scientific research or for any other peaceful purpose.”127 We take up the question of future militarization in Section 4.3.

4.1.2

The Moon Treaty (1984)

This treaty has only been signed by eighteen states, none of them spacefaring countries, so it does not enjoy the weight in space law that the Outer Space Treaty does. It does clarify and extend several vague matters in the original Outer Space Treaty. It specifies the “non-hostile” use of the Moon and extends that to all other celestial bodies in the solar system. It prohibits permanent “occupation” of the Moon and notes that even temporary occupation will not convey sovereign title. Especially relevant for contemporary affairs is the Moon Treaty’s allowance of “mining” of the Moon, a body that is thought to possess valuable minerals for the new market for electric vehicles and in industrial processes. The Moon Treaty limits such mining, however, to “scientific investigation” only and not for commercial exploitation or private profit. It does appear to 125 126

127

Ibid., 249–250. M. J. Durkee, “Interstitial Space Law,” Washington University Law Review 97, No. 2 (2019): 423–482. Ibid., 255.

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encourage international cooperation and the creation of an international organization to do so, much like the International Seabed Authority was created under UNCLOS. Article 7.11 urges the “orderly and safe development of the natural resources of the moon,” and management in order to expand “opportunities in the use of those resources.” The benefits from the development of such resources would have to be “equitably shared by all State parties,” however. Despite those apparently clear strictures, one can anticipate the current debate raging among academics will become elevated to general discourse when commercial interests realize the potential profit to be made.128 Both Luxembourg (in 2017) and the US (in the 2015 “Space Act”) have passed legislation that purports to grant to private entities the right to “sell any asteroid resource or space resource obtained . . . .”129 This potential commercial use is becoming concrete as commercial rockets reach the surface of the Moon and perhaps Mars by the mid-2020s. Spacecraft have already reached asteroids and extracted materials from them.

4.2

Liability for Space Debris and Accidents

As space becomes increasingly crowded with private as well as public concerns, and the growing prevalence of “space junk” becomes more pronounced, the potential for accidents increases as well. The concern with who is responsible for this debris, and for accidents that result from collision with that debris, or from other causes, becomes acute. The case of a California start-up called “Swarm” is sobering. After the US Federal Communications Commission (FCC) denied their application to launch thousands of mini-satellites (supposedly to provide rural internet services) in 2017, they went ahead and launched them anyway from an Indian rocket. Further investigation revealed a pattern of illegal behavior by Swarm including with its other satellites and interfering with ground stations. After the FCC imposed a $900,000 fine, the company admitted liability and promised to comply with existing national and international space law in 2019. The case raises troubling implications for other would-be rogue space companies, however.130

4.2.1

The Liability Convention (1971)

This convention requires ratifying states to accept responsibility for damage caused by their spacecraft upon reentering earth’s atmosphere. Under Article 128

129 130

Durkee, “Interstitial Space Law.” See especially 456–460 on the question of what “appropriation” means and whether it applies to private parties and not just states. Ibid., 461–463. J. S. Ayetey, “In Support of Global Accountability for Private Commercial Space Actors,” Georgia Journal of International and Comparative Law 48, No. 3 (2020): 761–766.

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II, a “launching State shall be absolutely liable [even if its conduct is not negligent] to pay compensation for damage caused by its space object on the surface of the earth or to aircraft in flight.” The launching state must provide advance notification of an anticipated breach of airspace caused by a falling object. This convention was applied in 1979 when Canada lodged a claim against the former Soviet Union, alleging that the latter nation did not comply with its treaty obligation to notify Canada of a nuclear-powered satellite’s potential reentry into Canadian airspace. Canada claimed that when “Cosmos 954” fell, it deposited harmful radioactive debris in various parts of Canada’s Northwest Territories. Canada’s claim was later resolved diplomatically.131 China has had a “long history of letting pieces of its space equipment come down where they may” on earth from its frequent launches.132 A 21-ton piece falling from orbit narrowly missed the Maldives in 2021. Collisions have occurred in space, but fortunately none of them (yet) have resulted in the loss of life. In 2009, a Russian military-communications satellite collided with a US public-private communication satellite, scattering debris (of at least 1,000 pieces) in a broad orbital belt between 300 and 800 miles around the earth. Cleanup was too expensive to undertake; the debris will probably remain for 10,000 years around the earth. It is currently estimated that there are 29,000 particles orbiting the earth that could cause damage.133 This debris is especially threatening to the International Space Station, which has already had to maneuver to avoid collisions.134

4.2.2

Informal Liability Regimes

The word “regime”135 connotates an “informal” (i.e., non-treaty) set of “rules, norms and expectations around which actors expectations converge.” With a marked slow-down in treaty-making in space law, informal approaches have sprung up (and are likely to continue to do so) to fill the gaps. One such approach is the Inter-Agency Space Debris Coordination Committee that has established space debris reduction and mitigation guidelines. A second is the International Charter Space and Major Disasters group. Finally, there are “best practice” guidelines and codes of conduct on how to prevent accidents from satellites containing nuclear material.136 131

132

133 135 136

The diplomatic exchanges between Canada and the former USSR are reproduced in: International Legal Materials 18 (1979): 899. S. L. Myers and K. Chang, “China Says Debris From Its Rocket Landed Near Maldives,” New York Times, May 8, 2021. 134 Schladebach, “Fifty Years of Space Law,” 267. Ibid. The “regime” concept is usually attributed to Stephen Krasner. J. I. Gabrynowicz, “Some Legal Considerations Regarding the Future of Space Governance,” Georgia Journal of International and Comparative Law 48, No. 3 (2020): 739–750.

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However, some principles from territorial sovereignty will still apply in space for commercial carriers, mostly notably the “follow the flag” principle from the Tokyo Convention (Section 3.2.1). This principle was reaffirmed in Article VI of the Outer Space Treaty. If, for example, a mission launched to the Moon by the private US company “SpaceX” were to go badly, the US would be liable for damages caused to any other “State . . . or to its natural or juridical persons . . . on the Earth, in air space or in outer space, including the Moon and other celestial bodies.”137 As far as damages to US citizens or their private property aboard a US-registered space mission (like SpaceX, Blue Origin, Artemis and the like), the US has a law (51 U.S.C.A Sec. 50904) that requires both prior permitting and waiver process that all participants must sign to reduce the liability for the US and its taxpayers.138 This is likely to become a model for other spacefaring countries in the future.

4.3

Avoiding Future Militarization of Space

In the lull of space competition by the Great Powers in the period from about 1989–2014, the concern about the militarization of space (or “Star Wars” in colloquial usage) faded from view somewhat. Had Presidents Reagan and Bush carried through on the threats to place offensive weapons in earth orbit that would have arguably violated the Outer Space Treaty and the Moon Treaty.139 There were continued negotiations over ballistic missiles which transit space in the arc of their trajectory to their targets. The armsreduction treaties are discussed in Chapter 8, Sections 3.2.3.b and 3.3. However, with increased number of rocket launches, including new space weapons developed by China, Russia, and the US, and the creation of a new military branch in the US in 2018, the Space Force, the concern has returned.

4.3.1

The US Position

While denying that the US Space Force would violate international law per se, a Trump Administration official said, “it’s my position that we don’t need to have an exclusively peaceful purposes discussion about the void of outer

137 138

139

Outer Space Treaty, Article 7. S. D. Veech, “To Infinity and Beyond: The History of Space Travel and the Legal Implications of Privatized Space Flight through the Lens of SpaceX,” Loyola Maritime Law Journal 18, No. 1 (2019): 170–172. See the vigorous debate on the ASIL website from 2001 between Kirgis, de Hoogh, Sloss, and others. Archived at www.asil.org/insights/volume/6/issue/11/proposed-missiledefenses-and-abm-treaty accessed March 31, 2021.

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space.”140 In other words, as long as a military force is not “stationed” on the Moon or other celestial body in the solar system, it would be permissible to have – and to use – armed force in space. US Secretary of Defense Austin proclaimed in 2021 that space is a “war-fighting domain.”141 The US notes that the more likely space threats are not opposition military forces (or the apocryphal alien invasion), but rather space debris and natural objects like asteroids. In trying to counter such threats, the US is arguably serving the broader interests of humankind, not just the US. However, the US does acknowledge that if it launched a nuclear device to stop an asteroid from hitting earth it would be violating the Limited Test Ban Treaty, and if fragments of the exploded asteroid (or US-caused space debris) caused damage to the earth or its inhabitants, the US could be liable under the Liability Convention. The US would like a new treaty or regime to lessen its liability in these situations.142

4.3.2

The 2014 Proposed Treaty

Two other Great Powers – China and Russia – have staked out a different position. They assert that without a specific legal prohibition, the loophole in Article IV of the Outer Space Treaty (cited in Section 4.1.1) will allow for the militarization of space. In 2014, they proposed a joint draft of a treaty to the UN-sponsored Conference on Disarmament that would, among other things, place a ban on any weapons in outer space and a prohibition on the threat or use of force against outer space objects. Clearly, they have the US in mind. With continued US opposition, however, the draft has not been approved, despite a UN General Assembly Resolution (70/27) urging that the draft (with revisions) be made into a binding multilateral treaty. In the interim, China has rapidly accelerated the development of its own anti-satellite weapons, citing the new US Space Force as a reason.143

4.4

The Future of Space Law

For the international law of space, the future is now. Questions about commercialization and militarization of space that were speculative in the previous edition of this text are now front and center. Other past “predictions” seem to have been off target. There is not, nor is it likely that there will 140

141

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A. Harrington, “National and International Security in Space: International Law Implications of Space Force and Planetary Defense,” Georgia Journal of International and Comparative Law 48, No. 3 (2020): 770. W. J. Broad, “How Space Became the Next ‘Great Power’ Contest between the U.S. and China,” New York Times, January 24, 2021. Harrington, “National and International Security in Space,” 771–772. Broad, “How Space Became the Next ‘Great Power’ Contest.”

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be in the near future, a new public international organization (e.g., a “World Space Organization”) tasked solely with legislating and administering outer space. Competition between the Great Powers for space mastery has returned, lowering the likelihood of international cooperation in treaties or regimes.144 The International Space Station is now taken for granted by most as a model of cooperation between the Great Powers of the US and Russia (although that relationship has been strained by Crimea). Unfortunately, Russia has announced that it wishes to end this partnership in 2024, and China is building its own rival space station. Now that Elon Musk of SpaceX has announced a concrete goal of establishing a colony of Mars and has tested the prototype to get there (“Starship”), there is a need for a new set of “traffic rules” for space. Who will provide security if and when the colonists arrive on the red planet? How will any profits from the venture be equitably divided up? Who will be liable if things go awry? An intriguing study has extended the current corpus of space law to practical questions of establishing a Martian colony by SpaceX. The conclusion is that the current rules would suffice only if the colony (and the colonists) remained confined to a narrow area, only conduct science experiments, and if all personnel seek US work permits and abide by US citizenship requirements (“follow the flag” logic).145 Beyond that, some have proposed that the US (pushed by its corporations) withdraw from the Outer Space Treaty and/or create new legislation like the proposed US Office of Space Commerce.146 In addition to SpaceX, several companies are promoting “space tourism,” but the liability in such ventures is unclear and perhaps uninsurable. In any case, space law (both in spacefaring states and internationally) is seriously underdeveloped in these areas.147 In a far-reaching analysis, Durkee points out how the shifting of responsibility for space exploration and administration from the public to the commercial sphere is also allowing private companies to effectively “make” space law, in ways that states and their peoples may find troubling. In her words: In space law, nations have failed to update Cold-War-era treaties that do not conclusively resolve many questions raised by the new space race. Companies like SpaceX and iSpace are filling in the gaps. The implications might be

144

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146 147

S. L. Myers, “China and Russia Agree to Explore the Moon Together,” New York Times, March 10, 2021. Veech, “To Infinity and Beyond.” It is worthwhile to follow Veech’s analysis of practical legal questions that would arise if SpaceX and others begin actually to employ large numbers, including foreign nationals, for space work. US House of Representatives Resolution 2809, 115th Congress (2017). Schladebach, “Fifty Years of Space Law,” 271.

Thinking Ahead unsettling. After all, the implications of the theory could reach beyond space law to areas like human rights, humanitarian law, cyberspace, and other areas where nations can bear legal responsibility for corporate acts. Corporate lawmaking in these areas could fill important lacunas, or it could threaten public goods.148

Even though international law-making is not fully democratic, it does represent a much more deliberative and accountable process than rules made by self-interested private and commercial interests. Hopefully, international diplomats, state elites, and ordinary citizens will once again muster up the courage, patience, and technical skills it will take to make effective, fair, and far-sighted law to encourage the best uses of outer space.

Thinking Ahead States still prize the concrete manifestation of their sovereignty: the exclusive “title” granted to them under international law to control their territory. This chapter has reviewed both the large corpus of international law concerning horizontal territorial sovereignty, including land, water, and ocean sovereignty, and the new vertical sovereignty of air law. Beyond air law is the emerging and growing field of outer space law even though, as of yet, the corpus of space law does not recognize sovereign territory (other than nationally registered spacecraft) beyond the earth’s atmosphere (and even that limit has yet to be determined). The commercialization and sovereign claims to parts of space are probably inevitable and not necessarily bad, but only forward-looking space law can provide fair opportunities for states and peoples at all stages of economic development. How states obtain “title” to land under international law has a long history and one that continues to evolve. We fleshed out the classic methods: military conquest, conversion of terra nullius, inheritance through uti possidetis juris, cessation, prescription, and accretion. We also discussed some of the newer methods such as through an international organization trust, the use of an international adjudicatory body to resolve boundaries, and, finally, joint decisions, typically after large-scale warfare. We noted that military conquest, cessation, and prescription were becoming less accepted and useful in modern international law. Prolonged occupations backed by force are problematic both for the inhabitants of occupied territories and because they are not supposed to lead to a transfer of sovereign territory. However, in the cases of Israel in the 148

Durkee, “Interstitial Space Law,” 481.

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Palestinian areas and Russia in Crimea, it appears that occupation may be viewed as another method to obtain “new” sovereign territory for the occupying state. Occupations to provoke “self-determination” of a new territorial sovereign authority also have a checkered use in international law and are fraught with legal and logistical challenges. Thinking ahead, note the connection between territorial sovereignty at home and the attempt of states to exercise legal authority abroad through extraterritorial jurisdiction. We already saw how that was possible in nationally registered aircraft under the Tokyo Convention. This chapter and the next form companion pieces; one is an extension of the other, even though they are legally distinct. Sovereignty will continue to be at the center of all the remaining chapters in this text, especially the two chapters on the use of force (Chapters 8 and 9). At times, sovereignty as currently constituted will require creative workarounds to achieve the progressive development of the substantive areas of international law. These topics appear in the chapters on human rights (Chapter 7), international economic relations (Chapter 11), and the environment (Chapter 10). It is difficult, but not impossible, to reconcile the UN’s recognition of state sovereignty as the bedrock of international law and relations while charting a creative path forward to solving problems that transcend territorial boundaries.

5

Extraterritorial Jurisdiction

Civil war has devastated Syria since 2011, when pro-democracy demonstrators gathered in the streets of Damascus to protest the rule of Bashar al-Assad, who had then been president of Syria for eleven years. Assad’s government put down the protests using deadly force, and Assad refused all calls for his resignation. From there the conflict escalated, displacing hundreds of thousands of people and involving many countries both in the Middle East and abroad, including the United States (US) (anti-Assad) and Russia (pro-Assad), as well as the terrorist organization the Islamic State (IS/ ISIS/ISIL). More than 500,000 people have been killed or are missing thus far, and the conflict continues.1 Bashar al-Assad still clings to power and forces loyal to him still act at his command. One of the most infamous locations in Syria is Branch 251, an interrogation facility in Damascus. Since the onset of the war, Branch 251 has been the site of brutal torture of Assad’s opponents. Anwar Raslan, a senior official at the center, oversaw the torture of more than 4,000 people – sometimes through methods like beatings and electric shocks. Eyad alGharib, a low-ranking officer, also worked at Branch 251 and participated in the torture of thousands of people. Both Raslan and Al-Gharib left Syria and entered Germany in 2019 and 2018, respectively. Both were arrested there and accused of crimes against humanity that were part of a widespread and systematic effort on the part of the Assad regime to eliminate dissent. Al-Gharib was recognized by some of his former victims, who had themselves fled Syria and settled in Germany. In March 2021, a German court in Koblenz found Eyad al-Gharib guilty of crimes against humanity, specifically for his role in taking the original prodemocracy protesters to Branch 251 at the beginning of the Syrian conflict. He was sentenced to four and a half years in prison. It was the first time that

1

“Why Has the Syrian War Lasted 10 Years?,” BBC News (March 15, 2021) www.bbc.com/ news/world-middle-east-35806229 accessed May 19, 2022.

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a verdict has been handed down for state-sponsored torture outside of Syria.2 Even more significantly, in January 2022 Raslan was found guilty of crimes against humanity, including “58 murders as well as rape and sexual assault, and the torture of at least 4,000 people held [at Al-Khatib prison in Syria] between 2011 and 2012.”3 For the first time, a court convicted a highranking official with a direct link to the brutal Assad regime. Why are Syrians being tried in Germany for crimes that were committed against other Syrians on Syrian territory? First, it is clear that the crimes would not be prosecuted in Syria, because the government who ordered the torture is still in power there. Second, the International Criminal Court (ICC) – a court designed to investigate and hear cases related to crimes against humanity, war crimes, and genocide – cannot act because Syria is not a party to the Court’s governing statute, and Russia would certainly block a United Nations (UN) Security Council referral of the case to the ICC. Because these venues were not available, Germany invoked the principle of universal jurisdiction, which allows serious international crimes like crimes against humanity (which include torture) to be tried anywhere. It is a historic attempt to bring justice in a conflict that has been raging for over a decade. Germany is exercising extraterritorial jurisdiction in these examples, and it seems to fly in the face of what we know about state sovereignty. A state’s authority can be extended beyond its own boundaries, but only under circumstances proscribed by international law. This chapter provides an overview of those circumstances.

Introduction This chapter is devoted to exploring the acceptable extension of a state’s jurisdiction into other states, particularly as it pertains to individuals. This is different from the state’s geographic range of state sovereignty, which was the subject of the previous chapter. The first section of this chapter is devoted to the distinction between the terms “sovereignty” and “jurisdiction,” which are often confused. The bulk of this first section is devoted to a discussion of the five jurisdictional principles

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3

“German Court Hands Down Historic Syrian Torture Verdict,” DW News (February 2, 2021) www.dw.com/en/german-court-hands-down-historic-syrian-torture-verdict/a-56670243 accessed May 19, 2022. J. Hill, “German Court Finds Syrian Colonel Guilty of Crimes against Humanity,” BBC News (January 13, 2022) www.bbc.com/news/world-europe-59949924 accessed May 19, 2022.

1 Understanding Extraterritorial Jurisdiction

that are recognized in international law as appropriate extensions of a state’s jurisdictional authority: the territorial, nationality, passive personality, protective, and universal principles. For each principle, we provide an illustration of how it has been used by states, and how the principles may overlap with each other. We also provide a brief challenge to these principles as they apply to the Internet: Whose rules apply when anyone can access information from anywhere? The chapter continues with a discussion of the practice of extradition, by which states can request the surrender of suspected criminals who are located in other states. This is a practice recognized by international law and is the subject of hundreds of bilateral treaties between states. Finally, we discuss the extra-legal practice of rendition, a practice that defies human rights law but nonetheless occurs with startling frequency.

1 Understanding Extraterritorial Jurisdiction States often regulate the activity of their inhabitants and even certain nonresidents whose conduct occurs or has an effect within their boundaries. That supervision is often described in terms of both “jurisdiction” and “sovereignty.” Although often used synonymously, especially by the media, these terms are related; it is important, however, to understand them with more precision.

1.1

Sovereignty and Jurisdiction

Sovereignty is one of the core concepts in international law, conferring primacy upon the state. In essence, sovereignty guarantees that the state (or the government of the state) is the highest authority within its territorial jurisdiction – there is no other authority that can guide its actions. A sovereign state has the international capacity to exchange diplomats with other states, to engage in treaty-making, and to be immune from the jurisdiction of the courts of other states. A state thus possesses sovereignty when it is able to act independently of the consent or control of any other state. Jurisdiction, on the other hand, is the state’s legal capacity to make, enforce, and adjudicate breaches of its laws. This chapter is focused on extraterritorial jurisdiction, or the acceptable extensions of a state’s power to act or react to events occurring beyond its own borders. States possess the sovereign right to exclusively govern the affairs of their inhabitants. This right is generally free from external control – including (and especially) the UN. The latter pursues an expansive international agenda – including human rights programs, environmental protection, and

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maintaining world peace – but is subject to a significant Charter limitation. Under Article 2(7): “Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state.” This limitation has spawned friction between the UN and its members on many occasions. The UN Security Council, for example, has aggressively used its Charter-based powers to manage sensitive problems such as the former apartheid regime in South Africa and the Sudanese government’s genocide in its Darfur region. In each case, local governors claimed that UN membership was trampling on sovereign rights reserved only for states and their leaders. Because states are sovereign, however, they are also free to make decisions about the limits of that sovereignty. When states decide to conclude treaties with other states, make alliances, or join international organizations, they are limiting their sovereignty to do as they please – they must abide by the agreements they make. Theorists of international relations have different explanations for this type of state behavior. A realist, for example, views state sovereignty as rigid, and believes that states are always looking to increase their own power and security. In this view, when a state ties its own hands by joining an alliance or an international organization, it does so only because it believes that such an action increases its power or security. The state can easily decide to leave such an arrangement whenever it becomes less advantageous to be part of it. Liberal theorists, on the other hand, reason that states choose to limit their own sovereignty by making agreements with other states precisely because it makes the world more secure and makes every state better off in the end. Thus, in liberal theory, cooperation between states is a necessary (and positive) limit on state sovereignty, whereas for a realist, cooperation is epiphenomenal at best and dangerous at worst. Still other theories, notably constructivists, posit that states are interested in pursuing different aims at different times, and that a state may choose to limit its sovereignty under one set of circumstances and refuse to cooperate in others. The modern state system is often traced back to the 1648 Treaty of Westphalia, which ended the Thirty Years’ War and cemented the idea that there would be no single worldwide authority (such as the Holy Roman Empire) to organize international life, but rather a collection of sovereign states, each concerned with its own survival. This historic and Europeancentric notion was referred to by the US Supreme Court in its decision on Pennoyer v. Neff (1878), in which the Court reversed the sale of land, pursuant to a judgment obtained without the knowledge of the owner. The seeds of European jurisdictional practice were replanted by the Court in its following passage:

1 Understanding Extraterritorial Jurisdiction [E]very State possesses exclusive jurisdiction and sovereignty over persons and property within its territory . . . The other principle of public law referred to follows from the one mentioned; that is, that no State can exercise direct jurisdiction and authority over persons or property without its territory. The several States are of equal dignity and authority, and the independence of one implies the exclusion of power from all others. And so it is laid down by jurists, as an elementary principle, that the laws of one State have no operation outside of its territory, except so far as is allowed by comity. ... The . . . familiar rule [is] that countries foreign to our own disregarded a judgment . . . where the defendant had not been served with process nor had a day in court; . . . The international law . . . as it existed among the States in 1790, was that a judgment rendered in one State, assuming to bind the person of a citizen of another, was void within the foreign State, when the defendant had not been served with process.4

The underlying seventeenth-century concept of sovereignty to which the US Supreme Court refers reigned unchallenged from its Westphalian roots until well into the twentieth century. It has since endured contemporary challenges and continues to evolve as our understandings of state responsibility, different types of international actors beyond the state, and the problems faced around the world change. Our understanding of sovereignty is no longer fixed and absolute. The rise of powerful international organizations like the European Union (EU), for example, have forced broader thinking about how sovereign states can “pool” their sovereignty into a supranational organization with some functions that used to be attributed only to states themselves. Non-state actors like Islamic State (IS/ISIS/ISIL) and Al-Qaeda have taken actions that pose serious threats to state security, yet punishment of non-state actors is difficult in international and even domestic law. Problems like global climate change have challenged states to cooperate for the global good, but the costs and benefits of such cooperation are not evenly distributed among states. Similarly, complex humanitarian emergencies like the suspected genocides of the Rohingya or Uyghurs and the human rights catastrophe in Yemen seem to demand immediate action, yet the confines of state sovereignty often restrict meaningful intervention until it is too late. Thus, while the Westphalian definition of sovereignty remains, it is no longer sacrosanct: it, too, is changing, as the world becomes more tightly knit via the power of globalization. Like sovereignty, the term “jurisdiction” also has multiple meanings. National legislatures now enjoy a degree of globally recognized consent to 4

Pennoyer v. Neff, 95 U.S. 714 (1878).

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enact laws governing conduct occurring, at least in part, beyond their immediate borders. In instances where that power is acceptable to other states, then it naturally follows that the executive branch of a state’s government may take steps to act outside of that state in ways that do not generally violate other states’ expectations. That state’s judicial branch may, as a result, find that a cause of judicial action arises from a domestic conflict or injury, or from a conflict or injury suffered abroad, either of which could impact the adjudicating state. For example, the November 2000 Military Extraterritorial Jurisdiction Act provides that: (a) Whoever engages in conduct outside the United States that would constitute an offense punishable by imprisonment for more than 1 year . . . (1) while employed by or accompanying the Armed Forces outside the United States; or (2) while a member of the Armed Forces subject to chapter 47 of title 10 (the Uniform Code of Military Justice), shall be punished as provided for that offense. (b) No prosecution may be commenced against a person under this section if a foreign government, in accordance with jurisdiction recognized by the United States, has prosecuted or is prosecuting such person for the conduct constituting such offense, except upon the approval of the Attorney General or the Deputy Attorney General (or a person acting in either such capacity), which function of approval may not be delegated.5

The first former US army soldier was thus prosecuted under this Act in April 2009. Steven Green – and four fellow soldiers who remained in the army where they were tried by military court-martial – was prosecuted and convicted of raping a fourteen-year-old Iraqi girl, then killing her and her family in Mahmudiya, Iraq. Green was tried in Paducah, Kentucky – 6,700 miles away from the territory where his conduct occurred. The above legislation authorized the court to proceed via this jurisdictional gap-filler (which also covers civilians, their spouses, and military contractors). Green was no longer subject to a US military court-martial. Iraq would not prosecute him but did not object to the US prosecution for a crime committed before its sovereignty was restored.6 In 2015, four former Blackwater (a private defense contractor, now called Academi) were also convicted under this Act for indiscriminately slaughtering fourteen civilians in Nissour Square in Baghdad, Iraq. Former

5 6

18 U.S. Code § 3261. S. Almasy, “Former Soldier at Center of Murder of Iraqi Family Dies after Suicide Attempt,” CNN News (February 18, 2014) www.cnn.com/2014/02/18/us/soldier-steven-green-suicide/ index.html accessed May 19, 2022.

1 Understanding Extraterritorial Jurisdiction

president Donald Trump pardoned them all in December 2020, shortly before leaving office.7 An unacceptable exercise of sovereign power in the territory of another state is often appropriately protested as an exercise of “extraterritorial” jurisdiction and a violation of customary international law. The offending state has the obligation not to interfere with another state’s enjoyment of the right to control people and activities within its borders. The targeted state possesses the right, based on its status as a sovereign entity, to at least an apology. It possesses equal rights and dignity, as does each member of the community of nations, regardless of its geographical or military prowess. The jurisdictional principles in this chapter thus authorize – and limit – a state’s ability to proscribe and punish individuals who commit crimes beyond the borders of the prosecuting state. A 2006 report by the International Law Commission (ILC) devotes considerable attention to the appropriate extension of jurisdiction.8 It outlines each of the jurisdictional principles explained in the next section, with special notes on the applicability of extraterritorial jurisdiction in criminal and commercial law, where it is most likely to be applied.

1.2

Principles of Extraterritorial Jurisdiction

International practice acknowledges five customary bases for legitimate state regulation of individual or corporate conduct occurring either partially or wholly beyond its borders. Table 5.1 summarizes the significant intersection between extraterritorial jurisdiction and international law, after which each principle is described in more detail.

1.2.1

Territorial Principle

Under this principle, the state’s jurisdictional authority is derived from the location of the defendant’s act. That conduct usually starts and ends within the state that is prosecuting the defendant. The state may thereby punish individuals who commit crimes within its borders. Of all jurisdictional principles, this application is the most widely accepted and the least disputed.

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8

M. Safi, “Trump Pardons Blackwater Contractors Jailed for Massacre of Iraqi Civilians,” The Guardian, December 23, 2020, www.theguardian.com/world/2020/dec/23/trump-pardonsblackwater-contractors-jailed-for-massacre-of-iraq-civilians accessed May 19, 2022. R. A. Kolodkin, Report of the International Law Commission, UNGAOR, Fifty-Eighth Session, UN Doc. A/61/10 (2006) https://legal.un.org/ilc/reports/2006/english/annexes.pdf accessed May 19, 2022.

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Table 5.1. Principles of extraterritorial jurisdiction Jurisdictional Principle

When “State X” May Prosecute

TERRITORIAL

(Subjective) Defendant’s conduct violates State X law (a) Conduct starts in State X (b) Conduct is completed in State X (Objective) Defendant’s conduct violates State X law (a) Conduct starts outside State X (b) Conduct is completed in State X (effect felt in State X)

NATIONALITY

Defendant’s conduct violates State X law (a) Defendant is a citizen of State X (b) Conduct may start and end anywhere

PASSIVE PERSONALITY

Defendant’s conduct violates State X law (a) Victim is a citizen of State X (b) Conduct may start and end anywhere

PROTECTIVE

Defendant’s conduct constitutes a threat to the interests of State X (a) Defendant’s conduct violates law of State X (b) Conduct may start and end anywhere (c) Need not have a demonstrated “effect” in State X

UNIVERSALITY

Defendant’s conduct violates law of State X and other states (a) Conduct is so heinous it violates the laws of all states (b) Conduct may start and end anywhere (c) All states may prosecute

There are two applications of the territorial principle: “subjective” (internal) and “objective” (external). Assume that the defendant is a foreign citizen. A state may have the jurisdictional power to prosecute violators of its laws without regard to that person’s nationality. To use a real example, Italy wished to prosecute a Swiss citizen who plotted the overthrow of the Italian government. That individual was captured by the Italian police in Rome where he planned the coup d’état. Italy possessed the subjective territorial jurisdiction to prosecute and punish this defendant, even though he was a foreign citizen, because his conduct took place within Italy’s borders. In response to a Swiss defendant’s unsuccessful claim that Italy lacked jurisdiction in such a case, Italy’s Court of Cassation stated that there “is no rule of Italian public law or international law which exempts from punishment an alien who commits an

1 Understanding Extraterritorial Jurisdiction

act in Italy which constitutes a crime . . . The crime of which the appellant [defendant] has been found guilty, is not less a crime because he is a Swiss national.”9 Under international law, Italy can also exercise its sovereign powers over those whose extraterritorial conduct violates its laws. The prior historical limitation – that a state could regulate only that conduct occurring within its geographical boundaries – no longer makes sense. Nineteenth-century national legislation began to reflect this internationalization of criminal activity, which was made possible by the evolution of technology and communication. Since then, advances in travel and communication have greatly enhanced the criminal’s ability to commit a crime (or parts of a crime) in more than one country. The unlawful conduct of the aforementioned Swiss citizen could have occurred partially inside and partially outside Italy – thus authorizing Italy’s objective application of the territorial principle even though a segment of the punished conduct occurred in Switzerland (or elsewhere). This facet of territorial jurisdiction is more easily abused. The prosecuted conduct may occur outside the prosecuting nation. It may have the requisite effect within a state to allow it to prosecute based on accepted state practice. The case on this “effects doctrine” was decided in 1927 by the Permanent Court of International Justice, and is excerpted below:

THE S.S. LOTUS (FRANCE V. TURKEY) Permanent Court of International Justice, Reports, Series A, No. 10 (1927) NOTE: In 1923, the French mail steamer Lotus was in international waters, headed for Constantinople. The Lotus collided with an outbound Turkish coal ship, the Boz-Kourt. Eight Turkish seamen were killed in the collision. When the Lotus arrived in Turkey, Turkish authorities arrested and prosecuted the French ship’s watch officer, Lieutenant Demons (as well as the Turkish vessel’s captain) for involuntary manslaughter. Defendant Demons’ negligence allegedly cost the lives of Turkish citizens as well as substantial property damage to the Turkish vessel. France objected to Turkey’s exercise of jurisdiction over its French citizen. The alleged criminal negligence did not occur on Turkish territory or in its territorial waters. After diplomatic protests, France and Turkey decided to submit France’s objection to Turkey’s exercise of its national jurisdiction to the Permanent Court of International Justice for a neutral resolution. Some italics have been added. All footnotes are omitted.

9

“Re: Penati,” Annual Digest and Reports of Public International Law Cases 13 (1951): 74.

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THE S.S. LOTUS (FRANCE V. TURKEY) (cont.) COURT’S OPINION: I. ... The violation, if any, of the principles of international law would have consisted in the taking of criminal proceedings against Lieutenant Demons. It is not therefore a question relating to any particular step in these proceedings [by Turkey] but of the very fact of the Turkish Courts exercising criminal jurisdiction. That is [because] the proceedings relate exclusively to the question whether Turkey has or has not, according to the principles of international law, jurisdiction to prosecute [France’s citizen] in this case. The Parties agree that the Court has not to consider whether the prosecution was in conformity with Turkish law. . . The prosecution was instituted [however] in pursuance of [the following] Turkish legislation. ... [Art. 6 of the Turkish Penal Code provided that] Any foreigner who . . . commits an offence abroad to the prejudice of Turkey or of a Turkish subject . . . shall be punished in accordance with the Turkish Penal Code provided that he is arrested in Turkey. ... [T]he question submitted to the Court is not whether that article is compatible with the principles of international law; it is more general. The Court is asked to state whether or not the principles of international law prevent Turkey from instituting criminal proceedings against Lieutenant Demons under Turkish law. II. ... Now the first and foremost restriction imposed by international law upon a State is that . . . it may not exercise its power in any form in the territory of another State. In this sense, jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention. It does not, however, follow that international law prohibits a State from exercising jurisdiction . . . [over] acts which have taken place abroad . . . Far from laying down a general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, it leaves them in this respect a wide measure of discretion, which is only limited in certain cases

1 Understanding Extraterritorial Jurisdiction

THE S.S. LOTUS (FRANCE V. TURKEY) (cont.) by prohibitive rules; as regards other cases, every State remains free to adopt the principles which it regards as best and most suitable. This discretion left to States by international law explains the great variety of rules which they have been able to adopt without objections or complaints on the part of other States . . . It follows from the foregoing that the contention of the French Government to the effect that Turkey must in each case be able to cite a rule of international law authorizing her to exercise jurisdiction, is opposed to the generally accepted international law. . . . III. ... Such a view would only be tenable if international law contained a general prohibition to States to extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory . . . But this is certainly not the case under international law as it stands at present. . . . IV. ... [I]t is certain that the courts of many countries, even of countries which have given their criminal legislation a strictly territorial character, interpret criminal law in the sense that offences, the authors of which at the moment of commission are in the territory of another State, are nevertheless to be regarded as having been committed in the national territory [of the prosecuting State] if one of the constituent elements of the offence, and more especially its effects, have taken place there. . . . Again, the Court does not know of any cases in which governments have protested against the fact that the criminal law of some country contained a rule to this effect or that the courts of a country construed their criminal law in this sense. Consequently, once it is admitted that the effects of the offence were produced on the Turkish vessel, it becomes impossible to hold that there is a rule of international law which prohibits Turkey from prosecuting Lieutenant Demons because of the fact that the author of the offence was on board the French ship. ... It follows that what occurs on board a vessel on the high seas must be regarded as if it occurred on the territory of the State whose flag the ship flies. If, therefore, a guilty act committed on the high seas produces its effects on a vessel flying another flag or in foreign territory, the same

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THE S.S. LOTUS (FRANCE V. TURKEY) (cont.) principles must be applied as if the territories of two different States were concerned, and the conclusion must therefore be drawn that there is no rule of international law prohibiting the State to which the ship on which the effects of the offence have taken place belongs, from regarding the offence as having been committed in its territory. ... This conclusion could only be overcome if it were shown that there was a rule of customary international law which, going further than the principle stated above, established the exclusive jurisdiction of the State whose flag was flown. The French Government has endeavoured to prove the existence of such a rule, having recourse for this purpose to the teachings of publicists, to decisions of municipal and international tribunals, and especially to conventions . . . creating exceptions to the principle of the freedom of the seas by permitting the war and police vessels of a State to exercise a more or less extensive control over the merchant vessels of another State . . . In the Court’s opinion, the existence of such a rule has not been conclusively proved. ... So far as the Court is aware there are no decisions of international tribunals in this matter; but some decisions of municipal courts have been cited. Without pausing to consider the value to be attributed to the judgments of municipal courts in connection with the establishment of the existence of a rule of international law, it will suffice to observe that the decisions quoted sometimes support one view and sometimes the other. ... The offence for which Lieutenant Demons was prosecuted was an act – of negligence or imprudence – having its origin on board the [French ship] Lotus, whilst its effects made themselves felt on board the [Turkish ship] Boz-Kourt. . . . It is only natural that each should be able to exercise jurisdiction and to do so in respect of the incident as a whole. It is therefore a case of concurrent jurisdiction. . . . V. ... The Court, having heard both Parties, gives, by the President’s casting vote – the votes being equally divided – judgment to the effect . . . that Turkey, by instituting criminal proceedings in pursuance of Turkish law against Lieutenant Demons, officer of the watch on board the Lotus at the time of the collision, has not acted in conflict with the principles of international law. ...

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THE S.S. LOTUS (FRANCE V. TURKEY) (cont.) M. LODER (DISSENTING) Turkey, having arrested, tried and convicted a foreigner for an offence which he is alleged to have committed outside her territory, claims to have been authorized to do so by reason of the absence of a prohibitive rule of international law. ... In other words, on the contention that, under international law, every door is open unless it is closed by treaty or by established Custom. ... The fundamental consequence of their independence and sovereignty is that no municipal law, in the particular case under consideration no criminal law, can apply or have binding effect outside the national territory. ... The criminal law of a State applies in the first place to all persons within its territory, whether nationals or foreigners, because the right of jurisdiction over its own territory is an attribute of its sovereignty. ... The general rule that the criminal law of a State loses its compelling force and its applicability in relation to offences committed by a foreigner in foreign territory, a rule derived from the basic principle of the sovereignty and independence of States, has indeed undergone modifications and has been made subject to exceptions restricting its scope by the mutual consent of the different Powers in so far as territory properly so called is concerned. But according to a generally accepted view, this is not the case as regards the high seas. There the law of the flag and national jurisdiction have retained their indisputable authority to the exclusion of all foreign law or jurisdiction.

The Permanent Court of International Justice (PCIJ) held that Turkey could exercise its national criminal jurisdiction over a “foreigner” who violated Turkish law when the French officer committed an offense abroad. On these facts, “abroad” included international waters. Unlike state sovereign territory, such areas do not “belong” to anyone. The Court approved “wide discretion” for this application of Turkish law. This development is also referred to as the ability of a state to exercise its jurisdiction based on the “law of the flag.” A Turkish vessel might thus be legally characterized as an extension of the Turkish territory. The Court also acknowledged the applicability of the “passive personality” principle in this case. The victims of the French officer’s negligence were

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Turkish citizens, as was the vessel. This feature of extraterritorial jurisdiction is analyzed later in this section. Both prior and subsequent state practice conformed to the Lotus court’s application of the accepted principles of extraterritorial jurisdiction. Its 1927 application of territorial jurisdiction coincided with that applied by the Pennoyer v. Neff, US Supreme Court decision in 1887. Pennoyer inducted European jurisdictional principles into the basic US law of territorial jurisdiction. Ten years after Lotus, Ireland expressly provided for this practice in Article 29.8 of its 1937 Constitution: “The State may exercise extra-territorial jurisdiction in accordance with the generally recognised principles of international law.”

1.2.2

Nationality Principle

A state may regulate the conduct of its own citizens even when their acts occur entirely outside of that state. In 1992, US chess master Bobby Fischer defied a UN resolution imposing sanctions against the former Yugoslavia. No US citizen was permitted to travel to Yugoslavia because of US legislation, which required compliance with the UN resolution. When Fischer defied the travel ban, the US Treasury Department sent him a letter, warning him about the penalties for his refusal to comply.10 Although his conduct took place on foreign soil, the US could rely upon the nationality principle of jurisdiction to legitimize any ensuing prosecution for his prohibited travel. In the Lotus case discussed earlier, France could have prosecuted the French ship’s officer for his negligence. Lieutenant Demons was a French citizen who damaged a French public vessel. This exercise of state jurisdiction would have been premised on the legal bond between a state and its citizens. That link generates reciprocal rights and obligations. As previously analyzed in the Nottebohm case, a state is expected to protect its citizens when they are abroad – for as long as they owe it their allegiance. Conversely, a citizen’s conduct may touch and concern the interests of his or her home state in a way that allows that state to request that the citizen return home. That state may also punish its citizen for certain conduct abroad, such as operating a public French vessel in a way that damaged it in a collision at sea, based on the nationality link between France and its citizen. The nationality principle is invoked less frequently than the territorial principle. One practical reason is that the territorial and nationality principles often overlap. France would not have to invoke the nationality principle if it 10

R. J. Ostrow, “US Indicts Bobby Fischer Over $5 Million Match in Yugoslavia,” Los Angeles Times, December 16, 1992, www.latimes.com/archives/la-xpm-1992-12-16-mn-1922story.html accessed May 19, 2022.

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wanted to prosecute Lieutenant Demons. The territorial principle would be conspicuously available because his negligence also harmed the French vessel in the Lotus collision – an extension of France’s territory on the high seas. In Lotus, Turkey did not claim that its criminal jurisdiction was based in whole or in part on this principle because the Lotus watch officer was not a Turkish citizen. Turkey might have done so if the Lotus issues had included any wrongdoing by the captain of the Turkish vessel. Under the nationality principle, states enjoy relatively unfettered legal control over their citizens. A state’s treatment of its own citizens was historically not within the legal province of other states. The following case excerpt explains why.

BLACKMER V. UNITED STATES Supreme Court of the United States, 284 U.S. 421 (1932) [Excerpted case available at www.cambridge.org/FPIL7]

It is important to recognize that service of a State X subpoena in State Y, requiring an individual to do something – such as return to State X to testify in a criminal matter – is an act of executive/judicial administration which many countries consider a violation of their territorial sovereignty. State Y’s consent should be obtained, either on an ad hoc basis (e.g., via a State X consular official in State Y), or on a treaty basis where State Y gives its advance consent to specified forms of process as set forth in the treaty. Service of process in a civil matter may likewise offend a foreign nation’s sensibilities, especially if it requires a State Y citizen to take action – like hiring a defense lawyer in one or both countries – to respond to the State X civil proceedings.

1.2.3

Passive Personality Principle

This form of jurisdiction is based on the nationality of the victim when the crime occurs outside of the prosecuting state’s territory. It is probably the least used jurisdictional basis, given its potential for abuse. An unlimited application of the passive personality principle would result in the potential prosecution of anyone in the world, anywhere in the world, who allegedly harmed citizens of the prosecuting country. It is generally not used unless another principle is also applicable. In the above PCIJ Lotus case, Turkey relied on the passive personality principle to support its prosecution of the French ship’s officer (in addition to its primary territoriality principle argument). His conduct harmed Turkish citizens and Turkish property

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interests. Because the conduct took place outside Turkey, the Court cautiously acknowledged the theoretical applicability of this principle. Some of the judges expressed their belief that international law does not permit assertions of jurisdiction exclusively on this basis. PCIJ judge Moore warned that jurisdiction based solely on the victim’s citizenship would mean “that the citizen [victim] of one country, when he visits another country, takes with him for his ‘protection’ the law of his own country and subjects those with whom he comes into contact to the operation of that law. In this way an inhabitant of a great commercial city, in which foreigners congregate, may in the course of an hour unconsciously fall under the operation of a number of foreign criminal codes.”11 The courts have narrowly applied the passive personality principle of extraterritorial criminal jurisdiction. In 2002, for example, a Mexican national was convicted of sexual contact with a minor US citizen on a cruise ship in Mexican territorial waters. The Federal Court of Appeals analysis was as follows: International law supports extraterritorial jurisdiction in this case. Two principles of international law permitting extraterritorial jurisdiction are potentially relevant: the territorial principle and the passive personality principle. Under the territorial principle, the United States may assert jurisdiction when acts performed outside of its borders have detrimental effects within the United States. The sexual contact occurred during a cruise that originated and terminated in California. Neil’s conduct prompted an investigation by the FBI, and an agent arrested Neil in the United States. The victim was an American citizen who lives and goes to school in the United States, and who sought counseling in this country after the attack. These facts are enough to support jurisdiction under the territorial principle. ... Extraterritorial jurisdiction is also appropriate under the passive personality principle. Under this principle, a state may, under certain circumstances, assert jurisdiction over crimes committed against its nationals . . . Citing the Restatement [(Third) of Foreign Relations Law of the United States § 402, in a similar case] we noted that, in general, the passive personality principle has not been accepted as a sufficient basis for extraterritorial jurisdiction over ordinary torts and crimes. . . . By contrast, [US Criminal Code] § 2244(a)(3) . . . invokes the passive personality principle by explicitly stating its intent to authorize extraterritorial jurisdiction, to the extent permitted by international law, when a

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The S. S. Lotus (France v. Turkey), PCIJ, Ser. A, No. 10 (1927) (Judge Moore, dissenting).

1 Understanding Extraterritorial Jurisdiction foreign vessel departs from or arrives in an American port and an American national is a victim.12

On December 1, 2018, the chief executive of the Chinese telecom company Huawei arrived in Vancouver, Canada, and was promptly arrested. Meng Wanzhou was arrested at the request of the US, which alleged that Meng had violated US-imposed sanctions against Iran and defrauded financial institutions. Meng had cleared money that was supposed to be for Huawei but instead went to a company called Skycom – which was wholly owned by Huawei and had dealings with Iran in violation of the sanctions. Meng’s bank, HSBC, claimed not to know that Skycom had ties to Huawei. As Ku notes, “if the allegations are true, Meng really did expose HSBC to severe liability: as a financial institution operating in the United States, the bank is fully subject to all US sanctions on Iran.”13 According to US law, any attempt to knowingly defraud a financial institution is subject to a penalty of not more than $1,000,000, not more than thirty years in prison, or both.14 Could US bank fraud protections be extended in this way? Yes. Because Meng’s actions could potentially have injured US nationals – even if those nationals were corporate entities – the US could employ the passive personality principle in this instance. Meng Wanzhou was ordered to be extradited to the US for prosecution in May 2020, but she was also separately indicted on an allegation of theft of trade secrets.15 States can use and interpret passive personality differently. French law, for example, provides an expansive interpretation: Article 113-7 of the French Penal Code notes that “French criminal law is applicable to any felony, as well as to any misdemeanor punishable by imprisonment, committed by a French or foreign national outside the territory of the French Republic, where the victim is a French national at the time of the offense.”16 As Cafretz and Tene explain, “The reach of the French statute intrudes on the sovereignty of other nations and subjects foreign nationals to an indeterminate threat of criminal responsibility in dealings with French nationals.”17 This broad

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U.S. v. Neil, 312 F.3d 419, 422–423 (9th Cir. 2002). Emphasis added. J. Ku. The Detention of Huawei’s CFO is Legally Unjustified. Why Doesn’t the US say So? Lawfare Blog (2018) www.lawfareblog.com/detention-huaweis-cfo-legally-justified-whydoesnt-us-say-so accessed May 19, 2022. 18 U.S.C. § 1344. T. Sherlock and D. Bilefski, “Extradition of Huawei Executive Clears a Major Legal Hurdle in Canada,” New York Times, May 27, 2020, www.nytimes.com/2020/05/27/world/canada/ huawei-extradition-meng-wanzhou.html accessed May 19, 2022. CODE PÉNAL [C. PÉN.] art. L.113-7 (Fr.). E. Cafretz and O. Tene, “Article 113-7 of the French Penal Code: The Passive Personality Principle,” Columbia Journal of Transnational Law 41, No. 3 (2006): 587.

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interpretation was tested when, in 1996, French filmmaker Sophie Toscan du Plantier was murdered in Ireland. A local man, Ian Bailey, was suspected in the case, but Ireland did not find enough evidence to prosecute him. Using the European Arrest Warrant, however, the French government attempted to extradite him to France, which was rejected by Ireland. Undeterred, the French government decided to try Mr. Bailey in absentia – without him physically present – in 2019, using the passive personality principle as enshrined in the French Penal Code. He was convicted and sentenced to twenty-five years in prison by the Paris cour d’assises. Wheeler attempts to make sense of this application of the passive personality principle, searching for a deterrent effect of the French interpretation. “When strictly applied, [Article 113-7] could create a situation in which a person may be required to stand trial for actions that were not criminal in the place in which the acts were committed, entirely as a result of the fact that those acts are crimes in the nation of which the victim is a citizen.”18 Mr. Bailey will likely never serve this sentence; even if he ever finds himself under French authority, he will likely be granted a new trial.

1.2.4

Protective Principle

Under this principle, the criminal act must threaten the security (territorial integrity or political independence) of the state. The protective principle allows a state to prosecute its own citizens – as well as citizens of other states – for their conduct outside of its territory. The perpetrator may choose not to enter the state whose laws have been violated. That state will then have to seek his or her extradition from a state where the offending individual is found. In any event, and as acknowledged by the US Supreme Court, “under the ‘protective principle’ of international law, a nation is permitted ‘to assert jurisdiction over a person whose conduct outside the nation’s territory threatens the nation’s security.’”19 The protective principle differs from the analogous territorial principle because the effect of the criminal’s conduct does not have to be felt within the territory of the offended state. In a US case distinguishing these two principles, a Canadian citizen made false statements while trying to obtain a 18

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C. Wheeler, “Emerging Voices: Examining the Applicability of the Passive Personality Principle when Conducting a Trial in Absentia,” Opinio Juris.org (2019) http://opiniojuris .org/2019/08/06/emerging-voices-examining-the-applicability-of-the-passivepersonality-principle-when-conducting-a-trial-in-absentia/ accessed May 19, 2022. For a more thorough treatment of passive personality and trials in absentia, see C. Wheeler, “Justice in the Absence of the Accused: Can the Rights of Victims be Fully Vindicated without the Participation of the Accused?,” Journal of International Criminal Justice 17, No. 2 (2019): 413–430. U.S. v. Cardales, 168 F.3d 548, 553 (1st Cir. Puerto Rico, 1999).

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visa from the US Consulate in Montreal. The court noted that “the objective principle [requiring that the effects of the crime be directly felt within the territory] is quite distinct from the protective theory. Under the latter, all the elements of the crime occur in the foreign country and jurisdiction exists because these actions have a ‘potentially adverse effect’ upon security or governmental functions . . . and there need not be any actual effect within the country as would be required under the objective territorial principle.”20 It is easy to see how the protective principle could be abused. In the leading treatise on international law as applied in Canada, the authors explain that the focus on “security” underscores the potential for abuse: A state may exercise jurisdiction over acts committed abroad that are prejudicial to its security, territorial integrity and political independence. For example, the types of crime covered could include treason, espionage, and counterfeiting of currency, postage stamps, seals, passports, and other public documents. Canada and other countries such as the United Kingdom have not favored this principle when unaccompanied by other [jurisdictional] factors such as nationality or other forms of allegiance tying the accused to the forum.21

1.2.5

Universality Principle

Certain crimes spawn a “universal interest” because they are sufficiently heinous to be considered crimes against the entire international community. The perpetrators of these crimes are deemed to be enemies of all mankind. Any state where the perpetrator is found is expected to arrest and try the perpetrator or to extradite the criminal to a state that will prosecute. Genocide is the classic example. The universality principle is not applied to “common crimes” such as murder because it is not sufficiently heinous. Commonly cited crimes of universal jurisdiction include piracy (the crime that inspired the principle), slavery, genocide, war crimes, crimes against humanity, torture, and enforced disappearances.22 One distinguishing feature of universal jurisdiction is that it is “criminal jurisdiction based solely on the nature of the crime, without regard to where the crime was committed, the nationality of the alleged or convicted perpetrator, the nationality of the victim, or any other connection to the state

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U.S. v. Pizzarusso, 388 F.2d 8 (2d Cir. 1968), cert. denied, 392 U.S. 936 (1968). Emphasis added. H. Kindred et al., International Law: Chiefly as Interpreted and Applied in Canada, 6th ed. (Toronto: Edmond Montgomery, 2000), 518. For more specific information on most of these crimes, see Kindred et al., International Law, Ch. 7.

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exercising such jurisdiction.”23 Unlike all of the other bases for a state to exercise its jurisdiction over matters arising beyond its boundaries, the universal jurisdictional linchpin is the nature of the crime rather than any connection to a particular country. Piracy was the first crime over which there was “universal” jurisdiction. It was effectively invoked when no other principle was applicable. It was (and is) usually committed on the high seas, rather than within the territorial waters of any state. In 1803, US president Thomas Jefferson rebuffed demands that he pay a $225,000 ransom to end pirate attacks against the US. These were the famed Barbary Pirates, who were Ottoman privateers operating off the coast of North Africa. Jefferson dispatched US war ships to the Mediterranean instead, and they ultimately rid the area of pirates at that time. Piracy continues, however, even into the present day, though prosecution of modern-day pirates is far from universal, as this principle suggests. The international waters in the Gulf of Aden, off the coast of Somalia, have been particularly fertile ground for pirates since 2008. As Garrod demonstrates, however, while piracy is considered the first crime of “universal” jurisdiction, state practice reveals a different story; at least with regard to Somali pirates, few states actually attempt to exert universal jurisdiction at all, and of the states that do, most have a close connection with either the pirates or the vessel and crew that was attacked.24 States that prosecute Somali pirates are also less likely to recognize universal jurisdiction in their national law, or they are regional states that have formal piracy agreements with the “seizing states” (those states who capture pirate vessels).25 Thus, the “universality” of universal jurisdiction in the case of piracy seems to be waning. One of the clearest and most prominent examples of a prosecution for a universal crime involved acts perpetrated during the Nazi Holocaust in World War II. In Israel v. Eichmann, Israel prosecuted Adolf Eichmann, Hitler’s chief exterminator, under its Nazi Collaborators Punishment Law. That legislation, and the ensuing prosecution, were based on the application of universal jurisdiction. None of the other jurisdictional principles were available to Israel to avenge the Nazi-directed Holocaust. The territorial principle could not apply because Israel did not become a state until 1948. The nationality principle was inapplicable because Germany would have to be the prosecuting state for that principle to apply. The passive personality principle did not

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“Principle 2.1 – Serious Crimes under International Law,” in The Princeton Principles of Universal Jurisdiction (Princeton, NJ: Princeton University Press, 2001), 28. M. Garrod, “The Emergence of ‘Universal Jurisdiction’ in Response to Somali Piracy: An Empirically Informed Critique of International Law’s ‘Paradigmatic’ Universal Jurisdiction Crime,” Chinese Journal of International Law 18, No. 3 (2019): 637. Ibid., 634.

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apply because no victim could possibly be a citizen of the state of Israel before it came into existence. In the absence of an Israeli state during the period in which Eichmann engaged in his atrocities, the protective principle could not be invoked to protect the interests of a nation that did not yet exist.26 Eichmann committed the crime of genocide against the citizens of various European states before Israel existed. In 1960, Eichmann was abducted from Argentina by Israeli commandos to stand trial in Israel. The resulting prosecution was undertaken in Israel’s capacity as a member of the community of nations. It asserted its universal jurisdiction to prosecute Eichmann. In the opinion of Israel’s Supreme Court: The crimes defined in this [Israeli] law must be deemed to have always been international crimes, entailing individual criminal responsibility: customary international law is analogous to the Common Law and develops by analogy and by reference to general principles of law recognized by civilized nations; these crimes share the characteristics of crimes . . . which damage vital international interests, impair the foundations and security of the international community, violate universal moral values and humanitarian principles . . . and the principle of universal jurisdiction over “crimes against humanity” . . . similarly derives from a common vital interest in their suppression. The State prosecuting them acts as agent of the international community, administering international law.27

One of the most intriguing judicial applications of universal jurisdiction involved a Belgian prosecution – where there was no other jurisdictional link between the perpetrator and the prosecuting state, as illustrated in the following case.

CASE CONCERNING THE ARREST WARRANT OF 11 APRIL 2000 (DEMOCRATIC REPUBLIC OF CONGO V. BELGIUM) International Court of Justice | General List No. 121 (February 14, 2002) [Excerpted case available at www.cambridge.org/FPIL7]

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Note that Israel could not garner the help of the US, its ally, either. The US intelligence community did not want to expose Eichmann’s known location. The fear was that – if captured – he could expose the intricate system of West German undercover efforts aimed at the Soviets during the Cold War. See J. Borger, “Why Israel’s Capture of Eichmann Caused Panic at the CIA,” The Guardian, June 7, 2006. Attorney-General of the Government of Israel v. Adolf Eichmann, Dist. Ct. of Jerusalem; reported in 36 International Law Reports 5, 15 (1968) (decided in 1961).

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This case sparked international reaction. Palestinians brought suit against former Israeli prime minister Ariel Sharon in a Belgian court. They claimed reparations for the acts occurring under his military command in Lebanon in 1982. The relevant massacres had been investigated under Israel’s Commissions of Inquiry Law that year – resulting in this suit being dismissed as politically motivated. So the Palestinians took advantage of Belgium’s universal jurisdiction statute. At that time, it required no nexus between Belgium and the defendant. At least thirty such cases were brought under this now modified Belgian law. The defendants included world leaders and their agents, including President Fidel Castro of Cuba, former president Hashemi Rafsanjani of Iran, and President Paul Kagame of Rwanda. A number of states were not pleased with the potential reach of Belgium’s statute. Claims could be filed there against any government official in the world who could be accused of a universal crime such as genocide. For example, in May 2003, the US House of Representatives passed H.R. 2050, the bill known as the “Universal Jurisdiction Rejection Act of 2003.” This bill was presented on the House floor, “[t]o prohibit cooperation with or assistance to any investigation or prosecution under a universal jurisdiction statute.” Belgium soon thereafter limited its unique universal jurisdiction law (if for no other reason than NATO being headquartered in Brussels). Spain reacted otherwise. Its Constitutional Court overruled the Spanish Supreme Court 2003 decision that Spain’s universal jurisdiction statute applied only to crimes involving Spanish citizens. That interpretation was deemed too restrictive. The Constitutional Court’s October 2005 decision thus reversed the Spanish Supreme Court’s earlier result – that Spain’s universal jurisdiction statute was available only when Spanish citizens were the target of universal crimes, but not for this Guatemalan plaintiff.28 Per the Constitutional Court, the Supreme Court’s unnecessarily restrictive limitation “contradicts the very nature of the crime [of genocide] and the aspiration of its universal prosecution,” as envisioned by the UN Convention on the Prevention and Punishment of the Crime of Genocide. Thus: “The principle of universal jurisdiction takes precedence over the existence or not of national interests.” The Guatemalan Nobel Prize-winning plaintiff (who resides in Spain) was ultimately permitted to sue Guatemalan officials in Spanish courts for their alleged atrocities against Guatemalans from 1978–1986 (including genocide, torture, and illegal detentions).29 Thus, only the presence of the wrongdoer on Spanish territory is required – as is the case in the US application of universal jurisdiction under its Alien Tort Statute. 28 29

STS, November 15, 2004 (JTS, No. 1362). “Spain May Judge Guatemala Abuses,” BBC News (October 5, 2005).

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1.3

Jurisdiction and the Internet

The jurisdictional principles discussed in the preceding section are, for the most part, relatively straightforward and, in some cases, overlapping. Difficulties arise, however, when they are applied in new settings that do not necessarily conform to state boundaries. While the Internet and the ease with which we can now access it on multiple devices – on smartphones and tablets to cars and refrigerators – has changed the way we live, work, and relax, thinking about how to regulate it and capture its complicated extraterritorial effects is evolving alongside it. Using the Internet can, at any given time, result in contact with multiple countries and thus multiple sets of rules about legal internet behavior – the user’s “contextual legal system” is thus quite complicated. Svantesson refers to this as “hyper-regulation,” which applies when “the complexity of a party’s contextual legal system amounts to an unsurmountable obstacle to legal compliance” and when “the risk of legal enforcement of – at least parts of – the laws that make up the contextual legal system is more than a theoretical possibility.”30 In this section, we consider one prominent example of extraterritorial jurisdiction of online activity, the EU’s General Data Protection Regulation (GDPR). In 2018, the EU passed the GDPR, a law designed to protect individual information that is or could be transmitted online.31 The GDPR was controversial from its inception, in that it introduced sweeping changes to how the data of Europeans was processed, collected, used, transferred, and removed. In just the first eight months after it was passed, Europeans reported over 60,000 data breaches.32 But the controversy was not limited to Europe; because of the GDPR’s Article 3, all states were impacted by the EU’s new data protections. Article 3 states that: 1. This Regulation applies to the processing of personal data in the context of the activities of an establishment of a controller or a processor in the Union, regardless of whether the processing takes place in the Union or not.

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D. J. Svantesson, “European Union Claims of Jurisdiction over the Internet: An Analysis of Three Recent Key Developments,” Journal of Intellectual Property, Information Technology and e-Commerce Law 113, No. 3 (2018). The precursor to the GDPR was the Data Protection Directive (DPD); Directive 95/46/EC of the European Parliament and of the Council on October 24, 1995 on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data, 1995 OJ L281: 31. J. Wolff, “How Is the GDPR Doing? It’s Been Almost a Year Since the EU’s Data Privacy Regulation Went into Effect. It’s Been Very Successful in One Regard, But Largely Failed in Another,” Slate Technology (2019) https://slate.com/technology/2019/03/gdpr-one-yearanniversary-breach-notification-fines.html accessed May 19, 2022.

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Article 3 thus makes it clear that the EU intended the GDPR to apply outside of the boundaries of the EU, placing a significant burden on companies that have access to the personal data of Europeans. Indeed, a number of cases34 came before the Court of the Justice of the European Union (CJEU), asking it to interpret the scope of the data protection requirements. As Ryngaert and Taylor observe, in a string of cases the CJEU “forced the EU to renegotiate agreements with third countries or forced foreign-based data controllers targeting the EU to enhance the protection of EU residents’ data. This trend looks set to continue.”35 Perhaps the most fascinating aspect of the GDPR is the so-called “right to be forgotten.” The Internet has a long memory, and under certain circumstances users might wish that their personal data be completely removed. The GDPR was designed, in part, to give users more control over their personal data. In Google Spain SL, Google Inc. v. Agencia Española de Protección de Datos (AEPD), Mario Costeja Gonzalez, for example, Mr. Gonzalez complained that, when his name was entered into the Google search engine, a newspaper article appeared in which his name was attached to a list of properties that were being sold to repay social security debts. Gonzalez noted that the sale had long since concluded, and that the information was no longer relevant. He wished the reference to be removed. His complaint eventually reached Google Spain to request that the links to the newspaper announcements be removed; Google Spain, in turn, forwarded the request to

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GDPR, Article 3: Territorial Scope. GDPR.EU (2020) https://gdpr.eu/article-3-requirementsof-handling-personal-data-of-subjects-in-the-union/ accessed May 19, 2022. Schrems v. Data Protection Commissioner, Case C-362-14, European Court of Justice (October 6, 2015); Opinion 1-15 on Draft EU–Canada PNR Agreement, European Court of Justice (July 26, 2017); Google Spain v. Agencia Española de Protección de Datos (AEPD), Case C-131-12, European Court of Justice (May 13, 2014). C. Ryngaert and T. Mistale, “The GDPR as Global Data Protection Regulation?,” AJIL Unbound 114 (2020): 5–9.

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Google, Inc., in California. He also brought a complaint to the Agencia Española de Protección de Datos (AEPD), the Spanish Data Protection Agency, asking them to weigh in on the matter as well. When Google Spain and Google, Inc. brought the case before the National High Court of Spain, that court deferred to the CJEU for an interpretation. The CJEU ruled that Google Spain and Google, Inc. were to be treated as a single entity, and generally upheld the right of an EU citizen to be “forgotten” online. In a press release, the Court explained the ruling further: . . . The Court holds, in this regard, that where such data are processed for the purposes of a search engine operated by an undertaking which, although it has its seat in a non-member State, has an establishment in a Member State, the processing is carried out “in the context of the activities” of that establishment, within the meaning of the directive, if the establishment is intended to promote and sell, in the Member State in question, advertising space offered by the search engine in order to make the service offered by the engine profitable. So far as concerns, next, the extent of the responsibility of the operator of the search engine, the Court holds that the operator is, in certain circumstances, obliged to remove links to web pages that are published by third parties and contain information relating to a person from the list of results displayed following a search made on the basis of that person’s name. The Court makes it clear that such an obligation may also exist in a case where that name or information is not erased beforehand or simultaneously from those web pages, and even, as the case may be, when its publication in itself on those pages is lawful . . . However, inasmuch as the removal of links from the list of results could, depending on the information at issue, have effects upon the legitimate interest of internet users potentially interested in having access to that information, the Court holds that a fair balance should be sought in particular between that interest and the data subject’s fundamental rights, in particular the right to privacy and the right to protection of personal data. The Court observes in this regard that, whilst it is true that the data subject’s rights also override, as a general rule, that interest of internet users, this balance may however depend, in specific cases, on the nature of the information in question and its sensitivity for the data subject’s private life and on the interest of the public in having that information, an interest which may vary, in particular, according to the role played by the data subject in public life.36

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Court of Justice of the European Union, Press Release 70/14, Judgment in Case C-131/12 Google Spain SL, Google Inc. v. Agencia Española de Protección de Datos, Mario Costeja González, https://curia.europa.eu/jcms/upload/docs/application/pdf/2014-05/cp140070en .pdf accessed May 19, 2022.

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The CJEU thus agreed with Mr. Gonzalez, and established a balancing test between the right to information for all users and the right to the protection and privacy of one’s personal data. If the user’s right to personal data protection outweighs the public interest in viewing or using that information, then a request to remove (de-list or de-reference) the data should be honored. But how far does this right extend? In Mr. Gonzalez’s case, he was a citizen of Spain making a request of a Google subsidiary also located in Spain – the GDPR and EU rules more generally obviously applied. In later cases, the issue of the territorial scope of the GDPR was called into question. In 2015, the Commission nationale de l’informatique et des libertés (CNIL), the French data protection authority, informed Google, Inc., that when there is a request to de-list a search result, that de-listing must be global: the information must be “forgotten” everywhere it appears, not just in EU member states where the GDPR applies. Google did not comply, and instead offered another solution: it could block EU users from accessing information that was de-listed in the EU. CNIL was not satisfied with this solution, and imposed a €100,000 fine on Google, who then appealed to the Conseil d’Etat, who referred the case to the CJEU for interpretation, as in the above Spanish case. The CJEU was asked to decide whether or not the request to de-reference a search result was a global request: was Google required to eliminate the reference for all online searches, no matter where they originated? Or was it sufficient for a search engine like Google simply to use a “geo-blocking” technique, whereby it could block a user’s ability to see search results based on the user’s Internet Protocol (IP) address? Part of the Court’s ruling is reprinted below.

GOOGLE, LLC V. COMMISION NATIONALE DE I’INFORMATIQUE ET DES LIBERTÉS (CNIL) Court of Justice of the European Union, Case C-507/17, September 24, 2019. The internet is a global network without borders and search engines render the information and links contained in a list of results displayed following a search conducted on the basis of an individual’s name ubiquitous (see, to that effect, judgments of 13 May 2014, Google Spain and Google, C‑131/12, EU:C:2014:317, paragraph 80, and of 17 October 2017, Bolagsupplysningen and Ilsjan, C‑194/16, EU:C:2017:766, paragraph 48). In a globalised world, internet users’ access – including those outside the Union – to the referencing of a link referring to information regarding a

1 Understanding Extraterritorial Jurisdiction

GOOGLE, LLC V. COMMISION NATIONALE DE I’INFORMATIQUE ET DES LIBERTÉS (CNIL) (cont.) person whose centre of interests is situated in the Union is thus likely to have immediate and substantial effects on that person within the Union itself. Such considerations are such as to justify the existence of a competence on the part of the EU legislature to lay down the obligation, for a search engine operator, to carry out, when granting a request for de-referencing made by such a person, a de-referencing on all the versions of its search engine. That being said, it should be emphasised that numerous third States do not recognise the right to de-referencing or have a different approach to that right. Moreover, the right to the protection of personal data is not an absolute right, but must be considered in relation to its function in society and be balanced against other fundamental rights, in accordance with the principle of proportionality (see, to that effect, judgment of 9 November 2010, Volker und Markus Schecke and Eifert, C‑92/09 and C‑93/09, EU:C:2010:662, paragraph 48, and Opinion 1/15 (EU-Canada PNR Agreement) of 26 July 2017, EU:C:2017:592, point 136). Furthermore, the balance between the right to privacy and the protection of personal data, on the one hand, and the freedom of information of internet users, on the other, is likely to vary significantly around the world. While the EU legislature has, in Article 17(3)(a) of Regulation 2016/679, struck a balance between that right and that freedom so far as the Union is concerned (see, to that effect, today’s judgment, GC and Others (Dereferencing of sensitive data), C‑136/17, paragraph 59), it must be found that, by contrast, it has not, to date, struck such a balance as regards the scope of a de-referencing outside the Union. In particular, it is in no way apparent from the wording of Article 12(b) and subparagraph (a) of the first paragraph of Article 14 of Directive 95/46 or Article 17 of Regulation 2016/679 that the EU legislature would, for the purposes of ensuring that the objective referred to in paragraph 54 above is met, have chosen to confer a scope on the rights enshrined in those provisions which would go beyond the territory of the Member States and that it would have intended to impose on an operator which, like Google, falls within the scope of that directive or that regulation a de-referencing obligation which also concerns the national versions of its search engine that do not correspond to the Member States.

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GOOGLE, LLC V. COMMISION NATIONALE DE I’INFORMATIQUE ET DES LIBERTÉS (CNIL) (cont.) Moreover, although Regulation 2016/679 provides the supervisory authorities of the Member States, in Articles 56 and 60 to 66 thereof, with the instruments and mechanisms enabling them, where appropriate, to cooperate in order to come to a joint decision based on weighing a data subject’s right to privacy and the protection of personal data concerning him or her against the interest of the public in various Member States in having access to information, it must be found that EU law does not currently provide for such cooperation instruments and mechanisms as regards the scope of a de-referencing outside the Union. It follows that, currently, there is no obligation under EU law, for a search engine operator who grants a request for de-referencing made by a data subject, as the case may be, following an injunction from a supervisory or judicial authority of a Member State, to carry out such a de-referencing on all the versions of its search engine. Having regard to all of the foregoing, a search engine operator cannot be required, under Article 12(b) and subparagraph (a) of the first paragraph of Article 14 of Directive 95/46 and Article 17(1) of Regulation 2016/679, to carry out a de-referencing on all the versions of its search engine . . .

While this ruling seems to restrict the extraterritorial impact of the GDPR, Samonte notes that the CJEU may have opened another door when it closed this one. She points to one of the final paragraphs of the ruling, which states as follows: Lastly, it should be emphasised that, while . . . EU law does not currently require that the de-referencing granted concern all versions of the search engine in question, it also does not prohibit such a practice. Accordingly, a supervisory or judicial authority of a Member State remains competent to weigh up, in the light of national standards of protection of fundamental rights, a data subject’s right to privacy and the protection of personal data concerning him or her, on the one hand, and the right to freedom of information, on the other, and, after weighing those rights against each other, to order, where appropriate, the operator of that search engine to carry out a de-referencing concerning all versions of that search engine.37

37

Google, Inc. v. CNIL, Case C-507/17, paragraph 72. References omitted.

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This paragraph tempers Google’s victory in this case. While the law currently does not require global de-referencing, the CJEU seems open to the possibility that it could change if and when a national data protection authority wishes to press it. “Thus, beyond setting the limits on the territorial scope of the right to be forgotten,” Samonte writes, “the legal significance of the Court’s ruling is also found on what it will do to reinforce the GDPR’s role in setting data protection standards as a floor, not a ceiling, which has potential implications for companies worldwide.”38 There is little doubt that this ruling is not the last time the GDPR’s extraterritoriality will be challenged and, likely, expanded.

2 Extradition Earlier in this chapter we presented the five jurisdictional bases for prosecuting individuals engaged in international criminal activity. The theoretical availability of jurisdiction is pointless, however, if the alleged criminal is not present. Some states try criminals in absentia under their internal laws, as demonstrated in the French murder case above. This is not very satisfying, however, if the state cannot enforce its judgment because the convicted criminal is absent. While there is no global extradition treaty, there are hundreds of bilateral treaties listing mutually agreeable conditions for the surrender of accused or convicted criminals to stand trial in the requesting state. An extradition request by State X asks State Y to turn over an individual located in State Y who has committed a crime which violated the laws of State X. State X normally seeks extradition of the individual via diplomatic channels. If State Y agrees to X’s request, then Y surrenders the accused to X authorities. Formal extradition treaties are usually necessary because extradition is not automatic. A state may, of course, decide to extradite an individual to a requesting country although there is no applicable treaty. Significantly, there is no duty to surrender an individual to another state. As articulated by the US Supreme Court: in the absence of a conventional or legislative provision, there is no authority vested in any department of the government to seize a fugitive criminal and

38

M. Samonte, “Google v CNIL Case C-507/17: The Territorial Scope of the Right to be Forgotten under EU Law,” European Law Blogs (2019) https://europeanlawblog.eu/2019/10/ 29/google-v-cnil-case-c-507-17-the-territorial-scope-of-the-right-to-be-forgotten-undereu-law/ accessed May 19, 2022.

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5 Extraterritorial Jurisdiction surrender him to a foreign power. . . . There is no executive discretion to surrender him to a foreign government, unless that discretion is granted by law. It necessarily follows that as the legal authority does not exist save as it is given by act of Congress or by the terms of a treaty, it is not enough that statute or treaty does not deny the power to surrender. It must be found that [some] statute or treaty confers the power.39

When granted, extradition overcomes a major jurisdictional limitation closely linked to state sovereignty. Extradition allows states to accomplish indirectly what they cannot do directly. For example, Austria’s police agents cannot enter Germany to apprehend a criminal. Austria’s desire to prosecute that criminal is met, however, should Germany grant Austria’s extradition request. Extradition circumvents the limitation that Austria’s territorial jurisdiction cannot extend beyond its borders into Germany. Extradition also accomplishes the broader objective of facilitating international assistance in the apprehension of criminals. The British jurist Lord Russell stated in a classic case that “the law of extradition is . . . founded upon the broad principle that it is in the interest of civilised communities that crimes . . . should not go unpunished, and it is a part of the comity of nations that one State should afford to another every assistance towards bringing persons guilty of such crimes to justice.”40 The state that honors a request for extradition today may want the requesting nation to return that favor tomorrow. Extradition treaties typically list a mutually acceptable schedule of offenses that are subject to extradition. The crimes are usually major offenses against the laws of both parties to the treaty. For example, Article II of the 1978 Treaty on Extradition Between the United States of America and Japan provides as follows: Extradition shall be granted in accordance with the provisions of this Treaty for any offense listed in the Schedule annexed to this Treaty . . . when such an offense is punishable by the laws of both Contracting Parties by death, by life imprisonment, or by deprivation of liberty for a period of more than one year; or for any other offense when such offense is punishable by the federal laws of the United States and by the laws of Japan by death, by life imprisonment, or by deprivation of liberty for a period of more than one year.41

39 40 41

Valentine v. United States ex rel. Neidecker, 299 U.S. Rep. 5, 9, (1936). Re: Arton, 1 Queen’s Bench 108, 111 (1896). 31 U.S. Treaties 892 (1979); US Treaties and Other International Agreements Series, No. 9625 (1980).

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The extraditable offenses in this treaty include murder, kidnapping, rape, bigamy, robbery, inciting riots, piracy, drug law violations, bribery, evasion of taxes, unfair business transactions, and violations of export/import laws. Some countries prohibit or greatly limit extradition. There are, for example, several countries that do not have extradition treaties with the US, including Russia and many African and Middle Eastern countries. A related limitation is that, even when States X and Y have entered into an extradition treaty, the criminal may find a safe haven in State Z if it is not a party to the X–Y treaty. Perhaps the most universally studied extradition limitation case was decided by the European Court of Human Rights in 1989. A German national was accused of two murders in the US while a student at the University of Virginia. He fled and was subsequently arrested and detained in an English prison, pending extradition to the US, pursuant to the US–United Kingdom (UK) extradition treaty. A court in Bonn, Germany issued a warrant for the defendant’s arrest, regarding the Virginia murders. Germany – simultaneously with the US – requested his extradition from the UK to Germany under the US–UK extradition treaty. The essential problem was that the death penalty had been abolished in both Germany and the UK, but not the US. Both countries feared that his extradition to the US could result in imposition of the death penalty in the US.

SOERING V. UNITED KINGDOM European Court of Human Rights, 1/1989/161/217, July 7, 1989 [Excerpted case available at www.cambridge.org/FPIL7]

Interestingly, there may be an internationally derived duty to surrender a fugitive for trial, which does not depend on a bilateral treaty as a legal basis for seeking extradition. A classic instance involves two Libyan intelligence officers who were indicted by the UK and the US for their alleged role in the 1988 terrorist bombing of Pan Am Flight 103. The plane exploded over Lockerbie, Scotland, claiming the lives of 270 people.42 Libya refused to surrender them for trial, though several UN Security Council resolutions demanded their release. Ultimately, negotiations with Libya resulted in their being extradited to the Netherlands to stand trial before three Scottish judges. In the interim, Libya countered with a lawsuit in the International Court of

42

R. Wallis, Lockerbie: The Story and the Lessons (Westport, CT: Preager, 2001).

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Justice (ICJ), claiming that the UK and US violated an air treaty to which all three (and most states of the world) are parties. Libya claimed that it complied with this treaty. The UK and US allegedly violated that treaty because a state in whose territory an offender is found has the obligation to try or extradite such individuals. Having submitted them to prosecution in Libya, there was supposedly no further Libyan obligation to extradite. Because of massive international pressure, Libya nevertheless surrendered them for trial abroad.43 States do not always depend on extradition treaties when seeking to prosecute certain individuals. They may expel or deport wanted individuals without going through a formal extradition process, regardless of whether there is an applicable extradition treaty.44 States have also resorted to kidnapping.45 In one of the most internationally criticized cases ever decided by a national tribunal, the US Supreme Court reasoned that the absence of an express provision in a US–Mexico extradition treaty, which would have barred international kidnapping, did not deprive the US courts of the jurisdiction to try a kidnapped defendant. In 1985, a US Drug Enforcement Administration (DEA) agent, Enrique Camerena, was brutally tortured for many hours in Mexico. A Mexican doctor reportedly kept him alive so that Mexican drug lords could torture him. This was one of the most sadistic murders in recorded history, and the first death of a US drug agent on Mexican soil. Although there were earlier denials, the US president conceded that a “system of rewards,” specifically, a $50,000 bounty, was established to ensure the capture of the doctor who allegedly kept Camerena alive to be tortured. A Mexican policeman was supposed to deliver this doctor to US authorities, but this arrangement fell through. Dr. Alvarez-Machain was then released from a Mexican jail. A private team of current and former US police officers assisted some Mexican nationals with the kidnapping of this doctor from his office in Guadalajara, Mexico. He then “appeared” in a Los Angeles federal court to face criminal charges related to the Camerena murder. The Mexican government protested, demanding that Dr. Humberto Alvarez

43

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See “Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom),” International Court of Justice (1998), available at: www.icj-cij.org/en/case/89/judgments accessed May 19, 2022. A. Evans, “Acquisition of Custody over the International Fugitive Offender–Alternatives to Extradition: A Survey of United States Practice,” British Yearbook of International Law 40 (1964): 77. M. Glennon, “State Sponsored Abduction: A Comment on United States v. AlvarezMachain,” American Journal of International Law 86 (1992): 746.

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Machain be released because of what it characterized as a violation of the general principle of international law prohibiting violations of territorial sovereignty. Relevant portions of the Court’s decision are below.

UNITED STATES V. HUMBERTO ALVAREZ-MACHAIN Supreme Court of the United States, 504 U.S. 655 (1992) NOTE: The defendant’s lawyers defended him on several grounds, including the procedural argument that the way by which he appeared before the court was so outrageous that the US courts did not have jurisdiction to hold him for trial. Since the nineteenth century, the US courts had ruled that an individual criminal defendant may not obtain a dismissal, based on how he or she was brought before the court – with the modern exception of conduct “shocking the conscience” of the court. In this instance, it was argued that the case against the doctor should be dismissed, because the manner of obtaining his presence for trial in the US violated the basic tenets of “due process of law.” The US Government did not dispute the facts of this kidnapping. The trial judge in Los Angeles dismissed this case against the doctor, because of the “shocking” conduct of the US agents in violation of the laws of Mexico and the 1980 extradition treaty between the US and Mexico. In the words of the trial judge: “This court lacks jurisdiction to try this defendant.” The intermediate Court of Appeals affirmed this dismissal – holding that the proper remedy was to release this Mexican national from US custody so that he could return to Mexico. The majority of the US Supreme Court judges reversed, as follows: COURT’S OPINION: The Chief Justice delivered the opinion of the Court. The issue in this case is whether a criminal defendant, abducted to the United States from a nation with which it has an extradition treaty, thereby acquires a defense to the jurisdiction of this country’s courts. We hold that he does not, and that he may be tried in federal district court for violations of the criminal law of the United States. . . . Respondent moved to dismiss the indictment, claiming that his abduction constituted outrageous governmental conduct, and that the District Court lacked jurisdiction to try him because he was abducted in violation of the extradition treaty between the United States and Mexico . . . In the instant case, the Court of Appeals affirmed the district [trial] court’s finding that the United States had authorized the abduction of respondent,

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UNITED STATES V. HUMBERTO ALVAREZMACHAIN (cont.) and that letters from the Mexican government to the United States government served as an official protest of the Treaty violation. Therefore, the Court of Appeals ordered that the indictment against respondent be dismissed and that respondent be repatriated to Mexico. We granted certiorari, and now reverse [for purposes of authorizing further proceedings in the US]. . . . In Ker v. Illinois, . . . [this court held] in line with “the highest authorities” that “such forcible abduction is no sufficient reason why the party should not answer when brought within the jurisdiction of the court which has the right to try him for such an offence, and presents no valid objection to his trial in such court. . . .” The only differences between Ker and the present case are that Ker was decided on the premise that there was no governmental involvement in the abduction; and Peru, from which Ker was abducted, did not object to his prosecution. . . . Therefore, our first inquiry must be whether the abduction of respondent from Mexico violated the extradition treaty between the United States and Mexico. If we conclude that the Treaty does not prohibit respondent’s abduction, the rule in Ker applies, and the court need not inquire as to how respondent came before it. In construing a treaty, as in construing a statute, we first look to its terms to determine its meaning. The Treaty says nothing about the obligations of the United States and Mexico to refrain from forcible abductions of people from the territory of the other nation, or the consequences under the Treaty if such an abduction occurs. More critical to respondent’s argument is Article 9 of the Treaty which provides: “1. Neither Contracting Party shall be bound to deliver up its own nationals, but the executive authority of the requested Party shall, if not prevented by the laws of that Party, have the power to deliver them up if, in its discretion, it be deemed proper to do so.” “2. If extradition is not granted pursuant to paragraph 1 of this Article, the requested Party shall submit the case to its competent authorities for the purpose of prosecution, provided that Party has jurisdiction over the offense. . . .” [But] Article 9 does not purport to specify the only way in which one country may gain custody of a national of the other country for the purposes of prosecution. . . .

2 Extradition

UNITED STATES V. HUMBERTO ALVAREZMACHAIN (cont.) The history of negotiation and practice under the Treaty also fails to show that abductions outside of the Treaty constitute a violation of the Treaty. As the [US] Solicitor General notes, the Mexican government was made aware, as early as 1906, of the Ker doctrine, and the United States’ position that it applied to forcible abductions made outside of the terms of the United States–Mexico extradition treaty. Nonetheless, the current version of the Treaty, signed in 1978, does not attempt to establish a rule that would in any way curtail the effect of Ker. Moreover, although language which would grant individuals exactly the right sought by respondent [Doctor Alvarez] had been considered and drafted as early as 1935 by a prominent group of legal scholars sponsored by the faculty of Harvard Law School, no such clause appears in the current Treaty. The language of the Treaty, in the context of its history, does not support the proposition that the Treaty prohibits abductions outside of its terms. The remaining question, therefore, is whether the Treaty should be interpreted so as to include an implied term prohibiting prosecution where the defendant’s presence is obtained by means other than those established by the Treaty. Respondent contends that the Treaty must be interpreted against the backdrop of customary international law, and that international abductions are “so clearly prohibited in international law” that there was no reason to include such a clause in the Treaty itself. The international censure of international abductions is further evidenced, according to respondent [doctor], by the United Nations Charter and the Charter of the Organization of American States. Respondent does not argue that these sources of international law provide an independent basis for the right respondent asserts not to be tried in the United States, but rather that they should inform the interpretation of the Treaty terms . . . In sum, to infer from this Treaty and its terms that it prohibits all means of gaining the presence of an individual outside of its terms goes beyond established precedent and practice . . . [and] to imply from the terms of this Treaty that it prohibits obtaining the presence of an individual by means outside of the procedures the Treaty establishes requires a much larger inferential leap, with only the most general of international law principles to support it. The general principles cited by respondent simply fail to

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UNITED STATES V. HUMBERTO ALVAREZMACHAIN (cont.) persuade us that we should imply in the United States–Mexico Extradition Treaty a term prohibiting international abductions. Respondent [Alvarez] . . . may be correct that respondent’s abduction was “shocking,” and that it may be in violation of general international law principles. Mexico has protested the abduction of respondent through diplomatic notes, and the decision of whether respondent should be returned to Mexico, as a matter outside of the Treaty, is a matter for the Executive Branch. We conclude, however, that respondent’s abduction was not in violation of the Extradition Treaty between the United States and Mexico, and therefore the rule of Ker v. Illinois is fully applicable to this case. The fact of respondent’s forcible abduction does not therefore prohibit his trial in a court in the United States for violations of the criminal laws of the United States. The judgment of the Court of Appeals is therefore reversed, and the case is remanded for further proceedings consistent with this opinion.

In the following year, Dr. Alvarez-Machain, who was released for lack of evidence, filed a $20 million lawsuit against the US. It included allegations of torture by US agents related to the abduction. This civil case successfully asserted that state-sponsored abduction in another country violated the international laws regarding the preservation of sovereignty, as well as the international human rights norms protecting the plaintiff. His claim was permitted to proceed against the named individual Mexican defendant involved in the abduction (aided by five unnamed Mexican nationals currently in the US federal witness protection program). But the other co-defendant, the US, was initially dismissed from this case (by the trial court) on the grounds that the Federal Torts Claims Act did not apply to the DEA’s conduct in Mexico. The federal appellate court reversed, thus reinserting the US back into this case. The DEA was then required to defend its conduct, which allegedly infringed upon various fundamental rights. In June 2004, the US Supreme Court – after the US had been dismissed – determined the remaining portion of this case involving the Mexican policeman who allegedly arranged the doctor’s kidnapping. That case, Sosa v. Alvarez-Machain,46 held that the Mexican defendant’s actions did not violate international law.

46

Sosa v. Alvarez-Machain, 542 U.S. 692 (2004).

2 Extradition

2.1

Refusal to Extradite

States do not always honor valid requests for extradition, most often due to human rights concerns. Consider the situation of Julian Assange, founder of Wikileaks, who has been charged in the US with conspiring to hack government computers and violating the US Espionage Act when he released sensitive, classified US government documents in 2010 and 2011. Assange initially took refuge at the Ecuadorian embassy in London in 2012, claiming that he was being politically persecuted. Ecuador granted him asylum, though it withdrew its protections in 2019. Since then, he has been held in the UK. In early 2021, the US requested his extradition, but that request was denied. The judge in the case ruled that, while the US fulfilled the requirements of its extradition treaty with the UK, it would not extradite him to the US. British District Judge Vanessa Baraitser reasoned that, “[f]aced with the conditions of near total isolation without the protective factors which limited his risk at [Her Majesty’s Prison] Belmarsh, I am satisfied the procedures described by the US will not prevent Mr Assange from finding a way to commit suicide and for this reason I have decided extradition would be oppressive by reason of mental harm and I order his discharge.”47 The US appealed this decision, and after assurances from the Biden Administration that Assange would have access to mental health resources in a US prison, the UK agreed to the extradition.48 The Assange case dovetails nicely with another reason states can refuse extradition: the “political offense” exception. Extradition treaties typically include this form of escape clause. The requested state has an opportunity to deny extradition on political grounds when extradition would otherwise be required. Political offenses include such crimes as treason, sedition, and espionage, but may also include other crimes (e.g., murder) if those crimes are related to acts such as civil wars or rebellions. As Rivera explains, the political offense exceptions has three main justifications: “(1) the belief that people have a right to resort to political activism to cause political change; (2) the concern that fugitives of political crimes would be subjected to unfair trials because of their political ideas, should they be returned to their countries; and (3) the understanding that governments should not intervene with the ‘internal political struggles of other nations.’”49 47

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“Julian Assange: UK Judge Blocks Extradition of Wikileaks Founder to US,” BBC News (January 4, 2021) www.bbc.com/news/uk-55528241 accessed May 19, 2022. M. Specia and C. Savage, “UK Court Rules Julian Assange Can Be Extradited to US,” New York Times (December 10, 2021) www.nytimes.com/2021/12/10/world/europe/uk-julianassange-extradition.html accessed May 19, 2022. A. Rivera, “Interpreting Extradition Treaties,” University of Dayton Law Review 43, No. 2 (2018): 211.

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After Assange’s extradition to the US was refused, many praised the British decision because it indicated a reluctance of British courts to assist with a case against Assange that appeared politically motivated. The indictment against Assange alleges that, although the main charge is computer hacking, it was in furtherance of a political goal: espionage, in the form of finding and later revealing classified data, in clear violation of the 1917 Espionage Act. That act “bans the publication of government secrets and offers no explicit protections to the press under the amendment guaranteeing freedom of speech.”50 But critics of the US position say that Assange is being persecuted for his work as a journalist, and that his freedom of speech has been abrogated. If Assange were to be tried in the US and found guilty, it could have a chilling effect on journalists everywhere. One may question whether or not terrorists, who seek to make a political statement through violence, fall under the political offense exception to extradition. The 1977 European Convention on the Suppression of Terrorism’s first article contains a list of offenses for which extradition may not be denied under the political offense doctrine.51 These include crimes under the multilateral treaties governing aircraft, crimes against diplomats, the taking of hostages, and bombing of civilians – in other words, terrorist activities. The 1998 UN Convention for the Suppression of Terrorist Bombings was the first global treaty to specifically prohibit a party from allowing this defense to extradition.52

3 Rendition A rendition is the act of surrendering an individual to a foreign government in the absence of any treaty. The contrast between extradition and rendition is vivid. Extradition is an open procedure under which a fugitive is lawfully sent to a requesting state where he has committed a serious crime. Rendition is a covert operation under which even an innocent person may be forcibly transferred to a state where he has committed no crime. The rendered individual is deprived of the benefits of access to counsel and a hearing.

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J. Borger, “Indicting a Journalist? What the New Charges against Julian Assange Mean for Free Speech,” The Guardian, May 23, 2019, www.theguardian.com/media/2019/may/23/ julian-assange-indicted-what-charges-mean-for-free-speech accessed May 19, 2022. European Convention on the Suppression of Terrorism, www.coe.int/en/web/conventions/ full-list/-/conventions/rms/09000016800771b2 accessed May 19, 2022. Article 5, reprinted in 37 International Legal Materials 249 (1998). Full text available at: https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-9&chapter= 18&clang=_en accessed May 19, 2022.

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The US has been engaged in this practice since at least the terrorist attacks on September 11, 2001, rendering suspected terrorists to foreign governments – mostly in the Islamic world – for detention and interrogation. Rendered individuals often cannot be lawfully extradited because they have committed no crime in the state to which they are rendered. Sometimes, the friendly government does not know the identity or activities of the person prior to rendition – especially when the individual is not a national of the receiving state to which he is rendered. But as Cordell argues, the US could not undertake rendition alone; it needed the cooperation of friendly foreign governments. She writes: “While some states hosted CIA secret detention sites, others carried out the arrest, capture, detention and interrogation of detainees on behalf of the CIA, shared intelligence during detainee interrogations, and provided staging posts for rendition flights to rest, refuel and regroup at their airports.” Surprisingly, Cordell’s research indicates that even developed democracies often assisted with rendition efforts, as they had similar security interests and were willing to risk threats to civil liberties to protect those interests.53 Rendition is wholly inconsistent with international human rights protections but has nonetheless been protected in national courts under the “state secrets” privilege. In one of the most famous (and infamous) cases of rendition by the US, Khaled El-Masri, a German citizen of Lebanese descent, alleged that he was illegally detained as part of the Central Intelligence Agency’s (CIA) extraordinary rendition program. While traveling in Macedonia in December 2003, El-Masri was detained by Macedonian lawenforcement officials, who accused him of being a member of the terrorist group Al-Qaeda without formally charging him. While in Macedonian custody, he was not allowed access to a lawyer, to the German consulate, or even to see his wife.54 Three weeks later, he was handed over to US CIA operatives. They flew him to a CIA detention facility near Kabul, Afghanistan. There, he was held until May 2004, and during the time he was there he was violently interrogated, beaten, and subjected to degrading treatment. He was then transported to Albania and released in a remote area. Albanian officials then picked him up and took him to an airport in Tirana, Albania – from which he traveled to his home in Germany. German prosecutors in Munich obtained warrants for the arrest of the thirteen CIA agents involved.

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R. Cordell, “Security-Civil Liberties Trade-offs: International Cooperation in Extraordinary Rendition,” International Interactions 45, No. 2 (2019): 369–400. El-Masri v. Macedonia, European Court of Human Rights, Article 3 (2012) www .justiceinitiative.org/litigation/el-masri-v-macedonia accessed May 19, 2022.

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El-Masri filed a constitutionally based claim against the former Director of the CIA, George Tenet (and others). The complaint asserted that El-Masri had not only been held against his will, but that he had also been mistreated in a number of other ways during his detention.55 These included being beaten, drugged, bound, and blindfolded during transport; confined in a small, unsanitary cell; interrogated several times; and consistently prevented from communicating with anyone outside the detention facility, including his family or the German government.56 A US federal judge in Virginia granted the US government’s motion to intervene and then granted its motion to dismiss – on state secret grounds. Under the state secrets privilege, the US government may prevent the disclosure of information in a judicial proceeding if there is a “reasonable danger” that such disclosure “will expose military matters which, in the interest of national security, should not be divulged.” Per the US Supreme Court’s leading decision on this privilege (United States v. Reynolds [1953]), an Air Force bomber crashed during testing of secret electronic equipment. The widows of the three civilian observers on that flight sued the US under the Federal Tort Claims Act. They sought discovery of certain Air Force documents relating to the crash. The Air Force refused to disclose the documents. It filed a formal Claim of Privilege, contending that the plane had been on a highly secret mission of the Air Force. Disclosure of the requested materials would “seriously hamper national security, flying safety and the development of highly technical and secret military equipment.”57 Khaled El-Masri’s case was wholly dismissed because of the fear of exposing other state secrets. In this way, the US has likely escaped accountability for El-Masri’s suffering.58 Rendition is not merely a practice reserved for large, powerful states, however. Those familiar with the film Hotel Rwanda – which tells the story of Paul Rusesabagina, the proprietor of the Hotel des Mille Collines, who sheltered Rwandan Tutsis threatened with murder by the Hutus during the 1994 Rwandan genocide – may be interested to know that Mr. Rusesabagina and other Rwandans have been monitored by the Rwandan government even though they no longer reside in the tiny central African country. Long-time Rwandan president Paul Kagame, who has served in that capacity since the 55 56

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El-Masri v. United States, 479 F.3d 296 (4th Cir. 2007). El-Masri v. Macedonia, European Court of Human Rights, Article 13 (2012) www .justiceinitiative.org/litigation/el-masri-v-macedonia accessed May 19, 2022. United States v. Reynolds, 345 U.S. 1, 10 (1953). ACLU, “El-Masri v. Tenet: Background on the State Secrets Privilege,” ACLU (2018) www .aclu.org/other/el-masri-v-tenet-background-state-secrets-privilege accessed May 19, 2022.

Thinking Ahead

genocide, has fought to maintain his own version of the events before, during, and after the genocide. He has sought to ensure that he remains the unchallenged savior of Rwanda, despite the fact that there are serious allegations that he himself is implicated in mass killings. But “Kagame’s government strictly controls who conducts research in the country, barring many of those it deems unsympathetic . . . challenging Kagame’s heroism in Rwanda today is treated as an act of treason . . . ,” writes Sundaram.59 For Rwandans like Rusesabagina, this has meant being subject to rendition. Rusesabagina left Rwanda shortly after the genocide, in 1996, after surviving an assassination attempt. He first moved to Belgium, but fears for his safety forced him to move again, this time to the US in 2009. While outside Rwanda, he became president of the Rwanda Movement for Democratic Change, a group that opposes Kagame’s rule. In August 2020, “he was rendered from Dubai to Kigali [Rwanda], where he is still being held despite an international outcry.”60 He does not have access to his chosen defense attorney and the process seems rigged against him, as it has been for many Kagame critics who have been rendered before him. “Kagame accuses him of terrorism,” notes Sundaram, “and . . . his government will no doubt produce evidence that is unverifiable and incontestable in Rwanda without serious personal risk.”61 Rusesabagina is merely the highest profile Rwandan who has been secreted out of exile for trials they are unlikely to win in the Rwandan repressive state.

Thinking Ahead How far can a state extend its own jurisdiction into the territory of other states? This chapter detailed the ways in which states can continue to exercise control over their citizens even when they are not on the physical territory of the state. The jurisdictional principles outlined in this chapter are crucial to understanding areas like human rights law, for example, as the opening paragraphs of this chapter on universal jurisdiction illustrate. Nebulous “territory” like the Internet is challenging our established notions of the limits of extraterritorial jurisdiction.

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A. Sundaram, “Rwanda’s Rendition of a Hollywood Hero Confirms the Country’s Descent into Dictatorship,” Foreign Policy (January 23, 2021). Freedom House, “Special Report 2021: Rwanda: Transnational Repression Case Study,” Freedom House (2021) https://freedomhouse.org/report/transnational-repression/rwanda accessed May 19, 2022. Sudaram, “Rwanda’s Rendition of a Hollywood Hero.”

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The practice of extradition is a clear example of how states attempt to reach into the territory of other states to achieve some goal, and an example of how relationships are managed by treaties. Rendition, on the other hand, is a darker version of how states attempt to get what they want in the absence of formal agreements and in violation of human rights law. The next chapter is devoted to yet another way in which states manage their own sovereignty: joining international organizations. Though we have already encountered several international organizations in this text thus far, the next chapter gives them definition and shape, and introduces several of the major organizations that will continue to make an appearance in the chapters that remain.

6

International Organizations

“National authorities report that all patients are isolated and receiving treatment in Wuhan [China] medical institutions. The clinical signs and symptoms are mainly fever, with a few patients having difficulty in breathing, and chest radiographs showing invasive lesions of both lungs.”1 This was the first message, issued on December 31, 2019, from the World Health Organization (WHO) about what would become a worldwide pandemic outbreak of SARS-CoV2, the coronavirus that would be more commonly known as COVID-19. COVID-19 shook the foundations of even the strongest Western liberal democracies, with the United States (US) taking the early lead in cases, deaths, and most inadequate government response. In the early days of the pandemic, the Trump White House consistently referred to COVID-19 as the “Wuhan virus” or the “China virus,” attempting to pin the blame for the raging infection rates around the world on the place where the outbreak began, and deflecting any responsibility for national mismanagement.2 As the virus continued to touch every country, leaving economic, social, medical, environmental, and political havoc in its wake, US president Trump announced that the US was leaving the WHO – the global body tasked with managing disease outbreaks. He accused the Chinese of spreading misleading information about the virus after it was discovered and asserted that the WHO was controlled by China and therefore not trustworthy.3 The US withdrawal from the WHO was not devastating (especially since it rejoined the organization under the administration of President Joe Biden

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World Health Organization, “Pneumonia of Unknown Cause – China,” World Health Organization, Disease Outbreak News, January 5, 2020, www.who.int/emergencies/diseaseoutbreak-news/item/2020-DON229 accessed May 18, 2022. J. Viala-Gaudefroy and D. Lindaman, “Donald Trump’s ‘Chinese Virus’ and the Politics of Naming,” The Conversation, April 21, 2020, https://theconversation.com/donald-trumpschinese-virus-the-politics-of-naming-136796 accessed May 19, 2022. P. Huang, “Trump Sets Date to End WHO Membership over its Handling of Virus,” Goats and Soda (blog), National Public Radio (July 7, 2020) www.npr.org/sections/goatsandsoda/2020/ 07/07/888186158/trump-sets-date-to-end-who-membership-over-its-handling-of-virus accessed May 19, 2022.

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just months later), but the damage to its reputation and misunderstandings about what it is authorized to do may hamper its future. Prior to the COVID-19 pandemic, the WHO had weathered criticism over its response to Ebola outbreaks in West and Central Africa, where critics suggested it had waited too long to declare Ebola an international public health emergency.4 A similar criticism has been leveled against the organization regarding COVID-19: it took a full month – until January 30, 2020, when there were already almost 8,000 cases and 179 deaths in mainland China – before the WHO would declare the coronavirus a Public Health Emergency of International Concern (PHEIC).5 But like all international organizations, the WHO cannot act independently of the states that created it and form its membership. Likewise, it has little control over those states when they fail to abide by the rules they themselves set up. For example, the WHO’s International Health Regulations (IHR) “provide the legal architecture outlining what governments must do to prevent, detect and respond to outbreaks of infectious disease: this includes sharing information about emerging pathogens with the WHO; implementing public health interventions to prevent disease transmission; and in the longer term developing capacity within health systems to be able to identify and respond to emerging disease threats.”6 But, as Wenham notes, states failed to follow the WHO’s guidance during the COVID-19 crisis. What good is the WHO – or any international organization, for that matter – when the very member states that created it flout its recommendations while also criticizing it for not doing more?

Introduction We have established the primacy of the state in international law, while also acknowledging that it is not the only actor that matters. This chapter provides a window into the world of international organizations and how they have emerged as major actors in international law. While they have legal personality that is independent of states, the fates of international organizations and states are inextricably linked. 4

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“Ebola Global Response was ‘Too Slow,’ Says Health Experts,” BBC News (November 23, 2015) www.bbc.com/news/health-34877787 accessed May 19, 2022. D. Durrheim, L. Gostin, and K. Moodley, “When Does a Major Outbreak Become a Public Health Emergency of International Concern?,” The Lancet 20, No. 8 (2020): 887–889. C. Wenham, “A Global Pandemic Treaty Won’t Work Until Leaders Realize the Benefits of Solidarity,” The Guardian, April 1, 2021, www.theguardian.com/commentisfree/2021/apr/ 01/global-pandemic-treaty-covid-disease-control accessed May 19, 2022.

1 Legal Status of International Organizations

The first section of this chapter establishes the legal personality of international organizations as distinct from states. We examine organizations’ legal capacity and their responsibilities vis-à-vis states, and also discuss the circumstances under which organizations can both claim and control their immunities from suit. We also provide a framework for classifying international organizations across different criteria. The bulk of the chapter, however, is devoted to exploring some of the major international organizations discussed in this book. Some organizations are explicitly intergovernmental, with their activities tightly circumscribed by their member states, while others are more supranational in character – the organization itself has authority beyond its member states. We begin with the United Nations (UN), an organization unparalleled in its membership and scope, and provide a brief outline of its evolution as the world’s major intergovernmental organization. Each of the major organs of the UN is examined. We conclude with a short assessment of the UN’s accomplishments in the over seventy years of its history. The UN is then contrasted with the European Union (EU), the world’s preeminent supranational regional organization. We provide a short history of the EU’s founding, and demonstrate how it has built an identity separate from the states that comprise it. As with the UN, we describe the EU’s major institutions and briefly note the challenges that it faces as it, too, approaches seventy years of existence. The last part of the chapter highlights several other international organizations of note, chosen because of their importance for either the previous chapters or the chapters that follow. The North Atlantic Treaty Organization (NATO) serves as an example of an organization based on collective security. The Organization of American States (OAS) and African Union (AU) are examples of regional organizations with very different capacities than their European counterpart. Finally, the WHO, profiled in the opening paragraphs of this chapter, is described in greater detail as an example of an organization that is under the umbrella of the UN.

1 Legal Status of International Organizations What is an international organization?7 It is a formal institution established by agreement of the members who created it. The common feature of most 7

A classic analysis of the terms “international” and “organization,” as well as the distinctions between those terms, is provided in “Definitions and History,” in C. Archer, International Organizations, 2nd ed. (London: Routledge, 1992), Ch. 1.

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international organizations is that their members all benefit from an organization working toward common objectives, and they operate in more than one country.8 In international law, we are primarily concerned with international organizations as associations of member states. In some international organizations member states are equal, while in others there is a hierarchy of more powerful members. Some international organizations demand a lot from their member states – funding, authority over aspects of national governance, and troops are just a few examples – while others demand very little other than participation and support. This chapter focuses on public international organizations consisting of state members as opposed to non-governmental international organizations like Amnesty International or Doctors Without Borders. To qualify as a public international organization, an entity must be: (1) established by some form of international agreement among states; (2) created as a new international legal entity that functions wholly or partially independent of state sovereign control; and (3) created under international law.9 We think of international organizations as largely intergovernmental – established by treaty with member states having considerable impact on the organization’s trajectory and overall influence. Large international organizations like the UN or EU are perfect examples of how international organizations are empowered and limited by their member states. As we will see, the UN privileges state sovereignty (all states are equal, no matter the size or their military, economy, or landmass) at the expense of organizational authority, while the EU makes greater demands on state sovereignty to accomplish more as an organization. To have international legal personality, the organization must also have the capacity to enjoy rights and incur obligations in its relations with member (or non-member) states. For example, the 1947 General Agreement on Tariffs and Trade (GATT) was essentially an international agreement about each state’s published tariffs, but there was no entity capable of requiring state compliance with GATT goals. This changed when the World Trade Organization (WTO) was established in 1995 and given the capacity by its member states to negotiate trade agreements and settle trade disputes. Although international organizations existed in some form prior to World War II, there is a striking parallel between the growth of states and international organizations since the close of World War II: it was a moment

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M. Karns and K. Mingst, “Nonstate Actors: NGOs, Networks, and Social Movements,” in M. Karns and K. Mingst, eds., International Organizations: The Politics of Global Governance (Boulder, CO: Rienner, 2004), 211. H. Schermers and N. Blokker, International Institutional Law, 4th rev. ed. (Leiden: Brill, 2003), §33, at 26 (elements covered in detail in §§32–47).

1 Legal Status of International Organizations

when states were more convinced than ever of the need for joint action to prevent war and forward human rights as well as other international issues. The number of states increased dramatically after World War II – there are now nearly 200 sovereign states – and there has been an equally spectacular growth in the number of international organizations, from several hundred to nearly 5,000, which raises questions about the value of such multiplication.10 When combined with the even more dramatic postwar increase in the number of non-governmental organizations (NGOs), organizations that are voluntary and whose members are individuals, the explosion in the number of organizations is impressive. The activities of these organizations are increasingly influential and has made them a crucial part of what is known as global governance. The concept of global governance includes not only actors like states and international organizations, but also the entire body of international law, norms, and other international entities like courts, conferences, transnational networks, and even global corporations. Essentially, global governance is the entire web of international structures, rules, and norms that governs international activities worldwide. Given their prominent role in global governance and their proliferation, international organizations form a significant part of this complex web. After the 1648 Treaty of Westphalia established our notion of the modern state system, the supremacy of state sovereignty precluded the existence of any other legal “person” on the international plane. This was the prevailing view until the early twentieth century. As Schermers and Blokker note, the early modern international organizations had no legal personality on the international level. One powerful state member would act on behalf of the organization. However: In the 20th century the notion of absolute [and exclusive] state sovereignty ha[d] become obsolete. There was more need for international organizations to operate independently on the international level, separate from the member states. . . . There was increasing recognition that international organizations required legal personality within the domestic legal order [of each member State]. . . . It took longer, however, for states to accept international organizations in their midst as international legal persons, in the inner circle of happy few bearers of international rights and obligations.11

Sometimes, the legal capacity of an international organization will be explicitly noted in the treaty that establishes it – the Treaty of Lisbon, for example, 10

11

M. Prost and P. Clark, “Unity, Diversity and the Fragmentation of International Law: How Much Does the Multiplication of International Organizations Really Matter?,” Chinese Journal of International Law 5, No. 2 (July 2006): 341. Schermers and Blokker, International Institutional Law, 987, §1563.

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specifically grants the EU legal personality in Article 4712 – or by an act of a legislature in which it primarily operates. But more often an international organization’s legal personality is inferred from the international actions that it undertakes.

1.1

Capacity and Immunity under International Law

The UN’s judicial organ, the International Court of Justice (ICJ), provided a novel and insightful analysis of an international organization’s legal capacity. It illustrates how intergovernmental organizations can function independently from the constitutive instruments that create them (as we shall soon see in the discussion of the EU). In November 1947, UN General Assembly Resolution 181(II) partitioned the former British Mandate of Palestine to create new Jewish and Arab states. This resolution was accepted by the Jewish Diaspora, but rejected by Middle East Arab states. Shortly after Israel declared its statehood in May 1948, hostilities began in and around what is now the state of Israel. Two weeks later, UN Security Council Resolution 50 called for a cessation of hostilities. A Swedish citizen and member of the royal family, Count Folke Bernadotte, was appointed the UN Mediator in Palestine for the purpose of negotiating a settlement. He was killed while pursuing this objective within the Palestinian territory. General Assembly Resolution 194(III) of December 1948 expressed a “deep appreciation of the progress achieved through the good offices of the late UN Mediator in promoting a peaceful adjustment of the future situation of Palestine, for which cause he sacrificed his life.”13 The issue for the ICJ was whether the UN Charter gave the UN, then a new and large international organizations, the legal capacity to demand reparations from the responsible state or states whose agents were responsible for killing employees of the UN organization.

REPARATION FOR INJURIES SUFFERED IN THE SERVICE OF THE UNITED NATIONS International Court of Justice, Advisory Opinion, 1949 ICJ Reports 174 NOTE: This is an ICJ “advisory” opinion. There is no state defendant. The UN requested that the Court render its opinion on the issue of whether the UN had a legal right – distinct from a member state – to sue for damages to

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“Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community,” Lisbon, December 13, 2007, in force December 1, 2009, 2702 UNTS 3. R. Lapidoth and M. Hirsch, eds., The Arab-Israeli Conflict and Its Resolution: Selected Documents (Dordrecht: Martinus Nijhoff, 1992), 71.

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REPARATION FOR INJURIES SUFFERED IN THE SERVICE OF THE UNITED NATIONS (cont.) the UN, in its capacity as an organization employing international civil servants. In addition to the death of the UN’s Mediator in Palestine, its agents from various countries were being injured or killed while performing duties on behalf of the organization. Prior to the Court’s decision in this case, only the victim’s state of citizenship had the exclusive right to seek reparations for harm to that state – because of the death of its citizen [§4.1]. In 1947, the UN claimed that there could be state responsibility, to an international organization, for injury to aliens (UN employees) allegedly caused by Israel, Jordan, and Egypt, where these individuals were working for the UN – in three separate incidents. The UN claimed that the responsible states failed to protect these individuals from private criminal acts. In the case of Israel, for example, two UN employees in Palestine were shot while driving through the Jewish portion of Jerusalem. The UN sought compensation from Israel for the loss of their lives. Its claim was brought for Israel’s “failure to exercise due diligence and to take all reasonable measures for the prevention of the assassination; liability of the government for actions committed by irregular forces in territory under the control of the Israel[i] authorities; and failure to take all measures required by international law and by the Security Council . . . to bring the culprits to justice.” Israel refused to pay any compensation, claiming that only the state of the victim’s nationality had the legal capacity to assert the state liability of Israel. The Court analyzed whether the alleged harm to the UN, in its legal capacity as an international organization, could be reconciled with – or supplant – the right to seek reparations by the state of the victim’s nationality. Put another way, if a Swedish citizen is killed while abroad, only Sweden could seek reparations from the responsible state, prior to creation of the UN. Could the UN Charter be read as furnishing the UN with the legal personality to sue in an international court, for wrongs done to the UN in its capacity as the employer of the deceased? COURT’S OPINION: The questions asked of the Court relate to the “capacity to bring an international claim;” accordingly, we must begin by defining what is meant by that capacity, and consider the characteristics of the Organization, so as to determine whether, in general, these characteristics do, or do not, include for the Organization a right to present an international claim [for injury to a UN agent].

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REPARATION FOR INJURIES SUFFERED IN THE SERVICE OF THE UNITED NATIONS (cont.) Competence to bring an international claim is, for those possessing it, the capacity to resort to the customary methods recognized by international law for the establishment, the presentation and the settlement of claims. Among these methods may be mentioned protest, request for an enquiry, negotiation, and request for submission to an arbitral tribunal or to the Court in so far as this may be authorized by the Statute [of the ICJ]. This capacity certainly belongs to the State; a State can bring an international claim against another State. Such a claim takes the form of a claim between two political entities [i.e., States], equal in law, similar in form, and both the direct subjects of international law. It is dealt with by means of negotiation, and cannot, in the present state of the law as to international jurisdiction, be submitted to a tribunal, except with the consent of the States concerned . . . But, in the international sphere, has the Organization such a nature as involves the capacity to bring an international claim? In order to answer this question, the Court must first enquire whether the Charter has given the Organization such a position that it possesses, in regard to its Members, rights which it is entitled to ask them to respect. In other words, does the Organization possess international personality? . . . The Charter has not been content to make the Organization created by it merely a centre “for harmonizing the actions of nations in the attainment of these common ends” (Article I, para. 4). It has equipped that centre with organs and has given it special tasks. It has defined the position of the Members in relation to the Organization by requiring them to give it every assistance in any action undertaken by it (Article 2, para. 5) and to accept and carry out the decisions of the Security Council; by authorizing the General Assembly to make recommendations to the Members; by giving the Organization legal capacity and privileges and immunities in the territory of each of its Members; and by providing for the conclusion of agreements between the Organization and its Members. Practice – in particular the conclusion of conventions to which the Organization is a party – has confirmed this character of the Organization, which occupies a position in certain respects in detachment from its Members, and which is under a duty to remind them, if need be, of certain obligations . . . The “Convention on the Privileges and Immunities of the United Nations” of 1946 creates rights

1 Legal Status of International Organizations

REPARATION FOR INJURIES SUFFERED IN THE SERVICE OF THE UNITED NATIONS (cont.) and duties between each of the signatories and the Organization (see, in particular, Section 35). It is difficult to see how such a convention could operate except upon the international plane and as between parties possessing international personality. In the opinion of the Court, the Organization was intended to exercise and enjoy, and is in fact exercising and enjoying, functions and rights which can only be explained on the basis of the possession of a large measure of international personality and the capacity to operate upon an international plane. It is at present the supreme type of international organization, and it could not carry out the intentions of its founders if it was devoid of international personality. It must be acknowledged that its Members, by entrusting certain functions to it, with the attendant duties and responsibilities, have clothed it with the competence required to enable those functions to be effectively discharged. Accordingly, the Court has come to the conclusion that the Organization is an international person. That is not the same thing as saying that it is a State, which it certainly is not, or that its legal personality and rights and duties are the same as those of a State. Still less is it the same thing as saying that it is a “super State,” whatever that expression may mean. It does not even imply that all its rights and duties must be upon the international plane, any more than all the rights and duties of a State must be upon that plane. What it does mean is that it is a subject of international law and capable of possessing international rights and duties, and that it has capacity to maintain its rights by bringing international claims. The next question is whether the sum of the international rights of the Organization comprises the right to bring the kind of international claim described in the Request for this Opinion. That is a[n international organization’s] claim against a State to obtain reparation in respect of the damage caused by the injury of an agent of the Organization in the course of the performance of his duties. Whereas a State possesses the totality of international rights and duties recognized by international law, the rights and duties of an entity such as the Organization must depend upon its purposes and functions as specified or implied in its constituent documents and developed in practice. The functions of the Organization are of such a character that they could not be effectively discharged if they involved the

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REPARATION FOR INJURIES SUFFERED IN THE SERVICE OF THE UNITED NATIONS (cont.) concurrent action, on the international plane, of fifty-eight or more Foreign Offices, and the Court concludes that the Members have endowed the Organization with capacity to bring international claims when necessitated by the discharge of its functions. Having regard to its purposes and functions already referred to, the Organization may find it necessary, and has in fact found it necessary, to entrust its agents with important missions to be performed in disturbed parts of the world. Many missions, from their very nature, involve the agents in unusual dangers to which ordinary persons are not exposed. For the same reason, the injuries suffered by its agents in these circumstances will sometimes have occurred in such a manner that their national State would not be justified in bringing a claim for reparation on the ground of diplomatic protection, or, at any rate, would not feel disposed to do so. Both to ensure the efficient and independent performance of these missions and to afford effective support to its agents, the Organization must provide them with adequate protection. The obligations entered into by States to enable the agents of the Organization to perform their duties are undertaken not in the interest of the agents, but in that of the Organization. When it claims redress for a breach of these obligations, the Organization is invoking its own right, the right that the obligations due to it should be respected . . . In claiming reparation based on the injury suffered by its agent, the Organization does not represent the agent, but is asserting its own right, the right to secure respect for undertakings entered into towards the Organization . . . The question of reconciling action [this right to sue that is claimed] by the Organization with the rights of a national State may arise in another way; that is to say, when the agent bears the nationality of the defendant State . . . The action of the Organization is in fact based not upon the nationality of the victim but upon his status as agent of the Organization. Therefore it does not matter whether or not the State to which the claim is addressed regards him as its own national, because the question of nationality is not pertinent to the admissibility of the claim . . .

Under Article 100 of the UN Charter, UN employees performing UN duties cannot “seek or receive instructions from any government or from any other authority external to the Organization.” The above UN agent – a citizen of

1 Legal Status of International Organizations

Sweden – was carrying out a mission on behalf of the organization. The Reparations Case suggested reasons for conferring the right to seek appropriate reparations, based on the injured individual’s organizational employment, even though the UN employee is presumably still entitled to similar protection by his or her home state. Why? There have been a number of incidents whereby the UN – or other international organizations such as the EU – might proceed with diplomatic negotiations or a lawsuit to establish state responsibility under the theory spawned by the ICJ’s Reparations Case. For example, Colonel William Higgins, an American Marine, was on assignment with a UN peacekeeping operation in Lebanon in 1989. He was kidnapped, interrogated, tortured, and brutally murdered by armed men who may have been affiliated with Hezbollah. His murder was videotaped by his captors, and his body was eventually found in Beirut. While Lebanon never claimed responsibility for his death, it is precisely in this situation that these international organizations would hold the right, under the Reparations rationale, to seek redress from the responsible states. Because Higgins was working for the UN at the time of his death, the UN could have sought reparations for it. Deaths in service to the UN are not unusual; indeed, the UN notes that “in 2017, at least 71 United Nations and associated personnel were killed in malicious attacks in the line of duty. The figures for preceding years are as follows: 2016 (32 killed), 2015 (51 killed); 2014 (61 killed); 2013 (58 killed); and 2012 (37 killed).”14 In 1994, UN General Assembly Resolution 49/59 adopted the Convention on the Safety of UN and Associated Personnel. Article 7 provides that “United Nations and associated personnel, their equipment and premises shall not be made the object of attack.” Article 9 requires each state party to enact national law – making it a crime either to attack UN personnel or to attack the official premises of any UN personnel, which is likely to endanger his or her person. Over a decade later, in 2005, the Optional Protocol to this Convention went into force, extending these protections to personnel delivering humanitarian assistance.15 The UN Blue Helmet has been, in some circumstances, less a security blanket than a target.

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“At Least 34 United Nations, Associated Personnel Killed in Malicious Attacks against Peacekeeping Operations during 2018,” Meetings Coverage and Press Releases, United Nations (2019) www.un.org/press/en/2019/org1684.doc.htm accessed May 19, 2022. “United Nations Audiovisual Library of International Law,” United Nations, https://legal.un .org/avl/ha/csunap/csunap.html accessed May 19, 2022.

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The Reparations Case addressed the UN’s capacity to be a plaintiff, seeking damages for harm to one of its international civil servants in an international court. US legislation – the International Organization Immunities Act (IOIA) – enacted four years earlier in 1945, gave the UN permission to operate on US soil at its New York City headquarters. Congress thereby generally enabled designated international organizations to exercise the legal capacity to operate – within the US and under its national laws: §288. . . . [T]he term “international organization” means a public international organization in which the United States participates pursuant to any treaty . . . and which shall have been designated by the President . . . as being entitled to enjoy the privileges, exemptions, and immunities provided in this subchapter . . . §288a. International organizations shall enjoy the status, immunities, exemptions, and privileges set forth in this section, as follows: (a)

International organizations shall, to the extent consistent with the instrument creating them, possess the capacity – (i) to contract; (ii) to acquire and dispose of real and personal property; (iii) to institute legal proceedings.16

The quoted legislation does not specifically say that any particular international organization could be a plaintiff (or a defendant) in a US court. Nor does it mention whether an international organization can sue national members, or its host state. The Balfour, Guthrie & Co. case, decided four years after the above legislation was enacted and one year after the ICJ’s Reparations Case opinion, provided some answers. The UN contracted with the US, whereby the latter was to deliver emergency supplies (milk) for children in Europe. The US-hired shipper damaged the milk in some cases and never delivered it in others. A US federal court examined the related issues spawned by this alleged breach of contract: Did the UN have the legal capacity to bring a lawsuit – other than in the ICJ? If so, could the UN sue a member state in that state’s domestic courts? The following critical passages provided an affirmative answer to both questions: The International Court of Justice has held [Reparations Case] that the United Nations is a legal entity separate and distinct from the member States. While it is not a state nor a super State, it is an international person, clothed by its Members with the competence necessary to discharge its functions. Article 104 of the Charter of the United Nations provides that “the Organization shall enjoy in the territory of each of its Members such legal capacity as may be necessary for the 16

International Organizations Immunities Act, 59 Stat. 669, 22 U.S.C.A. §§288(a)–(f ).

1 Legal Status of International Organizations exercise of its functions and the fulfillment of its purposes” . . . [and] the President has removed any possible doubt by designating the United Nations as one of the organizations entitled to enjoy the privileges conferred by the International Organizations Immunities Act. ... Whether the United Nations may sue the United States is a more difficult question. . . . The broad purpose of the International Organizations Immunities Act was to vitalize the status of international organizations of which the United States is a member and to facilitate their activities. A liberal interpretation of the Act is in harmony with this purpose. The considerations which might prompt a restrictive interpretation are not persuasive. It is true that . . . international organizations on a grand scale are a modern phenomenon. The wide variety of activities in which they engage is likely to give rise to claims against their members that can most readily be disposed of in national courts. The present claim is such a claim. . . . International organizations, such as the United Nations and its agencies, of which the United States is a member, are not alien bodies. The interests of the United States are served when the United Nations’ interests are protected. A prompt and equitable settlement of any claim it may have against the United States will be the settlement most advantageous to both parties. The courts of the United States afford a most appropriate forum for accomplishing such a settlement.17

This key 1950 US domestic court decision could have led the way in an identifiable international trend for resolving disputes between states and international organizations. Today, however, there are limited forums within which to pursue such claims. The ICJ is not one of them because only states can be parties to cases heard by the ICJ. And as cautioned by Reinisch regarding state alternatives: it is . . . generally accepted that international organizations may become legally liable according to domestic law. The enforcement aspect, however, is in many cases more controversial. The obvious reason for this legal insecurity as far as the availability of an adjudicative organ to determine and enforce legal accountability is concerned lies in the lack of explicit provisions for such organs or in the explicit exclusion of possible fora [regarding international organization liability] . . . the predominant position on the domestic level where existing

17

Balfour, Guthrie & Co. v. United States, 90 Fed. Supp. 831, 832–833 (N.D. Cal. 1950).

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1.2

Organizational Responsibility

The UN International Law Commission (ILC), as we have seen earlier in Chapter 2, produced the document on State Responsibility for Internationally Wrongful Acts in 2001. Ten years later, it also produced Draft Articles on the Responsibility of International Organizations. Article 4 begins to set the parameters of wrongful international organization actions: There is an internationally wrongful act of an international organization when conduct consisting of an action or omission: (a) is attributable to that organization under international law; and (b) constitutes a breach of an international obligation of that organization.19

An international organization’s responsibility is, of course, to fulfill its obligations under international law, in the same way that states are held responsible to do so. In a 1980 Advisory Opinion, the ICJ noted that “international organizations are subjects of international law and, as such, are bound by any obligations incumbent upon them under general rules of international law, under their constitutions or under international agreements to which they are parties.”20 The Court had been asked to weigh in on a situation in which the WHO desired to break an agreement it had with Egypt to house its headquarters in Alexandria. The Opinion noted that Egypt and the WHO were bound to fulfill their good faith obligations to one another, to consult and communicate with one another, and to cooperate. In many ways, the Opinion asks international organizations to be as considerate of states as states should be with other states. The draft articles attempt to spell out the conditions under which an international organization could be considered to have breached its legal obligations. International organizations must not, for example, commit or coerce a state or another international organization into a wrongful act21 ̶ clear breaches of international obligations – but they are also responsible for 18

19

20

21

A. Reinisch, International Organizations before National Courts (Cambridge: Cambridge University Press, 2004), 318–319. “Draft Articles on Responsibility of States for Internationally Wrongful Acts,” International Law Commission, Yearbook of the International Law Commission Vol. II (2011): Part Two (A/66/10). Interpretation of the Agreement of March 25, 1951 between the WHO and Egypt (1980) International Legal Materials 19, No. 4 (1980): 965. Draft Articles on the Responsibility of International Organizations, Article 16.

1 Legal Status of International Organizations

acts of omission,22 vaguely defined. International organizations are not often praised for what they have done, but rather criticized for what they have failed to do, and often unjustly. International organizations, as we shall see, are limited by their member states. Klabbers posits that we should think of international organization failures relative to an international organization’s mandate. The UN’s failure to act when genocide erupted in Rwanda in 1994, for example, could be attributed to a lot of difficult circumstances, and the UN Charter (discussed later in this chapter) did not oblige the UN to act to stop the bloodshed. But the UN does have a mandate to maintain international peace and security via Article 1 of the UN Charter, and that includes human rights considerations. “In other words,” writes Klabbers, ‘”the inaction, or omission, can be tested against the mandate of the organization in much the same way as the behavior of a captain at sea is informed by the confines and demands of the role of ‘captain.’ The role of the UN is, in part, to help prevent massacres, as in Rwanda, from occurring: hence, the UN can be held responsible, in legal as in moral debate, for failing to do so.”23 While we are not likely to see suits brought against international organizations for acts of omission, particularly because of their broad immunity from suit, Klabbers’s argument is nonetheless an interesting one relative to the responsibilities of international organizations more generally. One of the classic examples of potential organizational responsibility for an international violation arose from the 1999 bombing of the territory of the Federal Republic of Yugoslavia. That military action spawned extensive debate about whether the negative implications of the Kosovo conflict should be attributed to NATO qua international organization – as opposed to some, or all, of its members. A number of NATO nations were sued in the ICJ24 and the European Court of Human Rights (ECtHR).25 In both venues, various respondent states argued that any conduct allegedly violating international law should be attributed to NATO rather than to the national participants in that war. Neither action resolved the merits of this response. The following joined cases integrate the work of an array of international organizations in an environment addressing their status as international legal personalities. The involvement of the numerous international 22 23

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Draft Articles on the Responsibility of International Organizations, Article 13. J. Klabbers, “Reflections on Role Responsibility: The Responsibility of International Organizations for Failing to Act,” European Journal of International Law 28 (2017): 1133–1161. Legality of Use of Force (Yugoslavia v. Belgium), 1999 ICJ Reports 124, General List No. 105 (1999). Bankovic and Others v. Belgium and 16 other Contracting States, Application No. 52207/99, §§14–27, ECHR 2001-XII.

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organizations in this single case study illustrates the vibrant status of international organizations in contemporary international affairs that – as recently as the end of World War II – would have been relegated to the arcane and abstract character of state-driven remedies.

BEHRAMI AND BEHRAMI V. FRANCE AND SARAMATI V. FRANCE, GERMANY AND NORWAY Application No. 71412/01 and Application No. 78166/01, European Court of Human Rights, Grand Chamber Decision as to Admissibility (May 2, 2007) [Excerpted case available at www.cambridge.org/FPIL7]

1.3

Immunity of International Organizations

Another complicated question arises when we consider whether or not international organizations enjoy the same type of immunity from suit as governments and their agents. Are international organizations entitled to immunity from suit in member state courts? Recall that state immunity analysis depends on whether the forum nation follows the “absolute” or the “restrictive” approach to sovereign immunity. The answer to the question of organizational immunity involves a similar quest to shield organizations from suits in their member states. There are not a lot of cases on the issue of organizational immunity, mostly due to the fact that international organizations appear in national courts far less frequently than do state defendants. When organizations do so, decisions on the scope of immunity accorded to an international organization rest solely with the forum state’s law. Traditionally, the executive branch of the government has been the decision-maker on this issue. The courts then defer to such decisions so that the respective branches of the government do not conflict. There is a modern trend, however, whereby many courts – rather than blindly adhering to such executive control – are engaging in “free evaluation of immunity issues by the courts themselves.”26 The UN, as the world’s preeminent international organization, has the clearest expression of organizational immunity. The Convention on the Privileges and Immunities of the United Nations was adopted by the General Assembly in 1946, and it is an expansive list.27 The key provisions provide as follows.

26 27

Reinisch, International Organizations before National Courts, 129. Convention on the Privileges and Immunities of the United Nations, February 13, 1946, UNTS Vol. 1:15 and Vol. 90:327 (corrections), https://treaties.un.org/doc/Treaties/1946/12/ 19461214%2010-17%20PM/Ch_III_1p.pdf accessed May 19, 2022.

1 Legal Status of International Organizations

CONVENTION ON THE PRIVILEGES AND IMMUNITIES OF THE UN, ARTICLE IV, SECTION 11 Representatives of Members to the principle and subsidiary organs of the United Nations and to conferences convened by the United Nations, shall, while exercising their functions and during the journey to and from the place of meeting, enjoy the following privileges and immunities: (a) Immunity from personal arrest or detention and from seizure of their personal baggage, and, in respect of words spoken or written and all acts done by them in their capacity as representatives, immunity from legal process of every kind; (b) Inviolability for all papers and documents; (c) The right to use codes and to receive papers or correspondence by courier or in sealed bags; (d) Exemption in respect of themselves and their spouses from immigration restrictions, aliens registration or national service obligations in the State they are visiting or through which they are passing in the exercise of their functions; (e) The same facilities in respect of currency or exchange restrictions as are accorded to representatives of foreign governments on temporary official missions; (f ) The immunities and facilities in respect of their personal baggage as are accorded to diplomatic envoys, and also; (g) Such other privileges, immunities and facilities not inconsistent with the foregoing as diplomatic envoys enjoy, except that they shall have no right to claim exemption from customs duties on goods imported (otherwise than as part of their personal baggage) or from excise duties or sales taxes.

UN employees and their personal baggage are thus immune from arrest or the other interferences mentioned in the Convention. UN property and assets are immune from expropriation or detention. Under Article VI, Section 22, the same general protection applies to ad hoc experts dispatched to gather information or perform other work for the UN, when they are not routine UN employees. This protection facilitates temporary assignments, while minimizing interruptions such as local arrests for espionage. The UN claimed immunity when it was sued in Dutch courts by relatives of the victims of the 1995 Srebrenica massacre of nearly 8,000 men and boys by Bosnian Serb forces. Plaintiffs filed claims against the Netherlands – given that the Dutch troops in charge of the Srebrenica so-called “UN Safe Haven,”

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had summoned those Bosnian Muslims to come from out of the hills into that UN refuge. It was supposedly protected by 400 armed Dutch peacekeepers as part of the UN Protection Force. But they were ordered to lay down their arms while surrounded by Serb forces, a decision for which the Dutch Government fell. The Netherlands Supreme Court was called upon to assess whether the UN could viably claim immunity from prosecution in these unforgiving circumstances; the case was eventually heard by the ECtHR.

STICHTING MOTHERS OF SREBRENICA V. NETHERLANDS European Court of Human Rights, Application 65542/12 (2013) [Excerpted case available at www.cambridge.org/FPIL7]

More recently, the UN has also claimed immunity after a cholera outbreak in Haiti that was traced back to UN peacekeepers, who were there to assist after an earthquake in 2010. Cholera victims sued the UN in the US, and in 2016 the US Second Circuit Court of Appeals upheld the UN’s claims to immunity.28 A second lawsuit was filed in 2014 (Laventure v. United Nations29) and reached the US Supreme Court, but the high court declined to review the case. In 2016, then-UN Secretary-General Ban Ki-moon issued a lengthy apology to Haiti and pledged $400 million in aid to the beleaguered country. Most of that aid was never received.30 Can the UN waive the immunity of its employees? This occurred in two widely reported incidents in Kosovo. In 2002, an Egyptian working as a UN police officer killed his female translator in his apartment. The UN chose to waive its organizational immunity, thus resulting in his trial in the local judicial system and a thirteen-year sentence. In 2004 – the day after the King of Jordan publicly commented that the war in Iraq had created unprecedented animosity toward Americans across the Middle East – Jordanian (UN) police fired on vehicles carrying US (UN) police. Two Americans and one Jordanian were killed, leaving eleven others wounded. The Jordanians

28

29 30

A. Moloney, “U.S. Judge Upholds U.N. Immunity in Haiti Cholera Case,” Reuters, August 19, 2016, www.reuters.com/article/us-haiti-cholera-idUSKCN10U1H6 accessed May 19, 2022. Laventure v. United Nations, 140 U.S. 108 (2019). A. Martinez Casares, “U.N. Peacekeeping Mission to Haiti Ends after 15 Years with Mixed Legacy,” Reuters, October 16, 2019, www.reuters.com/article/us-haiti-politics/unpeacekeeping-mission-to-haiti-ends-after-15-years-with-mixed-legacy-idUSKBN1WU2SP accessed May 19, 2022.

1 Legal Status of International Organizations

could not be interviewed until the UN waived their right to diplomatic immunity.31 In the US, the UN has historically enjoyed the same immunity that is granted to foreign governments.32 In 2015, however, a group of farmers and fishermen (collectively referred to by their common last name, “Jam”) from the Indian province of Gujarat brought suit against the International Finance Corporation (IFC), a Washington, DC-based branch of the World Bank. The farmers claimed that the Tata Mundra power plant, the construction of which was funded by a loan from the IFC, contaminated the air, land, and local waterways and destroyed their livelihoods by severely reducing local fish populations. The farmers and fishermen, represented by EarthRights International, alleged that the IFC did not uphold its obligation to ensure that the new plant adhered to environmental standards. They sued the IFC for damages, and the case – Jam v. International Finance Corp. – reached the US Supreme Court in 2018. The IFC claimed that it enjoyed immunity from suit under the International Organizations Immunity Act (IOIA). Under the IOIA, international organizations enjoy the same immunities as foreign governments – but the word “same” gave the Court pause. Did international organizations enjoy the same immunities as foreign governments did when the IOIA was passed, or did they enjoy the same immunities as foreign governments did since the passage of the Foreign Sovereign Immunities Act (FSIA) of 1976? Recall that the FSIA includes a “commercial activities exception:”33 when the state is behaving as a merchant and not as a sovereign, it is no longer immune from suit. The Court had to decide whether or not international organizations enjoyed immunity that was, since the passage of the FSIA, broader than that granted to foreign governments. Chief Justice Roberts, who wrote the Court’s Opinion, noted: The language of the IOIA more naturally lends itself to petitioners’ reading. In granting international organizations the “same immunity” from suit “as is enjoyed by foreign governments,” the Act seems to continuously link the immunity of international organizations to that of foreign governments, so as to ensure ongoing parity between the two . . . The reference is to an external body of potentially evolving law – the law of foreign sovereign immunity – not to a specific provision of another statute. The 31

32

33

“Europe: Jordanians Probed over Shooting,” BBC News (April 19, 2004) http://news.bbc.co .uk/2/hi/europe/3637033.stm accessed May 19, 2022. International Organizations Immunities Act, 2(b), 22 U.S.C.A. §288 (1945) (1979 ed., 59 Stats. 669). See Chapter 2.

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The Court, in this seven-to-one Opinion, thus sided with the farmers and fishermen, and ushered in a new era of considerations of immunity for international organizations that are based in the US. It remains to be seen how the ruling in Jam impacts the number of cases brought against international organizations, which the IFC warned against in its presentation to the Court. The case was remanded to lower courts to decide whether or not the IFC’s actions fall within the commercial exception, and that decision could have far-reaching implications for similar suits.

2 Classifying International Organizations International organizations can be classified in a variety of ways. This section focuses on what an organization is designed to do, based on who created it and why. The traditional paradigm of organizational classification employs a “functional” approach. International organizations are thereby: (1) public or private; (2) administrative or political; (3) global or regional; and (4) either possess, or do not possess, supranational power.35 The “functional” model is a convenient starting point for characterizing the power and purpose of the myriad of contemporary international organizations. Typically, a group of states will agree to establish a “public” organization – a process with the potential for derogations from state sovereignty. States often enter into written treaties to create international trade or communications associations, agreements whose “function” it is to solve common coordination problems between states. Those bodies then implement the joint decisions of the state representatives. Here, one might think of the WHO or the UN Development Programme. Alvarez notes that such governmental organizations also have some basic characteristics: An IO [international organization] must have genuinely international aims intended to cover at least three states; its membership must include full voting rights and be open to states appropriately qualified in the organization’s area of operations; voting must be such that no one national group exerts control; . . . 34 35

Jam v. International Finance Corp., 586 U.S. ___ (2019). P. Sands and P. Klein, Bowett’s Law of International Institutions, 5th ed. (London: Sweet & Maxwell, 2001), 16–19.

2 Classifying International Organizations there should be the possibility of the continuous operation of a permanent headquarters; the [international organizations] should not engage in profitmaking activities. . .; each [international organization] must show that it can exist independently and elect its own officials; and evidence of current activities must be available.36

By contrast, “private” international organizations are typically established by non-state entities (individuals or corporations). Non-governmental representatives then execute the mission of the particular organization – hence, the term “non-governmental organization.” This type of international organization is not created by a treaty between sovereign states. Major examples of large NGOs with global reach include Greenpeace, Doctors Without Borders, and Amnesty International. These organizations, while ostensibly not political, have an important political role to play and are recognized as such. Article 71 of the UN Charter provides that one of the six UN organs (addressed in Section 3.2.4 in this chapter), the Economic and Social Council (ECOSOC), “may make suitable arrangements with nongovernmental organizations which are concerned with matters within its competence.” NGOs are often instrumental in promoting global objectives related to human rights, social justice, and environmental causes, pressuring states and international organizations to take these issues seriously and to cooperate in order to ensure progress. But they must, nevertheless, function under the domestic laws of the state wherein they operate. They often deal with shifts in attitudes, depending on who holds political power at the moment – as classically illustrated in the following case.

CENTER FOR REPRODUCTIVE LAW AND POLICY V. BUSH United States Second District Court of Appeals, 304 F.3d 183 (2002) [Excerpted case available at www.cambridge.org/FPIL7]

The administrative v. political distinction between organizations is somewhat blurred by modern practice. Administrative international organizations tend to have goals that are far more limited than those of their political

36

J. Alvarez, International Organizations as Law-makers (Oxford: Oxford University Press, 2005), Ch. 1 at 3–4. See also, J. Alvarez, “International Organizations: Then and Now,” American Journal of International Law 100 (2006): 324.

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analogues. The UN International Telecommunications Union, for example, serves an administrative purpose that is not associated with maintaining or directing political order. Among other things, it allocates radio frequencies for communication in outer space. Many political international organizations, on the other hand, are intergovernmental entities designed to maintain military or political order. The UN was conceived to implement a system of collective security to discourage the unilateral use of military force. The UN also serves as a forum for improving the economic and social conditions of its member states. The global v. regional distinction is arguably less useful than the other traditional distinctions. The UN is the quintessential example of a global organization. Its impact, however, is not necessarily global. It is not a world government, as we shall see. It often serves as a forum for debating regional problems. Not all regional organizations are, in fact, regional. The press often refers to NATO as a western European association. Yet the geographical position of certain long-term members such as the US, Canada, and Turkey makes it difficult to characterize NATO’s function as being limited to Western Europe, not to mention its expansion to include states in eastern and southeastern Europe after the collapse of the Soviet Union. The final traditional distinction involves organizations possessing, or not possessing, power over member states requiring them to act or not act in particular ways. One definitional problem is that many international organizations are “supranational.” They are associations of states with independent organs for implementing the goals of the participants – in many ways, a supranational organization pulls sovereignty away from member states in favor of a stronger central authority. It would be incorrect, however, to characterize the UN as having supranational power. It cannot dispatch a peacekeeping force independently of the approval of the five permanent members of the UN Security Council. Nor does the Security Council traditionally dispatch troops without the consent of the state or states where they are to be stationed. In the EU, on the other hand, members have ceded many of their sovereign powers to supranational institutions like the European Commission, which may and often does require member states to act in ways they might not act on their own.

3 The United Nations The UN Charter, the founding document of the largest international organization in the world, marked its seventy-fifth birthday in 2020, prompting statements from world leaders about the successes of the organization and

3 The United Nations

their support for it. Secretary-General Antonio Guterres, however, was more muted in his praise for the organization of which he is the head; while he is proud of the fact that, in its seventy-five-year history, the largest world powers (notably the US and the former Soviet Union) never had a major war, there are still great numbers of civilians trapped by smaller conflicts like those in Syria and Yemen. “We see a lot of mistrust . . . We see spoilers, and we do not see a united Security Council helping us to act decisively in order to bring those countries into cease-fire, peace negotiations, and peace.”37 Additionally, he lamented the lack of a coherent, well-supported response to the challenges of climate change, public health (especially the COVID-19 pandemic of 2020–2021), and terrorism. The UN at seventy-five is an organization that is struggling to adapt to rapidly changing global problems in a world that looks fundamentally different from the world that existed when the UN was created. In this section, we briefly examine the history, structure, and actions of the UN, and explore the challenges it faces in the twenty-first century.

3.1

Evolution of the UN

The League of Nations was the first global international organization and the direct predecessor of the UN. The League of Peace, a private organization in the US, proposed a League of Nations in a 1914 newspaper editorial at the outset of World War I. Great Britain’s League of Nations Society began to promote this ideal in 1916. US president Woodrow Wilson was a key proponent of the League’s creation as World War I drew to a close. Building on the 1917 “Recommendations of Havana,” prepared by the American Institute of International Law meeting in Cuba, Wilson’s famous 1918 “Fourteen Points” speech to the US Congress advocated a “general association of nations [that] must be formed under specific covenants for the purpose of affording mutual guarantees of political independence and territorial integrity to great and small states alike.” His essential purpose was to avoid a second world war, based on the popular notion of the day that this first global conflict be the “war to end all wars.” World leaders reacted by expressing their hope that the League would be the ultimate mechanism for avoiding a repetition of the secret military alliances and mutual suspicions that permeated the international atmosphere. The fear of another war thus

37

E. Lederer, “UN Chief: Major UN Achievement at 75 Is No Big Power War,” AP NEWS (June 25, 2020) https://apnews.com/96dd634922b20421d671d899bb678cd8 accessed May 19, 2022.

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generated the creation of this organization to encourage open diplomacy and cooling-off periods whenever international tensions threatened peace. Wilson witnessed the realization of his first point – the creation of an international organization dedicated to open “covenants of peace, openly arrived at, after which there shall be no private international understandings of any kind but diplomacy shall proceed always frankly and in public view.”38 The 1919 League of Nations Covenant, part of the Treaty of Versailles that ended World War I, was ultimately signed by seventythree states. Its twenty-six articles dealt with a variety of problems although the central theme was how to control military aggression. It was a progressive development in international relations because it established a two-organ permanent diplomatic conference (a “General Assembly” and a “Security Council”). The League was a central location for conference diplomacy. Unfortunately, it never achieved universality in terms of state participation.39 The dream that the League of Nations would maintain international peace and security failed the test of reality. The US Senate chose not to ratify the League of Nations Covenant, fearing a diminution of US sovereignty. They believed that membership would instead draw the US into more wars.40 The US thus opted for isolationism, which was the death knell for the organization’s potential effectiveness. League membership consisted essentially of only the war-torn European countries. While the League enjoyed some successes during its twenty-year existence, its failures eroded global confidence in the ability of an organization to maintain harmonious international relations. The League was unable to control the offensive military objectives of its member states. By the time the Soviet Union (USSR) finally joined the League in 1934, Brazil, Germany, and Japan had already withdrawn. The USSR later invaded Finland; Japan expanded into Manchuria; Germany annexed Austria into the Third Reich; and Italy invaded Ethiopia. A few League members reacted by an almost submissive form of economic sanctions: a brief boycott of Italian-made shoes. The global economic depression of the 1930s – coupled with US isolationism, the expulsion of the USSR (after it invaded Finland), and a

38

39

40

Selected Literary and Political Papers and Addresses of Woodrow Wilson (New York: Grosset & Dunlap, 1952). Avalon Project – President Woodrow Wilson’s Fourteen Points, https://avalon.law.yale.edu/ 20th_century/wilson14.asp accessed May 19, 2022. H. Jacobson, W. Reisinger, and T. Mathers, “National Entanglements in International Governmental Organizations,” American Political Science Review 80 (1986): 141.

3 The United Nations

somewhat xenophobic atmosphere – all contributed to the demise of the League of Nations. Plans for a successor to the failed League of Nations were underway well before World War II ended. The Atlantic Charter of 1941, a declaration by President Franklin Roosevelt and British Prime Minister Winston Churchill, was the first step in the collaboration that eventually resulted in the UN Charter. In 1942, a number of League members met to assess whether the League should be revived. They decided to replace it with another global international organization that would pursue the ideal of collective security. The name “United Nations” was devised by US president Roosevelt.41 It was first used in the “Declaration by United Nations” of January 1, 1942. Representatives of the twenty-six Allied nations therein pledged that their governments would continue their fight against the Axis powers (Germany, Italy, Spain, and Japan). The UN Charter was drawn up by the representatives of fifty allied countries during the UN Conference on International Organization, held in San Francisco from April through June 1945.42 (Poland was not represented at the conference although it later signed the Charter to become one of the original fifty-one member states.) Delegates deliberated the various proposals previously tendered by China, the USSR, the United Kingdom (UK), and the US during meetings held in 1944. The summer 1945 drafting conference in San Francisco barely preceded the atomic bombing of Japan in August, which effectively ended the war. The new “United Nations” was officially established on October 24, 1945. Unlike with the League of Nations, the US was the first country to ratify the Charter, and three months later enough countries had ratified it for it to take effect. The Charter is an extraordinary document, and the introductory articles give a clear sense of the organization and its priorities. Article 1(1) identifies the broad purpose of the UN, borne out of the experience of World War II: To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace . . . 41

42

See generally, T. Hoopes and D. Brinkley, FDR and the Creation of the U.N. (New Haven, CT: Yale University Press, 1997), and A. Yoder, The Birth of the United Nations, 2nd ed. (Washington, DC: Taylor & Francis, 1993), 27. For a detailed analysis of the evolution of each article, see B. Simma, ed., The Charter of the United Nations: A Commentary, 2nd ed. (Oxford: Oxford University Press, 2002).

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Article 2 is more specific, and contains two of the most oft-quoted legal principles in the entire Charter: 2(1) The Organization is based on the principle of the sovereign equality of all its Members . . . 2(4) All 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.

The Charter’s insistence on the equality of member states and the principle of non-intervention provide the legal underpinnings for much of our understanding of appropriate state behavior today, even if these principles have caused problems for the organization over the years of its existence. While each member state is legally equal to all of the others, even the UN does not treat all states the same: in the General Assembly, all states are equal, but the Security Council is dominated by five states – victors of World War II – that hold (and likely always will, barring significant reform) their powerful seats on a permanent basis. And although the principle of non-intervention sounds like a good idea in theory, in reality it has meant that that UN has been forced to stand by and watch as massive human rights abuses unfold before the world’s eyes. The UN is often criticized for failing to “do something” about many of the world’s problems, but it is vital to understand that it is limited in what it can do by the very states that created it. The two principles in Article 2 represent some of those limits. The Charter’s requirement that states settle their disputes peacefully and act in good faith, Articles 2(3) and 2(2), are similarly monumental. Article 2(3) has the effect of making war illegal, which is not novel to the UN Charter – it had been proposed earlier in the Pact of Paris/Kellogg-Briand Pact in 1928. But this prohibition enjoyed wide support from states that had recently suffered the scourge of two major world wars, with little appetite for future armed conflict. Article 2(2), the requirement that states act in good faith in their relations with one another, serves as a codification of a longstanding backbone of international law: pacta sunt servanda (treaties will be honored). The remaining articles of the Charter describe the organs of the UN (detailed below) and how they function, though certain chapters of the Charter are worth noting separately. Chapter VI outlines the process for the peaceful settlement of disputes via the UN’s General Assembly and Security Council. Chapter VII provides detail about determining threats to the peace and acts of aggression and it outlines the authority the UN Security Council has to authorize intervention. It also obligates member states to make troops

3 The United Nations

and military equipment available to the UN when necessary. Importantly, Article 51 notes that member states retain the right to act in individual or collective self-defense when the situation warrants it; they do not have to wait for the Security Council to authorize their action. These elements of the Charter are addressed in Chapter 8 of this book.

3.2

Organs of the UN

The six principal organs of the UN are: the General Assembly, Security Council, ECOSOC, Trusteeship Council, the Secretariat, and the ICJ. Numerous other UN organs and specialized agencies also exist within this system.

3.2.1

General Assembly

The General Assembly is composed of the UN’s 193 member states, and functions as an intergovernmental forum in which all states are given equal voting rights – the US has the same weight as the Dominican Republic, despite vast differences in nearly every aspect of these two states. Similar to a national legislature, committees serve a variety of functions for the General Assembly. They draft, receive, and consider reports on world events, supervise the UN’s Trusteeship Council, participate in selection of the judges of the ICJ, approve budgets and applications for membership, and appoint the UN Secretary-General. It is the primary place where the world’s states can come together and discuss world issues, hear different perspectives, and get a read on what the international community of states will or will not support. Six major committees drive the work of the General Assembly. They are designated the “First” through “Sixth” Committees. The following committee titles suggest the day-to-day work of the Assembly: First Committee – Disarmament; Second Committee – Economic; Third Committee – Social, Humanitarian, and Cultural; Fourth Committee – Political and Decolonization; Fifth Committee – Administrative and Budgetary; and Sixth Committee – Legal.43 The General Assembly is primarily a global forum for resolving issues within the scope of the UN Charter. Articles 10–17 of the Charter enable the General Assembly to “discuss,” to “consider,” to “initiate studies and make 43

Historical committee structure: B. Finley, The Structure of the United Nations General Assembly: Its Committees, Commissions, and Other Organisms: 1974–1980s (White Plains, NY: Kraus International, 1988); 1993 committee reorganization: R. Schaff, “More Organizational Changes at the UN,” International Journal of Legal Information 22 (1994): 199; Further details about these committees are available on the UN General Assembly web site, www.un.org/en/ga/55/ accessed May 19, 2022.

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recommendations,” and to “receive and consider annual and special reports.” Malcolm Shaw thus characterizes the General Assembly as “essentially a debating chamber, a forum for the exchange of ideas and the discussion of a wide-ranging category of problems.”44 Most of the General Assembly’s decisions are not binding; they are merely recommendations. The General Assembly does, however, make binding decisions on matters related to the organization and operation of the UN as a whole.45 The General Assembly became more than a mere debate chamber in 1950, shortly after the onset of the Cold War. Its members recognized that the Security Council’s power to act in sensitive cases would be vitiated by the veto power of any of the five permanent members of the Council, knowing that the US and the Soviet Union would likely never be in agreement. At the onset of the Korean War, the USSR boycotted the Security Council and it was unable to pass a resolution to create a UN-mandated operation in Korea to stave off an attack from the North. The Assembly then adopted “Uniting for Peace” Resolution 377. Its purpose was to ensure a prompt UN response to threats to international peace when the Security Council would not or could not take action. The effect of this resolution, permitting the General Assembly to act in the absence of the express Charter authority to do so, augmented the Security Council’s authority to maintain peace. It has been invoked by both the General Assembly and the Security Council at various contentious points in the UN’s history, but only about ten times in total.46 It is sometimes easier to define something by first acknowledging what it is not. The General Assembly is not a world legislature. It may pass resolutions, some of which ultimately become treaties for state ratification. Other resolutions may indicate the degree of opinio juris – regarding a practice that states consider binding in their international relations. The Assembly does not, however, have the power to enact legislation like a national legislature such as the US Congress, German Bundestag, or Japanese Diet. The majority of state members are unwilling to yield the requisite degree of sovereignty to authorize the General Assembly to pass laws which would bind all nations. As succinctly stated by Krzysztof Skubiszewski:

44 45

46

M. Shaw, International Law, 5th ed. (Cambridge: Grotius, 2003), 1090. Emphasis added. M. Peterson, “The UN General Assembly,” in T. Weiss Thomas and R. Wilkinson, eds., International Organization and Global Governance, 2nd ed. (London: Routledge, 2018). It is unclear exactly how many times Resolution 377 has been used because it depends on how the first (Korean) case is counted. See “Security Council Deadlocks and Uniting for Peace: an Abridged History” Securitycouncilreport.org. (2020) www.securitycouncilreport .org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/Security_Council_ Deadlocks_and_Uniting_for_Peace.pdf accessed May 19, 2022.

3 The United Nations We know both from the reading of the UN Charter and the history of its drafting (the defeat of the Philippine proposal on this right presented at the [1945] Conference in San Francisco) that no power to make law for states has been conferred on the General Assembly or any other organ of the United Nations. For such power, whether comprising legislation by virtue of unanimous vote, or by majority decision with the guarantees of the system of contracting out, or by majority decision binding for all, must always be based on an explicit and unequivocal treaty authorization.47

The General Assembly’s Charter prerogatives are thus limited to the initiation of studies and the recommendation of peaceful courses of action when confronted with pending hostilities. Its fundamental purpose is to promote international cooperation in a political rather than military context. The Assembly’s state members therefore collaborate regarding major economic, social, cultural, educational, human rights, and health issues. They sometimes recommend measures for the peaceful adjustment of any situation deemed likely to impair friendly relations among nations. Thus, there has been a proliferation of global conferences within the UN system. Issueoriented ad hoc world conferences can focus worldwide attention on a particular social or economic problem and spawn institutionalized followup activities. Rittberger aptly acknowledges that such “[g]lobal conference diplomacy, which takes place in any of these institutional settings, represents a unique vehicle for facilitating and strengthening internationally coordinated public policy-making . . . which is expected to cope with . . . resource shortages at the level of the individual decision-making unit, e.g., the central government of a nation state. . . . Moreover, . . . national decision-making units remain necessary, but are no longer exclusive participants in this decision-making system.”48 The General Assembly was effectively controlled by the US throughout the 1950s. After a paradigm shift associated with the induction of new independent states (former colonies) in the 1960s, developing states began to control the overall direction of the Assembly. As Peterson notes, “[a]ny stable coalition of member states holding two-thirds of the votes can control the General Assembly and use it to shape global discourse or influence the course of

47

48

K. Skubiszewski, “The United Nations General Assembly and Its Power to Influence National Action,” in Proceedings and Committee Reports of the American Branch of the International Law Association 1964 Annual Meeting (1964): 153–154. V. Rittberger, “International Conference Diplomacy: A Conspectus,” in M. Boisard and E. Chossudovsky, eds., Multilateral Diplomacy: The United Nations System at Geneva – A Working Guide, 2nd rev. ed. (Hague: Kluwer, 1998), 19.

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particular conflicts by supporting or condemning participants.”49 One of the resulting agenda shifts was the seventy-seven-state announcement of a New International Economic Order, advocating for an equitable redistribution of the world’s wealth. The so-called G-77 (which is now actually comprised of 134 developing states) continues to wield influence in the General Assembly, using it as a way to promote the combined interests of the developing world vis-à-vis the more powerful (but less numerous) developed states. Having a seat in the General Assembly has benefits for states. It allows states to participate in the largest forum for debate in the world, allows them to go on record as for or against resolutions (non-binding though they may be), and confers upon them a sense of external legitimacy. Losing the seat in the General Assembly would be a devastating blow to national prestige. No state, especially the less powerful ones, would ever wish for the Assembly to exercise its UN Charter Article 6 power of expulsion. In 1979, Taiwan lost the “China” seat to the mainland People’s Republic of China (PRC). This was not an Article 6 expulsion, but a matter of collective recognition of the government that more clearly represented the national population. But the most fascinating and convoluted example of a state losing its seat involved the status of the UN’s “Yugoslavia” seat, which remained empty between 1992 and 2000 while the state of Yugoslavia dissolved into separate states and violent conflict. The following case illustrates a curious intersection of law and politics, which in this instance yielded a so-called “phantom state.” Some apparition had to be conjured for the ICJ to have: (1) original jurisdiction to proceed to its 1996 judgment; (2) continuing jurisdiction in 2003, in order to deny the successor entity’s ability to change that judgment; and (3) power to determine the substantive genocide issue(s) in its 2007 final judgment.

APPLICATION FOR REVISION OF THE JUDGMENT OF 11 JULY 1996 IN THE CASE CONCERNING APPLICATION OF THE CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE (BOSNIA AND HERZEGOVINA V. YUGOSLAVIA) International Court of Justice, ICJ Reports 7, ICGJ 19 (ICJ 2003), February 3, 2003 [Excerpted case available at www.cambridge.org/FPIL7]

49

M. J. Peterson, “The UN General Assembly,” in T. Weiss and R. Wilkinson, eds., International Organization and Global Governance, 2nd ed. (London: Routledge, 2018), Ch. 17.

3 The United Nations

3.2.2

Security Council

The Security Council is the UN organ with primary responsibility to maintain international peace and security. Under Article 39 of the Charter, the Security Council determines what constitutes a threat to peace and what security measures should be taken by the UN. The Council is much smaller than the General Assembly (consisting of all member states) and consists of fifteen countries. The Council’s limited size was designed to facilitate prompt and effective action by the UN, in contrast to the debating atmosphere of the all-member General Assembly. States can refer their disputes to the Security Council for resolution (as well as to the General Assembly when it is in session). Unlike the Assembly, the Council functions continuously. A representative of each of the fifteen member states must be present at all times at UN headquarters in New York City. The Security Council includes five “permanent” members and ten “rotating” members, periodically elected by the General Assembly. The five permanent members are China, France, Russia, the UK, and the US, all “victors” of World War II. The “Russian” seat on the Council was occupied by the Soviet Union until 1991 and is now occupied by Russia. The “China” seat has been occupied by the PRC since the Republic of China (Nationalist Chinese government) was ousted by UN action in 1971. The makeup of the Security Council has always generated debates about its failure to reflect more democratically the UN’s overall composition. The General Assembly is a comparatively diverse body, consisting of states from every corner of the world, innumerable cultures, all political systems, and every form of economic development. Under the original Charter, however, five of the (then only) eleven Security Council members occupied permanent seats on the Council. Any one of these five could block Council action by exercising its individual right to veto any proposed action. No rotating member possesses this extraordinary veto power. Action by the Security Council therefore requires a unanimous vote of the five permanent members and a majority vote of the fifteen total members. There have been several significant movements seeking a change to the Security Council’s composition. General Assembly member states believed that the Council should not ignore the less powerful but more populated states within Africa, Asia, and Latin America. In 1965, the UN altered its structure to magnify the presence of such nations – many of which were former colonies of the charter UN members. The number of rotating Council seats was then increased – four seats were designated as additional rotating seats as opposed to the five permanent seats. A number of commentators viewed this as a relatively minor concession, however, in the struggle to mitigate the powerful-nation dominance of the Council.

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The year 2004 spawned a number of significant calls for Security Council reform. A prominent UN panel suggested two options: (1) adding six new permanent members; or (2) creating a new tier of semi-permanent members – two each from Asia, Africa, Europe, and the Americas. Four other nations vowed to support each other’s bids for an expanded Security Council – Brazil, Germany, India, and Japan. At a meeting about Security Council reform in 2016, Peter Thomson (Fiji) noted that “[w]e must ensure that [the Council] reflects the realities of the twenty-first century and is able to deliver on the purposes, principles and promise of the United Nations Charter.”50 Because of various limitations built into the UN Charter by the states that drafted it, there is a prominent distinction between promise and performance. Under Article 47 of the Charter, for example, the Council is responsible for submitting plans to UN members for establishing and maintaining a system to regulate armaments. Under Articles 41 and 42 of the Charter, the Security Council may decide what related measures are needed to implement its decisions. The Charter states that the Council may order the complete or partial interruption of economic relations with states that violate international law. If the Council considers such sanctions inadequate, the Charter expressly authorizes its use of air, sea, or land forces as necessary to maintain or restore international peace and security. For a variety of reasons, including that no Article 43 standing army ever materialized, the Council has had to resort to some rather ingenious bases for taking action – or affirming action already taken by a UN member or coalition of states (such as NATO). Unlike the circumstances which prevail in each of the many liberal democracies within the UN’s membership, there is no review process for assessing the legality of the Council’s interventions – the ICJ lacks any judicial review power over the Security Council’s executive acts. During the Cold War between two of the permanent Security Council members (US and USSR), the UN exercised only a minimal degree of control over several territories in conflict. The UN’s peacekeeping role, not mentioned anywhere in the Charter (but sometimes referred to as “Chapter VI ½”), was dependent on the consent of parties engaged in the hostilities. Military forces, on loan to the UN by various countries, occupied state territory as a buffer – designed to enforce post-conflict peace agreements. However, the Security Council decided to rescue two areas of the world from

50

“Updated Security Council Must Reflect Changing Global Reality, Member States Say, as General Assembly Debates Ways to Advance Progress on Reform,” Meetings Coverage and Press Releases,” United Nations (2016) www.un.org/press/en/2016/ga11854.doc.htm accessed May 19, 2022.

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ethnic tension and assumed their administration as if it were a sovereign state in the two most striking examples of the Council’s post-Cold War renaissance. The first of the two areas was East Timor, where the UN rescued the residents from continuing violence resulting from the desire to break from Indonesian colonization. The second has been the administration of Kosovo. There have been many problems with the UN’s administration in each of these theaters.51 No one can dispute, however, that this unique control of sovereign territory – by the only international organization ever to do so – was a marked departure from the UN’s Cold War impotence. The Security Council also provides diplomatic alternatives when the price of the other options is too high. These are not always successful, but they do buy time while the Council ratchets up the international pressure to act or not act in a specified manner. Aside from the situations in East Timor and Kosovo, the Security Council has also engaged in “crisis diplomacy” in places like Burundi, the Democratic Republic of Congo, and South Sudan. But while the Security Council has sometimes been effective, often they are not the bestpositioned or best-resources to be successful. As Gowan writes, “[e]ven lowkey Council interventions create intense political sensitivities, and differences among Western and non-Western members over sovereignty issues are a recurrent obstacle to early action. In many situations, other elements of the UN system – such as development agencies or the human rights – are much better positioned to take steps to prevent future conflicts than the Council.”52 3.2.2.a Veto Dilemma The League of Nations was plagued from the outset by its unanimity requirement for its Security Council to act. The UN strategy was initially perceived as an improvement. Nine of fifteen votes, rather than unanimity, is one of two conditions for Security Council action. The other condition has bedeviled the Security Council from the outset: the UN cannot act if one of the five permanent members casts a veto. This feature might be best described as a dictatorship within a democracy, and it has precluded any real Security Council reform. Ironically, the word “veto” is not contained in the UN Charter. Article 48 merely states that action “shall be taken by all the Members of the UN or 51

52

East Timor: see N. Azimi and C. Li Lin, The United Nations Transitional Administration in East Timor (Leiden: Martinus Nijhoff, 2003); Kosovo: see International Crisis Group (Brussels), “Kosovo after Haradinaj,” Crisis Group (November 8, 2016) www.crisisgroup.org/ sq/europe-central-asia/balkans/kosovo/kosovo-after-haradinaj accessed May 19, 2022. Click “Kosovo After Haradinaj” for Executive Summary and Full Report. R. Gowan, “Diplomacy in Action: Expanding the UN Security Council’s Role in Crisis and Conflict Prevention,” NYU Center on International Cooperation (May 2017) https://cic.nyu .edu/sites/default/files/gowan_security_council_final.pdf accessed May 19, 2022.

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by some of them, as the Security Council may determine.” Article 27.3 provides that the Council’s substantive decisions “shall be made by an affirmative vote of nine members including the concurring vote of the permanent members.” It is the Security Council’s “Provisional Rules of Procedure” that contain the somewhat infamous veto provision. It was adopted at the 1945 UN drafting conference in San Francisco. Mindful of the US decision not to join the League of Nations, and the Soviet Union’s expulsion from the League for invading Finland, none of the five permanent Council members could be drawn into an armed conflict that it did not wish to enter. National sovereignty was the real culprit in what would soon become apparent with the advent of the Cold War: powerful states did not want to cede sovereign powers to an external entity. The UN Security Council would otherwise be enabled to trump a state’s unilateral decision about initiating, engaging in, or avoiding future hostilities. Giving this type of power to the Security Council would also tamper with a powerful state’s ability to clandestinely support an “offending” state’s action. Handing over such power to an international organization would limit a member’s ability to remain indifferent to threats to peace in distant corners of the globe. The stateoriented concern about the retention of sovereign discretion also thwarted materialization of the Article 43 standing army. Had such a force materialized, it would have functioned as an international police force able to react to threats to the peace in different ways than UN members might prefer. Since its inception, this facet of superpower politics has been most evident when one of the five holders of the veto power has blocked an international response to its own threats to international peace. The Security Council’s aging veto process often frustrates UN action, even when there are numerically enough votes to act. One permanent member, of the now total fifteen members, can bar the entire Council from responding to a threat to peace, such as has occurred since 2011 in the destructive civil war in Syria, in which Russia and the US find themselves on opposite sides, or since the 2022 Russian invasion of Ukraine. In such a situation, the Security Council is paralyzed. “It really doesn’t matter who enjoys the veto power in the Security Council,” Patil writes, “international peace and security cannot be maintained until all States accept the need to identify with the whole of humanity. We have struggled over the centuries for absolute peace but have not yet achieved it. While creating the UN has enabled us to avoid a [third] world war, we have yet to create a genuine international society.”53

53

Anjali Patil, The UN Veto in World Affairs 1946–1990: A Complete Record and Case Histories of the Security Council’s Veto (Sarasota, FL: UNIFO, 1992).

3 The United Nations

3.2.2.b Peacekeeping Operations UN peacekeeping operations, which are not specifically mentioned in the Charter, are addressed in Chapter 9 of this book. The materials there address the UN’s provocative role in the governance of post-conflict societies.

3.2.3

International Court of Justice

The ICJ is the UN’s judicial organ. Its predecessor, the so-called Permanent Court of International Justice, was not an organ of the League of Nations. The UN Charter’s drafters envisioned that the present successor, the ICJ, would be the UN’s judicial arm. International disputes would thereafter be resolved in the courtroom, rather than on the battlefield, such that there would be no World War III. The ICJ is headquartered at The Hague in the Netherlands. It is often characterized as not having lived up to the drafters’ ideals. The relevant UN Charter provisions (Articles 92–96) and the operational rules set forth in the companion Statute of the ICJ fell prey to national sovereignty objections. These, not the court itself, are the culprits that have tarnished the 1945 vision of beating swords into plowshares. Two prominent examples of the drafters’ Charter-based limitations include: (1) the requirement of a state’s consent to be sued in the ICJ; and (2) the Court’s lack of the power of judicial review over decisions by other UN organs. Only states can appear before the ICJ, and its decisions are final; there is no appeal. The ICJ itself is composed of fifteen members, elected by the General Assembly and the Security Council in staggered elections every three years. Judges serve nine-year terms and, because they are supposed to be independent, may sit in on cases in which their home state is participating. Interestingly, when states appear before the ICJ and there is no judge from their home state on the Court, Article 31 of the Statute of the Court provides that they may request an ad hoc judge (from their home state or not) to represent their interests on the Court.54 These ad hoc judges participate in the activities of the Court just as an elected member would. The ICJ’s jurisdiction is always the subject of some controversy and perceived weakness. The ICJ has non-compulsory jurisdiction; parties must agree to submit their case to the ICJ and cannot be forced to do so, which means that when parties do not agree, the Court’s decision is likely far less impactful. Via Article 36.2 of the Statute of the Court, however, states can declare that they accept the compulsory jurisdiction of the Court for all of their legal disputes, or at least those disputes with states who have also 54

“Judges Ad Hoc,” International Court of Justice, www.icj-cij.org/en/judges-ad-hoc accessed May 18, 2020.

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accepted compulsory jurisdiction. Article 36.2 is thus known as the “Optional Clause,” and it certainly does provide a state with options: if, as in a famous case between the US and Nicaragua from 1984 (Case Concerning Military and Paramilitary Activities in and Against Nicaragua), the Court rules against a state, that state can simply declare that it no longer accepts the Court’s jurisdiction.55 (In this particular case, the US was so defiant that it did not even show up to the proceedings.) Why do any states take their disputes to the ICJ when it appears easy to ignore its authority to resolve them? Only seventy-three states have accepted the compulsory jurisdiction of the Court,56 though all states promise to “undertake to comply with the decisions of the International Court of Justice” when they sign the UN Charter.57 While it might be easy to believe that states who have accepted the compulsory jurisdiction of the Court are eager to submit disputes to the Court, it might also be the case that they are less likely to comply with the decisions it hands down because of circumstances particular to the case. After all, signing on to the Optional Clause is an agreement to submit future disputes to the Court without, of course, knowing what they will be. But states can also bring disputes to the Court via “Special Agreement” (Article 36.1 of the Statute of the Court), in which they agree to the Court’s jurisdiction under a specific set of circumstances. If states can agree that the Court should hear their dispute in the moment – instead of making that decision years in advance before the dispute is a reality – it may mean greater compliance with its decisions down the road.58

3.2.4

Other UN Organs

When you encounter the UN in this book, it will mostly be at the level of the Security Council, the General Assembly, or the ICJ. But there are, of course, other UN organs that are worth noting. While the ill-fated League of Nations focused on military and political problems, the UN system is more inclusive, as evidenced by Charter recognition of the economic and social sparks for igniting conflict. UN priorities thus 55

56

57 58

See M. Karns and K. A. Mingst. International Organizations: The Politics and Processes of Global Governance (Boulder, CO: Lynne Rienner, 2004), 89. “Declarations Recognizing the Jurisdiction of the Court as Compulsory,” International Court of Justice, accessed on July 14, 2020, www.icj-cij.org/en/declarations accessed May 19, 2022. United Nations, Charter of the United Nations, Article 94, 1945, 1 UNTS XVI. For an excellent discussion of compliance with ICJ decisions and the various ways states can bring disputes to the Court, see A. Llamzon, “Jurisdiction and Compliance in Recent Decisions of the International Court of Justice,” European Journal of International Law 18, No. 15 (2008): 815–852.

3 The United Nations

include the observance of human rights, sustainable development, and the general welfare of the individual. The organization is given authority over a very wide range of UN economic and social projects – ranging from the UN Development Program (UNDP) to the World Meteorological Organization (WMO) to the International Monetary Fund (IMF).59 The rotating fifty-fourmember Economic and Social Council (ECOSOC) operates under the authority of the General Assembly. Its job description is to promote: “(a) higher standards of living, full employment, and conditions of economic and social progress and development; (b) solutions of international economic, social, health, and related problems; and international cultural and educational cooperation; and (c) universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.”60 The Trusteeship Council is a distinct UN organ consisting of selected member states. It has been responsible for the administration of territories that are incapable of self-government. Under Article 77 of the Charter, certain member states had supervised territories detached from enemy states, typically as a result of war. Supervising states accepting a “trust” territory had to observe the principle that the interests of the inhabitants of these territories were paramount to any interests of the supervising state. The supervising state therefore had to accept the obligation to promote the well-being of the inhabitants. This “big brother” plan was devised to promote the political, economic, social, and educational advancement of the supervised territories that were not yet capable of self-governance. This posture made sense when the Charter was drafted in 1945, long before the decolonization movement of the 1960s. Another trusteeship objective was to help these territories achieve self-government through the progressive development of independent political institutions. The Trusteeship Council’s work was completed due to the success of the decolonization movement of the 1960s. It thus suspended operation in 1994, with the independence of Palau – the last remaining UN trust territory. It no longer conducts its annual meetings although it may meet if its president, a majority of its members, the General Assembly, or the Security Council so decide. Finally, the UN Secretariat administers all of the programs of the UN. At its zenith, a staff numbering over 30,000 persons (at Geneva, New York, Vienna, and Nairobi) is headed by the UN Secretary-General. Appointed after the 59

60

See the wide range of ECOSOC entities at www.un.org/en/ecosoc/about/pdf/ecosoc_chart .pdf accessed May 19, 2022. ECOSOC home page, www.un.org/ecosoc accessed May 18, 2022.

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General Assembly recommendation to the Security Council, this officer is the UN’s chief administrator and is the “face” of the organization. Employees of the Secretariat, including the Secretary-General, are expected to execute their duties independently of any national allegiances. Article 100 of the UN Charter provides that in the “performance of their duties the Secretary-General and the staff shall not seek or receive instructions from any other authority external to the Organization. They shall refrain from any action which might reflect on their position as international officials responsible only to the Organization.” State members of the UN must therefore respect the exclusively international character and responsibilities of their citizens while they are serving on the UN staff. An important, but somewhat obscure, function of the office of the SecretaryGeneral is preventive diplomacy. While the public has traditionally perceived the role of this office as merely titular, the Secretary-General has often undertaken quite perilous negotiations to resolve international crises such as SecretaryGeneral Guterres’s personal attempts to mitigate the Russia–Ukraine conflict in 2022. Under Article 99 of the UN Charter, the Secretary-General “may bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security.” In SecretaryGeneral Boutros Boutros-Ghali’s Agenda for Peace, requested by the heads of state at the first meeting of the Security Council in 1992, he aptly noted the increasing importance of this role. In his words: There is a long history of the utilization by the United Nations of distinguished statesmen to facilitate the processes of peace. . . . Frequently it is the SecretaryGeneral himself who undertakes the task. While the mediator’s effectiveness is enhanced by strong and evident support from the [Security] Council, the General Assembly and the relevant Member States acting in their national capacity, the good offices of the Secretary-General may at times be employed most effectively when conducted independently of the deliberative bodies.61

3.3

UN Assessment

This portion of the chapter summarizes the perspectives about how the UN has discharged its Charter functions. Some commentators claim that it is merely a place to let off steam, operating as a conduit for the hegemony of its most powerful national members. The most accurate account is one that is drawn after a careful assessment of both sides of the UN balance sheet. Although there have been pluses, the many minuses are attributable to the 61

B. Boutros-Ghali, An Agenda for Peace: Preventative Diplomacy, Peacemaking, and Peacekeeping (New York: United Nations, 1992), 21–22.

3 The United Nations

organization’s prototypical limitations, put in place by the very states that created it. There is a widely perceived weakness, which ironically attests to the UN’s resilience under arduous circumstances, that the UN has been historically powerless to effectively control the excesses of its member states. While there has been no World War III, there have been numerous conflicts in its long existence. Critics have often wondered aloud why the UN exists if its purpose was to effectively manage conflict, rather than standing on the sidelines. At the 1945 UN Charter drafting conference, the international community provided the Security Council with the ostensible power to handle future conflicts. Article 43, for example, stated that the UN would have a military force at its disposal, to be staffed based upon future agreements. While troops would later become available, UN operations always have to be carried out on an ad hoc voluntary basis. UN involvement depends on the political consent of the affected states, as well as that of each of the five permanent Security Council members (because of their respective abilities to veto UN action). Unlike its member states, the UN would never have a standing army.62 The UN Charter was thus drafted to include broad standards of achievement with which no state could openly disagree. But as is typical of most multinational treaty-making, such treaties are not intended to be immediately binding. One reason was that the Charter’s blueprint for the post-World War II community of states was the product of negotiations among statecentric representatives. Since the 1648 Treaty of Westphalia, national sovereignty has been the cornerstone of the global way of life. Thus, the UN project was not inclined to cede clear-cut, sovereign-like powers to an international organization. State delegates to the 1945 drafting conference feared that the organization might rise up and become their political Frankenstein: it might one day turn into a whole more powerful than the sum of its parts. The UN has achieved the degree of success that one might expect from an international organization composed of sovereign states. They did not opt to yield the requisite degree of sovereignty to the UN, which otherwise would have empowered it to function against their wishes. This international organization was never intended to be a supreme legislative body. Nor did its state creators intend to endow it with executive powers. The UN could do little to force members to comply with the decisions of UN organs.

62

See Simma, The Charter of the United Nations: A Commentary, 760–763.

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This limitation was evidenced by the lack of Charter language vesting the Secretary-General with effective control over UN military operations. In many ways, the UN has fallen short of expectations, even if those expectations were unrealistic at the outset. Critics tend to focus on the limitations of the Security Council and General Assembly. They often overlook the fact that the UN has commissioned numerous agencies to pursue programs that have improved living conditions for millions of people. UN economic and social welfare programs have eliminated diseases. They have generated hundreds of treaties dealing with a host of issues including climate change, narcotics, trade, slavery, atomic energy, road transportation, and famine relief efforts. The UN can similarly be credited with the global proliferation of human rights treaties in recent decades. Another major accomplishment that is often overlooked is the UN Convention on the Law of the Sea, which would not have been concluded without the UN at the helm. As Gordenker puts it, “[t]he UN clan enables some governance – and promises more – in a world that needs organized cooperation of national governments.”63 Indeed, one of the major problems the UN faces is its member states themselves. The international system is still wedded to the Westphalian idea of sovereign states that answer to no higher authority. And yet, the problems states face are increasingly transnational in nature, requiring international cooperation to mitigate or solve. Rethinking sovereignty itself – as was proposed, in a fashion, by the International Commission on Intervention and State Sovereignty in 2001 in the form of the “Responsibility to Protect,” or R2P – in order to make it a less rigid, more inclusive norm would go a long way to helping the UN achieve the goals set forth in the Charter. If states are truly the only actors that matter in international politics and they are accountable to no authority aside from themselves, there seems to be little hope of resolving the major challenges the world faces. The cooperation that the UN embodies is currently under attack from many fronts: populist leaders in the US, the UK, Russia, and Brazil, for example, have routinely attacked the international agenda of the UN and other international organizations. Indeed, the US Trump Administration was committed to reducing American participation in a lot of major initiatives achieved under the UN’s auspices (and under US leadership), such as the Paris Climate Agreement, the Joint Comprehensive Plan of Action (JCPOA; or the Iran Nuclear Deal), the WHO, and even the WTO. The administration was propelled by its slogan “America First,” which put it at odds with most of the rest 63

L. Gordenker, “The UN System,” in T. Weiss and R. Wilkinson, eds., International Organization and Global Governance, 2nd ed. (London: Routledge, 2018), Ch. 16.

3 The United Nations

of the world. President Trump addressed the 74th Session of the General Assembly in 2019 with rhetoric that no one could mistake for anything other than nationalism and isolationism: Looking around and all over this large, magnificent planet, the truth is plain to see: If you want freedom, take pride in your country. If you want democracy, hold on to your sovereignty. And if you want peace, love your nation. Wise leaders always put the good of their own people and their own country first. The future does not belong to globalists. The future belongs to patriots. The future belongs to sovereign and independent nations who protect their citizens, respect their neighbors, and honor the differences that make each country special and unique.64

This kind of movement, however, could also inspire a counter-movement or a radical realignment of the global centers of power. The confluence of populism, rising environmental threats (evidenced by unprecedented wildfires, super-storms, and climate change–induced heatwaves), massive human displacement (in the form of Europe’s migrant crisis in 2015 or the continuing crisis of the Rohingya Muslims in Bangladesh), and a global pandemic (COVID-19) have illustrated the chasm between globalists and nationalists. Combined with wavering US global leadership and China’s and Russia’s ascendance in world politics, the world could indeed be headed for increased fragmentation that will make the work of an international organization like the UN more difficult (or even irrelevant). Ikenberry, however, theorizes the possibility for a different world: a new liberal order in which the world focuses on “pragmatic, cooperative solutions to the global dangers arising from interdependence,” as happened during Franklin Roosevelt’s presidency.65 Instead of collapsing into a world of competing Great Powers, the world could again embrace the shared goals of a liberal international order that fosters cooperation on large issues and links international cooperation to well-being at home. In this world, the UN could emerge as more relevant than ever – a hub for political, social, economic, and environmental cooperation. We have yet to see what “order” emerges out of the maelstrom of events that has seemed to lead to the liberal order’s quick unraveling – not least of which is the Russian invasion

64

65

“Remarks by President Trump to the 74th Session of the United Nations General Assembly,” The White House (United States Government), September 25, 2019, https:// trumpwhitehouse.archives.gov/briefings-statements/remarks-president-trump-74thsession-united-nations-general-assembly/ accessed May 19, 2022. J. Ikenberry, “The Next Liberal Order,” Foreign Affairs 99, No. 4 (2020): 134.

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of Ukraine in February 2022. Whatever emerges, however, will have a massive impact on how the UN functions and how it will (or will not) face future challenges.

4 European Union The UN is an excellent example of an intergovernmental international organization: while the UN has an identity of its own, it is constrained – sometimes severely – by its member states. Additionally, the UN makes very limited sovereignty demands on its members. It does not require them to transfer a lot of their decision-making authority to the UN as an organization, and member states are free to ignore what it says (and they do) with relatively few repercussions. This has had the effect of making the organization look weak and unresponsive to international crises, an unfair criticism once the circumstances of the UN’s activities are fully understood. Our conversation now turns to the EU, which has intergovernmental aspects but is also a good example of an organization that has supranational authority separate from its member states. The EU places high demands on member states’ sovereignty and has taken over decision-making authority in a wide array of policy areas. States cede this authority to the supranational organization when they become members; it is a choice they make, reasoning that in giving up some of their sovereignty, they stand to gain more as members of a prosperous bloc. In other words, joining the EU by trading their sovereignty is a good investment. The EU currently has twenty-seven states that have made this choice, with several other states whose applications for membership are pending. Uniquely, the EU also has just endured its first divorce, with the UK choosing to leave the EU after a shocking “Brexit” referendum in 2016.

4.1

Evolution of the European Project

War was a feature of the European system for much of history. Years before integration was on Europe’s agenda, there were major conflicts like the Revolutionary and Napoleonic Wars in 1789–1815, Franco–Prussian War in 1870–1871, then World War I between 1914–1918. Beset by violent nationalism in the run up to and during World War I, the prospects for European unity seemed bleak. The devastation of World War I, however, provided the fodder for new ideas about what Europe could be. Thinkers such as Count Richard Coudenhove-Kalergi and Aristide Briand, for example, foresaw the possibility of a “United States of Europe,” complete with a

4 European Union

customs union and policy coordination. Adolf Hitler forced those ideas to be shelved with his poisoned nationalism and quest for German greatness, leading to the horrors of World War II. But while World War II raged, groups of European thinkers were already plotting a European future that would unite the continent and eliminate the need for destructive war. Altiero Spinelli and Ernesto Rossi were two men who envisioned a new Europe, free of the tyranny of the nation state that had led Europe into world wars: We have seen a demonstration that no country within Europe can stay on the sidelines while the others battle: declarations of neutrality and non-aggression pacts come to nought. The uselessness, even harmfulness, of organizations like the League of Nations has been demonstrated: they pretend to guarantee an international law without a military force capable of imposing its decisions respecting the absolute sovereignty of the member states. The principle of nonintervention turned out to be absurd. According to it each population was left free to choose the despotic government it thought best, as if the constitution of each of the single states were not a question of vital interest for all the other European nations. The multiple problems which poison international life on the continent have proved to be insoluble: tracing boundaries through areas inhabited by mixed populations, defence of alien minorities’ seaports for landlocked countries, the Balkan Question, the Irish problem, and so on. All matters which would find easy solutions in the European Federation.66

Spinelli and Rossi were not alone in their thinking. British Prime Minister Winston Churchill lamented that the “tragedy of Europe” was that, despite all of its virtues, the continent seemed locked in “frightful nationalistic quarrels” for which the “sovereign remedy” was “to re-create the European Family, or as much of it as we can, and provide it with a structure under which it can dwell in peace, in safety, and in freedom. We must build a kind of United States of Europe.” The only way to do that, according to Churchill, was a reconciliation between France and Germany. “The structure of the United States of Europe, if well and truly built,” he said, “will be such as to make the material strength of a single state less important.”67 The international entity that would become the EU contains elements of all of these thoughts.

66

67

A. Spinelli and E. Rossi, The Ventotene Manifesto (Ventotene: The Altiero Spinelli Institute for Federalist Studies, 1941), 75–96, www.cvce.eu/content/publication/1997/10/13/ 316aa96c-e7ff-4b9e-b43a-958e96afbecc/publishable_en.pdf accessed May 19, 2022. W. Churchill, “The Tragedy of Europe,” in B. Nelsen and A. Stubb, eds., The European Union: Readings on the Theory and Practice of European Integration (New York: Palgrave, 2003), 7–11.

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The EU that we know today is the product of a series of treaties, each of which has changed the organization and made it better able to respond to political and economic realities. The first step to uniting Europe was indeed reconciliation between France and Germany, and this came in the form of uniting coal and steel production in Germany’s Ruhr Valley. In this way, the destructive potential of German industry would be effectively harnessed for mutually beneficial peaceful trade, and the French would be mollified by not having to worry about secret German rearmament. This was the brainchild of French bureaucrat Jean Monnet and French foreign minister Robert Schuman, who announced the plan in 1950. The now-famous Schuman Declaration put French and German coal and steel production under a common “High Authority,” separate from France and Germany. Other European states were invited to join, and soon four others did: Italy, Belgium, the Netherlands, and Luxembourg. These countries, known as “The Six,” signed the Treaty of Paris in 1951 that created the European Coal and Steel Community (ECSC). In doing so, they became the first countries to relinquish some of their sovereignty to the High Authority (of which Monnet was the first president), paving the way for more significant transfers. Later treaties reflect the expansion of the membership in the European project and the expansion of authority of supranational institutions. In 1957, the Treaty of Rome established the European Economic Community (EEC) and European Atomic Energy Community (EURATOM). Under the Treaty of Rome, The Six sought to establish a common market with no internal barriers to trade as well as free movement of goods and services within its borders. It also called for the establishment of common trade, transportation, and agricultural policies. The Treaty of Rome has had two significant revisions: the Maastricht Treaty of 1992 (after which the organization was referred to as the “European Union”) and the Treaty of Lisbon in 2009 (when the Treaty of Rome became the Treaty on the Functioning of the European Union (TFEU) and the Maastricht Treaty became the Treaty on European Union (TEU)). Each of these has changed the EU’s structure and moved it toward greater authority over member states. The Maastricht Treaty contained plans for economic and monetary union (the euro, or the common European currency) as well as a common foreign and security policy. Later, the Treaties of Amsterdam and Nice attempted internal reforms of the EU so that it could accommodate an influx of new member states. The final treaty, the Treaty of Lisbon of 2009, was a major overhaul to the previous treaties in that it gave more power to the European Parliament, created the new posts of President of the European Council and the High Representative for the Common Foreign and Security Policy, and

4 European Union

created the European External Action Service (diplomatic corps). In addition, the Treaty of Lisbon clarified which powers in the EU belonged to the EU itself, which were shared, and which belonged to the member states. In the signing and ratification of these successive treaties, it is clear that the organization’s beginnings in coal and steel were quickly overtaken by a desire to integrate on more complicated and sensitive matters: ever closer union. Membership in the EU increased fairly rapidly after the Treaty of Rome was signed. Soon the UK joined, followed by Ireland and Denmark. Greece, Spain, and Portugal – relatively poor, weak democracies – joined in 1986, followed by Austria, Finland, and Sweden in 1995. A massive influx of new member states came in 2004, as newly independent countries of the former Eastern bloc flocked to enter into the European club. Ten new member states – Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia, and Slovenia – entered in 2004, followed by Bulgaria and Romania in 2007. Croatia, the newest member state, entered in 2013. As noted earlier, the UK voted to leave the EU in 2016, and officially withdrew on January 31, 2020. Several other countries, all of them straddling the line between Europe and Asia, are considered “candidate countries” and are in negotiation to join the EU. Some of those negotiations, such as with Turkey, have been going on for decades. Still other countries have been dramatically pushed in the EU’s direction by threats from Russia, notably Ukraine and Moldova.

4.2

Institutions of the EU

Like the UN, the EU has its own institutional structure, knowledge of which helps to explain the authority it has over member states. Also like the UN, this structure does not explicitly mirror the executive/legislative/judicial branch structure that is common in national governments. We can divide the institutions of the EU into two types: those that are supranational in nature, and those that are intergovernmental. The supranational institutions are the European Commission and the Court of Justice of the European Union (CJEU), while the intergovernmental institutions are the Council of the European Union, the European Parliament, and the European Council. Supranational institutions speak for the EU as an entity separate from, and with authority distinct from, the member states. Intergovernmental institutions are venues in which member states can voice their individual, national concerns vis-à-vis the EU as a whole. (Note that the similarsounding Council of Europe is not part of the EU’s institutional framework. It is discussed in Chapter 7.) The European Commission is the executive of the EU and is the initiator of policy for the entire organization as well as its agenda-setter. It is led by a

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powerful president of the European Commission, who serves a five-year, renewable term. The president selects other Commissioners, high-level politicians drawn one from each member state, to represent an entire policy area (e.g., environment, technology, agriculture). The European Commission is sometimes referred to as the “conscience of the European Union.” As Ginsberg notes, “[i]ts mandate, delegated to it by the member governments, is to do the right thing to advance the common interest – in other words, to do what the governmental principals themselves have found so elusive in their relations with one another since the Thirty Years War.”68 It is also named the “guardian of the treaties” in the Treaty of Lisbon, because it is tasked with ensuring the uniform application of EU law throughout the member states – no small task. The Commission is headquartered in Brussels, Belgium. The supranational Commission works closely with the Council of the EU, which is composed of ministers from member states and serves as a colegislator with the European Parliament. The Council of the EU meets in ten different configurations: when it is discussing foreign policy proposed by the Commission, for example, all member state foreign ministers attend its meetings in Brussels as the Foreign Affairs Council. It is the same for other policy areas.69 It is at the Council where member states have the chance to voice concerns about policy, coordinate policy, make amendments, and adopt laws that will apply in all member states. The Council also meets in Brussels. The European Parliament is a co-legislator with the Council and is the only directly elected body of the EU. Its approximately 705 representatives are elected within their member states based on platforms associated with European-level political parties, and must work with the membership of the Council to agree on joint language for all European legislation. The Parliament has two main seats of operation, one in Brussels and one in Strasbourg, France. Elections are held in the member states every five years around the same time in May. Like the European Commission, the CJEU is a supranational institution that works for the interest of the EU as a whole. The CJEU, headquartered in Luxembourg, is the primary interpreter of the treaties, and hears disputes between member states, between member states and the EU institutions, or

68

69

R. Ginsberg, Demystifying the European Union (Lanham: Rowman & Littlefield, 2007), 164–165. See the Council website for more on the configurations: https://europa.eu/european-union/ about-eu/institutions-bodies/council-eu_en accessed May 19, 2022.

4 European Union

between the EU institutions. It ensures that EU laws are consistently applied in member states, and can sanction member states or EU institutions for not living up to the standards set in the treaties. Importantly, member state national courts must refer cases that touch on European law to the CJEU for a “preliminary ruling,” in which the CJEU advises the national courts on making a ruling consonant with EU law. These preliminary rulings are the most common type of case that is brought before the CJEU. The CJEU is the final word on EU law, and its decisions are immediately applicable in all member states. The judgments of the CJEU are final. Oddly, the CJEU is not the only EU institution endowed with enforcement powers. In the area of competition law (anti-trust, mergers, cartels, abuse of dominant market position), the European Commission makes the rules, enforces them, and is also the judge if it suspects they are being ignored or broken. In effect, the Commission can require non-EU businesses to adhere to EU law, which of course they want to do because they want access to the large (and wealthy) European market. If a business acts in contravention of EU competition law, the Commission is empowered to hold hearings, make a judgment, and enforce penalties. There have been many such cases, but those against major tech companies seem to garner the most attention. In a very famous case against the Microsoft Corporation, the Commission found the computer giant guilty of abusing its market position in relation to operating systems, of which it held 60 percent of the market. This, the Commission argued, made it impossible for other tech companies to compete for consumers’ attention and euros, especially since Microsoft would not release trade-secret protocol information (Microsoft v. Commission). After a protracted legal battle that extended to several other aspects of Microsoft’s market position in Europe, the Commission ended up fining Microsoft over $1.35 billion. Microsoft paid the fine in full. No tech company is immune; in recent years, Facebook, Apple, and Google have also found themselves in the Commission’s crosshairs. The EU institutions, then, are fundamentally different in nature to the organs of the UN. Whereas in the UN member states are free to exercise their sovereignty when they disagree with the organization – larger, more powerful states, especially – in the EU member states do not enjoy that same type of freedom. The EU cannot be ignored; with a powerful Court of Justice that can hand down decisions with real consequences, member states typically comply with its dictates. Indeed, upon signing on as members of the EU, states realize that they are voluntarily tying their own hands in terms of a large number of policy areas, so it is expected that compliance is high. The relationship states have with the UN was never designed to work in the same way.

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4.3

Legal Personality of the EU

Since the Treaty of Lisbon, the EU’s legal personality has not been in doubt. Article 47 of the Treaty on European Union clearly and unequivocally states, “The Union shall have legal personality.”70 Prior to this, the EU’s legal personality was assumed as “borrowed” from the member states.71 As Paasivirta notes, the EU statement to the Sixth Committee of the UN General Assembly makes the EU’s legal personality clear: Firstly, the European Union has legal personality and is subject of international law exercising rights and bearing responsibilities. Secondly, it is important to note that the EU has full treaty making capacity, which follows from the competences conferred on it by its member States in many important areas such as trade, development, fisheries, and the environment, to name but few. It is also important to note that the EU is recognized by others as a treaty partner in a large number of multilateral and bilateral treaties, either on its own or alongside its member States.72

But how does the established legal personality of the EU itself square with the legal personalities of its member states? Article 5 of the Treaty on European Union establishes that the EU has “conferred competence,” meaning that its actions are restricted to only those areas where the member states have explicitly agreed that it should have authority. But the story is more complicated, as most of the EU’s conferred competences are regulatory in nature, and this in part allows it to enter into agreements like that it has with the WTO. As Paasivirta explains, however: the practical application and management of the EU rules is carried out, not only at the Union level through its own organs – which is the case, for instance, in relation to decisions concerning state aid or management of competition by the EU institutions – but also to a large extent by the national authorities of member States . . . The EU does not have its own local administration in the member States (like in U.S.-style federalism), and thus the EU member State authorities play a key role in the execution of EU acts, in lieu of the organization acting via 70

71

72

Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union (TFEU), Article 47 (2016), OJ C202/1. J. Klabbers, “Presumptive Personality: The European Union in International Law,” in M. Koskenniemi, ed., International Law Aspects of the European Union (Hague: Martinus Nijhoff, 1998), 231. E. Cujo, Legal Adviser, Delegation of the European Union to the United Nations, “Statement on behalf of the European Union,” at the Sixth Committee on Agenda Item 78 on the Identification of Customary International Law (November 3, 2014), cited in E. Paasivirta, “The Responsibility of Member States of International Organizations? A Special Case for the European Union,” International Organizations Law Review 12 (2015): 448–467.

4 European Union its own organs. For these reasons, there is a constant presence of member States in the EU action which tends to generate questions of separate member State responsibility.73

When both the EU and its member states are participants in the same negotiation, it should be interpreted as an outward sign of the division of competences between them, not as a duplication of effort. The EU is the only international organization that has this arrangement – so far.

4.4

EU Assessment

The EU has been remarkably resilient since its post-World War II formation, and this is due, in part, to its ability to adapt to new situations. The EU has weathered its share of crises74 over the years, including: (1) relatively rapid expansion to include an economically and politically diverse set of countries that were not always ready for the rigors of membership; (2) early skepticism about Europe’s increasing power of member states (manifest in a failed constitutional referendum in 2005); (3) the global financial crisis in 2007–2010 that wreaked havoc on the countries of the Eurozone (member states that use the common euro currency) and called the entire integration project into question; (4) the arrival of millions of poor migrants onto European shores in 2015 that threatened the stability of the continent and continues to test the EU’s commitment to human rights and to continental unity; and of course (5) Brexit, which marked the first time a state voted to leave the organization. At each of these critical junctures, the EU attempted to respond in a way that maintained the integrity of the European project, but that often smacks of technocratic elitism. Among the most enduring problems the EU faces is its commitment to democracy. It has long been accused of operating at a “democratic deficit,” preaching the value of democracy for member states without practicing democracy within its own institutions, alienating Europeans in the process.75 Recall, for example, that the European Parliament is the only body of the EU that is directly elected, while the other (arguably more powerful) institutions are appointed without input from European citizens. And yet, as McCormick notes, “in order for the EU to become as accountable as many would wish, it would need to be turned into the kind of federal system that many opponents 73 74

75

Paasivirta, “The Responsibility of Member States of International Organizations?,” 456. For an excellent treatment of the EU’s many crises, see D. Dinan, N. Nugent, and W. Paterson, eds., The European Union in Crisis (London: Palgrave, 2017). For a tidy discussion of this debate, see A. Moravcsik, “In Defence of the ‘Democratic Deficit’: Reassessing Legitimacy in the European Union,” Journal of Common Market Studies 40, No. 4: 603–624.

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of the EU oppose. If regarded as an international organization, however, or even a European confederation, there is little that is undemocratic about the structure of the EU.”76 Because of its intergovernmental and supranational elements, the EU and its problems are sometimes difficult to define, much less resolve. It is at once a quasi-federal system of states and also an international organization. As a result of this unique structure, there is a constant push-and-pull between the EU’s supranational and its intergovernmental components. Brexit certainly made this battle evident to the casual observer, but other battles lurk in the everyday decisions of national courts, national governments, the Commission, and the CJEU. In 2020 the German Federal Constitutional Court (the highest court in Germany’s legal system) handed down a decision that embodied the struggle that the EU and its member states are locked in, one that indicates the potentially rocky road that lies ahead.

WEISS, ET AL. German Federal Constitutional Court, 2 BvR 859/15, May 5, 2020 [Excerpted case available at www.cambridge.org/FPIL7]

How will the EU weather a crisis like the one this judgment indicates? Will other member states – ones that are potentially less enamored of the idea of an integrated European continent seeking ever closer union – attempt to use these same arguments to dismember or weaken the EU? Current tolerance of the EU Commission for blatantly autocratic moves by member states like Hungary and Poland are not encouraging. It is unclear if, despite the fact that commitment to democracy and rule of law are criteria for admission to the Union, there is an off-ramp for states that violate this core commitment.77

5 Other Organizations While it is not within the scope of this text to provide exhaustive information on all of the international organizations that are currently active in world affairs, the remainder of this chapter focuses on just a few organizations that 76 77

J. McCormick, Understanding the European Union (London: Red Globe Press, 2020). For an excellent discussion of this challenge, see D. Kelemen and L. Pech, “Why Autocrats Love Constitutional Identity and Constitutional Pluralism: Lessons from Hungary and Poland,” RECONNECT Europe, Working Paper No. 2 (September 2018) https://reconnecteurope.eu/wp-content/uploads/2018/10/RECONNECT-WorkingPaper2-Kelemen-Pech-LPKO.pdf accessed May 19, 2022.

5 Other Organizations

are likely to appear in other chapters of this book: NATO, the OAS, the AU, and the WHO. These organizations were selected for further discussion due to their prominence in world affairs, but certainly there are many others. Not included in this discussion are the wide variety of NGOs that often have a large impact, such as Doctors Without Borders/Médecins Sans Frontières (MSF), or Greenpeace. A small sample of active international organizations – many of which will be discussed in subsequent chapters – appears in Table 6.1; note that several are under the organizational umbrella of the UN.

5.1

North Atlantic Treaty Organization

It is difficult to talk about the EU without mentioning another major international organization that has its headquarters is Brussels. NATO is the major military defense organization in the world, formed after World War II to balance the threat to Europe posed by the Soviet Union. NATO is based on the principle of collective security enshrined in Article 5 of the North Atlantic Treaty: a threat to one of the members is considered a threat to all of them.78 While most EU members plus Canada, Turkey, Albania, North Macedonia, and Montenegro are members of NATO, the organization’s blessing and curse has been the membership and dominance of the US. In part because of the US-heavy military might of NATO, the EU has not fully realized a common position on European defense, and also has no standing “Euro Army.” And while NATO’s commitment is largely to defending Europe, it is worth noting that the Supreme Commander has always been an American. While NATO had a clear role in maintaining peace in Europe while the Cold War raged, it has had several “identity crises” since the collapse of the Soviet Union in 1991. What need was there for a security organization in Europe once the primary threat to European security had evaporated? That question was answered, in part, when war in the Balkans in the early 1990s brought conflict to Europe’s backyard; in the absence of an effective response from the EU, the UN called on NATO to assist with the enforcement of UN Security Council resolutions that were designed to stabilize the conflict enough for UN peacekeepers to be deployed in the region. During the civil war, NATO was called upon to provide air support for UN peacekeepers and eventually conduct airstrikes against Serb forces at the UN’s request. After the Dayton Peace Accords were signed in 1995, NATO was asked to continue its presence in the region by establishing the Implementation Force (IFOR) and later the Stabilization Force (SFOR) that were key to preserving peace in war-torn southeastern Europe. It was only after nearly a decade had passed

78

NATO, “The North Atlantic Treaty,” NATO (April 1, 2009) www.nato.int/cps/en/natohq/ official_texts_17120.htm accessed May 19, 2022.

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Table 6.1. Select international organizations Organization Title

Acronym

Purpose/Type

Year Founded

African Union

AU

Security, integration

2002

Arab League

(none)

Arab solidarity

1945

Association of Southeast Asian Nations

ASEAN

Economic integration

1967

European Union

EU

Economic integration; political union

1951

International Monetary Fund

IMF

Global finance

1945 (UN agency)

North Atlantic Treaty Organization

NATO

Security

1949

Organization for Security and Cooperation in Europe

OSCE

Security

1975

Organization of American States

OAS

Democracy promotion, human rights, integration

1948

Organization of Petroleum Exporting Countries

OPEC

Trade, management of oil reserves

1960

Organization of the Islamic Conference

OIC

Islamic solidarity

1969

United Nations

UN

Security, economic, social, cultural

1945

United Nations Environment Programme

UNEP

Environment

1972 (UN agency)

World Health Organization

WHO

Public health

1948 (UN agency)

World Trade Organization

WTO

Trade, trade dispute resolution

1995 (successor to GATT, 1944)

that NATO was able to pass responsibility for these missions to the EU.79 By that time, NATO was already supporting the UN and Kosovar Albanians against Serbia, and NATO’s Kosovo Force (KFOR) has been in Kosovo since

79

For more on this, see T. Weiss, What’s Wrong with the United Nations and How to Fix It (Malden, MA: Polity, 2010), 133.

5 Other Organizations

1999. In many ways, the war in the Balkans represents a perfect illustration of how several international organizations can complement each other. After the attacks on the World Trade Center in New York in 2001, NATO’s role shifted again. This time, member states were called upon to honor their Article 5 treaty obligations (for the first time ever) to the US by committing NATO forces to patrol the skies over the US and the Mediterranean, and later to fight the war on terror in Afghanistan.80 It then had a 37,000-member, twenty-six state coalition – the International Security Assistance Force (ISAF) in Afghanistan – the biggest NATO operation and the most successful military alliance in history. ISAF ended in 2014, though the US military presence lasted much longer. NATO was not absent from the Middle East, however, after ISAF ended: stabilization and support missions in Iraq and Libya, counter-piracy efforts in the Gulf of Aden, as well as relief missions in places like Pakistan (after a deadly earthquake) and the US (after Hurricane Katrina) have kept NATO forces engaged across the globe.81 Today, the most pressing threat to the NATO alliance is actually NATO’s original enemy in a new form: Russia. Under President Vladimir Putin, who is now slated to be at the helm of the Russian government in some form until the 2030s,82 Russia has become more aggressive toward the West and less compliant with international law, partially as a result of NATO expansion to include many states that were formerly under the Soviet umbrella. Russia’s 2014 annexation of Crimea in Ukraine was widely condemned by the UN and the international community, but due to the fact that Russia is a permanent member of the UN Security Council, nothing was done to counter this flagrant, unexpected violation of territorial sovereignty. NATO was suddenly very relevant again, especially considering the proximity of relatively new NATO states like Estonia, Latvia, and Lithuania to the Russian border. Russia’s continued westward advances, notably in Ukraine in 2022, have again resurrected discussions of NATO’s relevance. Indeed, Russian aggression prompted both neutral Finland and non-aligned Sweden to secure NATO membership. NATO’s steadfast commitment to European defense waned after the 2016 election of Donald Trump as the president of the US. Trump, whose populist, nationalist rhetoric maligned foreign alliances of all types (from trade deals like the North American Free Trade Agreement (NAFTA) to NATO, to the Paris Agreement on climate change), demanded that NATO member 80

81

82

NATO, “Collective Defense – Article 5,” NATO (May 18, 2020) www.nato.int/cps/en/natohq/ topics_110496.htm accessed May 19, 2022. NATO, “Operations and Missions: Past and Present,” NATO (June 11, 2018) www.nato.int/ cps/en/natohq/topics_52060.htm accessed May 19, 2022. S. Neuman, “Referendum in Russia Passes, Allowing Putin to Remain President until 2036,” NPR (July 2, 2020) www.npr.org/2020/07/01/886440694/referendum-in-russia-passesallowing-putin-to-remain-president-until-2036 accessed May 19, 2022.

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states pay more into the alliance, at least 2 percent of each country’s gross domestic product (GDP). (This is a NATO guideline, but certainly not a rule.) On several occasions he openly questioned NATO’s utility, and even threatened to pull the US out of the alliance altogether. Doing so would be the “gift of the century” to Russia’s Putin, one admiral said, noting that Putin would like nothing more than to see NATO substantially weakened.83 US withdrawal from the alliance would likely kill it completely. Combined with the likely Russian interference in US elections and attempts to undermine liberal democracy in Western Europe84 as well, the Russian threat is very real and cannot be ignored.

5.2

Organization of American States

The OAS, headquartered in Washington, DC, is composed of thirty-five states in the western hemisphere, with Cuba having a special arrangement with the organization since 2009.85 Of the existing international organizations, the OAS is the world’s oldest. In 1890, several nations created a bureau, later known as the Pan American Union. In 1948, it was incorporated into another entity called the OAS. Its essential purposes, outlined in Article 2 of the OAS Charter, are as follows: a. To strengthen the peace and security of the continent; b. To promote and consolidate representative democracy, with due respect for the principle of nonintervention; c. To prevent possible causes of difficulties and to ensure the pacific settlement of disputes that may arise among the Member States; d. To provide for common action on the part of those States in the event of aggression; e. To seek the solution of political, juridical, and economic problems that may arise among them; f. To promote, by cooperative action, their economic, social, and cultural development;

83

84

85

J. E. Barnes and H. Cooper, “Trump Discussed Pulling U.S. from NATO, Aides Say Amid New Concerns over Russia,” New York Times, January 15, 2019. M. Apuzzo and A. Satariano, “Russia Is Targeting Europe’s Elections: So Are Far-Right Copycats,” New York Times, May 12, 2019. As a result of the 1962 Cuban Missile Crisis, OAS members voted to suspend Cuba’s participation. In June and July of 2009, the OAS respectively rescinded its decision to suspend Cuba and noted that its participation “will be the result of a process of dialogue initiated at the request of the Government of Cuba, and in accordance with the practices, purposes, and principles of the OAS.” See www.oas.org/en/about/member_states.asp accessed May 19, 2022.

5 Other Organizations g. To eradicate extreme poverty, which constitutes an obstacle to the full democratic development of the peoples of the hemisphere; and h. To achieve an effective limitation of conventional weapons that will make it possible to devote the largest amount of resources to the economic and social development of the Member States.86

The OAS Charter broadly addresses nearly all facets of economic and political life in the western hemisphere, drawing on parallel provisions and organizations found in the UN Charter. For example, it has both an organ of consultation, similar to the UN Security Council, and an international court, similar to the UN’s ICJ. Under Article 1 of its Charter, the OAS is a “regional agency” of the UN. These two international organizations are distinct and do not share a hierarchical relationship. The OAS is neither controlled by, nor directly responsible to, the UN. The loose association between these organizations is an example of regionalism within a universal system. This was the preferred post-World War II apparatus for ensuring the coexistence of the new global organization and any regional groupings, which might wish to pursue local concerns. The OAS has changed its functional orientation several times. It was a commercial international organization when its predecessor was formed in 1890. After World War I, its members adopted a non-intervention theme to discourage unilateral action by any OAS member in hemispheric affairs. To promote joint military responses to external threats, the then twentyone member states ratified the Rio Treaty in 1947. It proclaimed that, similar to NATO, “an armed attack by any State against an American State shall be considered as an attack against all the American States.”87 Each member thereby promised to assist the others in repelling such attacks. OAS members are still concerned with defense matters, as evinced by the 1948 OAS Charter’s Article 3(g) provision that “[a]n act of aggression against one American State is an act of aggression against all the other American States.” The latter wording is not as clear an expression of collective selfdefense. The OAS reached a milestone in 2000 when it was able to mediate a border dispute that the UN had struggled with since 1980. Guatemala characterizes the resolution of this dispute as essential to the continuing validity of its acceptance of Belize’s borders, after Belize declared independence from the UK in 1981. The UN General Assembly urged Guatemala and Belize to find a

86 87

OAS Charter, www.oas.org/en/about/purpose.asp accessed May 19, 2022. Article 3.1, Inter-American Treaty of Reciprocal Assistance, 21 UNTS 243, 62 US Stat. 1681.

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peaceful solution to their territorial differences. In the interim, a territorial dispute between these two OAS members resulted in bloody confrontations between their military forces. Guatemala’s perception was that the OAS General Assembly had failed to facilitate a satisfactory solution to the unresolved territorial claims involving several UN member states. Belize contended that its borders had been accepted by previous Guatemalan governments, the international community, the UN, and the OAS. In November 2000, pursuant to the OAS mediation efforts, delegations from Belize and Guatemala signed an agreement to adopt a comprehensive set of “confidence-building measures to avoid incidents between the two countries.” Neither country thereby renounced sovereignty over the claimed territories. Yet this negotiation at least temporarily established a sufficient degree of trust to prevent further hostile incidents, as a prelude to resolving long-simmering territorial claims.88 More recently, Venezuela has topped the list of the OAS’s priorities. After the death of long-time Venezuelan socialist president Hugo Chavez, Nicolas Maduro won an April 2013 election by only slightly more than a percentage point. Venezuela’s economy went into a freefall, and many Venezuelans blamed Maduro’s policies for the decline. In May 2018, Maduro stood for election again, but this time the process was highly controversial; many opposition parties boycotted the election, and other candidates were jailed or otherwise prevented from participating on fear of imprisonment. Venezuela’s legislature, the National Assembly, was controlled by the opposition and did not recognize Maduro’s self-proclaimed victory at the polls. Instead, they backed the leader of the National Assembly, Juan Guaidó, who also declared himself the country’s president on January 23, 2019. Revealing the increasing split between the world’s major powers, the US and more than fifty other countries recognized Mr. Guaidó as the president, while Russia and China backed Maduro.89 As a result of this political instability, years of ineffective economic policy, and US sanctions on Venezuela designed to drive Maduro from office, he still remains president while millions of Venezuelans have fled the country in the midst of fuel and food shortages. The situation is difficult to imagine, given the fact that Venezuela sits on one of the richest oil reserves in the world. “The Venezuelan collapse,” said Marcela Escobari in a written statement to the US House of Representatives,

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For further details, see M. Gorina-Ysern, “OAS Mediates in Belize–Guatemala Border Dispute,” ASIL Insights (December, 2000). “Venezuela Crisis: How the Political Situation Escalated,” BBC News (December 3, 2020) www.bbc.com/news/world-latin-america-36319877 accessed May 19, 2022.

5 Other Organizations . . . is a story of mismanagement and corruption. The economy has suffered from a decade of expropriations, underinvestment in the oil industry, massive foreign indebtedness and the gradual undermining of institutions overseeing government expenditures . . . Maduro has continued to print money, driving up inflation and making products unaffordable for average Venezuelans. He instituted price controls and fixed the exchange rate (giving preferential rates to his allies). Lack of foreign exchange has impaired the capacity of the domestic productive apparatus to produce, making goods scarce, and goods more unaffordable. This cycle has predictably spiraled out of control leading to the humanitarian crisis through a mix of a scarcity of medication and food, weakened markets – and the crime and lawlessness that scarcities have fueled.90

For its part, the OAS has supported Mr. Guaidó, and maintains that his election is consistent with Article 233 of the Venezuelan Constitution and has called for Mr. Maduro to cease his attacks on Guaidó and his supporters. In October 2019, the OAS voted to take punitive action against Maduro via the Inter-American Treaty of Reciprocal Assistance (TIAR), which Venezuela only recently rejoined earlier that year. The TIAR, which has NATO-like collective security provisions, had been invoked several times – most notably by the US after the attacks of September 11, 2001 – but TIAR’s members cited four major reasons to invoke it against Venezuela: The first is the destabilizing effects that the humanitarian crisis in Venezuela and the wave of refugees have had on surrounding countries, as some 4 million Venezuelans have fled the country. The second is the Maduro government’s connections to international criminal organizations, particularly narcotraffickers. Third is Maduro’s support for Colombian guerrilla groups based in Venezuela, which has not only created problems between Colombia and Venezuela but also goes against United Nations and OAS resolutions. And, finally, treaty members cited the sum total of human rights violations committed under Maduro.91

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Written statement of Marcela Escobari, Senior Fellow at the Brookings Institution, to the US House of Representatives Committee on Foreign Affairs, February 26, 2019, in M. Escobari, “Made by Maduro: The Humanitarian Crisis in Venezuela and US Policy Responses,” Brookings (May 15, 2019) www.brookings.edu/testimonies/made-by-maduro-thehumanitarian-crisis-in-venezuela-and-us-policy-responses/ accessed May 19, 2022. J. L. Anderson, “The OAS Ramps up Regional Pressure on Venezuela through the Rio Treaty,” World Politics Review (October 2, 2019) www.worldpoliticsreview.com/articles/ 28233/the-oas-ramps-up-regional-pressure-on-venezuela-through-the-rio-treaty accessed May 19, 2022.

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It is still unclear what effect these OAS-sanctioned actions will have. As of this writing, Venezuelans are still suffering under Maduro, with little relief in sight. While the OAS does not at first blush appear to be a very consequential international organization, it has had enormous impact in its establishment of the Inter-American Court of Human Rights (IACtHR). In 1969, delegates from the OAS adopted the American Convention on Human Rights, which aimed “to consolidate in this hemisphere, within the framework of democratic institutions, a system of personal liberty and social justice based on respect for the essential rights of man.”92 This Convention, and the Commission and Court that oversee compliance with it, has evolved into one of the most respected human rights regimes in the world, rivaling its European counterpart (the ECtHR, which is associated with the non-EU Council of Europe; see Chapter 7). These human rights conventions and courts are discussed in Chapter 7.

5.3

African Union

The AU – previously the Organization of African Unity (OAU), established in 1963 – is rooted in the Western-derived institutions of colonial rule and the related treatment of nations on the African continent. The OAU’s original purpose focused on ridding the continent of the scars of colonialism and ending the practice of apartheid; once apartheid was rejected in South Africa and Nelson Mandela was elected South Africa’s president in 1994, however, the organization needed to be revitalized and refocused. In 2002, the OAU was relaunched as the AU, with a renewed focus on “increased cooperation and integration of African states to drive Africa’s growth and economic development.”93 The original OAU Charter and the later Constitutive Act of the AU tasked the organization to provide for the territorial integrity of its member states. In 1981–1982, the organization seized upon its implied powers in the OAU Charter to establish a peacekeeping force in Chad, intervening in the civil war that raged there. However, that force’s mandate was unclear, and it lacked financing and organization. These circumstances led to failure – mostly because the peacekeeping force was perceived by Chad’s president as being an enforcement arm of the Chadian government, rather than a neutral

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American Convention on Human Rights “Pact of San Jose, Costa Rica” (November 22, 1969), DIL B-32. “About the African Union,” African Union (January 20, 2021) https://au.int/en/overview accessed May 19, 2022.

5 Other Organizations

force.94 When Liberia’s civil war erupted in 1990, neither the OAU nor the UN attempted to mediate or keep the peace – although another African (economic) organization did send in forces.95 The OAU played a minor role in the UN peacekeeping operations in the 1990s (e.g., Somalia, Liberia, and Mozambique). In both 2004 and 2005, the AU proposed a peace mission in the troubled Darfur region of Sudan. International donors then pledged over $200 million to fund the AU’s peacekeeping operation. This force now operates in the Darfur region, having merged with UN forces in 2007 under the name “African Union–United Nations Hybrid Mission in Darfur” or UNAMID. However, its small size prevented it from having an effective impact against the genocide that a number of nations have identified as occurring in Darfur. Sudan’s then-president, Omar Hassan al-Bashir, was indicted by the International Criminal Court (ICC) in July 2008 for his role in promoting that conflict and resisting AU efforts to control it. Bashir has since been ousted, and the AU’s Peace and Security Council suspended Sudan’s membership after peaceful protesters were massacred by members of the Sudanese military in 2019. The AU has also been involved in mediating between civilian and military leaders as the government attempts to reconstitute itself after Bashir’s departure.96 The AU is the largest regional organization in the world and has set for itself an ambitious agenda. In 2013 it began work on a fifty-year vision for the continent called “Agenda 2063,” a plan for accelerating African economic growth and fostering greater Pan-African identity and cooperation.97 Reaching its goals has been challenging, however, considering its often precarious budgetary situation. While it has continually sought to be more self-sufficient, seeking greater contributions from AU member states, efforts to reduce dependency on outside funding sources (e.g., the EU, Germany, Sweden, Australia, the UK, etc.) have not been as successful as hoped. This is problematic given challenges facing the organization in terms of the

94

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H. McCoubrey and N. White, “Peacekeeping by other International Organizations,” in H. McCoubrey and N. White, International Organizations and Civil Wars (Aldershot: Dartmouth, 1995), 186–187. This was the Economic Community of West African States (ECOWAS) force known as “ECOMOG.” Regarding this economic community, see generally, T. Shaw and J. Okolo, The Political Economy and Foreign Policy in ECOWAS (New York: St. Martin’s Press, 1994). International Crisis Group, “Eight Priorities for the African Union in 2020,” International Crisis Group Briefing No. 151 (February 7, 2020) www.crisisgroup.org/africa/african-unionregional-bodies/b151-eight-priorities-african-union-2020 accessed May 19, 2022. African Union “Agenda 2063,” https://au.int/en/agenda2063/flagship-projects accessed May 19, 2022.

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peacekeeping operations (often joint with the UN), election monitoring, and civil society-promoting activities it intends to work on in the future. The AU often comes into conflict with the ICC, a UN-affiliated organization charged with adjudicating crimes against humanity and genocide. Several AU member states have accused the ICC of unfairly targeting Africans, having the most open cases on that continent. Burundi has already withdrawn from the Rome Statute that established the ICC, and several more African states – notably South Africa – have threatened the same. This is addressed in full in Chapter 7.

5.4

World Health Organization

Of the organizations briefly highlighted in this chapter, none so far have been nestled under the umbrella of the UN. The WHO was created in 1948 as a specialized agency within the UN system, meaning that it works with the UN but is fully autonomous. There are seventeen specialized agencies in the UN system, and they include some of the highest profile and powerful international organizations in the world, such as the IMF and the World Bank. Each of these specialized agencies has legal personality and enjoys the same immunities as other international organizations. The specialized agencies report to ECOSOC, as do the other programs (e.g., the United Nations Development Programme, UNDP) and funds (e.g., UN Children’s Fund, UNICEF) that exist alongside the specialized agencies. Specialized agencies are funded through voluntary contributions from UN member states as well as assessed contributions, while programs and funds are financed only through voluntary contributions. The WHO’s current form was established after World War II, but the idea for an organization devoted to public health was not new. Indeed, the League of Nations Health Organization and the Office International d’Hygiène Publique (OIHP) existed well before it. As Harman notes, the first “phase” of global public health development began with scientific discoveries like X-rays and germ theory, as well as the desire to standardize the monitoring and control of health systems via innovations like the International Sanitary Regulations (1903) and the OIHP (1907).98 Later, the League of Nations developed the League’s Health Organization in order to handle concerns like

98

S. Harman, “Global Health Governance,” in T. Weiss and R. Wilkinson, eds., International Organization and Global Governance, 2nd ed. (London: Routledge, 2018), Ch. 52. Harman describes three phases: the first phase culminated in the development of the WHO; the second was about disease eradication, the emergence of HIV/AIDS, and cuts to national public health systems; the third concerns the focus on specific diseases and private funding of global health initiatives, often to the detriment of global health priorities (see 720–725).

5 Other Organizations

influenza and typhus after World War I, and funded its operations through a combination of state contributions and private philanthropy. It was not until after World War II, however, that it was clear that health was significant enough to be included in the UN’s ambitious plans, and the establishment of the WHO in 1948 as the go-to resource for global public health was powerful evidence of member states’ commitment. The WHO is one of the largest of the specialized agencies, and is governed by the World Health Assembly, which is composed of all the member states. The Assembly appoints a Director-General, who is the public face of the WHO and its primary spokesperson. The Assembly is also advised by an Executive Board composed of thirty-four health experts who are elected to three-year terms. Overall, the WHO is guided by its constitution, which commits it to the pursuit of health (and not just the absence of disease) as a human right without discrimination. The WHO has its global headquarters in Geneva, Switzerland. In its initial years of operation, the WHO issued the International Sanitary Regulations (which later became the IHR), which defined “quarantinable” diseases, including cholera, plague, smallpox (which was later removed from the list), yellow fever, and relapsing fever. Revisions to the IHR took place in 1995 and 2005, and they are binding on WHO member states. The IHR (2005) also give the WHO the ability to declare a Public Health Emergency of International Concern, or PHEIC: “an extraordinary event which is determined to constitute a public health risk to other States through the international spread of disease and to potentially require a coordinated international response.”99 The WHO initially refrained from offering prescriptive advice to member states on public health, even when it seemed in its mandate to do so. As Kamradt-Scott writes, after the failure in the 1950s to eradicate malaria, the WHO “fastidiously refrained from even the appearance of instructing governments on the precise measures they should take to eradicate or control diseases. Instead the WHO Secretariat consistently demurred, proffering advice derived from expert consensus and coordinating efforts only where it had been explicitly invited to do so.”100 This became standard practice, especially after the WHO was slapped on the hand for raising the alarm about

99

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World Health Organization, “Emergencies: International Health Regulations and Emergency Committees,” World Health Organization Newsroom (December 19, 2019) www .who.int/news-room/q-a-detail/what-are-the-international-health-regulations-andemergency-committees accessed May 19, 2022. A. Kamradt-Scott, “WHO’s to blame? The World Health Organization and the 2014 Ebola Outbreak in West Africa,” Third World Quarterly 37, No. 3 (2016): 401–418.

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a cholera outbreak in Guinea in 1970 before notifying Guinea that it was going to do so. But since 2001, the WHO has noted the importance of global health security, which it defined as “the activities required, both proactive and reactive, to minimize vulnerability to acute public health events that endanger the collective health of populations living across geographical regions and international boundaries.”101 Since then, it has been put to the test several times: first with the Severe Acute Respiratory Syndrome (SARS) outbreak in 2003, then with the H1N1 influenza pandemic of 2009, then the African Ebola outbreaks of 2014 and 2018, and most recently with the COVID-19 pandemic in 2020. These communicable diseases have been controlled by the WHO with varying degrees of success and varying degrees of cooperation from member states. The Ebola outbreaks in West Africa and the Democratic Republic of Congo attracted a lot of attention, most of it negative. There are criticisms, for example, that the WHO did not respond quickly enough as evidence mounted that the outbreak in Guinea, Liberia, and Sierra Leone in March 2014 was serious. The WHO did not officially express significant concern until June 2014, though scholars like Kamradt-Scott note that the WHO was indeed active during these months, but did not act as a “first responder,” which many seem to imagine it to be. “Even after SARS acutely demonstrated the need for a new approach,” Kamradt-Scott writes, “governments have consistently resisted attempts to expand the [international organization]’s staffing levels to one that might enable the secretariat to adopt a more operational role.” 102 Part of this resistance has come in the form of spending cuts by member states, which only further reduces the capacity of the WHO in the face of ever-rising expectations of what it should be doing. Despite promises of reform that were passed in 2015 in the wake of criticisms about its handling of Ebola, many of the same critiques leveled against the WHO about Ebola have been leveled against its response to the COVID-19 pandemic in 2020. To make matters worse, the international geopolitical situation shifted dramatically since 2014, and the COVID-19 pandemic pitted the US against China, with the WHO caught in the middle of a quest for global influence. The US accused the WHO of playing favorites because it praised the initial Chinese response to the outbreak, which included essentially isolating the city of Wuhan, where the outbreak is alleged to have begun. The end result of this suspicion of favoritism was the US’s decision to first stop funding the WHO – problematic because the US is the largest contributor to the WHO’s budget – and then to initiate the 101 102

World Health Organization, World Health Report (Geneva, 2007), ix. Kamradt-Scott, “WHO’s to blame?,” 405.

Thinking Ahead

withdrawal from the WHO altogether. After a change in presidential administrations, these cuts and the withdrawal ultimately did not come to pass. The COVID-19 pandemic has also raised legal questions.103 Since the scale of worldwide damage from the pandemic was so great and since it seems clear that the virus originated in China, who could not then contain it, does China bear legal responsibility for the pandemic? The IHR are silent on this, and no state has ever borne responsibility for reparations for damage wrought by an infectious disease. On the other hand, since several member states imposed travel bans on China after the outbreak, is that a violation of international law? The legally binding IHR state that measures taken by states “shall not be more restrictive of international traffic and not more invasive or intrusive to persons than reasonably available alternatives.”104 Yet the numerous travel bans that were enacted across the globe in 2020 certainly ran afoul of this, driving states apart at the very time they should have been working together to combat a common enemy. As Meier, et al., note, “the world is more secure when all national responses comply with both public health necessities and global health law.”105 Finally, did the WHO itself bear any responsibility for the timing of its response after China notified it of the virus? Should the WHO have reacted more swiftly, even if it could not fully verify the data it received from the Chinese? These types of questions are sure to endure long after the COVID-19 pandemic passes.

Thinking Ahead This chapter introduced another major actor in international law. While states, individuals, and corporations are significant actors, international organizations are increasingly more prevalent. Their very existence is an example of states’ willingness to work together on major issues, even if it requires a reduction in state sovereignty. International organizations have legal personalities, responsibilities, and immunities similar to the states that comprise them. In this chapter you have encountered the different types of

103

104 105

See D. Fidler, “COVID-19 and International Law: Must China Compensate Countries for the Damage?,” Just Security (blog), New York University School of Law (March 27, 2020) www .justsecurity.org/69394/covid-19-and-international-law-must-china-compensatecountries-for-the-damage-international-health-regulations/ accessed May 19, 2022, for an excellent treatment of China’s (unlikely) legal responsibility under international law. World Health Organization, International Health Regulations (Geneva, 2005), Article 4. B. M. Meier, R. Habibi, and Y. T. Yang, “Travel Restrictions Violate International Law,” Science 367, No. 27 (March 2020): 1436.

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international organizations and have been exposed to some of the biggest players in the international community, including the UN and the EU. In coming chapters, you will have regular encounters with international organizations, primarily the UN and its associated agencies, conventions, treaties, and funds. International organizations have played a major role in shaping the norms and rules surrounding significant coordination challenges for the international community. Protecting human rights or the environment, shaping the rules for war and humanitarian intervention, or establishing common practices for trade relationships have all been ongoing, complex tasks facilitated by international organizations. It remains to be seen whether their role will continue in the same fashion as the world recovers from the COVID-19 pandemic while simultaneously grappling with the challenges presented by anti-globalist populist forces that seek to undermine their authority.

7

Human Rights

Images of corpses fill the computer screen: women, men, and children, laid out in gruesome fashion. The camera pans to the charred remains of villages and more bodies. The shadow of the person filming the scene on a cell phone occasionally enters the frame. The one who is filming the scene is a member of the Rohingya Muslim population in Myanmar (formerly Burma). Like so many of his fellow Rohingya, he is capturing the genocide of his own people on his cell phone. Most of the Rohingya fled to neighboring Bangladesh, where fellow Rohingya refugees repair broken cell phones in an effort to preserve the valuable video evidence of the murder of their relatives, friends, and fellow Muslims by the Burmese military.1 Myanmar is a state with a Buddhist majority. The Rohingya, concentrated in Rakhine State on the border with Bangladesh, are Muslim. Successive governments in Myanmar have gradually stripped the Rohingya minority of many civil and political rights, including citizenship rights.2 While there has long been tension between the groups, the situation escalated dramatically in 2017. In response to a series of attacks by Rohingya Muslims on Myanmar police posts, Myanmar’s military began a campaign of brutal attacks on Rohingya villages.3 These attacks triggered a massive outflow of over 700,000 Rohingya refugees into Bangladesh, where many remain to this day. The attacks against the Rohingya are shocking in their severity. The terms “ethnic cleansing” and even “genocide” have been used to describe what the Myanmar military has done. The entire situation was further destabilized

1

2

3

M. Smith, T. Sobhan, and J. Weeks, “Capturing a Genocide on Their Cell Phones,” New York Times, video, August 27, 2018, www.nytimes.com/video/opinion/100000006035884/ capturing-their-genocide-on-their-cellphones.html accessed May 19, 2022. United Nations, “UN Human Rights Chief Points to ‘textbook example’ of Ethnic Cleansing in Myanmar,” UN News, September 11, 2017 https://news.un.org/en/story/2017/09/564622un-human-rights-chief-points-textbook-example-ethnic-cleansing-myanmar# .WfJRrltSy70 accessed May 19, 2022. P. Macpherson, “Dozens Killed in Fighting between Myanmar Army and Rohingya Militants,” The Guardian, August 25, 2017, www.theguardian.com/world/2017/aug/25/ rohingya-militants-blamed-as-attack-on-myanmar-border-kills-12 accessed May 19, 2022.

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when the Myanmar military overthrew the democratically elected government of Myanmar in February 2021. This means that the very group accused of systematic abuses against the Rohingya is now running the country. Compared to other situations of gross violations of human rights, there has been a lot of attention on the plight of the Rohingya, and a lot of international legal action. All too often, the preservation of human life and dignity take a back seat to other priorities, like trade deals or political maneuvering. The limited response to several simmering human rights crises makes that all too clear. All over the world, human rights are in peril: Uyghur Muslims fighting for their lives in concentration camps in China; citizens of Yemen caught in the middle of a war between the Middle Eastern superpowers of Saudi Arabia and Iran; people in Syria and Iraq displaced after fleeing Islamic State terrorist violence; political violence after a disputed election in Belarus; racial tensions erupting in the streets of the United States (US) in response to police brutality; the potential for more massive ethnic and religious human rights violations to occur in Ethiopia. The list is long. And it is always growing longer.

Introduction Do human rights matter? Do the treaties that states have drafted and signed over the years make a difference? In this chapter, we attempt to demystify the many human rights treaties and bodies that have come into existence since the end of World War II. Through an examination of some key cases, we explore the progression of human rights norms around the world, rights to which every person alive is entitled. The chapter begins with a review of the development of the international human rights system, starting with early documents like the US Constitution’s Bill of Rights and then highlighting the explosion of human rights mechanisms after World War II. The international human rights system is decentralized, with a dizzying array of treaties and their attached review committees, each one able to hear complaints from citizens who allege violations of their rights. These treaties and committees operate at the international level, not confined to a particular state or region. Anyone can access them at any time, provided they have met the requirements for submitting individual complaints. The next section of this chapter discusses what are perhaps the most effective and powerful human rights bodies, the regional court systems of Europe, the Americas, and the African continent. While the European system is, as we shall see, the most developed and influential of the supranational

1 The Development of International Human Rights

regional courts, the Inter-American system has been more progressive. The African system, by far the youngest of the three, has clearly benefited from the experience of the other two, and is attempting to forge its own path in human rights adjudication in Africa. While there are smaller human rights bodies in Asia and the Middle East, we limit our discussion here to these three, which are the best developed. The chapter’s final section is a heavy one, detailing the worst violations of human rights – genocide, crimes against humanity, and war crimes – and the bodies that have been developed to deter and prosecute those who commit them. Here, we provide clear definitions of the crimes themselves, and illustrate how international criminal law has developed from the Nuremberg Military Tribunal after World War II to the International Criminal Court (ICC), which began hearing cases in 2002. It is tempting to think that the impact of human rights can be measured in terms of treaty ratification: if a state commits to protecting human rights by signing onto a treaty, the expectation is that the state will change its behavior accordingly. But that is not always the case: states can continue to abuse human rights even after signing a human rights treaty, and the norm of sovereignty dictates that there is very little that can be done to “punish” a state for misbehavior. But human rights are more than the treaties that form the bulk of international human rights law; instead, as Woods argues: rights are more than just a promise to which the State can be held. Indeed, a case could be made that this is the least compelling aspect of a right. Rights can also be a language for articulating grievances, a tool for building a social movement, a specific aspirational goal for the country (e.g., “we don’t have to condone that kind of thing”), a general aspirational goal (e.g., “we want to be the kind of place that doesn’t do things of that nature”) and more.4

In the end, human rights treaties and courts matter – even if not every state signs on to every treaty or abides by every court decision – because they are building norms about the quality of life that every human should be able to expect.

1 The Development of International Human Rights It is understandable to think of human rights as a relatively modern conception, and particularly one that had its beginnings after the atrocities of World 4

A. K. Woods, “Discounting Rights,” International Law and Politics 50 (2018): 516.

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War II. But the idea that humans have responsibilities to one another and rights as individuals – and that governments have a role in ensuring those responsibilities are discharged and safeguarding those rights – is an old one, dating at least as far back as the Enlightenment (early to late 1700s). Prior to that, natural law dictated that people had responsibilities to God and to each other, and any rights were those given by God; that is, divinely granted. After the Enlightenment, secular rights – which replaced God with human reason – gained currency and found their way into some of the most famous documents in history, documents that are declarations of individual rights and freedoms and upon which many of our modern conceptions of human rights are based. The US Declaration of Independence (1776), the French Declaration of the Rights of Man and Citizen (1789), and the US Constitution’s Bill of Rights (1791) included inherent, inalienable rights. The government could not deprive an individual of these rights, absent appropriate exceptions. “We hold these truths to be self-evident,” the US Declaration of Independence proclaims, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty, and the pursuit of Happiness . . . That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed . . . That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or abolish it . . .

The French Declaration and the US Constitution incorporated one of the most fundamental of all contemporary human rights: no person shall be deprived of life, liberty, or property without due process of law. Consider this excerpt from the French Declaration: 5. Law can only prohibit such actions as are hurtful to society. Nothing may be prevented which is not forbidden by law, and no one may be forced to do anything not provided for by law. 6. Law is the expression of the general will. Every citizen has a right to participate personally, or through his representative, in its foundation. It must be the same for all, whether it protects or punishes. All citizens, being equal in the eyes of the law, are equally eligible to all dignities and to all public positions and occupations, according to their abilities, and without distinction except that of their virtues and talents. 7. No person shall be accused, arrested, or imprisoned except in the cases and according to the forms prescribed by law . . .5

5

“Declaration of the Rights of Man and Citizen,” National Assembly of France (August 26, 1789).

1 The Development of International Human Rights

The US Constitution’s Bill of Rights was a group of constitutional amendments which guaranteed a host of individual rights – freedom of speech, religion, and assembly, for example – that have been echoed in various human rights documents ever since. When we think of human rights today, we often think of post-World War II-era documents and struggles. Certainly the Holocaust, which gruesomely illustrated the nearly limitless ways humans can show their inhumanity to other humans, was a pivotal moment in human rights history, and its impact is evident throughout this chapter. The post-World War II international human rights system reveals a move from a rights regime that was primarily concerned with civil and political rights to one that has now expanded to include economic, social, and cultural rights as well as rights for groups of people.

1.1

Immediate Postwar Human Rights

Even before the end of World War II, the foundations for what would become the United Nations (UN) were being laid.6 The document that created the organization, the UN Charter, made direct reference to the protection and promotion of human rights as a primary mission of the UN. Article 55 of the Charter, for example, clearly commits the organization to promoting “higher standards of living, full employment, and conditions of economic and social progress and development . . . ,” as well as “universal respect for, and observance of, human rights and fundamental freedoms for all.” Interestingly, it was the US and China who championed the inclusion of human rights in the Charter itself, while Russia and the United Kingdom (UK) opposed it (for very different reasons). Latin American states met on their own to discuss the Charter and its possible human rights provisions. As Waltz notes, it was not Great Powers but rather small states and non-governmental organizations (NGOs) that ensured that human rights were mentioned in the Charter not just in passing, but seven times.7 The Charter was adopted in 1945, amidst the continuing revelations of Nazi horrors during the Holocaust. The scale of the Holocaust is numbing. Over 6 million European Jews were murdered, at least 7 million Soviet citizens, nearly 2 million non-Jewish Poles, up to 250,000 each of Roma/Gypsies and disabled people8 – the 6 7

8

For details on the UN, see Chapter 6. S. Waltz, “Reclaiming and Rebuilding the History of the Universal Declaration of Human Rights,” Third World Quarterly 23, No. 3 (2012): 441. It is difficult to get a fully accurate count of the number of people killed by German action during the Holocaust. These numbers are from the US Holocaust Memorial Museum. More details on other deaths and the method of counting can be found here: https://encyclopedia.

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destruction of human life is beyond anything the world had seen before. Having systematically embarked on a project of racial hygiene that demanded the elimination of “impurities,” the German Nazis mechanized mass killing – and, in many cases, left detailed records about how, where, and when they did it, as well as names and numbers of victims – and forced the world to reckon with its aftermath. International law is created by state practice. But until the Holocaust, states had not seriously considered punishment for states or individuals who engaged in mass killing. Certainly mass killing had occurred before the Holocaust; take, for example, the slaughter of Armenians by the Turks between 1914 and 1923, or the oft-forgotten murder of the Herero and Nama tribes in what is now Namibia by the German Empire between 1904 and 1907.9 While there has been virtually no punishment for either of these horrific events, the cold brutality of the Holocaust spawned a move to make specific acts of group murder illegal under international law, placing them on a par with slavery or piracy as violations of jus cogens peremptory norms. The “crime without a name” was defined by Polish Jew Raphael Lemkin, an international lawyer who lost nearly his entire family in the Holocaust and who had been outraged by mass murders of the past. “To Lemkin, it was deeply dismaying that government could essay to destroy an entire group due to the absence of any law, while an individual, accused of lesser-scale atrocities, would be criminally charged.”10 Lemkin, who had escaped to the US with a suitcase full of Nazi documents to analyze, made it his life’s mission to make the crime of genocide – a word he himself coined – prohibited and punishable under international law. The result was the UN Convention on the Prevention and Punishment of the Crime of Genocide (commonly known as the Genocide Convention), adopted by the General Assembly on December 9, 1948.11 The Convention entered into force in 1951. We will revisit the crime of genocide in international law in greater detail in Section 3 of this chapter.

9

10

11

ushmm.org/content/en/article/documenting-numbers-of-victims-of-the-holocaust-andnazi-persecution accessed May 19, 2022. In late May 2021, the German government formally apologized for the “Forgotten Genocide” of the Herero and Nama tribes and offered reparations, but not all parties felt Germany’s actions went far enough. See N. Onishi and M. Eddy, “A Forgotten Genocide: What Germany Did in Namibia, and What It’s Saying Now,” New York Times, May 28, 2021. J. J. Vasel, “In the Beginning, There Was No Word . . . ,” European Journal of International Law 29, No. 4 (2019): 1053. Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature December 9, 1948, UNTS I, Vol. 78, 277 https://treaties.un.org/Pages/ViewDetails .aspx?src=TREATY&mtdsg_no=IV-1&chapter=4 accessed May 19, 2022.

1 The Development of International Human Rights

The day after the Genocide Convention’s successful adoption another landmark document in human rights law was adopted by the General Assembly: the Universal Declaration of Human Rights (UDHR). The document was the clearest definition of human rights at the time. The thirty articles in the UDHR provided a catalog of basic human rights, from the notion that “all human beings are born free and equal in dignity and rights” (Article 1) to prohibitions on slavery and torture or degrading treatment (Articles 4 and 5), to the right to a nationality (Article 15), to “rest and leisure” (Article 24) and to an education (Article 26).12 It passed the General Assembly as a non-binding resolution (unlike the Genocide Convention, which was legally binding on signatories). Like the UN Charter, the UDHR is a statement of principles. It did not require UN members to immediately provide the listed rights to their citizens. The diversity of domestic economies, per capita income, cultures, and other differences was one reason for this limitation. For example, a lesser-developed country would not be able to give its citizens what a more developed country would consider to be a minimum standard of living or education. But each UN member state was expected to pursue the laudatory purposes of the UDHR at its own pace, according to its respective financial ability to comply with the spirit of that historic document.13 Eleanor Roosevelt, Chair of the US Commission on Human Rights and US Representative to the UN General Assembly, gingerly expressed the national sentiment regarding this postwar statement of “universal” principles. She carefully noted that: In giving our approval to the declaration today, it is of primary importance that we keep clearly in mind the basic character of the document. It is not and does not purport to be a statement of law or of legal obligation. It is a declaration of basic principles of human rights and freedoms, to be stamped with the approval of the General Assembly by formal vote of its members, and to serve as a common standard of achievement for all peoples of all nations.14

Since its adoption in 1948, however, a number of commentators have characterized it as evolving into something closer to customary international law. In 1971, the Vice President of the International Court of Justice (ICJ) 12

13

14

Full text of the UDHR is available at: www.un.org/en/about-us/universal-declaration-ofhuman-rights accessed May 19, 2022. H. Hannum, “The Status of the Universal Declaration of Human Rights in National and International Law,” Georgetown Journal of International and Comparative Law 25 (1996): 287. M. Whiteman, Digest of International Law (Washington, DC: US Government Printing Office, 1965): 243.

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perceived the UDHR’s provisions as having ripened into general practices that had become “accepted as law.” In his separate opinion in the Namibia15 case (about whether or not South Africa could occupy Namibia, in violation of a UN Security Council mandate), Judge Ammoun expressed the view that: [The] Universal Declaration of Human Rights . . . stresses in its preamble that “it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law. . . .” The Court could not remain an unmoved witness in face of the evolution of modern international law which is taking place in the United Nations through the implementation and the extension to the whole world of the principles of equality, liberty and peace in justice which are embodied in the Charter and the Universal Declaration of Human Rights. By referring . . . to the Charter of the United Nations and the Universal Declaration of Human Rights, the Court has asserted the imperative character of the right of peoples to self-determination and also of the human rights whose violation by the South African authorities [the Court] has denounced. . . . The violation of human rights has not yet come to an end in any part of the world. . . . Violations of personal freedom and human dignity, the racial, social or religious discrimination which constitutes the most serious of violations of human rights . . . all still resist the currents of liberation on the five continents. That is certainly no reason why we should close our eyes to the conduct of the South African authorities. . . . Although the affirmations of the Declaration are not binding qua international convention [that is, not possessing legal capacity as an immediately binding treaty obligation] . . . they can bind states on the basis of custom . . . because they have acquired the force of custom through a general practice accepted as law. . . . It is not by mere chance that in Article 1 of the [French 1789] Universal Declaration of the Rights of Man there stands, so worded, this primordial principle or axiom: All human beings are born free and equal in dignity and rights. . . . The condemnation of apartheid has passed the stage of declarations and entered the phase of binding conventions.16

Critics have objected that the UDHR is fundamentally “Western,” lacking input from lesser-developed nations and those with more diverse political and social viewpoints. Indeed, Saudi Arabia’s representative Jamil Baroody

15

16

Namibia (South-West Africa) Advisory Opinion, ICJ Advisory Opinion, ICJ Reports 16 (1971). Namibia (South-West Africa) Advisory Opinion, ICJ Reports 16 (1971) 55 (Concurring Opinion of Judge Ammoun).

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noted that “the authors of the draft [of the Declaration] had, for the most part, taken into consideration only the standards recognized by Western civilization and had ignored more ancient civilizations which were past the experimental stage.”17 As Waltz points out, however, less powerful and smaller states – and importantly non-Western states – contributed vitally to the construction of the document and to its inclusivity. Hansa Mehta of India, for example, argued that the UDHR should strike out mentions of “all men” in favor of “all human beings” in Article 1. Similarly, Pakistan’s Shaista Ikrammulah argued that both spouses should give consent before they are married, in contrast to the original text submitted for Article 16.18 These are just two small examples of the contributions made during the drafting of the UDHR by states that are often excluded from the narrative of the document’s history. As Waltz writes, In 1948 many territories were under the control of colonial powers. Small states attending the early sessions of the UN were active participants in the UDHR debate. They saw in the concept of human rights a chance to establish a new and respected standard of behaviour for all governments, and hope for retrieving and extending their own political autonomy.19

1.2

The “Core” Human Rights Treaties

The UDHR was difficult to implement as one document because of the varied nature and wide scope of the rights it proclaimed. In the Economic and Social Council of the UN (ECOSOC), “delegates gradually came to consider that civil and political rights, on the one hand, and economic and social rights, on the other hand, called for different methods of implementation,” De Schutter explains.20 He continues: Civil and political rights could be monitored by independent experts and were of immediate applicability since they primarily required from states that they abstain from interfering with the rights of the individual. In contrast, economic and social rights . . . called for progressive measures of implementation, since they required legislative action in order to become fully justiciable.21

17

18 20

21

As quoted by T. J. Gunn, “Do Human Rights Have a Secular, Individualistic, and AntiIslamic Bias?,” Daedalus 149, No. 3 (2020): 149. 19 Waltz, “Reclaiming and Rebuilding,” 444. Ibid., 445. O. De Schutter, International Human Rights Law, 2nd ed. (Cambridge: Cambridge University Press, 2014), 18. Ibid.

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Table 7.1. Human rights treaties based on the UDHR Convention/Covenant/Treaty

Entry into Force

International Convention on the Elimination of All Forms of Racial Discrimination (CERD)

1969

International Covenant on Economic, Social, and Cultural Rights (ICESCR)

1976

International Covenant on Civil and Political Rights (ICCPR)

1976

Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)

1981

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)

1987

Convention on the Rights of the Child (CRC)

1990

International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families

2003

Convention on the Rights of Persons with Disabilities

2008

International Convention for the Protection of All Persons from Enforced Disappearance

2010

Source: Adapted from De Schutter, International Human Rights Law (2014), 19–21.

The eventual result of this division were two international covenants that were adopted by the General Assembly in 1966: the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR). The UDHR, the ICCPR, and the ICESCR are sometimes collectively referred to as the “International Bill of Human Rights.” These treaties form the backbone of a system of more specific human rights instruments that were developed from the principles contained in the UDHR (see Table 7.1). Unlike the UDHR, the ICCPR and the ICESCR are not mere declarations of principle: both covenants were expressly cast as multilateral treaties. Adopting states could thus ratify their legally binding provisions. By 1976, the minimum number of states had ratified both treaties. This development signaled an accord within the post-World War II international community and solidified the international augmentation of protection for the individual, who before World War II was required to rely exclusively on his or her home state. Such pre-Covenant reliance had a predictable chilling effect on human rights: the victim was too often beholden to the violator. These two covenants share a number of common substantive provisions. Both restate the human rights provisions contained in the UDHR. The distinguishing feature of the Covenants vis à-vis the UDHR is that they obligate

1 The Development of International Human Rights

ratifying states to establish conspicuous and effective machinery for filing charges and then dealing with alleged violations of human rights. Table 7.2 shows a side-by-side summary of the most significant articles in each of these Covenants.22 The ICCPR is a self-executing treaty. Were it otherwise, the 1966 UN objective to augment the UDHR with a ratifiable treaty regime would make little sense. On the other hand, ratification and full acceptance of all of a treaty’s terms are not synonymous. For example, the US ratified the ICCPR in 1992. It tendered the following reservation to this human rights treaty: “That the United States declares that the provisions of articles 1 through 27 of the Covenant are not self-executing.” This reservation can hardly be acceptable, if one applies the ICJ’s Reservations to the Convention on Genocide case definition: a reservation to a multilateral treaty must be “compatible” with its object and purpose. The US, however, in choosing to tender multiple reservations to human rights treaties, declare them to be “non-self-executing,” or not ratify them at all (which is the case with the ICESCR and several other treaties listed in Table 7.1), has attempted to resist the “domestication” of international law. That is, it has allowed the US courts to decide on human rights issues on a case-by-case basis, instead of having their hands forced by treaty compliance requirements and then managing the fallout of potential conflicts with the US Constitution.23 Note that the US is unique in this regard, with most countries choosing either to ratify or not. Both the ICCPR and the ICESCR have important optional protocols. The first of two protocols to the ICCPR is designed to monitor compliance with the ICCPR via the Human Rights Committee that was established in Article 28.24 The ICCPR’s First Optional Protocol enables the Committee to receive and consider communications from individuals claiming to be victims of violations of the rights set forth in the ICCPR. In order to bring an individual claim that a right guaranteed by the ICCPR has been violated, the complainant must be sure that the state against which they are lodging the complaint has signed and ratified the relevant convention and the First Optional Protocol. The Committee is empowered to investigate claims and, in emergency cases, take “interim measures” to protect an individual until the

22 23

24

Links to the full versions of these documents are on the textbook website. For an excellent review of the US declarations on non-self-execution of human rights treaties, see D. Sloss, “The Domestication of International Human Rights: Non-SelfExecution Declarations and Human Rights Treaties,” Yale Journal of International Law 24, No. 129 (1999): 135–136. “Optional Protocol to the International Covenant on Civil and Political Rights,” opened for signature December 19, 1966, UNTS Vol. 999: 171. https://treaties.un.org/doc/Treaties/ 1976/03/19760323%2007-37%20AM/Ch_IV_5p.pdf accessed May 19, 2022.

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Table 7.2. Summary of select articles of ICCPR and ICESCR Art

ICCPR

Art

ICESCR

1

Self-determination and control of natural wealth/resources

1

Self-determination and cultural development

2

Legal recourse for violations of rights (esp. when state is violator)

2

Non-discrimination assurance from states

3

Equality between men/women

3

Equality between men/women

6

Life and survival

4

Reasons for limitations of these rights

7

Inhuman or degrading treatment

5

No destruction of these rights

8

Slavery and servitude

6

Right to work

9

Security of person; no arbitrary arrest

7

Fair working conditions, pay, safety, opportunity for all

11

No prison for debt

8

Right to unionize and strike

12

Liberty, freedom of movement

9

Right to social security/insurance

14

Equality before law; presumption of innocence; fair trial

10

Protection of family; marriage; mothers; children; child labor and exploitation

16

Recognition as person before law

11

Right to adequate standard of living

17

Privacy

12

Right to good physical/mental health

18

Freedom of thought/religion

13

Right to free compulsory education

19

Freedom of opinion/expression

14

Plan to provide free primary education

20

No propaganda for war or hatred

15

Right to cultural life and scientific progress

21

Peaceful assembly

22

Freedom of association

23

Marriage and family

24

Rights for children

25

Participation in public affairs

26

Equality before law; protection

27

Protection for minorities

28

Legally binding; Human Rights Committee monitors ICCPR

Source: Adapted from Council of Europe, Manual on Human Rights Education with Young People, available at: www.coe.int/en/web/compass accessed May 19, 2022.

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Committee has time to come to a conclusion on a case. For example, the Committee is able to ask a state party to refrain from executing someone;25 in this case, the irreversible act of execution would otherwise be completed before the Committee could make a determination on its compatibility with the ICCPR.26 In addition to hearing individual complaints as well as interstate complaints, the Committee is responsible for general monitoring of compliance with the ICCPR. The Human Rights Committee of the ICCPR should not be confused with the similarly named Human Rights Council, which is a separate UN body elected by the UN General Assembly (discussed in Section 1.3 in this chapter). The Second Optional Protocol to the ICCPR is a separate treaty designed to put teeth into ICCPR provisions. Article 6 of the ICCPR attempts to limit practice of the death penalty. States ratifying the Second Optional Protocol agree not to impose the death penalty under any circumstances.27 According to Amnesty International, as of 2019 there are still almost sixty states that retain death penalty laws, while the death penalty has been completely abolished in just over 100 others. Nevertheless, the bulk of the executions that take place in any given year occur in just a handful of states, including China, Iran, Saudi Arabia, Iraq, and Egypt.28 Even courts that are designed to try people accused of the most heinous of international crimes – genocide, ethnic cleansing, torture, for example – cannot impose a death penalty on those it convicts.29 The ICESCR, too, has an Optional Protocol. The 2008 Optional Protocol to the ICESCR acknowledges that member states have a wide margin of latitude in determining their respective approaches to implementing the rights and obligations set forth in the ICESCR and gives them tools for pressing for change. For example, the treaty’s “maximum available resources” clause in Article 2 qualifies the state’s obligation to take steps toward the full realization of treaty-based rights. This means that member states have a duty to facilitate the right to food, for instance, by taking measures to strengthen the

25 26

27

28

29

See Bradshaw v. Barbados, CCPR/C/51/D/489 (1992). Civil and Political Rights: the Human Rights Committee, Fact Sheet No. 15, 26, www.ohchr .org/Documents/Publications/FactSheet15rev.1en.pdf accessed May 19, 2022. Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the Abolition of the Death Penalty, opened for signature on December 15, 1989, UNTS Vol. 1642: 414 https://treaties.un.org/doc/Treaties/1991/07/19910711%2007-32% 20AM/Ch_IV_12p.pdf accessed May 19, 2022. Amnesty International, “Death Penalty in 2019: Facts and Figures,” Amnesty International, April 2020, www.amnesty.org/en/latest/news/2020/04/death-penalty-in-2019-facts-andfigures/ accessed May 19, 2022. We discuss these specialized courts later in this chapter.

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access of their inhabitants to the related resources and means to ensure their livelihoods (Article 11). In those situations where they are unmistakably unable to achieve access to adequate food, the state would then come under some obligation to devise a means of implementing the right to food – perhaps by way of direct state intervention in the form of arranging temporary food assistance to countless needy families. The ICESCR Optional Protocol provides a mechanism through which individuals, groups, or third-parties can report and seek a remedy for state violations of rights protected by the ICESCR. Complaints are directed to the UN Committee on Economic, Social and Cultural Rights (CESCR), provided the state involved has ratified or otherwise acceded to the ICESCR and the Optional Protocol. The Committee then launches an investigation and offers methods to address the rights violation, often in the form of a “friendly settlement.”30 It is important to note here, consistent with the previous paragraph, that the ICESCR: incorporates the principle of progressive realization, meaning that full implementation of some aspects of rights may take time. While the notion of progressive realization is contained within the Covenant, certain obligations are of immediate effect. These immediate obligations include the obligations to respect and to protect Covenant rights, the obligation to take deliberate steps towards the fulfilment of Covenant rights, the prohibition of discrimination, and the urgency of implementing core obligations related to each Covenant right.31

While the rights contained in the ICESCR itself (and in the other core human rights treaties as well) may seem difficult to define in concrete terms, the treaties themselves are not the only guidance available. The CESCR – just like committees associated with the other core treaties – produces “General Comments” that are meant to be authoritative interpretations of precisely what the treaty itself means. For example, while Articles 11 and 12 address adequate standards of living and physical and mental health, General Comment 15 speaks more specifically to the right to water as “a prerequisite for the realization of other human rights.”32 Similarly, General Comment

30

31

32

United Nations, “Human Rights Treaty Bodies – Individual Communications,” United Nations Human Rights, Office of the High Commissioner, www.ohchr.org/EN/HRBodies/ TBPetitions/Pages/IndividualCommunications.aspx#ICESCR accessed May 19, 2022. ESCR-Net, “Claiming ESCR Rights at the United Nations,” ESCR-Net, International Network for Economic Social Cultural Rights, 13. Emphasis added. www.escr-net.org/sites/default/ files/ESCR-NET-OP-Manual-FINAL.pdf accessed May 19, 2022. United Nations Committee on Economic, Social, and Cultural Rights, “General Comment 15 (2002) on the right to water (arts. 11 and 12 of the International Covenant on Economic, Social, and Cultural Rights,” United Nations, E/C.12/2002/11, January 20, 2003, www.unhcr

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37 by the Human Rights Committee of the ICCPR provided guidance on Article 21, the right to peaceful assembly – an important interpretation to come in 2020, a year marked by protest.33 These commentaries are sometimes also called “general recommendations.” Individuals and groups do not register complaints before these international treaty bodies as a first step; appeals to these bodies can occur only after domestic (state-level) remedies have been exhausted. It is expected, then, that individuals and groups who allege a rights violation under one or more of the international human rights treaties will approach their national or regional courts first. Consider the following excerpt from a 2019 ruling by the Community Court of Justice of the Economic Community of West African States (ECOWAS), headquartered in Abuja, Nigeria. The applicant is a group called WAVES (Women against Violence and Exploitation in Society) that alleges multiple violations of several of the core human rights treaties during and after an Ebola outbreak in Sierra Leone.

WOMEN AGAINST VIOLENCE AND EXPLOITATION IN SOCIETY (WAVES) V. CHILD WELFARE SOCIETY, SIERRA LEONE Community Court of Justice of the Economic Community of West African States, ECW/CCJ/JUD/37/19 December 12, 2019 [Excerpted case available at www.cambridge.org/FPIL7]

While we have thus far focused only on the two major international human rights covenants, the other “core” human rights treaties listed in Table 7.1 have similar structures. Each has a committee of experts associated with it that monitors treaty observance and has a complaint procedure specific to each treaty’s provisions. Additionally, each has a follow-up mechanism for checking state behavior after a violation. Moving forward in this chapter we focus on two of the other core human rights treaties: the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Convention against Torture (CAT). We use these to illustrate how the procedures, similar to many of conventions, work in

33

.org/en-us/publications/operations/49d095742/committee-economic-social-culturalrights-general-comment-15-2002-right.html accessed May 19, 2022. United Nations Human Rights Committee, “General Comment 37 (2020) on the right of peaceful assembly (article 21),” United Nations, CCPR/C/GC/37, September 17, 2020 https:// undocs.org/CCPR/C/GC/37 accessed May 19, 2022.

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practice and to highlight the types of decisions and recommendations made by the treaty committees.

1.2.1

Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)

Although the ICCPR, ICESCR, and the CERD all call for equality between men and women in the public sphere, they did not specifically or adequately address the situation of women in the private sphere. The CEDAW addresses both public and private discrimination, and calls on state parties to condemn discrimination and make legal, administrative, and other changes to ensure that it does not occur (Articles 2, 3, and 4). Article 5 pushes even further, demanding changes in “social and cultural patterns of conduct,” while Article 6 speaks to the need to end “the exploitation of prostitution.”34 Like the other treaties, CEDAW’s Committee on the Elimination of Discrimination against Women is in charge of treaty implementation and monitoring and makes general recommendations to clarify treaty interpretation. It is responsible for ensuring effective implementation of the treaty by member states and reviews states’ progress every four years. The Committee is composed of twenty-three experts on gender equality, elected to four-year terms. Through an Optional Protocol (1999) individuals gained the right to petition the Committee as long as they have exhausted all local remedies.35 Individuals can bring a complaint of a CEDAW violation to the Committee, which then determines if it is admissible and, if so, starts an investigation into the allegations. After the investigation, the Committee renders its decision and makes recommendations to the state party (the alleged violator). The state then has six months to respond to the recommendations, reporting back to the Committee as to its progress. The recommendations of the CEDAW Committee are not legally binding; the state can decide the manner in which they implement the Committee’s recommendations (or do not), but it is important to note that when states ratify the Convention itself, they are obligated to eliminate discrimination and advance gender equality in public and in private. As Stoffels notes, however, “[c]onsidering that there is no effective sanction to the violation of the obligations of the State vis-à-vis

34 35

Full text of the CEDAW is on the textbook website. Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women, opened for signature October 6, 1999, UNTS Vol. 2131: 83. https://treaties .un.org/doc/Treaties/1999/10/19991006%2005-18%20AM/Ch_IV_8_bp.pdf accessed May 19, 2022.

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CEDAW, the main force of the Committee’s decisions are in the realm of political influence and as such their effectiveness should be measured.”36 An extended example of the Committee’s work under the Optional Protocol is helpful to understand the types of cases it receives and how it works to prod states toward treaty compliance. In 2014 the CEDAW Committee published its decision on a complaint that was submitted in 2012 by Angela Gonzalez Carreño. Gonzalez had been married to her husband, “F. R. C.,” since 1996, and together they had a daughter, Andrea. Before and during the marriage, Gonzalez had been subjected to both physical and psychological abuse at the hand of F. R. C., much of it witnessed by Andrea. F. R. C. had, for example, threatened Gonzalez with a knife in the child’s presence, which Gonzalez reported to the local authorities in 1999. After that incident, she left their family home. She also reported the abuse to Spain’s Court of First Instance, while at the same time filing for a trial separation from F. R. C., which was granted. During the trial separation, F. R. C. was allowed to see Andrea a few times per week, always under the supervision of social services personnel. After the trial separation the abuse continued, with F. R. C. making death threats and questioning Andrea about her mother’s relationships. Andrea did not want to see her father during his visits. Gonzalez filed dozens of additional complaints about F. R. C. and also obtained a protective order against him. The separation was finalized in 2001, as was a plan to “normalize” the relationship between Andrea and her father. In 2002 the Court authorized unsupervised visits between Andrea and F. R. C., with no apparent reference to the pattern of abuse that had led to her parents’ separation. Over the years, Andrea continued to object to spending time with her father, and social workers observed his awkwardness with her. Gonzalez was concerned for her child’s mental health as well, and said so. In April 2003, F. R. C. approached Gonzalez and told her that he was going to take away the thing that mattered most to her. Later that day, Andrea and F. R. C. were found dead, and the weapon used on them both was in F. R. C.’s lifeless hand. It was ruled a murder-suicide. Gonzalez alleged that the authorities had been negligent in protecting her and her daughter, and brought suit in Spanish courts. In April 2011, the Spanish Constitutional Court ruled against her, noting that her claim lacked constitutional relevance. She then took her case to the CEDAW Committee. Consider the excerpt from the Committee’s decision that follows.

36

R. Stoffels, “The Role of the CEDAW Committee in the Implementation of Public Policies on Gender Issues: Analysis through a Study of the Protection of Girls’ Rights in Spain,” International Journal of Human Rights 23, No. 8 (2019): 1317–1336.

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COMMITTEE ON THE ELIMINATION OF DISCRIMINATION AGAINST WOMEN Communication No. 47/2012 Decision adopted by the Committee at its fifty-eighth session, July 16, 2014 NOTE: In this decision, “author” refers to Gonzalez. 8.3 The author complains before the Committee that she and her daughter were the object of violence by her ex-spouse and the father of her daughter during several years and that this violence culminated on 24 April 2003 with the murder of the child during one of the unsupervised visits authorized by judicial decision some months previously. She asserts that prior to the murder she had made known to the administrative and judicial authorities the abuses she was enduring from her ex-husband and asked for protection . . . 8.6 With respect to the exhaustion of internal remedies, the Committee notes the observations of the State party that the author did not exhaust those remedies, since she should have alleged before the courts the apparent existence of a judicial error instead of a miscarriage of justice. With regard to this objection, the Committee considers that it must determine whether, in light of the Convention, the author exerted reasonable efforts to bring before national authorities her complaints regarding the violation of rights arising from the Convention. In that regard the Committee notes that, after the death of her daughter, the author interposed several administrative and judicial appeals alleging miscarriage of justice on the part of the State . . . In light of the author’s explanations about the purpose of her appeals, not limited to identifying judicial error, and considering that the State party has not pointed to other possible legal avenues that could have been effective to respond to the specific and complete demands of the author, the CEDAW/ C/58/D/47/2012 14-59288 Committee considers that internal remedies have been exhausted with regard to the complaint concerning the establishment by the authorities of an unsupervised visiting regime and the lack of redress for the negative consequences resulting from that regime . . . 9.2 The question before the Committee is that of the responsibility of the State for not having fulfilled its duty of diligence in connection with the events that led to the murder of the author’s daughter. The Committee is satisfied that the murder took place in a context of domestic violence which continued for several years and which the State party does not question . . .

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COMMITTEE ON THE ELIMINATION OF DISCRIMINATION AGAINST WOMEN (cont.) 9.3 The Committee notes the State party’s argument to the effect that the behaviour of F. R. C. was unforeseeable and that nothing in the psychological and social services reports could lead one to predict a danger to the life or physical or mental health of the child. In light of the information contained in the record the Committee cannot agree with this assertion for the following reasons. In the first place, the Committee notes that the final separation of the spouses, decreed on 27 November 2001, was preceded by many violent incidents directed at the author, which the child often witnessed. The courts issued protective orders, which F. R. C. would disregard without this implying any legal consequences for him. The only time he was convicted was in 2000, for conduct constituting harassment, but the punishment was limited to a fine amounting to 45 euros. In the second place, despite the author’s requests, the orders of protection issued by the authorities did not include the child, and an order issued in 2000 in the child’s favour was left without effect, as the result of an appeal filed by F. R. C., in order not to jeopardize relations between father and daughter. In the third place, the social services reports repeatedly stressed that F. R. C. was using his daughter to transmit messages of animosity to the author. They also pointed to F. R. C.’s difficulties in adjusting to the child’s young age. In the fourth place, a psychological report of 24 September 2001 observed in F. R. C. “an obsessive-compulsive disorder with aspects of pathological jealousy and a tendency to distort reality which could degenerate into a disorder similar to paranoia.” In the fifth place, during the months of unsupervised visits, several reports from social services pointed to the likelihood that there were inappropriate situations consisting of repeated questions by the father of the daughter concerning the private life of the mother, as well as the need to maintain continuous monitoring of the visit regime. The Committee also observes that F. R. C., from the start of the separation, systematically and without reasonable justification shirked his obligation to provide child support. Although the author complained of this situation repeatedly, adducing her difficult economic situation, it was not until 13 February 2003 that the judicial authorities took measures to garnish F. R. C.’s wages. Similarly, the author had to wait three years for the court to hold a hearing concerning her request for the use of the marital dwelling . . . 9.5 The Committee considers that the authorities of the State party initially took actions to protect the child in a context of domestic violence.

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COMMITTEE ON THE ELIMINATION OF DISCRIMINATION AGAINST WOMEN (cont.) However, the decision to allow unsupervised visits was taken without the necessary safeguards and without taking into account that the pattern of domestic violence that had characterized family relations for years, unquestioned by the State party, was still present . . . 9.6 The Committee recalls its general recommendation No. 19 (1992), according to which gender-based violence which impairs or nullifies the enjoyment by women of human rights and fundamental freedoms under general international law or under human rights conventions, is discrimination within the meaning of article 1 of the Convention. This discrimination is not limited to acts committed by or on behalf of Governments. Thus, for example, under article 2 (e) of the Convention, States parties commit to taking all appropriate steps to eliminate discrimination against women practised by any person, organization or enterprise. On this basis, the Committee considers that States may also be responsible for acts of private persons if they do not act with due diligence to prevent violations of rights or to investigate and punish acts of violence and to compensate victims . . . 9.9 The Committee notes that the State party has adopted a broad model for dealing with domestic violence which includes legislation, awarenessraising, education and capacity-building. However, in order for a woman victim of domestic violence to see the practical realization of the principle of non-discrimination and substantive equality and enjoy her human rights and fundamental freedoms, the political will expressed by that model must have the support of public officials who respect the obligations of due diligence by the State party . . . 11. The Committee makes the following recommendations to the State party: (a)

With regard to the author of the communication: (i) Grant the author appropriate reparation and comprehensive compensation commensurate with the seriousness of the infringement of her rights; Communication No. 20/2008, V.K. v. Bulgaria, Decision of 25 July 2011, para. 9.11. 8 Communication No. 5/ 2005, Goecke v. Austria, Decision of 6 August 2007, para. 12.1.2. CEDAW/C/58/D/47/2012 18 14-59288

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COMMITTEE ON THE ELIMINATION OF DISCRIMINATION AGAINST WOMEN (cont.) (ii)

(b)

Conduct an exhaustive and impartial investigation to determine whether there are failures in the State’s structures and practices that have caused the author and her daughter to be deprived of protection; In general: (i) Take appropriate and effective measures so prior acts of domestic violence will be taken into consideration when determining custody and visitation rights regarding children and so that the exercise of custody or visiting rights will not endanger the safety of the victims of violence, including the children. The best interests of the child and the child’s right to be heard must prevail in all decisions taken in this regard; (ii) Strengthen application of the legal framework to ensure that the competent authorities exercise due diligence to respond appropriately to situations of domestic violence; (iii) Provide mandatory training for judges and administrative personnel on the application of the legal framework with regard to combating domestic violence, including training on the definition of domestic violence and on gender stereotypes, as well as training with regard to the Convention, its Optional Protocol and the Committee’s general recommendations, particularly general recommendation 19. 12. In accordance with article 7, paragraph 4, the State party shall give due consideration to the views of the Committee, together with its recommendations, and shall submit to the Committee, within six months, a written response, including any information on action taken in the light of the views and recommendations of the Committee. The State party is also requested to publish the Committee’s views and recommendations and to have and have them widely distributed in order to reach all relevant sectors of society.

Did the Spanish government heed these recommendations? Not really. In fact, the Spanish government responded a year later and rejected all of the CEDAW Committee’s recommendations. Spain insisted that there had already

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been a thorough investigation and that the legislation in place was already sufficient to protect children and a child’s right to be heard. Even on training for judges and other personnel the Spanish government demurred, noting that mandatory training was already in place.37 Spain had also been reluctant to respond in any meaningful way on the CEDAW Committee’s general recommendations for reducing domestic violence, well before the Gonzalez case emerged.38 What is the impact, then, of the CEDAW Committee’s recommendations? Like many of the international human rights treaty bodies, CEDAW has a follow-up procedure to engage in dialogue with states that are not meeting their obligations after the Committee has issued its recommendations. As Stoffels notes, Spain is not alone in breaching the Convention and refusing to change its ways after the CEDAW Committee calls it out.39 But the Committee’s recommendations and follow-up are not important only for changing state practice, which they do not always effectively do (though as McQuigg points out, some states are more likely to comply than others40), but for raising awareness of women’s rights issues overall. In relation to domestic violence, for example, “the statements of international human rights bodies can be used by domestic violence groups and NGOs to put pressure on the government to comply with its obligations.”41 And as Cusack writes: A woman might use the Optional Protocol to CEDAW because she wants to seek redress for human rights violations, but there are no further means of obtaining redress domestically; to hold a State Party accountable for its actions; draw international attention to her case; mobilize support and apply pressure on the State Party to act; bring about structural change; prevent similar violations in the future; bringing her case to a body of gender equality experts that can scrutinize the State Party’s actions; strengthen jurisprudence on women’s human rights; establish an international legal precedent that would compel State action; provide a focus for national advocacy on women’s rights issues.42

The work of the CEDAW Committee, then, is illustrative of a larger point about international human rights law more generally: if we look for

37 38

39 40 42

Ibid. R. McQuigg, “The Responses of States to the Comments of the CEDAW Committee on Domestic Violence,” International Journal of Human Rights 11, No. 4 (2007): 470–471. Stoffels, “The Role of the CEDAW Committe.” 41 McQuigg, “The Responses of States,” 475. Ibid. Simone Cusack, Mechanisms for Advancing Women’s Human Rights: A Guide to Using the Optional Protocol to CEDAW and Other International Complaint Mechanisms (Australian Human Rights Commission, 2011), 3–7.

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immediate changes in the domestic practices of states – legislation, for example – as our only evidence that human rights treaties are effective, we will likely be disappointed. Unfortunately, progress is often slow because the real work of the treaties is in changing societies and cultures to have respect for and a willingness to protect human rights. That progress is difficult to measure.

1.2.2

Convention Against Torture (CAT)

The CAT is unique among the “core” human rights treaties in that its entire scope is related to a crime of universal jurisdiction: domestic judicial systems are empowered to investigate and prosecute suspected cases of torture even if the torture did not take place in their territory, did not impact one of their nationals, or was not committed by one of their nationals. Torture is one act in the small but deadly list of international crimes that bear this horrible distinction, including war crimes, crimes against humanity, genocide, and piracy. We discuss crimes against humanity and genocide separately later in this chapter (Section 3), but torture is related not only to those crimes, but to other issues we have encountered in other chapters in this book thus far. While torture is often conducted in secret and states deny using it, throughout history it was not uncommon or hidden. As Schulz reminds us, early slaves in Greece and Rome were tortured regularly to extract information, torture was used to force confessions in the Middle Ages, the Church regularly used torture during the Inquisition, and even the threat of torture elicited admissions of guilt during the Salem Witch Trials of 1692.43 Torture is not new, but the scale of it as practiced during the Holocaust – physical and psychological – was shocking. As with many of the human rights treaties we have discussed so far, the Holocaust served as the impetus for collective action on torture, first condemning it in the UDHR (Article 5) and later in the ICCPR (Article 7). Prohibitions on torture exist in several other human rights treaties as well. But the primary instrument is the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT). The CAT entered into force in 1987 and has 170 state parties as of 2021. What is torture, as defined by the CAT? Article 1 gives some detail, noting that it is: Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any 43

W. F. Schulz, “Torture,” in M. Goedert, Human Rights: Politics and Practice, 3rd ed. (New York: Oxford University Press, 2016), 257–259.

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The existence of a convention, of course, has not made torture obsolete. Indeed, some states support the CAT – they have signed and ratified it – and continue to torture their citizens.45 Additionally, some states led by dictators sign the CAT simply to mollify their domestic political opposition.46 States with effective judiciaries are unlikely to sign the CAT but more likely to abstain from torture, while states that have ineffective judiciaries tend to torture more.47 While the CAT itself constitutes a legally binding obligation, there is little by way of enforcement, so failing to do what the treaty obligates a state to do carries only minimal costs. Like CEDAW, however, the CAT has power in more subtle ways, and has cemented the prohibition of torture as a right with an “absolute” character: it must be respected at all times.48 The CAT is governed by the Committee against Torture, composed of ten independent experts, preferably people who are also members of the Human Rights Committee of the ICCPR.49 The members are elected for four-year terms by the state parties to the CAT. State parties are obligated, as they are with the other major human rights treaties, to send periodic reports of their implementation of the CAT to the Committee, which then reviews them and makes “concluding observations” about each individual state’s progress. The CAT has a rather dismal reporting record in comparison with other treaties, with many state parties never having submitted an initial report to the Committee and many others with long overdue reports.50 As Creamer and Simmons note: As states have little to no incentive to report, spotty reporting is unsurprising. More cynically, the system provides few inducements to report thoroughly:

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“Convention against Torture and Other Cruel, Inhuman, and Degrading Treatment or Punishment,” opened for signature December 10, 1984, UNTS Vol. 1465: 85. Emphasis added. https://treaties.un.org/doc/Treaties/1987/06/19870626%2002-38%20AM/Ch_IV_9p .pdf accessed May 19, 2022. O. Hathaway, “Do Human Rights Treaties Make a Difference?,” Yale Law Journal 111, No. 8 (2002): 1935–2042. J. R. Vreeland, “Political Institutions and Human Rights: Why Dictatorships Enter into the United Nations Convention against Torture,” International Organization 62, No. 1 (2008): 65–101. J. Staton and E. Powell, “Domestic Judicial Institutions and Human Rights Treaty Violation,” International Studies Quarterly 53, No. 1 (2009): 149–174. De Schutter, International Human Rights Law, 295. See CAT, Article 17(2). The suggested overlap is to ensure consistency. C. Creamer and B Simmons, “Ratification, Reporting, and Rights: Quality of Participation in the Convention Against Torture,” Human Rights Quarterly 37 (2015): 583–584.

1 The Development of International Human Rights states may selectively provide requested information, present information in a way that obscures the situation on the ground, or ignore concerns or questions posed by the treaty body. For instance, governments, such as the U.S, often fill their reports with long extracts from legislation and formal polices, rather than concrete practices. Exacerbating the voluntary nature of self-reporting, committee members have limited means to independently verify the information provided, a fact that government officials presumably realize.51

Reporting is an important part of the human rights treaty system, even if it appears that states are not as faithful to the process as hoped when they signed and ratified the treaties. Reporting can be seen as a reaffirmation of the values espoused by the treaty itself, even if a state might not always be able to fulfill its treaty obligations to the letter due to issues of capacity. Reporting might be a way to signal to the domestic population that the state is serious about meeting its obligations (even if it might be lying about meeting those obligations, as states often have the incentive to do).52 It might also be a way to seem legitimate in the eyes of other states. As Simmons writes, “The single strongest move in the absence of strong value commitment is the preference that near all governments have to avoid the social and political pressures of remaining aloof from a multilateral agreement to which most of their peers have already committed themselves.”53 Perhaps the most cited and interpreted article of the CAT is Article 3, which states that “no State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”54 You encountered a version of this prohibition in Chapter 2 on the status of refugees, particularly as regards the 1951 Convention on the Status of Refugees. In general, refugees cannot be turned back to a state where their lives might be endangered;55 however, an exception may be made when the refugee in question poses a credible threat to the receiving country.56 An extended example of the impact of Article 3 on refugees is instructive here. In the early 2000s, thousands of minority Somali Bantu people were brought to the US from Kenyan refugee camps under the American “Refugee Admissions Program Process.” This process is reserved for people 51 52

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Ibid., 584. For this line of argument, see B. Simmons Mobilizing for Human Rights: International Law and Domestic Politics (New York: Cambridge University Press, 2009). 54 Ibid., 13. Convention against Torture, Article 3. “Convention Relating to the Status of Refugees,” opened for signature July 28, 1951, UNTS Vol. 189, 137 at Article 33(1). https://treaties.un.org/doc/Treaties/1987/06/19870626% 2002-38%20AM/Ch_IV_9p.pdf accessed May 19, 2022. See European Court of Human Rights, Chahal v. United Kingdom, Application No. 70/1995/ 576/662, Judgment of November 15, 1996.

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of “special humanitarian concern” to the US State Department, which worried that the Somali Bantu would be subject to torture, rape, and other violence if they stayed in the majority-controlled areas of Somalia, many of which were also under the influence of the terrorist group Al-Shabaab.57 The Somali Bantu were resettled all over the US; they learned English and built families in the US. Starting in 2016, however, Somali Bantu men who had contact with the American criminal justice system (for possession of drugs, for example) started to be deported to Somalia – to a country where most of the them had no relatives, and of which the youngest had no memories at all. As Van Lehman writes, “[t]hese kids get sent back and they don’t really have any family connection there. They don’t speak the language. They’ve never lived in Somalia. . . . Most of them, once they land in Mogadishu, are kidnapped and tortured for ransom.”58 In a survey Van Lehman conducted of the Somali Bantu men who were deported, the experiences of the deportees was almost uniformly horrifying: Once the deportees arrived at their torture destination, they were isolated from other deportees in individual cells or locked rooms. In cases where Al Shabaab were the kidnappers, the deportees were handcuffed or tied to a pole or beam to restrict their movement during the interrogation and torture. Deportees describe how multiple captors would participate in the torture. In addition to the oral abuse described earlier, the torturers would also threaten the deportees with execution. The physical torture included beating the deportees with truncheons and whip-like weapons made from old vehicle tires. Additional physical abuse included stabbing the deportees in the back with knives. In an individual case, more extreme torture tactics were described by a deportee. During the torture, the kidnappers told the deportees they could save their lives by paying a ransom that ranged from US$200 to US$1,500.59

In the US, other Somali refugees have had their cases taken up by US courts, one of which is Hussein v. Attorney General of the United States.60 In this case, Abdigani Hussein was contesting a previous conviction of trafficking in 57

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United States Department of State, Bureau of Population, Refugees, and Migration, U.S. Refugee Admissions Program Access Categories (Washington, DC, 2020) https://2017-2021 .state.gov/refugee-admissions/u-s-refugee-admissions-program-access-categories/index .html accessed May 19, 2022. H. Gikandi, “US-Based Somali Bantu Face Deportation to a Country They’ve Never Known,” The World, September 8, 2020, www.pri.org/stories/2020-09-08/us-based-somali-bantuface-deportation-country-theyve-never-known accessed May 19, 2022. D. J. Van Lehman and E. M. McKee, “Removals to Somalia in Light of the Convention against Torture: Recent Evidence from Somali Bantu Deportees,” Georgetown Immigration Law Journal 33 (2019): 356. Abdigani Faisal Hussein v. Attorney General of the United States, US Court of Appeals, 3rd District. 273 F. Appendix 147 (3d Cir. 2008).

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a controlled substance (khat, a leaf smuggled into the US from Somalia, which contains the banned substance cathinone) and was thus a candidate for deportation. The court had to decide, among the many other legal issues Hussein contested in the case, if he was eligible for a deferral of his removal from the US given the fact that he would likely be tortured if he was sent back to Somalia, as he and several of his relatives had been on a previous visit (to obtain khat to bring back to the US). In particular, Hussein had to show that he was likely to suffer “severe pain or suffering” that was “intentionally inflicted” with “the consent or acquiescence of a public official,” as required by the CAT’s definition of torture. In the end, the court did not find that Hussein could meet this high burden of proof: he could not show sufficient evidence that the majority Somali clans intended to torture him upon his return, or that the Somali militias or clans would act with the consent of the Somali authorities. Hussein was not deported, though. Instead, he was granted an order of supervision, which required him to check in with immigration authorities at regular intervals. After the Trump Administration embarked upon a policy of stricter immigration enforcement, US Immigration and Customs Enforcement (ICE) tried to deport Hussein again in 2017. He was living in Portland, Maine, when on one of his required check-ins with ICE he was immediately transferred to jail in New Hampshire, scheduled for deportation. The following case excerpt shows the court’s reasoning for allowing Hussein to remain in the US – for now, at least.

HUSSEIN V. STRAFFORD COUNTY DEPARTMENT OF CORRECTIONS SUPERINTENDENT BRACKETT US District Court, District of New Hampshire, 2018 DNH 101 (D.N.H. 2018) [Excerpted case available at www.cambridge.org/FPIL7]

Hussein’s story does not end here. In June 2019, a federal immigration judge granted Hussein a deferment on his deportation under the CAT just minutes before he boarded a flight to Somalia from Louisiana, where he was being held.61 He was then transferred back to New Hampshire where he was detained for nine months. His attorney argued that immigration officials can only hold people without bail if they are detained immediately for the offense that led to their deportation, which for Hussein was in 2004 when he was

61

R. Billings, “Deferment of Deportation Order Makes Portland Man ‘feel like a dead person who came back to life,’” Portland Press Herald, September 5, 2019, www.pressherald.com/ 2019/09/05/headline-2/ accessed May 19, 2022.

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found with khat. Hussein was released on bail and, as of this writing, has not been deported – the CAT and a federal immigration judge effectively stood between him and an uncertain future in Somalia. It remains to be seen what fate awaits the Somali Bantu men who have recently been deported, but it is likely that the CAT-based arguments that saved Hussein in the end could also be applied to them, as a minority group who could be subjected to Al-Shabaab violence. If deported, they also have no secure or reliable way to move from Somalia to Kenya, where they could find safety in UN High Commission for Refugees (UNHCR) camps. Nevertheless, the CAT has become a powerful tool for protecting people who have credible fear of being subjected to torture or who have already experienced it, whether its absolute character is employed by national courts (as in the Hussein case), by the Committee against Torture itself, which (like the CEDAW Committee) can also make recommendations on cases brought directly before it, or by the many other human rights bodies that can make decisions on torture cases. 1.2.2.a The US and CAT Obligations: The ATS and TVPA Before moving on to regional approaches to human rights, including the prohibition of torture, it is significant to point out a specific act of the US Congress designed to enhance the American commitment to the CAT. In 1991, Congress added a refinement to the vague and sometimes mysterious62 Alien Tort Statute (ATS)63 which, as you recall from an earlier chapter, gives US courts jurisdiction in lawsuits brought by “aliens” (foreign nationals) for torts that violate international law. The Torture Victim Protection Act (TVPA) establishes that: . . . An individual who, under actual or apparent authority, or color of law, of any foreign nation – 1. subjects an individual to torture shall, in a civil action, be liable for damages to that individual; or 2. subjects an individual to extrajudicial killing shall, in a civil action, be liable for damages to the individual’s legal representative, or to any person who may be a claimant in an action for wrongful death.64 62

63 64

The ATS has existed for a long time, but there is little consensus as to why it exists at all. As Mariani notes, “[t]he ATS was initially enacted as part of the Judiciary Act of 1789, and its language has survived with relatively few modifications for over two hundred years. Beyond that, not much can be said definitively about the origins of this statute or the intentions underlying its enactment.” In P. Mariani, “Assessing the Proper Relationship between the Alien Tort Statute and the Torture Victim Protection Act,” University of Pennsylvania Law Review 156, No. 5 (2008): 1387. The ATS is sometimes also referred to as the Alien Tort Claims Act (ATCA). H.R. 2092 – Torture Victim Protection Act of 1991. 102nd Congress, www.congress.gov/bill/ 102nd-congress/house-bill/2092/text accessed May 19, 2022.

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The TVPA limits claims to individuals. That prevents claims from being asserted against foreign states, who are otherwise subject to suit only under the terms of the Foreign Sovereign Immunities Act (FSIA). The classic illustration of this limitation is set forth in the US Supreme Court Nelson decision.65 It precluded a claim that relied on the FSIA when Saudi Arabian officials tortured Mr. Nelson for diligently carrying out his hospital management responsibilities. Because his torture was perpetrated by the Saudi government, Mr. Nelson had no legally viable claim against Saudi Arabia. Unlike the ATS, the 1991 TVPA authorizes claims made by or against US citizens. This means that US perpetrators and victims are subject to, and have remedies under, this legislation. Various post-September 11 executive branch torture memos, however, purported to trump the applicability of this remedy with national security concerns.66 The TVPA nevertheless codifies the universally accepted norm prohibiting torture by a governmental official. It defines torture and extra-judicial killing. The TVPA “creates an explicit cause of action for a narrow set of conduct, precisely defines that conduct, and details the manner in which that cause of action must be pursued,” as Mariani explains, setting it in stark contrast to the vague language of the ancient ATS.67 The TVPA was “designed to ‘carry out the intent of the Convention Against Torture . . . by making sure that torturers and death squads will no longer have safe haven in the United States.’”68 One of the most famous cases using the TVPA and the ATS is Wiwa et al. v. Royal Dutch Shell, which was settled in 2009.69 Royal Dutch Shell had an oil operation in the Ogoni area of Nigeria since 1958. For decades, oil production polluted the water supply as well as the surrounding agricultural land, making it difficult for residents to stay healthy and make a living. When the residents protested the destruction of their local environment,

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See Chapter 2. See, for example, the Bybee Memo, which is also referred to as the “Torture Memo.” Its controversial assertion was that using “enhanced interrogation techniques” like sleep deprivation and waterboarding would not be inconsistent with the CAT if they were “in service to the more fundamental principle of self-defense that cannot be extinguished by the CAT or any other treaty.” A link to the typescript of the Bybee Memo can be found here: www.therenditionproject.org.uk/documents/torture-docs.html accessed May 19, 2022. 68 Mariani, “Assessing the Proper Relationship,” 1385. Ibid. Wiwa v. Royal Dutch Petroleum Co., No. 96 Civ. 8386 (KMW) (HBP), 01 Civ. 1909 (KMW) (HBP), 02 Civ. 7618 (KMW) (HBP) (S.D.N.Y. March 18, 2009).

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Royal Dutch Shell colluded with the Nigerian government to suppress their activities. Additionally, the company “provided monetary and logistical support to the Nigerian police and bribed witnesses to produce false testimonies.”70 But its most brutal attack was on the so-called “Ogoni 9,” a group of nine activists – including Ken Saro-Wiwa, an internationally known environmental activist and writer – who were hanged after being convicted on false charges in 1995. In 1995, family members of Wiwa and other residents of the region sued Royal Dutch Shell for multiple human rights abuses, including summary execution, torture, arbitrary arrest and detention, and crimes against humanity. The family brought suit in a federal District Court in New York, and the case finally settled for $15.5 million in 2009. What is the benefit of the ATS and TVPA? Human rights cases have revived the ATS, which has been part of US law since 1789 but little used until the 1980s. Several plaintiffs have relied on the ATS to bring suit against multinational corporations, “most alleging that the defendants worked with or supported governments that engaged in human rights violations.”71 In the Wiwa case, the plaintiffs were actually awarded damages, which is somewhat unusual in human rights cases. But the oil company, because the case settled, never had to admit any wrongdoing. 1.2.2.b The ATS, Human Rights, and Corporations The use of the ATS in the Wiwa case and in the more prominent Kiobel case have highlighted the reluctance with which domestic courts are willing and able to punish corporations for human rights abuses. In Kiobel v. Royal Dutch Shell Petroleum, Esther Kiobel and others, residents of the same area of Nigeria as those in Wiwa, alleged that the oil company assisted the Nigerian government in massive human rights violations, including torture, arbitrary arrest and detention, destruction of property, and a host of other crimes. Using the ATS, the case eventually found its way to the US Supreme Court, which heard it in 2012 and delivered a judgment in 2013. Part of that opinion, written by Chief Justice John Roberts, is extracted below.

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“Wiwa et al. v Royal Dutch Petroleum et al.,” Center for Constitutional Rights https:// ccrjustice.org/home/what-we-do/our-cases/wiwa-et-al-v-royal-dutch-petroleum-et-al accessed May 19, 2022. I. Wuerth, “Wiwa v. Shell: The $15.5 Million Settlement,” ASIL Insights 13, No. 14 (2019) www.asil.org/insights/volume/13/issue/14/wiwa-v-shell-155-million-settlement accessed May 19, 2022.

1 The Development of International Human Rights

KIOBEL V. ROYAL DUTCH SHELL PETROLEUM CO. Supreme Court of the United States, 569 U.S. 108 (2013) NOTE: In this excerpt, “the statute” typically refers to the ATS. The statute provides district courts with jurisdiction to hear certain claims, but does not expressly provide any causes of action. We held in Sosa v. Alvarez-Machain, 542 U. S. 692, 714 (2004), however, that the First Congress did not intend the provision to be “stillborn.” The grant of jurisdiction is instead “best read as having been enacted on the understanding that the common law would provide a cause of action for [a] modest number of international law violations.” Id., at 724. We thus held that federal courts may “recognize private claims [for such violations] under federal common law.” Id., at 732. The Court in Sosa rejected the plaintiff’s claim in that case for “arbitrary arrest and detention,” on the ground that it failed to state a violation of the law of nations with the requisite “definite content and acceptance among civilized nations.” Id., at 699, 732 . . . The question here is not whether petitioners have stated a proper claim under the ATS, but whether a claim may reach conduct occurring in the territory of a foreign sovereign. Respondents contend that claims under the ATS do not, relying primarily on a canon of statutory interpretation known as the presumption against extraterritorial application. That canon provides that “[w]hen a statute gives no clear indication of an extraterritorial application, it has none,” Morrison v. National Australia Bank Ltd., 561 U. S. ___, ___ (2010) (slip op., at 6), and reflects the “presumption that United States law governs domestically but does not rule the world,” Microsoft Corp. v. AT&T Corp., 550 U. S. 437, 454 (2007) . . . We typically apply the presumption to discern whether an Act of Congress regulating conduct applies abroad. See, e.g., Aramco, supra, at 246 (“These cases present the issue whether Title VII applies extraterritorially to regulate the employment practices of United States employers who employ United States citizens abroad”); Morrison, supra, at ___ (slip op., at 4) (noting that the question of extraterritorial application was a “merits question,” not a question of jurisdiction). The ATS, on the other hand, is “strictly jurisdictional.” Sosa, 542 U. S., at 713. It does not directly regulate conduct or afford relief. It instead allows federal courts to recognize certain causes of action based on sufficiently definite norms of international law. But we think the principles underlying the canon of interpretation similarly constrain courts considering causes of action that may be brought under the ATS . . .

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KIOBEL V. ROYAL DUTCH SHELL PETROLEUM CO. (cont.) Indeed, the danger of unwarranted judicial interference in the conduct of foreign policy is magnified in the context of the ATS, because the question is not what Congress has done but instead what courts may do. This Court in Sosa repeatedly stressed the need for judicial caution in considering which claims could be brought under the ATS, in light of foreign policy concerns. As the Court explained, “the potential [foreign policy] implications . . . of recognizing . . . causes [under the ATS] should make courts particularly wary of impinging on the discretion of the Legislative and Executive Branches in managing foreign affairs.” Id., at 727; see also id., at 727–728 . . . The principles underlying the presumption against extraterritoriality thus constrain courts exercising their power under the ATS . . . III Petitioners contend that even if the presumption applies, the text, history, and purposes of the ATS rebut it for causes of action brought under that statute. It is true that Congress, even in a jurisdictional provision, can indicate that it intends federal law to apply to conduct occurring abroad. See, e.g., 18 U. S. C. §1091(e) (2006 ed., Supp. V) (providing jurisdiction over the offense of genocide “regardless of where the offense is committed” if the alleged offender is, among other things, “present in the United States”). But to rebut the presumption, the ATS would need to evince a “clear indication of extraterritoriality.” Morrison, 561 U. S., at ___ (slip op., at 16). It does not . . . To begin, nothing in the text of the statute suggests that Congress intended causes of action recognized under it to have extraterritorial reach. The ATS covers actions by aliens for violations of the law of nations, but that does not imply extraterritorial reach – such violations affecting aliens can occur either within or outside the United States. Nor does the fact that the text reaches “any civil action” suggest application to torts committed abroad; it is well established that generic terms like “any” or “every” do not rebut the presumption against extraterritoriality . . . We explained in Sosa that when Congress passed the ATS, “three principal offenses against the law of nations” had been identified by Blackstone: violation of safe conducts, infringement of the rights of ambassadors, and piracy. 542 U. S., at 723, 724; see 4 W. Blackstone, Commentaries on the Laws of England 68 (1769). The first two offenses have no necessary extraterritorial application . . .

1 The Development of International Human Rights

KIOBEL V. ROYAL DUTCH SHELL PETROLEUM CO. (cont.) Finally, there is no indication that the ATS was passed to make the United States a uniquely hospitable forum for the enforcement of international norms. As Justice Story put it, “No nation has ever yet pretended to be the custos morum of the whole world . . . .” United States v. The La Jeune Eugenie, 26 F. Cas. 832, 847 (No. 15,551) (CC. Mass. 1822). It is implausible to suppose that the First Congress wanted their fledgling Republic – struggling to receive international recognition – to be the first. Indeed, the parties offer no evidence that any nation, meek or mighty, presumed to do such a thing . . . Moreover, accepting petitioners’ view would imply that other nations, also applying the law of nations, could hale our citizens into their courts for alleged violations of the law of nations occurring in the United States, or anywhere else in the world. The presumption against extraterritoriality guards against our courts triggering such serious foreign policy consequences, and instead defers such decisions, quite appropriately, to the political branches. We therefore conclude that the presumption against extraterritoriality applies to claims under the ATS, and that nothing in the statute rebuts that presumption. “[T]here is no clear indication of extraterritoriality here,” Morrison, 561 U. S., at ___ (slip op., at 16), and petitioners’ case seeking relief for violations of the law of nations occurring outside the United States is barred . . . IV On these facts, all the relevant conduct took place outside the United States. And even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application. See Morrison, 561 U. S. ___ (slip op. at 17–24). Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices. If Congress were to determine otherwise, a statute more specific than the ATS would be required. The judgment of the Court of Appeals is affirmed. It is so ordered.

Kiobel illustrated how this interpretation of the ATS – that it was not always meant to be applied extraterritorially – effectively reduced the remedies available to citizens for human rights abuses in countries where the domestic legal system might not be willing or able to assist them. It also

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affirmed the murky responsibility of multinational corporations for human rights protection; the Supreme Court’s Jesner v. Arab Bank72 decision held that the ATS does not give the US courts jurisdiction over foreign corporations. As Carriere notes: As a result of these two cases, plaintiffs may only file suit against domestic corporations that have engaged in conduct abroad that sufficiently touches and concerns the U.S; foreign corporations and parent corporations that act solely within the U.S are insulated. This result frustrates access to justiciable remedies for victims of human rights abuses committed abroad by subsidiaries of American corporations. By contrast, international efforts are driving corporate accountability initiatives, including access to remedy.73

The human rights “loopholes” for corporations are a growing problem. In 2011, the UN Human Rights Council adopted the UN Guiding Principles on Business and Human Rights (UNGPs).74 The UNGPs consist of thirtyone recommendations designed to end a long-standing debate over the human rights responsibilities of corporations and other business associations. The recommendations are rooted in the UN’s general framework to “protect, respect, and remedy” human rights problems.75 Overall, the document encourages corporations to practice “human rights due diligence” in seeking to avoid negative impact on human rights in the countries in which they operate, to address any situations that arise, and to mitigate any possible impacts linked to their business operations. It also encourages them to have processes in place for reporting and remedying abuses as they occur. The UNGPs were widely embraced by many major corporations; a concern remains, however, that they are not legally binding. International law may not yet be well-equipped to construct binding agreements that principally impact non-state actors like multinational corporations.

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Jesner v. Arab Bank, PLC, 584 U.S. ___ (2018). C. Carriere, “Mind the Gap: Domestic Liability for Corporate Human Rights Violations in the U.S. and Abroad,” International Bar Association (August 30, 2019) www.hklaw.com/-/ media/files/insights/publications/2019/08/modernslaveryinmodernsupplychains.pdf?la=en accessed May 18, 2022. The UNGPs are available at: www.ohchr.org/documents/publications/ guidingprinciplesbusinesshr_en.pdf accessed May 19, 2022. Danish Institute for Human Rights, “UN Guiding Principles on Business and Human Rights” (2011) www.business-humanrights.org/en/big-issues/un-guiding-principles-on-businesshuman-rights/ accessed May 19, 2022.

1 The Development of International Human Rights

1.3

UN Human Rights Council

So far we have discussed the evolution of human rights under the auspices of the UN, and presented the core human rights treaties. To that discussion we now add an institution of the UN that has overarching responsibility for human rights monitoring under any of these treaties, the UN Human Rights Council (HRC). The body that is now the HRC was, until 2006, called the Commission on Human Rights. The original Commission, established in 1946, was a subsidiary of the ECOSOC and was charged with studying human rights and drafting human rights documents. It was the Commission, for example, that drafted the UDHR, the CAT, and other major human rights treaties. The Commission was also able to hear individual complaints beginning in 1970, but was perceived to be biased and unable to objectively assess the situation in certain countries. Another problem with the Commission is that several of its member states were human rights abusers themselves, reducing the Commission’s legitimacy and authority. In 2006, it was replaced by the HRC. The current HRC’s forty-seven members consist of prominent individual representatives from UN member states, based on an equitable geographical distribution of membership among the different forms of government and the world’s principal legal systems. The Council examines the periodic compliance reports that the treaty parties must submit to the UN as part of the Council’s “universal periodic review.” It is perhaps the highest function of the HRC, which examines every state’s human rights record and allows states “to declare what actions they have taken to improve the human rights situations in their countries and to fulfil their human rights obligations.”76 The HRC has still not escaped from the chief criticism of the old Commission, however, in that many states who rotate into the body’s membership are flagrant abusers of human rights. The Philippines, for example, sat on the HRC even while President Duterte’s murderous “war on drugs” resulted in thousands of deaths each year.77 This is a major hurdle that must be remedied in order for the body to be taken seriously. As Fisher writes, “[t]he Human Rights Council should not be a place where violators come to seek shelter. It should be a profoundly uncomfortable place for rights violators; a place

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United Nations Human Rights Council, “Universal Periodic Review,” www.ohchr.org/en/ hrbodies/upr/pages/uprmain.aspx accessed May 19, 2022. C. H. Conde, “Philippines’ War on Drugs,” Human Rights Watch (2021) www.hrw.org/tag/ philippines-war-drugs accessed May 19, 2022.

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where they know they will be held to a higher standard and put under the spotlight for their abuses. Membership has its consequences.”78

2 Regional Approaches to Human Rights The UN Charter encouraged the development of regional processes. It did not provide for any juridical link between the ICJ and the various human rights courts that evolved. The ICJ is called upon to adjudicate any type of dispute between states, arising anywhere in the world, whereas regional human rights courts, on the other hand, entertain a comparatively limited scope of jurisdiction, based on local human rights treaties. As with states, organizational enforcement entities must acknowledge the general prohibition upon engaging in extraterritorial applications of regionally defined human rights norms. The regional human rights conventions and courts are in many ways the true workhorses of human rights law, foremost among them the European Convention on Human Rights (ECHR) and the European Court of Human Rights (ECtHR). Regional conventions and courts, however, should not be seen as separate from the human rights instruments described in the preceding section. Instead, it is critical to consider the European, Inter-American, and African systems as part of an overall “normative core” that “establishes rights-based boundaries to state power.”79 In reiterating and defining the rights that were initially established in the UDHR and which have been repeated in countless other human rights instruments, the regional systems have brought the international human rights regime “down” to the domestic (state and individual) level. We address the European, Inter-American, and African systems in turn.

2.1

European System

The Council of Europe, formed in 1949 and headquartered in Strasbourg, France, is an international organization composed of forty-three European 78

79

J. Fisher, “Human Rights Council Membership Has Its Consequences: UN Rights Body Should Shine Spotlight on Members’ Violations,” Human Rights Watch (2019) www.hrw .org/news/2019/01/14/human-rights-council-membership-has-its-consequences accessed May 19, 2022. W. Sandholtz, “The ECtHR, Transregional Dialogues, and Global Constitutionalism,” Global Constitutionalism 9, No. 3 (2020): 545. This article is an evaluation of the ECtHR based on the argument presented in A. Stone Sweet and C. Ryan, A Cosmopolitan Legal Order: Kant, Constitutional Justice, and the European Convention on Human Rights (Oxford: Oxford University Press, 2018).

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states, twenty-seven of which are also members of the European Union (EU). Note that the Council of Europe and the EU are not the same organization; in the Council of Europe, “Europe” includes states like Turkey and Russia, which is not the case with the EU. The Council’s essential goal is the maintenance of political and economic stability in Europe, and the preservation of individual rights is an important method for achieving this goal. The statute creating the Council of Europe provides that each member state must ensure “the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms.”80 This provision was implemented by the creation of two human rights treaties: the ECHR81 and the European Social Charter.82 Upon ratification, the national participants bind themselves to grant the rights contained in various regional treaties to their inhabitants. The ECHR contains civil rights that are virtually identical to those set forth in the ICCPR. The ECHR treaty protects the rights to life, public and fair hearings, peaceful enjoyment of possessions, an education, freedom from torture or other degrading treatment, and the freedoms of thought, conscience, religion, expression, and peaceful assembly. Similarly, the European Social Charter provides for economic and social rights that are similar to those set forth in the ICESCR. The European Social Charter guarantees the rights to work, safe working conditions, employment protection for women and children, vocational training, and the right to engage in gainful occupations in the territories of other member states. Reading these and other lists of rights from the international (e.g., UN) level and other regions quickly establishes the existence of consensus on what constitutes “human rights” in a more general sense. The rights established in the ECHR are guaranteed by the member states, but also by what is perhaps the most powerful human rights court in the world, the ECtHR. Like the Council of Europe, the ECtHR is located in Strasbourg and since 1998 has been the primary institution for human rights adjudication in Europe, replacing its clunky predecessors, the European Commission on Human Rights and an earlier version of the ECtHR. The 1998 reform was spawned by the growing difficulty experienced by the prior

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“Statute of the Council of Europe,” opened for signature May 5, 1949, European Treaty Series No. 001, www.coe.int/en/web/conventions/full-list/-/conventions/treaty/001 accessed May 19, 2022. “European Convention for the Protection of Human Rights and Fundamental Freedoms,” opened for signature on November 4, 1950, European Treaty Series No. 005, www.coe.int/ en/web/conventions/full-list/-/conventions/treaty/005 accessed May 19, 2022. “European Social Charter and Protocols,” opened for signature on October 18, 1961, European Treaty Series No. 035, www.coe.int/en/web/conventions/full-list/-/conventions/ treaty/035?desktop=false accessed May 19, 2022.

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court and the former administrative Commission’s efforts to cope with an ever-increasing volume of cases. The reconstitution of the ECtHR into various chambers and the elimination of the European Commission on Human Rights avoided the time-consuming examination of the same cases by two separate bodies. Under Protocol No. 11 to the ECHR, the Court’s jurisdiction is now compulsory. Under the old system, acceptance of both the right of individual petition to the Commission and the Court’s jurisdiction were optional. Another feature of the revised structure is that the adjudicative role of the Committee of Ministers within the Council of Europe was eliminated. Unlike most courts, the ECtHR’s judgments are enforced by the Committee of Ministers, which monitors member state compliance. The ECtHR is a busy court. In 2019, for example, the court received 44,500 new applications, a number that does not account for the Court’s backlog of cases. Of the applications before it, 38,480 were declared inadmissible by a single judge. The Court delivered judgments on 2,187 applications, though several cases were joined – cases can be “packaged” if they address largely the same issue, a process that reduced the “real” number of cases judged to 884.83 Each year, the Court’s statistics reveal the country or countries with the highest number of applications. Russia, Turkey, Ukraine, and Romania make regular appearances on that list. The ECtHR is the ultimate interpreter of the ECHR. As Stone Sweet and Keller write: Formally, the Court’s role is restricted to determining whether a State has infringed upon Convention rights in any specific case. The Court regularly invokes the principle of subsidiarity and its doctrinal corollary, the margin of appreciation (the discretion to define the scope of Convention rights in the first instance) afforded national authorities. And it regularly reminds States that it does not possess the de jure power to revise the Convention on its own. Increasingly, however, the Court appears to consider than an important oracular, rights-creating function inheres in its jurisdiction. Today, the Court is the unrivalled master of the Convention, a posture it uses to construct European fundamental rights in a prospective and progressive way.84

The ECtHR is not part of a hierarchy of European courts. It is not an appellate court, to which individuals can bring their complaints if their bids

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European Court of Human Rights, “Analysis of Statistics,” Council of Europe, January 2020 https://echr.coe.int/Documents/Stats_analysis_2019_ENG.pdf accessed May 19, 2022. A. Stone Sweet and H. Keller, “The Reception of the ECHR in National Legal Orders,” in A. Stone Sweet and H. Keller, eds., A Europe of Rights (New York: Oxford University Press, 2008), 6–7.

2 Regional Approaches to Human Rights

for justice fail in lower-level courts. Instead, the ECtHR is autonomous, standing apart from the member states and member state court systems. It cannot invalidate decisions of national courts. Instead, its rulings provide guidance to national court systems, with the precedent of the Court acting as repeated attempts to convince states to remedy violations of the Convention.85 The Court has not shied away from making controversial decisions. An example of the ECtHR’s rulings on freedom of religion and conscience is instructive, centered around the religious symbolism of the Christian crucifix. Soile Lautsi, the mother of two school-aged children, brought a complaint before the ECtHR in 2006, after exhausting her judicial remedies in Italy, where she lived. At a school meeting, Lautsi and her husband questioned whether it was appropriate to have crucifixes in every school room of state-sponsored schools. Before her case went to the ECtHR, an Italian Administrative Court had ruled that the crucifix was not merely a symbol of Catholicism but of Christianity as a whole, and thus the crucifix in the classroom could serve as a “point of reference for other creeds.” It also noted that: Singularly, Christianity – for example through the well-known and often misunderstood “Render unto Caesar the things which are Caesar’s, and unto . . .” – through its strong emphasis placed on love for one’s neighbour, and even more through the explicit predominance given to charity over faith itself, contains in substance those ideas of tolerance, equality and liberty which form the basis of the modern secular State, and of the Italian State in particular.86

The ECtHR, in its 2009 judgment, ruled that the display of crucifixes in public schools was in contravention of Article 2 of Protocol 1 (right to education) to the ECHR as well as Article 9 of the ECHR (freedom of thought, conscience, and religion). It held that while the crucifix has many meanings, the religious meaning is predominant, and that displaying it in classrooms infringed upon parents’ rights to educate their children in a way that was consonant with their own convictions, and also restricted children’s abilities to think for themselves. To say the ruling was unpopular in Italy is an understatement. The Lautsi family received death threats. Countries with a Catholic majority (Poland, for example) scrambled to figure out ways to protect themselves from the same fate. Even the Vatican chimed in with disapproval, accusing the Court of ignoring “the role of Christianity in 85 86

Ibid., 14. European Court of Human Rights, Lautsi v. Italy, No. 30814/06, Judgment of November 3, 2009, para. 15.

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forming Europe’s identity . . . .” Groups in the European Parliament formed on both sides of the issue.87 The Italian government asked for the case to be referred to the ECtHR’s Grand Chamber to be reheard. Their argument was that no coercive process of indoctrination was taking place in Italian state schools. The crucifix could be interpreted as a symbol of cultural identity, as well as a religious symbol . . . individual rights should be balanced with collective identities and the ECHR is not in the position of striking that balance in a way that is binding and appropriate for all the Contracting Parties.88

In Lautsi II, the decision rendered by the Grand Chamber in 2011, the ECtHR agreed and reversed its previous decision, noting that there had been no violation of the Convention. The follow excerpt gives insight into the Court’s decision-making.

LAUTSI AND OTHERS V. ITALY (LAUTSI II) European Court of Human Rights, No. 30814/06. Merits, March 18, 2011 [Excerpted case available at www.cambridge.org/FPIL7]

Lautsi II was an important ruling not only because of the issues presented before the Court, but because of the Court’s position on the so-called “margin of appreciation.” This term refers to the “space for manoeuvre that the Strasbourg organs are willing to grant national authorities, in fulfilling their obligations under the European Convention on Human Rights.”89 It is a unique feature of the European human rights system and serves simultaneously as a limit on the ECtHR and as protection for national sovereignty. As Itzcovich explains, “[t]he underlying idea is that the Contracting Parties have agreed upon a set of uniform but minimal standards of human rights protection, or they have agreed upon a set of vague, open-ended and flexible

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See G. Andreescu and L. Andreescu, “The European Court of Human Rights’ Lautsi Decision: Context, Contents, Consequences,” Journal for the Study of Religions and Ideologies 9, No. 26 (2013): 50–51. G. Itzcovich, “One, None, and One Hundred Thousand Margins of Appreciations: The Lautsi Case,” Human Rights Law Review 13, No. 2 (2013): 289–290. Council of Europe, “The Margin of Appreciation,” Council of Europe, The Lisbon Network, accessed May 25, 2021, www.coe.int/t/dghl/cooperation/lisbonnetwork/themis/echr/ paper2_en.asp accessed May 19, 2022.

2 Regional Approaches to Human Rights

standards: in any case, they have not agreed upon a fixed and settled model of society.”90 The ECtHR’s impressive history of decisions has also provided guidance for other regional court systems, notably the Inter-American Court of Human Rights (IACtHR – discussed below), which regularly cites ECtHR judgments in its own decisions.91 This is because, by comparison to other regional systems, the ECtHR has issued thousands more rulings on nearly every aspect of the European Convention. Consider, for example, its ruling in Opuz v. Turkey (2009). In Opuz, the court was asked to determine whether there was a violation of the Article 2 right to life, Article 3 prohibition of torture, and Article 14 prohibition of discrimination when Opuz and her mother were subjected to repeated acts of violence against them by Opuz’s husband, which eventually resulted in the murder of Opuz’s mother. Turkish authorities had failed to respond to the woman’s repeated requests for assistance in matters of domestic violence, and Opuz had dutifully exhausted all of her local remedies. The ECtHR ruled, in its first decision concerning domestic violence, that her rights under the Convention had indeed been breached, and that gender-based violence was a form of discrimination against women. This decision was then quickly used in a landmark decision by the ICtHR in Cotton Field v. Mexico, which in turn brought in not only the ECtHR but also the CEDAW Committee.92

2.2

The Inter-American System

Human rights norms are expressed in the Charter of the Organization of American States (OAS),93 the American Declaration of the Rights and Duties of Man, and the American Convention on Human Rights (ACHR). These norms are monitored by the Inter-American Commission on Human Rights (IACHR). The OAS Charter and the American Declaration of the Rights and Duties of Man were both proclaimed in 1948. The latter declaration of principles echoes the political and civil rights contained in the UDHR. Its duties include the individual’s duty to obey the law and the general duty to conduct oneself in a way that serves the immediate community and the nation. 90 91 92

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Itzcovich, “One, None, and One Hundred Thousand,” 294. See Sandholtz, “The ECtHR, Transregional Dialogues, and Global Constitutionalism,” 549. González et al. (“Cotton Field”) v. Mexico, Inter-American Court of Human Rights (IACtHR), November 16, 2009. See D. Scribner and T. H. Slagter, “Recursive Norm Development: The Role of Supranational Courts,” Global Policy 8, No. 3 (2017): 322–332. “Charter of the Organization of American States,” opened for signature December 13, 1951, UNTS 119, No. 1609. https://treaties.un.org/doc/Publication/UNTS/Volume%20119/ volume-119-I-1609-English.pdf accessed May 19, 2022.

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Like the UN Charter and the UDHR, the rights contained in the American Declaration were not intended to immediately bind the participating Latin American states. The thought was that it would be better to obtain state participation in a process that at least paid lip service to modern human rights perspectives rather than risk an OAS with very few members. Yet the signatories did agree to a general statement of principles which set the normative stage for embracing the democratic ideals of the modern human rights agenda. In the mid-1970s, OAS members decided to expand the minimal human rights provisions contained in the 1948 OAS Charter (as amended in 1970) and the 1948 American Declaration of the Rights and Duties of Man. They were concerned that the latter document emphasized the duties of the individual rather than those of the state. The product of their work was the ACHR. It contains many of the human rights mentioned in the UN Charter and UDHR. The ACHR was one response to the excesses of Latin American military governments of the 1960s and 1970s. Prior to the Convention’s entry into force in 1978, the existing IACHR did not have a reliable legal foundation that could be traced to any document drawn by OAS member nations. The ACHR provided an express source for the Commission’s power to hear and determine human rights violations. As with the ECHR (above), the ACHR contains provisions that are evidence of a consensus on basic human rights: there are no surprises in the document to those familiar with other human rights instruments. The IACHR and the IACtHR are dual authorities on human rights in the region but are autonomous from the OAS. The IACHR is responsible for human rights promotion and monitoring in the member states, and can also review individual petitions and respond directly to member state governments. The IACtHR can issue advisory opinions. Both bodies can decide individual complaints and, if necessary, issue protective measures if they believe that an individual is in immediate harm. Unlike the European system, however, the Inter-American system is underfunded and understaffed; as a result it is not as efficient as it could or should be to respond to the demands placed upon it. As Shelton writes, increased awareness about human rights in the region has “resulted in growing expectations from victims and their representatives that the InterAmerican system can address all individual and systemic violations of human rights,” which includes a laundry list of claims that might include everything from police violence and disappearances to domestic violence.94 94

D. Shelton, “The Rules and Reality of Petition Procedures in the Inter-American Human Rights System,” Notre Dame Journal of International and Comparative Law 5, No. 1 (2015): 3.

2 Regional Approaches to Human Rights

The flood of petitions it receives must be reviewed by the system’s Secretariat and passed along to the IACHR; most petitions are dismissed before they reach that point, however.95 Nevertheless, delays in processing have meant that it might be years before a petitioner’s complaint is reviewed and forwarded to the offending member state. The IACHR is working to correct this, however, and there has been marked improvement since 2017. Petitions awaiting review (pending) reached a high point in 2015 (9,673); by 2019, that number had decreased to 3,212, in large part due to reforms suggested in the IACHR’s Strategic Plan 2017–2021.96 That said, the number of petitions submitted continues to increase each year, with over 3,000 new petitions submitted in 2019 alone – still far below the number received in the European system. Another contrast with the European system is seen with the IACHR and IACtHR’s application of jura novit curia: the court knows the law. This principle essentially allows a court to decide a case based on laws and legal theories that were not initially presented by the applicants. The idea behind this principle is that the Court is the expert and will be in the best position to know which laws apply to each specific case, thus relieving the parties to the case of the burden of not knowing every turn of the law. The ECtHR does not make frequent use of this principle; it has been used by the ICC (discussed in Section 3.3 in this chapter) and the ICJ. But the IACHR and IACtHR use it regularly, as Shelton observes. This might be because petitioners are less familiar with the system or do not have legal representation at all, or because the IACHR and IACtHR cannot always assume that a petitioner has had the benefit of due process in his or her national judicial system. Other Inter-American treaties (e.g., the Forced Disappearance Convention97) may also be invoked via jura novit curia.98 In recent years, the IACtHR has made a number of high-profile rulings that have impacted human rights discourses far beyond Latin America. One of the most consequential is the Advisory Opinion it issued at the request of Costa Rica, State Obligations Concerning Change of Name, Gender Identity, and Rights Derived from a Relationship Between Same-Sex Couples.99 Costa Rica, 95 96

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98 99

Ibid., 10. Inter-American Commission on Human Rights, “IACHR Annual Report 2019, Chapter II: The Petitions, Cases, and Precautionary Measures System,” www.oas.org/en/iachr/docs/ annual/2019/docs/IA2019cap2-en.pdf accessed May 19, 2022. “Inter-American Convention on Forced Disappearance of Persons,” opened for signature September 6, 1994, OAS Treaty A-60, www.oas.org/juridico/english/treaties/a-60.html accessed May 19, 2022. See Shelton, “The Rules and Reality of Petition Procedures,” 18–22. State Obligations Concerning Change of Name, Gender Identity, and Rights Derived from a Relationship between Same-Sex Couples. Advisory Opinion OC-24/17, Inter-American Court of Human Rights, (Ser. A) No. 24 (November 24, 2017) www.corteidh.or.cr/docs/ opiniones/seriea_24_eng.pdf accessed May 19, 2022.

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in an effort to make sense of the differing laws in OAS member states, wanted to know if states were obliged to recognize name changes when an individual changes their gender identity, and if that was required by the ACHR. It also sought answers to whether the rights of same-sex couples were protected under the ACHR, and if states were required to have mechanisms in place to do so. The Court’s ruling has tremendous implications for LGBTQ rights, especially as it is more progressive than the ECtHR’s position has been on these issues. Consider the following excerpt in which the Court explains its position on gender equality and gender identity.

STATE OBLIGATIONS CONCERNING CHANGE OF NAME, GENDER IDENTITY, AND RIGHTS DERIVED FROM A RELATIONSHIP BETWEEN SAME-SEX COUPLES Inter-American Court of Human Rights, Advisory Opinion OC-24/17, November 24, 2017 NOTE: This represents a small section of the Court’s reasoning related to the first question put before it about gender identity. For ease of reading, the Court’s footnotes have been eliminated here, but can be found in the original (see footnote 99). 61. The Court has asserted that the notion of equality emanates directly from the oneness of the nature of humankind and is indissociable of the essential dignity of the individual. Thus, any situation is incompatible with this that, considering a specific group to be superior, gives it privileged treatment or, inversely, considering it inferior, treats it with hostility or otherwise subjects it to discrimination in the enjoyment of rights that are accorded to others not so classified. States must refrain from taking actions that are directly or indirectly aimed at creating situations of de jure or de facto discrimination. The Court’s jurisprudence has also indicated that at the current stage of evolution of international law, the fundamental principle of equality and non-discrimination has entered the domain of ius cogens. The whole legal structure of national and international public order rests on this premise and it permeates every legal system. ... 63. In this regard, the Court has established that Article 1(1) of the Convention is a general obligation, the content of which extends to all the provisions of this treaty and establishes the obligation of States Parties to

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STATE OBLIGATIONS CONCERNING CHANGE OF NAME, GENDER IDENTITY, AND RIGHTS DERIVED FROM A RELATIONSHIP BETWEEN SAME-SEX COUPLES (cont.) respect and ensure the free and full exercise of the rights and freedoms recognized therein “without any discrimination.” In other words, whatever the origin or form it takes, any treatment that may be considered discriminatory with regard to the exercise of any of the rights guaranteed in the Convention is, per se, incompatible with this general obligation. ... 65. States are obliged to adopt positive measures to reverse or to change discriminatory situations existing within their society that prejudice a specific group of persons. This entails the special obligation of protection that the State must exercise with regard to the actions and practices of third parties, who with its acquiescence or tolerance, create, maintain or facilitate discriminatory situations. ... 69. Accordingly, as already mentioned (supra, para. 58), the Court recalls that human rights treaties are living instruments the interpretation of which must evolve with time and with the conditions of contemporary life . . . 70. Thus, when interpreting the phrase “any other social condition” of Article 1(1) of the Convention, the most favorable alternative for the safeguard of the rights protected by the treaty must be chosen, pursuant to the pro homine principle. Likewise, the Court reiterates that the prohibited categories of discrimination listed under Article 1(1) of the American Convention are neither exhaustive nor restrictive, but merely indicative. Therefore, the wording of this article, with the inclusion of the words “any other social condition,” leaves the categories open to the incorporation of other grounds of discrimination that were not explicitly indicated. Consequently, the phrase “any other social condition” of Article 1(1) of the Convention must be interpreted by the Court in the most favorable perspective for the individual and for the evolution of fundamental rights in contemporary international law. ... 79. With regard to gender expression, this Court has indicated that a person may be discriminated against on the grounds of the perception that others have of his or her relationship with a social sector or group, regardless

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STATE OBLIGATIONS CONCERNING CHANGE OF NAME, GENDER IDENTITY, AND RIGHTS DERIVED FROM A RELATIONSHIP BETWEEN SAME-SEX COUPLES (cont.) of whether this corresponds to the reality or to the self-identification of the victim. The purpose or effect of discrimination based on perception is to prevent or invalidate the recognition, enjoyment or exercise of the human rights and fundamental freedoms of the person subjected to such discrimination, irrespective of whether that person self-identifies with a specific category. As with other forms of discrimination, the person is reduced to a single characteristic attributed to him or her, without taking into account other personal conditions. Consequently, it can be considered that the prohibition to discriminate on the grounds of gender identity is understood not only with regard to the real or self-perceived identity, but also in relation to the identity perceived externally, regardless of whether or not that perception corresponds to the reality. Thus, it should be understood that any expression of gender constitutes a category protected by Article 1(1) of the American Convention. ... 93. Regarding gender and sexual identity, the Court reiterates that this is also linked to the concept of liberty and to the possibility of all human beings for self-determination and to freely choose the options and circumstances that give meaning to their existence, according to their own convictions, as well as the right to protection of their privacy . . . Thus, in the case of sexual identity, the Court has established that affective life with a spouse or permanent companion, which logically includes sexual relations, is one of the main aspects of this circle or sphere of intimacy. This sphere of intimacy is therefore also influenced by the self-identified sexual orientation of the individual. ... 95. In this way, the sex, together with the socially constructed identities, attributes and roles that are ascribed to the biological differences regarding the sex assigned at birth, far from constituting objective and unchangeable characteristics of the civil status that individualizes a person – for these being a physical or biological fact – are merely characteristics that depend on the subjective appreciation of the person concerned, and are based on the construction of a self-perceived gender identity dependent on the free development of the personality, sexual self-determination, and the right to privacy. Consequently, those who decide to assume this self-perceived

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STATE OBLIGATIONS CONCERNING CHANGE OF NAME, GENDER IDENTITY, AND RIGHTS DERIVED FROM A RELATIONSHIP BETWEEN SAME-SEX COUPLES (cont.) gender identity, are the holders of legally protected interests which cannot be subject to any restriction based merely on the fact that society as a whole does not share specific singular lifestyles, due to fears, stereotypes, and social and moral prejudices which have no reasonable basis. Thus, regarding the factors that define the sexual and gender identity of a person, precedence is given to the subjective factor over the physical or morphological features (objective factor). In this sense, owing to the complex human nature that leads everyone to develop their own personality based on the particular way they see themselves, the psychosocial sex should be given pre-eminence over the morphological sex in order to fully respect the right to sexual and gender identity, since these are elements that, to a great extent, define both how individuals see themselves and how they project themselves in society. ... 98. Accordingly, the Court understands gender identity to be both an integral and a determining component of the personal identity of the individual; consequently, its recognition by the State is critical to ensuring that transgender persons can fully enjoy all human rights, including protection from violence, torture, ill-treatment, the right to health, education, employment, housing, access to social security, and freedom of expression and association . . . 100. Accordingly, the State, as guarantor of all rights, must respect and ensure the coexistence of individuals with varied identities, gender expressions and sexual orientations and, therefore, must ensure that they are all able to live and develop with dignity and the respect to which everyone has a right to. The Court considers that this protection does not refer merely to the content of those rights, but that, through their protection, the State would also be ensuring the full enjoyment and exercise of other rights of individuals whose gender identity differs from the one associated with the sex assigned to them at birth . . .

In this opinion, the IACtHR relied heavily on the jurisprudence of the ECtHR, its own previous decisions, the General Comments of the many UNbased human rights committees (e.g., CEDAW), and OAS and UN resolutions. The Advisory Opinion was a victory for the LGBTQ community on many

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fronts, including an affirmation of their right to marry.100 Costa Rica, the state that requested the Advisory Opinion, was racked with turmoil on these issues in advance of this ruling, turmoil that continued even when the Costa Rican Constitutional Court ruled in favor of same-sex marriage in 2018. The Costa Rican legislature finally passed same-sex marriage legislation in 2020. Ecuador legalized same-sex marriage in 2019, bringing the total number of states in the region that have legalized same-sex marriage to six.101 With respect to gender identity there has been less progress overall. While the European system is often thought of as the most developed of the regional human rights systems, the Inter-American system is perhaps more progressive. On the issue of same-sex marriage, for example, the ECtHR has made essentially the same arguments against it for over a decade, beginning with its 2010 ruling in Schalk and Kopf.102 Whether the applicants to the ECtHR based their case on the European Convention’s Article 8 (right to private life) provision, or Article 12 (right to marry) or even Article 14 (non-discrimination), the Court has reasoned in several cases that there exists no consensus in European states103 about the matter – another application of the margin of appreciation, as discussed above.104 Meanwhile, the IACtHR has instead chosen to make a sweeping opinion that takes account of changing social currents and expectations and follows the direction many

100

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For a summary of the entire advisory opinion, see J. Contesse, “The Inter-American Court of Human Rights’ Advisory Opinion on Gender Identity and Same-Sex Marriage,” ASIL Insights 22, No. 9 (2018) www.asil.org/insights/volume/22/issue/9/inter-american-courthuman-rights-advisory-opinion-gender-identity-and#_edn10 accessed May 19, 2022. C. G. Cabrera, “Costa Rica’s Progress on Marriage Equality Should Inspire the Region,” Los Angeles Times, June 2, 2020, www.latimes.com/espanol/opinion/articulo/2020-06-02/losavances-de-costa-rica-en-materia-de-matrimonio-igualitario-deben-inspirar-a-la-region accessed May 19, 2022. English translation provided by the Human Rights Watch site: www.hrw.org/news/2020/06/03/costa-ricas-progress-marriage-equality-should-inspireregion accessed May 19, 2022. Schalk and Kopf v. Austria, European Court of Human Rights, Application No. 30141/ 04, 2010. The Court of Justice of the European Union (CJEU) has, however, been more willing to recognize and protect the rights of same-sex couples. See, for example, its 2018 ruling in Case C-673/16, Relu Adrian Coman, Robert Clabourn Hamilton, Asociat¸ia Accept v. Inspectoratul General pentru Imigrări, Ministerul Afacerilor Interne. Note that this case – and others decided by the CJEU on same-sex matters – does not frame the issue as one of human rights, but rather on the defense of the free movement of people throughout the EU. For more on recent same-sex marriage cases before the ECtHR, see M. Shahid, “The Right to Same-Sex Marriage: Assessing the European Court of Human Rights’ Consensus-Based Analysis in Recent Judgments Concerning Equal Marriage Rights,” Erasmus Law Review 3 (2017): 184–198, www.elevenjournals.com/tijdschrift/ELR/2017/3/ELR_2017_010_003_ 006 accessed May 19, 2022.

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states – both inside Latin America and outside of it – are taking on this important issue.

2.3

African System

With its seat in Arusha, Tanzania, the African Commission on Human and People’s Rights (AfCHPR) and the African Court on Human and People’s Rights (AfCtHPR) are at the heart of the youngest of the human rights systems we address in this chapter. The Commission and Court exist to enforce and adjudicate the rights set forth in the African Charter on Human and People’s Rights (also referred to as the “Banjul Charter”), which was drafted by members of the Organization of African Unity, now called the African Union (AU). The Charter was drafted in 1981 and entered into force in 1986. As of 2019, fifty-three African states have signed and ratified the Charter, or most of the continent. The Court itself was created later, via a protocol to the Charter, and has only been operational since 2006. The Commission and Court have a complementary relationship, though the Court is specifically empowered to make binding decisions regarding the Charter and the protocols, as well as on other human rights treaties (like CEDAW, the ICCPR, etc.) – the AfCtHPR can adjudicate treaties other than the African Charter, which is unique to the African system. The jurisdictions of the ECtHR and the IACtHR are, by comparison, much more narrow. As Reventlow notes, however, this authority over other human rights instruments is extended to the African Commission as well as to other African courts, such as ECOWAS Court of Justice (referenced earlier in this chapter).105 Additionally, the Court can receive petitions from individuals or NGOs, but only from states that have ratified the protocol – to date, that number remains quite low (fewer than ten). The sweeping human rights jurisdiction of the AfCtHPR was put to the test in the very first case that it decided on its merits: Mtikila and Others v. Tanzania (2013; reparations decision in 2014).106 Tanzania’s Eighth and Eleventh Constitutional Acts stipulated that any candidate for public office had to be a member of and sponsored by a political party. Thus, anyone who claimed to be an independent candidate was effectively barred from standing for election, which is what the applicants argued. The three separate 105

106

Y. Reventlow and R. Curling, “The Unique Jurisdiction of the African Court on Human and People’s Rights: Protection of Human Rights beyond the African Charter,” Emory International Law Review 33, No. 2 (2019): 204. Tanganyika Law Society and The Legal and Human Rights Law Centre v. The United Republic of Tanzania, App 009/2011; Reverend Christopher R Mtikila v. The United Republic of Tanzania, App 011/2011 June 14, 2013 (Judgment); Reverend Christopher R Mtikila v. United Republic of Tanzania, App 011/2011 June 13, 2014 (Reparations).

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applicants in this case – Tanganyika Law Society, Human Rights Centre, and Reverend Christopher Mtikila – all alleged that the Tanzanian constitutional amendments were violations of the African Charter (Articles 10, 13, and 2), the ICCPR (Articles 3, 25, and 22), the UDHR (Articles 20 and 21), and the rule of law.107 Reverend Mtikila first started his legal challenge in 1993, when he brought his claim before the Tanzanian High Court. After exhausting all local remedies, the case finally came before the AfCtHPR a decade later. The applicants all argued that the Tanzanian government violated their rights to freedom of association and their rights to participate in public affairs, as the requirements to form a political party were complicated.108 Tanzania argued that Mtikila had not exhausted his domestic remedies and that his case was therefore inadmissible, an argument frequently relied upon by member state governments in past cases – this time, however, the African Court did not accept it. Tanzania also argued that the African Court protocol was not in effect at the time the alleged violation occurred; this argument was also rejected by the Court, which declared Tanzania bound by the Charter and the Court. As Windridge explains, this is a key point, as it sets the precedent that states are bound by the Charter from the time they ratify it, and not from the time the Court was in operation.109 On the merits of the case, Tanzania argued that the amendments were essential to keep the peace in Tanzania: Tanzania submitted that the ban on independent candidates was a way of “avoiding absolute and uncontrolled liberty” which would lead to “anarchy and disorder”, and that the prohibition was necessary for good governance and unity. Specifically regarding government leadership, Tanzania argued that the prohibition was necessary for “national security, defence, public order, public peace and morality.” It argued that the requirements for registering a political party, described by the applicants as onerous, were in fact necessary to avoid tribalism.110

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O. Windridge, “A Watershed Moment for African Human Rights: Mtikila and Others at the African Court for Human and People’s Rights,” African Human Rights Law Journal 15, No. 2 (2015): 300. It is also worth noting that Windridge maintains an excellent resource for scholars of the AfCtHPR at: www.acthprmonitor.org/ accessed May 19, 2022. International Justice Resource Center, “In First Judgement on the Merits, African Court Finds Tanzania Violated Citizens’ Right to Participate in Democracy by Prohibiting Independent Candidates,” IJR Center, July 5, 2013 https://ijrcenter.org/2013/07/05/infirst-judgment-on-the-merits-african-court-finds-tanzania-violated-citizens-right-toparticipate-in-democracy-by-prohibiting-independent-candidates/ accessed May 19, 2022. 110 Windridge, “A Watershed Moment,” 304. Ibid., 307.

2 Regional Approaches to Human Rights

On a continent of weak democracies, this argument is an enticing one: some repression might be necessary in order to secure democracy in the future. But the Court, building on decisions of the ECtHR and IACtHR, in particular, did not subscribe to it. The Court cited Articles 27(2) and 29(4) in its ruling, noting that these articles allowed derogation from the Charter only when weighed against the rights of the nation collectively, and noted that the UN Human Rights Committee (associated with the ICCPR) similarly inveighed against disproportionate limitations on individual rights vis-à-vis the government’s objectives.111 Despite having the opportunity to do so, the Court decided not to examine the allegations of violations outside the African Charter in this case. Instead, it noted that its examination of the allegations under the African Charter alone was sufficient. Windridge writes that this is unfortunate, a missed opportunity to clarify the violations of rights at multiple levels as well as exercise the Court’s considerable human rights authority.112 In the end, Tanzania’s arguments did not sway the Court, and the applicants emerged with a significant victory. But it was a victory for the Court, too: it was the first case it heard on the merits, the first case in which the applicants won, and the first case in which reparations were discussed. Mtikila and the NGOs that were co-applicants did not win any pecuniary awards; neither the legal costs nor Mtikila’s claims of costs, expenses, and “moral damage” were supported by enough evidence to convince the Court.113 Also notable in the Court’s ruling is the near-constant reference to the jurisprudence of the ECtHR, IACtHR, the General Comments of the UN human rights committees, and other judicial bodies: the African Court clearly understands – and wants those who come before it to understand as well – that it is not starting from scratch, but is instead contributing to a conversation that began decades ago. Since Mtikila, the AfCtHPR has indeed used its jurisdictional authority to adjudicate claims of violations of international human rights treaties beyond the African Charter. In Anudo v. Tanzania, for example, the Court ruled that there had been a violation of customary international law – the right to a nationality – recognized by several international human rights instruments and, notably, the UDHR.114 Tanzania had stripped Anudo of his nationality

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112 Ibid., 310. Ibid., 314. International Judicial Monitor, “African Court on Human and People’s Rights Denies Reparations in Mtikila Case,” International Judicial Academy, Fall 2014, www .judicialmonitor.org/archive_fall2014/asilinsights.html accessed May 19, 2022. Anudo v. Republic of Tanzania, International Legal Materials 58, No. 3 (June 2019): 603–627.

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and deported him to Kenya, which also expelled him, leaving him stateless. Anudo claimed violations of his rights under the African Charter, UDHR, ICCPR, and ICESCR, but the Court decided that the violation had been one of customary international law when Tanzania failed to show why they had withdrawn Anudo’s nationality in the first place. In another powerful example, APDF and IHRDA v. Republic of Mali, the Court was called upon to evaluate an alleged violation of the Protocol on the Rights of Women in Africa (also called the “Maputo Protocol”), added to the African Charter in 2003 and entering into force in 2005. The Malian Family Code, adopted in 2011, allowed girls to be married at the age of sixteen. The Maputo Protocol, however, states that the minimum age for marriage is eighteen. In the following excerpt, the Court is asked to decide not only on the fate of the Malian Family Code, but also to wade into traditional Islamic family practices.

APDF (ASSOCIATION FOR ADVANCEMENT AND DEFENSE OF WOMEN’S RIGHTS) AND IHRDA (INSTITUTE FOR HUMAN RIGHTS AND DEVELOPMENT IN AFRICA) V. REPUBLIC OF MALI African Court of Human and People’s Rights, App. 046/2016, May 11, 2018 [Excerpted case available at www.cambridge.org/FPIL7]

Not surprisingly, the Muslim Associations of Mali attacked the Court’s judgment immediately, decrying it as an attack on Malian sovereignty. The decision, it said, “is symbolic of a vision of society that is preparing to renounce its culture and its faith to fit into the mold of a dominant and uniform culture.”115 Furthermore, the Muslim Associations noted that forcing a revision of the Malian Code was evidence of Mali’s lingering colonial past, attempts by the West to force their visions on the African continent through the Court. As yet, it is not clear if the government of Mali has taken steps to implement the Court’s ruling in this case; with many Islamic movements in the country, it will not be an easy task when/if it is undertaken.

115

M. Kimbiri, “Cour africaine des droits de l’homme: L’ APDF obtient la révision du Code de la Famille, le Collectif des associations musulmanes riposte,” Mali Jet, June 1, 2018 http:// malijet.com/actualite-politique-au-mali/flash-info/210933-cour-africaine-des-droits-de-l %E2%80%99homme-l%E2%80%99-apdf-obtient-la-r%C3%A9vision.html accessed May 19, 2022 (translation via Google Translate).

3 Genocide and Crimes against Humanity

By comparison to the European and Inter-American systems, the African Court is still finding its feet: the number of cases it has heard is low, as is the number of countries that fully accept its jurisdiction. Additionally, it faces a legitimacy problem since some countries have decided to withdraw from elements of the African Charter and its associated protocols. In April 2020, for example, Benin announced that it would withdraw from the protocol that established the African Court, meaning that individuals and NGOs would no longer be able to submit petitions to it. A few days later, Côte d’Ivoire made the same decision. This followed the high-profile exits of Rwanda and Tanzania in 2016. Disturbingly, these exits might in part be due to negative judgments by the Court against these countries, which have accused it of putting the interests of individuals above the interests of the collective, thereby risking a breakdown in the rule of law. It is also possible that the Court’s extensive reference to other judicial bodies has made the Court itself redundant: The strong presence of the case-law of the organs of other human rights protection bodies, in particular the European Court of Human Rights, is so abundant in the case-law of the African human rights judge that one may legitimately be concerned about a mimicry that could cause the African system to lose its specificity. While one can understand the refusal to lock oneself into a register of cultural particularism, and the universality of human rights, that explains the use of exogenous sources, one can be more dubious about this unbridled quest for the legitimization of Court’s decisions in the jurisprudence of other institutions.116

3 Genocide and Crimes against Humanity The specter of the Holocaust played a large role in spurring the development of human rights instruments. Recall that the UN Convention on the Prevention and Punishment of Genocide was one of the very first human rights instruments put before the new UN General Assembly in 1948. Since then, the Genocide Convention has often been bypassed, and the word “genocide” used only sparingly by governments and policy makers. Why? 116

A. K. Zouapet, “‘Victim of its commitment . . . You, passerby, a tear to the proclaimed virtue’: Should the Epitaph of the African Court on Human and Peoples’ Rights Be Prepared?,” EJIL:Talk!, May 5, 2020, www.ejiltalk.org/victim-of-its-commitment-youpasserby-a-tear-to-the-proclaimed-virtue-should-the-epitaph-of-the-african-court-onhuman-and-peoples-rights-be-prepared/ accessed May 19, 2022.

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In this section, we examine genocide as a particularly thorny and specific international crime, and differentiate it from other related but legally different crimes such as “extermination” or “deportation.” We then turn to the institutions that were created to hear disputes related to these crimes, emphasizing the ICC and the special tribunals that were established to hear cases related to specific events.

3.1

Genocide

In the waning days of the Ottoman Empire, some 1.5 million Armenians were driven out of Turkey. The Ottomans feared that the Armenians would collude with Russia to overthrow the Empire’s strategic location in Turkey. In July of 1915, the US ambassador to Turkey reported to Washington about the “systematic attempt to uproot peaceful Armenian populations” by Turkish officials. He therein described “terrible tortures, wholesale expulsions and deportations from one end of the empire to the other accompanied by frequent instances of rape, pillage and murder, turning into [a] massacre . . . .” One month later, he warned of an “attempt to exterminate a race.” Turkey responded that the Armenians were a dangerous fifth column that was colluding with Russia – the Ottoman Empire’s fiercest rival – to overthrow the Empire. Turkey acknowledges that there were many deaths, but no government-driven slaughter.117 It was this horrible, years-long event in Turkey that in part drove Raphael Lemkin, a Jewish Polish lawyer and scholar, to devote his life to naming, describing, and developing a mechanism for punishing this crime. He found it appalling that Armenians had no recourse against the Turks; at the time, there was no international law that the Turks were violating, and they were acting under the protection of their own domestic sovereignty. After World War II began, and after he was driven out of Poland and his family was engulfed by Nazi rule, he began a macabre collection of Nazi decrees, ordinances, and other legal documents, papers he would analyze from the relative safety of his temporary home in Stockholm, Sweden. Gradually, he began to uncover a pattern of Nazi behavior vis-à-vis the Jews. As Sands writes: Lemkin followed the trail, the “decisive steps” that formed a pattern. The first step was usually the act of denationalization, making individuals stateless by severing the link of nationality between Jews and the state, so as to limit the

117

The first Turkish author to label this event as “genocide” is T. Akcam, A Shameful Act: The Armenian Genocide and the Question of Turkish Responsibility, P. Bessemer translation (New York, NY: Metropolitan Books, 2006).

3 Genocide and Crimes against Humanity protection of the law. This was followed by “dehumanization,” removing legal rights from members of the targeted group . . . The third step was to kill the nation “in a spiritual and cultural sense:” Lemkin identified decrees from early 1941 pointed to the “complete destruction” of the Jews in “gradual steps.” Individually, each decree looked innocuous, but when they were taken together and examined across borders, a broader purpose emerged.118

Lemkin compiled his observations in a massive tome entitled Axis Rule in Occupied Europe, published in 1943. It was here that he invented the word that described what had happened to the Armenians during World War I and what was happening to the Jews in World War II: genocide. In the book, he described genocide as acts “directed against individuals, not in their individual capacity, but as members of national groups.”119 Though he lobbied hard to be present at the proceedings of the International Military Tribunal in Nuremberg after the war had ended and Germans were made to account for their actions, he did not end up serving in any official capacity. Genocide did not appear in the indictments of any of the Nazis on trial. Instead, “crimes against peace,” “war crimes,” “crimes against humanity,” and conspiracy to commit these crimes were the charges leveled against the Nazi defendants. Most were hanged for their crimes. After Nuremberg, Lemkin turned his attention to making genocide a specific crime punishable under international law. After a long, dogged effort, he succeeded in bringing the UN Convention on the Punishment and Prevention of Genocide before the UN General Assembly, which adopted it in 1948. The Genocide Convention’s definition of the crime in Article II is specific: In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.

118

P. Sands, East West Street (New York: Vintage Books, 2016), 169.

119

Ibid., 181.

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7 Human Rights Article III delineates what is punishable: The following acts shall be punishable: (a) (b) (c) (d) (e)

Genocide; Conspiracy to commit genocide; Direct and public incitement to commit genocide; Attempt to commit genocide; Complicity in genocide.

Note the wording in Article II: “intent to destroy, in whole or in part.” This is the phrase on which the entire Convention turns; here, the intention – the mens rea – of the perpetrator is separate from the act – the actus reus – that occurred. This special intent (dolus specialis) is what separates genocide from any other crime. While genocide is characterized by massive loss of life, in theory a genocide could occur if one person was killed by another who had the special intent to destroy the particular group to which he or she belonged. Without special intent, the killing is simply murder. But the “in whole or in part” wording is also significant. There is no specific number of people who must be killed in order for an event to be termed a genocide. Instead, there must be intent to destroy a significant part of a particular group. In Prosecutor v. Krstic, a case brought before the International Criminal Tribunal for the Former Yugoslavia (explained in Section 3.2.1), it was determined that the “in part” element of the definition refers to the killing of members of the group within a limited geographical area.120 The targeted group must also constitute a substantial portion of the entire group, such that the elimination of part of the group would have an impact on the group as a whole. In order for an act to be classified as one of genocide, it must be done in the pursuit of physical or biological destruction of a targeted group; social or cultural destruction, while reprehensible, is not included in the Genocide Convention, though certainly such destruction is an inevitable result of physical destruction. Lemkin himself noted that the “spiritual resources of humankind” are lost when groups are destroyed. “The world represents only so much culture and intellectual vigor as are created by its component national groups,” he wrote in Axis Rule in Occupied Europe. “Essentially the idea of a nation signifies constructive cooperation and original contributions, based upon genuine traditions, genuine culture, and a well-developed national psychology. The destruction of a nation, therefore, results in the loss of its future contribution to the world.”121 120 121

Prosecutor v. Krstic, Trial Chamber Judgment (August 2, 2001), paras 582–584. R. Lemkin, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress (Clark, NJ: The Lawbook Exchange, 2008), 91.

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Physical and biological destruction, however, is not limited to mass executions. Since the Holocaust, the list of crimes that could constitute genocide has been refined and expanded by the special tribunals and courts that are dedicated solely to these types of crimes (discussed in Section 3.2 below). One prominent example comes from the International Criminal Tribunal for Rwanda (ICTR), which linked state rape with genocide in the Akayesu case.122 Jean-Paul Akayesu was found guilty of several crimes as the mayor of the city of Taba during the 1994 Rwandan genocide, and ordering the rape and murder of Tutsi women was among them. Mass rape is a powerful tool of the perpetrators of genocide, as Sharlach notes: “Soldiers may rape women before murdering them, they may attempt to dilute an ethnic community’s bloodline by raping and impregnating its women, or they may intend for the mass rapes to demoralize the surviving members of a community.”123 Rape is one method of bringing about the destruction of a targeted group – if the women survive sexual violence they are, in some communities, likely to be shunned afterward, often wishing they had been killed rather than endure their expulsion. Because it can be so effective, it is a tactic used with frightening regularity. Despite common usage of Lemkin’s word, it is difficult to convict someone of genocide. It is not enough for prosecutors to present evidence of targeted mass killing; instead, they must provide evidence of mass killing plus prove that the mass killings are what the alleged perpetrators meant to do. The Nazi regime in Germany kept meticulous records of their plans for the elimination of the Jews and other groups, many of which are still available for examination today.124 But most genocidaires do not commit their plans to paper. “In most cases, there will be no direct proof of genocidal intent,” write Bantekas and Nash, “and, so, this must be inferred through circumstantial evidence.”125 Even seemingly solid evidence can be easily dismissed, however. Robiou provides this telling example: Goran Jelisić, a concentration camp guard during the war in Bosnia, called himself the Serb Adolf Hitler and bragged about killing 20 to 30 Muslims a day. In 1999, the ICTY acquitted Jelisić of genocide because he freed a small number of people, which raised doubt about whether his intention was to

122 123

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Prosecutor v. Akayesu, Case No. ICTR-96-4-T, September 2, 1998. L. Sharlach, “State Rape: Sexual Violence as Genocide,” in S. Totten and P. Bartrop, eds., The Genocide Studies Reader (New York: Taylor & Francis, 2009), 188. See, for example, the vast collection of documents available at the House of the Wannsee Conference, www.ghwk.de/de accessed May 19, 2022. I. Bantekas and S. Nash, International Criminal Law (New York: Routledge-Cavendish, 2007), 144.

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7 Human Rights eliminate all Muslims. He was sentenced to 40 years on charges of crimes against humanity.126

Two somewhat contradictory trends have contributed to misunderstandings about the proper application of the term genocide. One is overuse, and the other is underuse. Misuse (or overuse) of the term “genocide” lies at one end of this spectrum. Maltreatment of individuals and groups in its many diverse forms has been conveniently mischaracterized by politicians, the media, lawyers, and students of international law as genocide, ignorant of the crime’s precise legal definition. As lamented by ICJ Justice Rosalyn Higgins: There is undoubtedly a degradation of the concept of genocide in its all too easy invocation by politicians who have not troubled to learn the distinction between mass murders, war crimes, crimes against humanity and genocide. Lawyers have not been immune from contributing to this degradation.127

And yet, at the moment when it seems clear that genocide is happening, politicians are reluctant to say the word at all. Perhaps the most famous example of this is the American refusal to label the deadly events in Rwanda in 1994 as a genocide: “Trying to avoid the rise of moral pressure to stop the mass killing in Rwanda, the Clinton Administration has instructed its spokesmen not to describe the deaths there as genocide, even though some senior officials believe that is exactly what they represent,” the New York Times proclaimed in June, two months after the genocide began.128 Why the reluctance? Labeling the crime “genocide” requires action, and possible entanglement in the domestic affairs of a state that other states generally avoid. The UN Security Council, the only organ of the UN that can compel state action, has also thwarted action against actors committing genocide. On numerous occasions, the permanent five (P5) members of the UN Security Council (US, UK, France, China, and Russia) have exercised their veto, shutting down any potential action that body might take. For example, the veto was used on over a dozen UN Security Council resolutions aimed at addressing the humanitarian situation in Syria between 2011 and

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M. Robiou, “What is Genocide? The Ultimate Crime, Explained,” PBS Frontline, March 29, 2019, www.pbs.org/wgbh/frontline/article/what-is-genocide-the-ultimate-crimeexplained/ accessed May 19, 2022. “Foreword,” in H. Abtahi and P. Webb, The Genocide Convention: The Travaux Préparatoires, Volume 1 (Leiden: Martinus Nijhoff, 2008), xvii. D. Jehl, “Officials Told to Avoid Calling Rwanda Killings ‘Genocide,’” New York Times, June 10, 1994.

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2019.129 Moreover, the vetoes are entirely predictable: when one of the P5 members is allied with or against a faction under review by the Security Council, the outcome of the vote is known before it is taken. Thus, Russia and China have vetoed any action against the Syrian regime of Bashar al-Assad, behind whom they have thrown their support; likewise, the US vetoes any action that might harm Israel, a long-time ally. Caught in the middle of this P5 battle, of course, are the people who are being persecuted and killed in the places the Security Council discusses. Trahan argues that the use of the veto in the Security Council in a situation of grave humanitarian concern is a violation of jus cogens norms – norms from which no state can derogate. In the hierarchy of international law, she writes, jus cogens norms are at the pinnacle, and they constrain all states. Furthermore, using the veto in the Security Council when human lives are at risk violates the very principles on which the UN is based, such as “promoting and encouraging respect for human rights.” The veto might also be considered a breach of a state’s obligations under the Genocide Convention and/ or the Geneva Conventions, which are treaty obligations for which all P5 members are responsible.130 It follows, then, that the P5 veto authority may indeed contradict international law in certain situations; Trahan recommends that the question be put before the ICJ for an Advisory Opinion.131 Trahan’s work dovetails with previous proposals to attempt to circumvent Security Council inaction in the face of complex humanitarian emergencies like genocide, notably the 2001 Responsibility to Protect (R2P) doctrine, put forward by the International Commission on Intervention and State Sovereignty (ICISS). R2P stipulates that all states have a responsibility to protect populations from mass atrocity crimes like genocide; furthermore, it suggests that if a state is “manifestly failing to protect its populations, the international community must be prepared to take appropriate collective action, in a timely and decisive manner and in accordance with the UN Charter.”132 The R2P doctrine has been debated in the UN General Assembly and included in several Security Council resolutions, but has yet to be used to overcome UN inaction.

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131 132

See Security Council, Quick Links: https://research.un.org/en/docs/sc/quick accessed May 19, 2022. J. Trahan, Existing Legal Limits to Security Council Veto Power in the Face of Atrocity Crimes (New York: Cambridge University Press, 2020), 148–150. Trahan’s detailed case studies of Security Council vetoes and the impact on the situations in Syria and Darfur are excellent illustrations of these points. Ibid., 242. Global Centre for the Responsibility to Protect. “What is R2P?,” www.globalr2p.org/whatis-r2p/ accessed May 19, 2022.

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There is a question as to whether genocide can be attributed to an association of terrorist groups as opposed to a particular state. The raison d’être of the 1948 Genocide Convention was to place states on notice that the individual would no longer be subjected to the whims of a rogue government like the Third Reich. It is not at all clear, however, how non-state actors like terrorist organizations fit into the Convention. For example, could the Islamic State (IS/ISIS/ISIL) be held responsible for genocide? The actions of the Islamic State against the Yazidi religious minority in northern Iraq in 2014 certainly bear some of the hallmarks of genocide: the group was clearly targeted and suffered summary executions, starvation, and sexual slavery, among other acts. As yet, however, there is no real mechanism for holding non-state actors to account, unless the UN Security Council acts to specifically empower a body like the ICC to do so.133 There is also some debate about whether genocide can be committed only by the state or some entity closely associated with it – such as the Janjaweed paramilitary in Sudan, responsible for the persecution of Black Africans in the Darfur region. As Schabas writes, “[b]ecause of the scope of genocide, it can hardly be committed by an individual, acting alone. Indeed, while exceptions cannot be ruled out, it is virtually impossible to imagine genocide that is not planned and organized either by the State itself or by some clique associated with it.” On the other hand, neither the Preparatory Commission for the Statute of the ICC nor the original UN General Assembly Genocide Convention resolution included such a requirement. Also, certain prominent national court decisions have not required governmental planning as an element of genocide.134 It is important to note that national courts have the primary duty to punish and prevent genocide. As passionately articulated by the president of the ICC: “Both the 1948 [Genocide] Convention and the [1998 ICC’s] Rome Statute recognize that it is the primary responsibility of national courts to investigate and prosecute genocide.”135 One could argue that they have not been able to live up to that responsibility. Reasons include the inability of State A to pursue State B on sovereign immunity grounds. Such cases against individuals in national courts are often costly and difficult to prove, especially given the specific intent element required for a genocide prosecution. Of course, a 133

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C. Kenny, “Prosecuting Crimes of International Concern: Islamic State at the ICC?,” Utrecht Journal of International and European Law 33, No. 84 (2017): 123. W. Schabas, “The Mental Element or Mens Rea of Genocide,” in W. Schabas, Genocide in International Law (Cambridge: Cambridge University Press, 2000), 207. See also Kadic v. Karadzic, 70 F.3d 232, 241 (2d Cir., 1995), cert. den’d, 518 U.S. 1005 (“genocide is a crime under international law that is condemned by the civilized world, whether the perpetrators are ‘private individuals, public officials or statesmen’”). “Foreword,” in Abtahi and Webb, The Genocide Convention, at xxi.

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state prosecutor’s ability actually to charge a defendant with a crime that meets Genocide Convention requirements assumes that the court: (a) sits in a state that has incorporated the Genocide Convention into its domestic law via implementing legislation; and (b) has not acceded to this treaty with some limiting (or limitless) reservation. In short, national courts have their work cut out for them in this regard, though there have been some notable cases: Adolph Eichmann was tried (and convicted) in a Jerusalem District Court in 1961 for his role in Jewish and Roma deportations during the Holocaust; he was sentenced to death by hanging in 1962.136 In Rwanda, local gacaca courts allowed Hutu genocidaires to come face-to-face with families of their Tutsi victims in a form of local justice that was the Rwandan government’s attempt “to strike a balance between conventional due process and the overwhelming need for swift justice.”137 This example is particularly striking, emphasizing the need for Rwandan communities to determine how they were going to live together again in the wake of a genocide that killed more than 800,000 people in the course of 100 days, knowing that it was unlikely that everyone who participated would be held to account. Finding perpetrators of genocide after the act has occurred and then holding them to account in a meaningful way is a major challenge for international criminal law. In many respects, no matter the outcome of a legal process, the result is always somewhat unsatisfying: hanging the men responsible for the Holocaust did not bring the millions of people they murdered back; locking away those responsible for the killings in the former Yugoslavia cannot restore the families whose lives were irrevocably altered. But it is something. In the next section, we explore the available mechanisms for adjudicating not only genocide, but other crimes against humanity.

3.2

Ad hoc International Criminal Courts

The concept of a war crimes trial is not unique to the International Military Tribunal at Nuremberg after World War II. There are accounts of a war crimes trial in 405 BC near what is now Turkey; the trial of a European governor for his actions in 1427, when his troops raped and killed innocent individuals; and the post-World War I trial of a submarine commander who torpedoed a British hospital ship and then sank its lifeboats.138 The League of Nations produced an international penal code and a Convention on the Establishment 136

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Attorney-General of the Government of Israel v. Eichmann (Israel Supreme Court, 1962), International Law Reports, 36 (1968): 277 (English translation). Human Rights Watch, “Justice Compromised: The Legacy of Rwanda’s Community-Based Gacaca Courts,” Human Rights Watch, May 31, 2011, www.hrw.org/report/2011/05/31/ justice-compromised/legacy-rwandas-community-based-gacaca-courts accessed May 19, 2022. R. Hingorani, Modern International Law, 2nd ed. (Dobbs Ferry, NY: Oceana, 1984), 353.

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of the ICC (within the Permanent Court of International Justice). It was signed by Belgium, Bulgaria, Cuba, Czechoslovakia, France, Greece, Spain, Monaco, the Netherlands, Romania, Turkey, the USSR, and Yugoslavia.139 This treaty never entered into force, however, because of the lack of sufficient ratifications. In the wake of World War II, an International Military Tribunal of the Far East tried twenty-five Japanese defendants for war crimes. All were found guilty; seven were sentenced to death.140 The most famous tribunal, however, was the four-nation body established by the Nuremberg Charter. The fundamental objective was to try Nazi “war criminals whose offenses have no particular geographical location whether they be accused individually or in their capacity as members of [military] organizations” of the German government.141 It was hoped that these limited-purpose tribunals would deter future war crimes by heads of state and military leaders. The constituting treaty, known as the Nuremberg Charter, contained what the Allied powers perceived as a novel method for deterring the national misuse of force.142 Germany’s key planners were tried and imprisoned or executed for the various crimes defined in the case below.

NUREMBERG TRIAL PROCEEDINGS (1946) Charter of the International Military Tribunal, Indictment of the Defendants, Witness Examination (Otto Ohlendorf ) Judgment of the International Military Tribunal, 22 International Military Tribunal, Trial of the Major War Criminals 411 (1948) [Excerpted case available at www.cambridge.org/FPIL7]

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142

This account is available in E. Osmanczyk, Encyclopedia of the United Nations and International Agreements, 2nd ed. (New York: Taylor & Francis, 1990), 202. N. Boister and R. Cryer, Documents on the Tokyo International Military Tribunal (Oxford: Oxford University Press, 2008). See also: T. Maga, Judgment at Tokyo: The Japanese War Crimes Trials (Lexington, KY: University Press of Kentucky, 2001); J. Ginn, Sugamo Prison, Tokyo: An Account of the Trial and Sentencing of Japanese War Criminals in 1948 (Jefferson, NC: McFarland & Co., 1992); and J. Keenan and B. Brown, Crimes against International Law (New York: Public Affairs Press, 1950). G. Ginsburg and V. Kudriavtsev, The Nuremberg Trial and International Law (Dordrecht: Martinus Nijhoff, 1990); J. Fried, “The Great Nuremberg Trial,” American Political Science Review 70 (1976): 192. R. Cryer and N. Boister, The Tokyo International Military Tribunal: A Reappraisal (Oxford: Oxford University Press, 2008).

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The principles enshrined in the Nuremberg Judgment were later approved by the UN General Assembly. In 1946, shortly after the judgment was published, the Assembly adopted Resolution 95(1) to express its sentiment that the “Nuremberg principle” had been incorporated into international law. The UN General Assembly’s International Law Commission (ILC) completed its restatement of the Principles of International Law Recognized in the Charter of the Nuremberg Tribunal in 1950.143 Under this principle, a state and its agents who wage an aggressive war commit the supreme international crime. It is punishable by any state able to bring the perpetrators to justice. The responsible leaders thereby incur criminal responsibility arising directly under international law for their conduct, which makes them liable for this crime. The validity under the internal laws of Germany did not provide them with a defense although it was considered as a mitigating factor in their sentencing. They were tried and punished for their participation as agents of the state in its unlawful use of force against other states. As articulated by the judges at Nuremberg, “crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.”

3.2.1

International Criminal Tribunal for the Former Yugoslavia

Unlike the Allied powers treaty arrangement establishing the Nuremberg and Tokyo tribunals, the Yugoslav and Rwandan international courts were established by UN Security Council resolutions. In 1993, the first of the two specialized tribunals was the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Former Yugoslavia since 1991 (ICTY). From its seat in The Hague, this court brought individuals to justice who committed major atrocities in Bosnia from 1991 to 1995, from the breakup of the former Yugoslavia through the restoration of peace. Its most prominent case was the trial of the former president of the former Yugoslavia, Slobodan Milosevic.144 Although he died before his trial was complete, his was the first trial of a head of state by an international tribunal. Years later (February 2009), the same court would acquit Milan Milutinovic, another former Serbian president, of ordering a campaign of terror to drive ethnic

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Text available on ILC Website: https://legal.un.org/ilc/texts/instruments/english/draft_ articles/7_1_1950.pdf accessed May 18, 2022. L. Sadat, “The Trial of Slobodan Milosevic,” ASIL Insights 7, No. 10 (October 15, 2002) www.asil.org/insights/volume/7/issue/10/trial-slobodan-milosevic accessed May 19, 2022.

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Albanians out of Kosovo. But five other Serbs would be convicted – yielding the ICTY’s first judgment to establish widespread Serbian crimes in Kosovo. The ICTY applies the rules of international humanitarian law applicable to armed conflict. These are the 1949 Geneva Convention for the Protection of War Victims, the 1948 Genocide Convention, the crimes against humanity formulation contained in the above 1946 Nuremberg Judgment, and the 1907 Hague Convention on the Laws and Customs of War on Land. The ICTY (and ICTR, described in Section 3.2.2 below) have prosecuted for “genocide,” “war crimes,” and “crimes against humanity.” Four countries – Finland, Italy, Norway, and Sweden – agreed with the ICTY to provide cells for those serving prison terms.145 Since its inauguration, the ICTY has rendered a number of spectacular decisions in the sense of a contemporary implementation of the Nuremberg principles.146 Prominent examples of its work product include spectacular innovations in prosecuting rape – both sexual violence and enslavement – as war crimes and as crimes against humanity. Its modern contributions also include prosecution under international humanitarian law for killings, beatings, and sexual mutilation. This tribunal’s first such verdict in 1997 was arguably its most significant because of the legal precedents it established for subsequent prosecutions.

PROSECUTOR V. DUSKO TADIC International Criminal Tribunal for the Former Yugoslavia, Appeals Chamber Case No. IT-94-1-ar72, 35 ILM 32 (1996) [Excerpted case available at www.cambridge.org/FPIL7]

In 2006, the ICTY began to transfer cases to national courts for further prosecution. Such transfers help, but have not solved the problem of finally concluding the ICTY proceedings. In 2010, the UN Security Council passed Resolution 1966, which created the International Residual Mechanism for

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V. Morris and M. Scharf, An Insider’s Guide to the International Criminal Tribunal for the Former Yugoslavia (Irvington-on-Hudson, NY: Transnational, 1995). Summaries are available on the UN Residual Mechanism for Criminal Tribunals site. Rape: Judgment of Trial Chamber II in the Kunarac, Kovac and Vukovic Case (February 22, 2001) www.icty.org/sid/8018 accessed May 19, 2022; Genocide: Judgment of Trial Chamber I in the Krstic Case (August 2, 2001) www.icty.org/en/case/krstic accessed May 19, 2022; Humanitarian Law: Judgment of Trial Chamber II in the Tadic Case (May 7, 1997) www .icty.org/en/case/tadic accessed May 19, 2022.

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Criminal Tribunals (IRMCT).147 The IRMCT exists to conclude the remaining work of the ICTY and the International Criminal Tribunal for Rwanda (ICTR) since the expiration of their mandates. While the work of the ICTY was concluded with the trial of Ratko Mladic and Goran Hadzic, the IRMCT is still working to find remaining fugitives from the Rwandan genocide and hears appeals of ICTY cases.

3.2.2

International Criminal Tribunal for Rwanda

In the same year the ICTY was established (1993), the Council established the ICTR.148 It is located in Arusha, Tanzania, to facilitate more expeditious prosecutions. This tribunal has tried and convicted individuals, including a mayor and the former premier of Rwanda for their roles in Rwanda’s genocidal massacre. The ruling Hutu majority government was responsible for mass murder, rape, and other crimes against at least 800,000 Tutsis (and Tutsi sympathizers) – in a 100-day period in 1994. After ten years of practice, this tribunal’s balance sheet includes both assets and liabilities – the latter due largely to limitations in the Court’s statutory mandate.149 Also, the ICTR was established over Rwanda’s objection. Perhaps key to the Rwandan opposition was its concern about the cultural relativism likely to be introduced into the African-based proceedings. The Security Council opted against a Rwandan location on a variety of grounds including security risks, lack of appropriate infrastructure, and perceptions of judicial partiality normally associated with conducting trials in the very nation where the atrocities occurred. Rwanda did not support establishment of this tribunal, partially because it was outside Rwanda. In the Rwandan premier’s case, the ICTR drew upon the Appellate Tribunal’s analysis contained in the ICTY’s above Tadic case. The ICTR judges were ruling on a decisive defense motion, which unsuccessfully challenged the court’s jurisdiction to hear and determine such cases. This phase of this particular proceeding effectively illustrated that the Security Council had properly invested the ad hoc Rwandan court with the express power to prosecute.150 Its analysis also paved the way for implementing a permanent ICC treaty, pursuant to the 1998 Rome Conference (Section 3.3 below).

147

148 149

150

See the International Residual Mechanism for Criminal Tribunals website: www.irmct.org/ en accessed May 19, 2022. S/RES/955, November 8, 1994. L. den Herik, The Contribution of the Rwanda Tribunal to the Development of International Law (Leiden: Martinus Nijhoff, 2005). Prosecutor v. Kanyabashi, Case No. ICTR-96-15-T (Jurisdiction, June 18, 1997). The ICTY case relied on by the ICTR in ruling on jurisdictional objections is Prosecutor v. Tadic,

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The ICTR’s Radio Machete case provides excellent insight into the concrete operations of the ICTR. The activities giving rise to this case are vividly depicted in the 2005 movie Hotel Rwanda. The internal media played no small role in inciting genocide; the external media either ignored or misconstrued what was occurring in Rwanda during that shocking 100 days in spring 1994:151

PROSECUTOR V. NAHIMANA International Criminal Tribunal for Rwanda, ICTR-99-52-A, November 28, 2007 [Excerpted case available at www.cambridge.org/FPIL7]

3.2.3

Hybrid National–International Courts

After the establishment of the ICTY and the ICTR, additional ad hoc national– international hybrid tribunals were created to respond to atrocities in Sierra Leone and Cambodia. The Special Court for Sierra Leone has the power to prosecute persons bearing “greatest responsibility” for serious violations of international law and Sierra Leonean law. The Special Court’s greatest achievement is the indictment and subsequent conviction of Charles Taylor, who was the president of Liberia at the time his indictment was unsealed in 2003. Taylor resigned the presidency and went into exile in Nigeria for three years, where he was eventually arrested upon trying to leave the country. His trial, which had to be moved to The Hague for security reasons, resulted in his conviction on all eleven counts of war crimes and crimes against humanity of which he was accused, and he was sentenced to fifty years in prison.152 He is currently serving his prison sentence in the UK. The Extraordinary Chambers in the Courts of Cambodia was designed to bring leaders of the Khmer Rouge, who perpetrated mass atrocities between 1975–1979 after the US left the region after the Vietnam War, to justice. The new government’s goal was to facilitate national reconciliation for the former regime’s murder of approximately 1,700,000 Cambodians and the

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Decision on Jurisdiction, No. IT-94-1-T (August 10, 1995), aff’d, Appeal on Jurisdiction, No. IT-94-1-AR72 (October 2, 1995). A. Thompson, The Media and the Rwanda Genocide (London: Pluto Press, 2007); Death penalty’s (former) role: J. Ohlin, “Applying the Death Penalty to Crimes of Genocide,” American Journal of International Law 99 (2005): 747. See a summary of the Taylor trial here: www.rscsl.org/Taylor.html accessed May 19, 2022.

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exodus of 2,000,000 others, as memorialized by the movie The Killing Fields. The most notable trial of this court thus far as been that of Khieu Samphan, who held the position as head of state (Chairman of the State Presidium) during the regime of Democratic Kampuchea. He was arrested and placed in provisional detention in 2007, charged with crimes against humanity, war crimes, and genocide in separate cases. He was convicted on all charges in November 2018 and sentenced to life in prison in two separate trials.

3.3

International Criminal Court

In July 1998, representatives of approximately 150 UN members gathered in Rome to draft the first global ICC Statute.153 One hundred and twenty states voted in favor of establishing this permanent international criminal court; twenty countries abstained; and seven opposed. At the UN’s 2000 Millennium Summit, national leaders supported the evolution of this tribunal in their following resolution: “We resolve, therefore . . . [t]o ensure the implementation, by States Parties, of treaties in areas such as arms control and disarmament, and of international humanitarian law and human rights law, and call upon all States to consider signing and ratifying the Rome Statute of the International Criminal Court.”154 The treaty creating the ICC entered into force in July 2002. There are now 123 state parties. This global criminal court, located in The Hague, Netherlands, is akin to a contemporary Nuremberg Tribunal. Its task is to prosecute individuals charged with genocide, crimes against humanity, war crimes, and (since 2018) aggression. The ICC differs from the ICJ in several significant respects: (1) the ICC is the global criminal court for prosecuting criminal matters while the ICJ only hears disputes between states; (2) unlike the ICJ, the ICC cannot render advisory opinions (as opposed to contentious cases between adversaries); (3) the ICC tries individuals while only states may be parties in contentious ICJ proceedings; and (4) the ICC may issue enforceable subpoenas, requiring individuals to testify and produce documents.

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“Rome Statute of the International Criminal Court,” opened for signature July 17, 1998, UNTS Vol. 2187: 3. https://treaties.un.org/doc/Publication/UNTS/Volume%202187/v2187 .pdf accessed May 19, 2022. A/RES/55/2, point 9. For conference details, see M. Scharf, “Results of the Rome Conference for an International Criminal Court,” ASIL Insights 3, No. 10 (August 11, 1998) www.asil.org/insights/volume/3/issue/10/results-rome-conference-internationalcriminal-court accessed May 19, 2022.

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The ICJ may request, but not force, states to do the same – perhaps the most salient feature of its 2007 Bosnia v. Serbia genocide decision. Powerful national responses to an international criminal court included objections to Articles 17 and 20 of the Rome Statute. These articles authorize the Court to ignore national rules providing for amnesty and other limitations on its jurisdiction. In January 1999, the French Constitutional Council ruled – in a case brought by France’s president and prime minister – that the French Constitution would have to be amended before France could ratify the ICC Statute. Article 27 waives immunity from any criminal responsibility of a head of state or government or members of a ratifying government and Parliament. The French Council held that this treaty provision would contradict the constitutional provisions regarding the relevant immunity of state officials. France nevertheless ratified the ICC Statute in June 2000. In terms of the UN Security Council’s P5 members, France’s ratification was followed by the UK. While Russia signed this treaty, China and the US publicly dissented (via President Bush’s unsigning the ICC treaty signed by former President Clinton). While the Rome Statute gives the ICC a wider range of conduct to examine than either the ICTY or ICTR had, the Court is nevertheless constrained. First, the Court is limited to conduct that occurred after the Rome Statute came into force on July 1, 2002; no earlier crimes may be investigated or tried at the ICC (Article 11). Second, the state where the crime allegedly occurred or the state of the accused’s residence must be parties to the Statute in order for the Court to have jurisdiction (Article 12(2)). If neither state is a party to the Statute, the ICC cannot be called upon to act. If, however, the UN Security Council, acting under its legally binding Chapter VII authority, refers a situation to the ICC’s prosecutor, the Court may open an investigation (Article 13(b)). Other state parties to the Rome Statute can refer situations to the prosecutor as well, or the prosecutor can initiate an investigation themselves based on credible information (Articles 13(a), 14, and 13(c)). The Statute limits the Court further in Article 16, which effectively “pauses” any proceedings or investigations that were forwarded by the Security Council for a period of twelve months. Finally, the Rome Statute’s Article 17 gives national courts priority: if national courts have taken up a case, or if they have decided not to prosecute, the case will be inadmissible before the ICC.

3.3.1

Crimes under ICC Jurisdiction

Before examining some of the Court’s most prominent cases, a brief note about the types of crimes it may investigate is in order. We have already defined the crime of genocide; the Rome Statute uses the same wording as the Genocide Convention. There are three remaining categories of crimes, summarized in Table 7.3; note that the crime of aggression is a relatively new addition to the Court’s jurisdiction (2018).

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Table 7.3. Crimes against humanity, war crimes, and aggression at the ICC Crimes against Humanity

War Crimes

Aggression

“widespread and systematic”

“committed as part of a plan or policy”

“planning, preparation, initiation, or execution using armed forces”

Murder

Murder

Invasion, Bombardment

Extermination

Mutilation, Cruel Treatment, Torture

Military occupation

Enslavement

Hostage-taking

Forcible annexation

Deportation/ Forcible transfer1

Intentional Attacks on civilians

Blockades of ports or coasts

Imprisonment

Intentional Attacks on Buildings (Hospitals, Religious, art, etc.)

+ other actions in violation of the UN Charter

Torture

Pillaging

Rape/Sexual Violence

Rape/Sexual Violence

Persecution of groups

Conscription of children under age 15

Enforced Disappearance

+ other actions in violation of the Geneva and Additional Protocols

Apartheid Other Inhumane Acts Notes: 1 This has often been termed “ethnic cleansing” – removing a targeted group from their home territory to another, usually less desirable, territory. Source: Adapted from “Understanding the ICC,” www.icc-cpi.int/resource-library/documents/rs-eng .pdf accessed May 19, 2022.

Crimes against humanity is not a new category; it was part of the indictment at Nuremberg, and before that it was found in the 1899 Hague Convention II. The so-called Martens Clause (named after the Russian delegate to The Hague Peace Conferences) states that, until there are more robust protections, “the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the

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usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience.”155 After the Armenian genocide (and before it was labeled a genocide), governments in Great Britain, France, and Russia called the massacres of Armenians “crimes against humanity and civilization.”156 There were questions even then about sovereignty: could Turkish officials be held responsible for committing a crime on their own territory? And if so, could not other countries be similarly held to account for their sins against their own people? After the end of World War I, there was no mention of crimes against humanity in the Treaty of Versailles, but it was soon to be resurrected at Nuremberg after World War II. It has been used fairly extensively since the creation of the ICTY in 1993, and the term is now enshrined in the Rome Statute of the ICC. As Schabas notes, crimes against humanity are divided into two categories of punishable behavior: the first several crimes (i.e., murder, extermination) are similar to crimes that exist in virtually every domestic legal system, while the latter part of the list of crimes against humanity “run afoul of antidiscrimination laws in many countries but fall short of criminal behavior.”157 But what makes crimes against humanity unique among crimes is that they must be both “widespread and systematic” attacks on a civilian population. The attacks are typically organized by the state, but it is unclear whether or not non-state actors (e.g., terrorist organizations) could also commit crimes against humanity. Finally, while the Rwandan tribunal (ICTR) required that crimes against humanity be widespread and systematic attacks on a targeted segment of the population (e.g., a certain political, national, ethnic, racial, or religious group), that has generally not been the case elsewhere, and is not required for crimes against humanity at the ICC. What is required at the ICC is evidence that the attacks were widespread and systematic, and that the perpetrator of the acts knew that their participation was part of the widespread and systematic attack on a civilian population. Bantekas and Nash clarify this: a person killing two civilians from group A is guilty of a crime against humanity only if it can be proven that the mens rea elements for the offences of extermination or murder have been satisfied and also that either of these 155

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International Committee of the Red Cross, “Convention (II) with Respect to the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land,” The Hague, July 29, 1899 https://ihl-databases.icrc.org/ihl/INTRO/150 accessed May 19, 2022. Text of telegram sent to the US State Department from the American Embassy in Constantinople, May 1915, www.armenian-genocide.org/Affirmation.160/current_ category.7/affirmation_detail.html accessed May 19, 2022. W. Schabas, “Crimes against Humanity,” in S. Totten and P. Bartrop, eds., The Genocide Studies Reader (New York: Taylor & Francis, 2009), 80.

3 Genocide and Crimes against Humanity offences was committed with the knowledge that group A was specifically targeted by the perpetrator’s affiliate organization. It must also be demonstrated that the murders and extermination were themselves either widespread or systematic. Likewise . . . crimes against humanity can be committed by state entities and their agents, as well as by non-state entities.158

War crimes are classified under the Geneva Conventions as “grave breaches” of international humanitarian law and are committed during conflict against protected populations. The fullest expression of “grave breaches” appears in Convention IV (which relates to civilians), Article 147, which states that they include: willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or willfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.159

This list should not be interpreted as exhaustive. As with crimes against humanity, the different tribunals, such as the ICTY and ICTR, have defined “grave breaches” differently. Certain weaponry, for example, is recognized as prohibited under the Rome Statute of the ICC: no poisonous weapons; no expanding/flattening bullets; no weapons that cause unnecessary suffering.160 The list of offenses categorized as “war crimes” look somewhat similar to crimes against humanity, but they are not: war crimes are committed against a civilian population or enemy combatants in a time of armed conflict, and are prohibited under the Geneva Conventions of 1949,161 the Additional Protocols of 1977, and the Hague Conventions of 1899 and 1907. The conventions are particularly concerned with the protection of those who are not at all part of the conflict, but who nevertheless live in the midst of it; this includes not only civilians but also prisoners of war, the sick, injured, shipwrecked, and refugees. They attempt to ensure that these protected

158 159

160 161

Bantekas and Nash, International Criminal Law, at 135. International Committee of the Red Cross, “Geneva Convention IV,” Article 147 https://ihldatabases.icrc.org/ihl/WebART/380-600169 accessed May 19, 2022. See Rome Statute, Article 8(2)(b). All of the Geneva Conventions and Additional Protocols are available online at https://ihldatabases.icrc.org/applic/ihl/ihl.nsf/vwTreaties1949.xsp accessed May 19, 2022.

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populations have the means necessary to continue to live (e.g., enough food, shelter), and that those who destroy that ability are held to account on an individual basis. Note that there is no requirement for war crimes to be “widespread and systematic” as in crimes against humanity; even isolated attacks can be war crimes. And while it is true that war crimes – if determined to be widespread and systematic – could count as crimes against humanity, it is not necessarily the case that crimes against humanity would count as war crimes. Finally, the ICC can, as of 2018, prosecute the crime of aggression. It is not a new crime; indeed, it was the primary crime of those convicted at Nuremberg. As Justice Robert Jackson wrote in his judgment at Nuremberg, “To initiate a war of aggression is not only an international crime; it is the supreme international crime, differing only from other war crimes in that it contains within itself the accumulated evil of the whole.”162 Commentators note that it is unlikely that the ICC will see a rash of aggression prosecutions, and that the inclusion of this crime is mostly symbolic. The Rome Statute and the so-called Kampala Amendments define the crime narrowly: the crime of aggression focuses on the actions of top leaders to exercise control over a state and commit an act of aggression that is of such scale and gravity as to violate the UN Charter.163 Importantly, this crime is one between states only; non-state actors are not included in the crime of aggression. Just under forty states have ratified the Kampala Amendments to the Rome Statute, and only those states are subject to the ICC’s jurisdiction on this crime; they can opt out of this jurisdiction whenever they like.164 The ICC has indicted more than forty people since its inception; some of those cases are ongoing. The Court’s first verdict was against Thomas Lubango Dyilo, who was convicted of war crimes, and specifically of conscripting and employing children under the age of fifteen to participate in hostilities in the Democratic Republic of Congo.165 Dyilo was sentenced to fourteen years’ imprisonment. There are ongoing investigations into the situations in Uganda (war crimes and crimes against humanity involving the Lord’s Resistance Army and Ugandan government forces), the Central African Republic (war crimes and crimes against humanity involving allegations of mass sexual violence in the context of an ongoing conflict), and Côte 162

163

164 165

As quoted in A. Whiting, “Crime of Aggression Activated at the ICC: Does It Matter?,” Just Security (blog), New York University School of Law, December 19, 2017, www.justsecurity .org/49859/crime-aggression-activated-icc-matter/ accessed May 19, 2022. Coalition of the International Criminal Court, “The Crime of Aggression,” www .coalitionfortheicc.org/explore/icc-crimes/crime-aggression accessed May 19, 2022. Whiting, “Crime of Aggression Activated at the ICC,” 161. Prosecutor v. Thomas Lubango Dyilo, ICC-01/04-01/06-2842 (2012).

3 Genocide and Crimes against Humanity

d’Ivoire (crimes against humanity involving post-election violence). One of the Court’s most high-profile cases has concerned the Darfur region of the Sudan and the role of the Sudanese president, Omar Hassan al-Bashir, on allegations of genocide, crimes against humanity, and war crimes against Black Africans there. The ICC issued two warrants for Bashir’s arrest in 2009 and 2010 and, despite the fact that he had visited several states that are parties to the Rome Statute, he was never arrested during his travels. In 2019 his government was toppled after mass protests; he is still at large, though there is speculation that he will eventually be tried in a hybrid national-international court like the Special Court for Sierra Leone.166 The ICC faces numerous challenges that are fundamentally different from other courts we have discussed in this section. Perhaps the largest criticism of the Court is the one that is also the loudest: all of the ICC’s convictions have taken place in Africa, leading to the perception that the ICC is anti-African. Worse are the suspicions that the Court is wary of opening investigations that will rankle the P5 members of the UN Security Council167 or the countries that offer the greatest financial support to the Court itself. Several African countries have threatened withdrawal from the Rome Statute (including, notably, South Africa, though it has since reconsidered), and in 2017 the AU suggested a mass withdrawal of African states from the Court. Intimations that the ICC is a(nother) tool of Western colonialism are frequent, and certainly present a threat to the Court’s legitimacy in Africa. The Court is also challenged by the fact that some large countries, notably the US, Russia, and China, are not parties to the Rome Statute, and, in some cases, actively seek to undermine the Court. The US, for example, passed the American Service Members’ Protection Act in 2002, designed to insulate the US military from prosecution in an international court.168 The act “required the government to cut off financial assistance to ICC members that would not agree not to surrender US personnel to the ICC. The law also authorized the president to use all means necessary to free Americans detained by the ICC.”169

166

167

168

169

“Omar Bashir: ICC delegation Begins Talks in Sudan Over Former Leader,” BBC News (October 17, 2020) www.bbc.com/news/world-africa-54548629 accessed May 19, 2022. E. O. Osaala, “Rule of Law or Realpolitik? The Role of the United Nations Security Council in the International Criminal Court Processes in Africa,” African Human Rights Law Journal 266 (2013). US Department of State, Bureau of Political-Military Affairs, American Service-Members Protection Act, Washington, DC, July 30, 2003 https://2001-2009.state.gov/t/pm/rls/othr/ misc/23425.htm accessed May 19, 2022. C. Felter, “The Role of the International Criminal Court,” Council on Foreign Relations, last updated February 23, 2021, www.cfr.org/backgrounder/role-international-criminal-court accessed May 19, 2022.

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Under the Trump Administration the pressure increased when those affiliated with the ICC were subject to sanctions and the ICC prosecutor’s visa was revoked after an investigation was opened in 2020 into possible crimes committed in Afghanistan.170 The Trump Administration issued an Executive Order declaring that anyone involved with the ICC would be subject to the “blocking of assets, prohibitions on interactions with sanctioned individuals, and negative immigration consequences” that some have compared to “civil death.”171 This drastic move came to an abrupt end when the Biden Administration entered White House in early 2021. By April 1, President Biden revoked his predecessor’s Executive Order and replaced it with a new one. Although the Biden Administration shares many of the same concerns about US vulnerabilities vis-à-vis the ICC, the Biden Executive Order may usher in a new, more productive relationship between the US and the ICC. Indeed, the American position on the ICC has been tested by the Russian invasion of Ukraine in 2022, where ample evidence of war crimes was found. The US, while not a signatory to the Rome Statute, has actively encouraged the ICC to conduct investigations.

Thinking Ahead States are the primary actor in international law, but in this chapter international law touched the individual: citizens, minority groups, tribes, women, children – all are impacted by decisions made by the state and the international courts featured here. The Rohingya, whose situation was described in the opening paragraphs, now find themselves caught in Bangladesh, a country that is not their home but one to which they had to flee in order to escape brutality in their own villages in Myanmar. It is unlikely that they will be able to return home soon, or possibly ever: since states are sovereign, there is only so much outside states can do to condemn the behavior of Myanmar’s military, especially since they are now in control of the government. Cases lodged before the ICC and the ICJ seem unlikely to bring any immediate relief, either. What good are human rights, then, if they are so difficult to enforce when a population like the Rohingya is so clearly in need of protection? The human rights regime was not designed to force states to quickly change their 170 171

Ibid. N. Grossman and E. Pruitt, “Litigating U.S. Policy toward the International Criminal Court,” ASIL Insights 25, No. 5 (May 4, 2021) www.asil.org/insights/volume/25/issue/5/ litigating-us-policy-toward-international-criminal-court accessed May 19, 2022.

Thinking Ahead

behavior, as much as we sometimes like to hope that it was. Instead, it was designed largely in the wake of the atrocities of World War II to commit states to being better than they were. To some extent, it has worked: the human rights regime is robust, with protections for many groups guaranteed through myriad conventions backed by committees or courts that can investigate or adjudicate claims of abuses. Immediate relief, though, has never been the promise of international human rights. Documentation, condemnation of abuses and abusers, and layers of precedent hold the promise of a better future for groups like the Rohingya and others who face abuses from the state. The next two chapters outline how the state can use force in two basic ways: to make war, and to keep peace. Both of these have tremendous impacts on human rights. First, the Laws of War offer certain protections for civilians in the midst of armed conflict, though it is unfortunately not uncommon for civilians to be killed or wounded even when they are not active combatants. States have long been engaged in efforts to reduce (or even, fancifully, to eliminate) the use of force because of its destructive impacts on human societies; the next chapter explains those efforts from the League of Nations to the use of drones in warfare. Chapter 9 reinforces the human element, focusing on the ways in which states can and have used force in order to encourage peace. Peacekeeping missions – an “invention” of the UN found nowhere in its Charter – have become an important tool for ensuring the long-term safety of populations caught in conflict, though not all have been successful. The notion of “human security” – the idea that people deserve to be free not only of threats to their immediate safety, but also be secure in areas like their health and their environment – is a perfect connection to the ideas explored in this chapter.

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The Use of Force by States

After months of warnings from Western intelligence services, and months of denial by the Russian Federation, on February 24, 2022, Russian troops crossed into Ukraine, a sovereign state recognized under international law. The troops in the Russian operation were equipped with state-of-the-art weapons with estimated numbers as high as 190,000, compared with about 40,000 deployed soldiers on the Ukrainian side.1 Depictions of indiscriminate use of force, including cluster bombing (outlawed under treaties that Russia had not signed), and the resulting civilian suffering and death in Ukraine flooded social media. Thousands, and then millions, of Ukrainians fled from the sudden violence, pouring across the borders into neighboring states. It was the largest and most explicit use of force by one state against another in the twenty-first century. With an explicit Russian threat to use nuclear weapons, no other state was willing to risk a potential holocaust by taking direct military action against Russia. Given that restriction, a significant majority of the states of the world utilized a wide variety of non-military tools (and supplied limited conventional weapons) to deter and punish Russia for its use of force in Ukraine. These included harsh economic sanctions, removing Russia from international organizations, and encouraging divestment in Russian goods and services. Pressured by social media, non-government organizations (NGOs) also divested in Russia and de-linked from Russia. The effect was dramatic, with an almost immediate and sharp devaluation of the Russian currency, the shuttering of the Russian stock market, the loss of purchasing power by ordinary Russians, and the exclusion of Russia from international events.

1

See “President Proposes to Increase the Number of Armed Forces by 11,000 to Form the Territorial Defense Forces,” Ukrainian Military Pages, 2021, www.ukrmilitary.com accessed May 18, 2022. Note that it is very difficult to obtain accurate figures for the precise number of battle-ready troops, in contrast to the larger number of “active” and “reserve” troops that exist on paper. In the latter case, Ukraine claimed to have a force of 250,000 troops as of May 2021.

Introduction

Ukraine had the right of self-defense under Article 51 of the United Nations (UN) Charter, and under direction of their leadership, thousands of Ukrainians took up arms and vigorously exercised this right. Non-binding but nonetheless significant resolutions condemning the incursion were passed by both the UN Security Council and the General Assembly.2 The North Atlantic Treaty Organization (NATO) remained on high alert lest the conflict spill over into the adjacent countries who are NATO members, and who the United States (US) and other NATO member states were obligated to defend under Article 5 of the NATO Charter. In the end, with the numerical and qualitative superiority of the Russian armed forces and matériel, there was little hope that Ukraine could repel the invasion on its own. However, Russia’s actions prompted the highest degree of unity by both the Global North and Global South since World War II to use every means short of war to deter the aggressive use of force across state borders. Could such an action by Russia be justified under international law? Have Russia’s actions undermined some or most of the international law on the use of force by states? Conversely, could international law be strengthened as a result of this tragic episode?3 The long-term results will not be known for some time, but we begin to address some of these key questions in the chapter that follows.

Introduction One of the core concerns of international law across the ages is how to control the use of force by international actors, because clearly our existence, both as individuals and the world’s population as a whole, depend upon us being able to do so. But force can be construed as both positive (used to protect and promote) and negative (used to destroy). What is meant by “security” and under what conditions is the use of armed force “legitimate” in international law, and by whom? Furthermore, what is “force” in international law, and what is “war”? The use of force at any level of international 2

3

F. Fassihi, “U.N. General Assembly Passes a Resolution Strongly Condemning Russia’s Invasion,” New York Times, March 2, 2022. The vote was 141 for, only four against (in addition to Russia), with thirty-five abstentions. See UNGA Res. A/ES-11/L/1. The four-page resolution called for an immediate halt to the conflict, diplomatic resolution, nonrecognition of any territorial gains made by Russia, along with immediate withdrawal of Russian forces, safe passage for migrants and humanitarian aid, and protection of civilians. For an early and sanguine analysis of the effect of the incursion on international law, see O. Hathaway et al., “Law Faculty Offer Analysis of Russia’s Invasion of Ukraine,” Yale Law School News, February 28, 2022.

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affairs has the capacity to disrupt both international relations and affect ordinary citizens alike. There are two separate chapters on the use of force in this book. This first chapter will focus on the traditional, but still highly significant, international law topic of the state use of force (also known as the “Laws of War” or LOW) and questions of state “self-defense.” We detail in this chapter areas in which international law remains focused on traditional state-centric use of force, along with some indications that the field is moving toward a newer conception of international security. In Chapter 9, we move to the use of force at the global level: its multilateral use by international organizations and peacekeeping operations, and in service of humanitarian missions. In addition to this chapter division, the question of the fundamental goals of security and the use of force are undergoing a fundamental “re-think” in international law and international relations more generally. Part of this is driven by the changing types of security threats, especially in the developing world, and part of it is driven by the new work of emerging scholars. In this past conception, the (often unexamined assumption) was that security operations, using state force, should be conducted for raison d’état or “reasons of state” and these reasons, guided by notions of the “national interest,” were created and safeguarded by state elites, unanswerable to the public. However, following the lead of international scholars, both citizens and state elites alike are beginning to demand that security should mean much more than just raison d’état.4 Security is being expanded to include individuals in the following areas: physical safety; an economic safety net; and protection from the health effects of pandemics and environmental destruction. This is often referred to as “human security.” However, what separates these areas of concern from purely municipal/domestic politics and law is the spillover potential involved in each area. Put differently, insecurity in any of these areas for individuals has the high potential to spill across state borders and create international problems regionally or globally, thus becoming an area of proper concern for international law. At the conclusion of this chapter, you will be able to identify various ways in which “force” and “aggression” have been defined and used, and why variations in these definitions are important to international law. You should be able to trace how the laws of armed conflict have evolved and where they stand today. You will understand what state responsibility is vis-à-vis the Laws of War, and you will be able to apply these concepts in specific realworld situations. Finally, we ponder if there have been fundamental changes 4

V. Naumescu, “The Post-Brexit EU as a Global Actor: Reconsidering Security,” Romanian Journal of European Affairs 20, No. 1 (2020): 21–36.

1 Pre-UN History on the Use of Force

to the Laws of War and use of force to combat terrorism, an effort that has been led by the US after the attacks on that country on September 11, 2001.

1 Pre-UN History on the Use of Force A broad survey of the history of international attempts to regulate the use of force reveals two somewhat surprising conclusions: (1) that such attempts were not unknown in the ancient world, but usually applied only in specific situations; and (2) it was not until the last two centuries that such efforts gained widespread international urgency and formality in international law. Like other areas of international law, one can question the effectiveness of rules purporting to restrict the behavior of states and armed forces, but the modern codification of such rules has proven relatively effective (considering the alternative of unrestricted warfare), despite notorious breaches like the current Russian invasion of Ukraine.

1.1

Ancient Sources on the Use of Force

The earliest human written records in existence (from about 15,000 years ago) record armed conflict between groups of humans. The conflicts were often over access to prime resources (animals and other food, arable land, water, and shelter). Later, as humans became more politically organized, conflicts became larger, more lethal, and were often justified by appeals to patriotism and/or religion (e.g., Pericles’ famous “Funeral Oration” from the fifth century BC5). The biggest changes occurred, however, in just the last 200 years with ideas of “total” and “unrestricted” warfare – developments that, if unchecked, could have led to the destruction of all or part of the human species and much of the rest of life on earth. This use of force was not condemned per se in ancient Greece or Rome. Aristotle wrote that it was regarded as a necessary evil in order to achieve happiness and leisure: “We make war in order that we may live at peace. . . . Nobody chooses to make war or provokes it for the sake of making war; a man would be regarded as a bloodthirsty monster if he made . . . [friendly nations] into enemies in order to bring about battles and slaughter.”6 However, it should be emphasized that from the very beginning, even ancient societies had agreements – some written, some just understood – to 5

6

Thucydides, The History of the Peloponnesian War, Richard Crawley, ed. (Some Good Press, n.d.). Aristotle, Nichomachaean Ethics (New York: Penguin, 1976), 329 (H. Tredennick revision, J. Thompson trans.).

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make war more “humane.” Time-outs were allowed for even the losing side of a battle to collect their dead and for a time for burial and mourning. Certain practices were forbidden, although the prohibitions were not always observed. There is a rich vein of humanitarian control of war, dating back to the Bible’s Old Testament. It contains admonitions prohibiting the following: the slaughter of captured men; the transplanting of innocent women and children; the plunder of animals and other property; and the pillaging and wanton destruction of cities. The Muslim world was also concerned with the importance of limitations on how war was to be conducted. The Qur’an, for example, provides as follows: “War is permissible in self-defence, and under well defined limits. . . . In any case, . . . women, children, old and infirm men should not be molested, nor trees and crops cut down, nor peace withheld when the enemy comes to terms.”7 Specific, if sporadic, efforts in ancient history have limited the cruelty of warfare. A few military leaders and heads of state required their soldiers to observe certain minimum standards of humane conduct in warfare. In 559 BC and 333 BC, respectively, the King of Persia and Alexander the Great ordered their troops to spare the civilian population of conquered areas. They were also admonished not to intentionally desecrate religious sites. In 70 BC, the Roman commander Titus arranged for the safe departure of women and children from Jerusalem when it was under his siege. In AD 410, the Visigoth leader Alaric, known for his cruelty to foreign soldiers, forbade his soldiers to attack the women of Rome when he captured the city. In the Middle Ages, certain Christian and Muslim leaders humanized the conduct of war, partially because of a more long-range strategy to avoid an overly desperate enemy otherwise facing some cruel form of extinction. However, it is also clear that warfare throughout much of history, even though on a much smaller scale than most modern conflicts, was a miserable affair. In the Battle of Teutoburg Forest in the year AD 9, a Germanic tribal chieftain defeated several Roman legions. He declared at the point of victory that “those prisoners who were not hewn to pieces on the spot were only preserved to perish by a more cruel death in cold blood.” During the medieval crusades, combatant forces routinely slaughtered enemy prisoners. Women were raped, and the inhabitant’s goods were forfeited. These “prizes of war” were available as an incentive for soldiers facing periods of protracted siege.8

7

8

A. Y. Ali, The Holy Qur’an: Text, Translation and Commentary, rev. 1989 ed., Al Baqarah, Surah 2, n.204. These accounts are provided in H. Levie, “Historical Background,” in H. Levie, Terrorism in War: The Law of War Crimes (Dobbs Ferry, NY: Oceana, 1992), 9–10.

1 Pre-UN History on the Use of Force

The notion of the “Just War,”9 of which Aristotle wrote, was sewn into the fabric of the new international legal system established by the 1648 Peace of Westphalia. The European perspective had been that if the war was “just,” then the enemy was by definition “unjust.” Adversaries therefore were not entitled to humane treatment other than that within the discretion of the onscene military commander. In addition, the principle of state sovereignty that emerged from Westphalia necessitated the use of force in order to protect territory. Territorial breaches meant war, even to protect barren hinterlands from foreign trespass or occupation. Under the Westphalian “balance of power” system, the preservation of existing states – not peace – was the ultimate objective. As international law continued to change during the seventeenth through the early nineteenth century, force and war were often (mis) characterized as a “necessity.” The more powerful European states often claimed that force was the only effective means of enforcing international law. An aggrieved state could not allow the violation of international law to go unpunished, for fear of anarchy. Force was characterized as an inherent right – beyond question – when a state, at its unbridled discretion, deemed it necessary to use force in the name of God and country. By the early nineteenth century, the limitless use of force became the centerpiece of national policy for certain leaders. They employed it to preserve “national security.”10 However, the self-righteous implications of that term provided only a thin veneer for the aggressive nature of their Realpolitik (power politics). Napoleon used force to dominate Europe in the late eighteenth and early nineteenth centuries. Two of the greatest practitioners of Realpolitik in the mid-to-late nineteenth century were Metternich of the Austro-Hungarian Empire, and Bismarck of the first German Reich, who freely employed force (and the threat of force) to quell rising domestic dissent of democratic movements within their states, as well as to seek expansion and aggrandizement in international relations. Of course, Hitler’s mid-twentieth-century use of force to create his 1,000-year “Third Reich” was of an entirely different scale. The classic statement on the understanding of the legitimate use of force by states during this period comes from Lauterpacht: [T]he institution of war fulfilled in International Law two contradictory functions. In the absence of an international organ for enforcing the law, war

9 10

See the treatment of “Just War” in Chapter 9. See M. Mandelbaum, The Fate of Nations: The Search for National Security in the Nineteenth and Twentieth Centuries (New York: Cambridge University Press, 1988).

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8 The Use of Force by States was a means of self-help for giving effect to claims based or alleged to be based on International Law. Such was the legal and moral authority of this notion of war as an arm of the law that in most cases in which war was in fact resorted to in order to increase the power and the possessions of a State at the expense of others, it was described . . . as undertaken for the defence of a legal right. This conception of war was intimately connected with the distinction, which was established in the formative period of International Law and which never became entirely extinct, between just and unjust wars. . . . In the absence of an international legislature it was a crude substitute for a deficiency in international organization. As Hyde, writing in 1922, said “It always lies within the power of a State to gain political or other advantages over another . . . by direct recourse to war.” International Law did not consider as illegal a war admittedly waged for such purposes. . . . War was in law a natural function of the State and a prerogative of its uncontrolled sovereignty.11

However, a different, more “modern” view was expressed by Grotius in his 1625 treatise on war: By way of conclusion to this subject it may be observed, that all actions no way conducive to obtain a contested right, or to bring the war to a termination, but calculated merely to display the strength of either side are totally repugnant to the duties of a Christian and to the principles of humanity. So that it behooves Christian princes to prohibit all unnecessary effusion of blood, as they must render an account of their sovereign commission to him, by whose authority, and in whose stead, they bear the sword.12

1.2

The Nineteenth Century and the League of Nations

By the mid-nineteenth century, views more similar to those of Grotius began to work their way into military field manuals as states and private organizations like the Red Cross understood that increasingly accurate and lethal weapons systems were capable of inflicting alarming consequences. Military theorists, theologians, and moralists believed that certain state practices were too inhumane to be condoned by a civilized society. Some of the areas of concern that were addressed include the following: 11

12

“War as a Lawful Instrument of National Policy,” Oppenheim’s International Law Part 2, 7th ed. (Harlow: Longman, 1952), 177–178 (H. Lauterpacht edition). On Aristotle, see J. Moore, “Development of the International Law of Conflict Management,” Ch. 3, in J. Moore and R. Turner, eds., National Security Law (Durham, NC: Carolina Academic Press, 2005), 34; Grotius quote: “The Right of Killing Enemies, in Just War, to be Tempered With Moderation and Humanity,” Ch. 11 in The Law of War and Peace (1625), 3.

1 Pre-UN History on the Use of Force

▪ ▪ ▪ ▪ ▪ ▪

summary executions of civilians and military personnel; ethnic “cleansing” and forcible displacement of populations; mistreatment of detained prisoners of war (POWs); indiscriminate use of force against non-military targets; attacks on medical and related relief personnel; the looting and destruction of civilian property without a military purpose; ▪ mistreating a civilian population, including starvation or terrorizing tactics; and ▪ the use of particularly heinous types of warfare. The year 1847 was an important turning point. Swiss General Dufour ordered his officers to protect wounded enemy soldiers who were POWs. He was one of the original members of the “Committee of Five,” which became the International Committee of the Red Cross in 1876. The International Red Cross worked with the Swiss government on a project that would one day yield four treaties that are often referred to as the 1949 Geneva Conventions. Thus, it was actually a non-governmental actor that ignited the international movement for regulating the treatment of civilians and prisoners in times of war. The desire for controlling such excesses began to materialize in national and treatybased Laws of War. Although there were several predecessors, the 1864 Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field was the first such treaty to be drafted and widely ratified. The principles of the Laws of War would soon find their way into the national laws of many countries as well as appear in major international treaties.

1.2.1

The Hague Conferences

By the late nineteenth century, there was a growing list of international conventions and agreements that purported to limit the use of force by states in armed conflicts. These include limits on the use of newly emerging military technologies: bombs dropped from the air, restrictions on naval warfare, submarines, and later weapons of mass destruction. In 1899 and 1907, two landmark Hague Conventions largely codified customary international law on land warfare up to that time. The objective was to limit the national use of increasingly lethal armaments. Once the conference participants realized that there would be no international agreement eliminating war, the central theme became how to conduct war. For example, the representatives agreed to provide advance warning when any state intended to use force to settle a dispute. The conference delegates also prepared numerous declarations in the form of draft treaties on topics such as maritime warfare, the role of neutral observers, and naval bombardments.

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While the Hague Conference representatives did not establish a system to remedy violations of the principles contained in the above agreements, many of the Hague Conference principles nevertheless served as bases for later treaties, conferences, and the Nuremberg trials.

1.2.2

Limitations on the Use of Force by the League

The brutality and high death toll of World War I took everyone by surprise. In its wake, the League of Nations announced radically new doctrines to contain the use of force and make warfare less likely. Its overall scheme was a rejection of the balance of power system dating from Westphalia and the embrace, for the first time in international law, of the concept of collective security: an attack against one member of the League was considered an attack on all, and all members should coalesce against that threat. Such an all-against-one force would both easily defeat any aggressor state and serve as a deterrent against future aggression, or so the theory went. Some of the key specific provisions to control the use of force in the treaty establishing the League are as follows: ▪ Article 12 (cooling-off period): All parties to a dispute pledge to wait three months for an arbitral body to adjudicate the matter; ▪ Article 13 (conflict resolution): Parties to a dispute pledge to submit that dispute to the newly created Permanent Court of International Justice (PCIJ), and they pledge to accept the verdict given by the PCIJ and not to resort to force or war. ▪ Article 14 (creates the PCIJ): “The Court shall be competent to hear and determine any dispute of an international character which the parties thereto submit to it.” ▪ Article 16 (collective security mechanism): “Should any of the . . . Parties break or disregard its covenants under Article XII, it shall thereby ipso facto [by that act automatically] be deemed to have committed an act of war against all the other members of the League, which hereby undertake immediately to subject it [the offending nation] to the severance of all trade or financial relations, the prohibition of all intercourse between their nationals and the nationals of the covenant breaking State, and the prevention of all financial, commercial, or personal intercourse between nationals of the covenant breaking State and the nationals of any other State, whether a member of the League or not.”13 13

League of Nations, “The Covenant of the League of Nations,” opened for signature 1919, The Avalon Project of the Yale Law School (1924) https://avalon.law.yale.edu/20th_century/ leagcov.asp accessed May 21, 2021.

1 Pre-UN History on the Use of Force

Article 16 got its first real test in the mid-1930s during Italy’s war against Abyssinia (now Ethiopia). The League did not intervene, even when Abyssinia sought its assistance to control Italy’s aggression. The League instead responded by directing several states to draft a report on Italy’s hostile acts. With League approval, Great Britain and France established an embargo against certain Italian exports. The products that were the object of this embargo, however, were insignificant. Great Britain and France did not want to risk war with their Italian trading partners. Japan then attacked Manchuria in 1939. The League’s inability to respond decisively destroyed its credibility and exposed its inability to control the state use of force.14 There were other proposals that tried to outlaw war itself, most notably the 1928 Treaty for the Renunciation of War, or Kellogg-Briand Pact, advocated by France and the US.15 It was not designed to be merely a regional peace process.16 The Kellogg–Briand Pact was an outright condemnation of war. It contained the agreement that states “shall” use only peaceful means to settle their differences. Under Articles 1 and 2: the Parties solemnly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies, and renounce it as an instrument of national policy in their relations with one another. The . . . Parties agree that the settlement or solution of all disputes or conflicts of whatever nature or of whatever origin they may be . . . shall never be sought except by pacific means.

Although containing noble principles, it lacked any effective enforcement provisions to stop the outbreak of another world war. The Kellogg-Briand Pact remains technically in force since it has not been specifically abrogated, but it has had little practical effect on the use of force and armed conflict.17 14

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An account of this incident is provided in J. Spencer, “The Italian-Ethiopian Dispute and the League of Nations,” American Journal of International Law 31 (1937): 614. For the rich history of nineteenth- and twentieth-century efforts to end all international use of force by states, and not just make it more “humane,” see S. Moyn, Humane: How the United States Abandoned Peace and Reinvented War (New York: Farrar, Straus and Giroux (Macmillan), 2021). There is a fascinating “backstory” to the Kellogg-Briand Pact. Seeking to protect French interests and alarmed by the rising power of Germany in the 1920s, the French foreign minister, Aristide Briand, attempted to bind the US to come to its defense with a mutual pact. In reaction, the US Secretary of State James Kellogg, pragmatically protecting the interest of the US to not become involved in European affairs, countered with the vague prohibition against war in general. For more detail, see W. Keylor, The Twentieth-Century World and Beyond: An International History Since 1900, 6th ed. (Oxford: Oxford University Press, 2012). Some international law scholars have gone so far as to assert that formal declarations of war, at least for signatories, are no longer possible after the Kellogg-Briand Pact. However,

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In the western hemisphere the Montevideo Treaty of 1933 provided that the “settlement of disputes of controversies shall be effected only by the pacific means [that] shall have the sanction of international law.” These principles are often cited by Organization of American States (OAS), and the Inter-American Court of Human Rights (IACtHR) in their decisions. Article 21 of the Charter of the OAS (1948) provides that the “American States bind themselves in their international relations not to have recourse to the use of force.”

2 UN Principles on the Use of Force The UN was founded principally on the idea that another great war like World War II must be prevented. In that mission it has largely succeeded. The UN system borrowed many of the ideas of the League of Nations on collective security, but it was determined to avoid making the same mistakes. While it adopted the League’s idea of collective security, it got rid of the “unanimity rule” in Article 5 of the Covenant that required unanimous consent to any decisions made by the League. Instead, it created a powerful new Security Council that it hoped would be able to act much more quickly to tamp down conflicts and the use of force before they escalated (see Chapter 6). As you note the following principles regarding the non-use of force, ponder the fact that the UN has never arrived at an agreed-upon definition for the key terms “force” and “aggression,” and that imprecision continues to be a problem up to the present.18

2.1

General Prohibition on the Use of Force

This is the core idea in the Charter of the UN. It contains deceptively simple directives on the use of force: 1. States may not use or threaten the use of force; 2. States may use force defensively, when responding to an “armed attack”; and 3. The UN Security Council possesses the legal monopoly (sole right) to authorize the international use of force.

18

armed conflict can occur under many different names other than “war,” and the Pact only outlawed “offensive,” but not defensive, use of force/war. See, e.g., UNGA’s attempt to define aggression in UNGA Res. 33314 (XXIX) (1974) and the “Draft code of Crimes against the Peace and Security of Mankind” (1997 final draft). For a useful treatment of the definitional dilemma, see O. Solera, “Conclusion,” in O. Solera, Defining the Crime of Aggression (London: Cameron, 2007), 501–502.

2 UN Principles on the Use of Force

2.1.1

Charter Prohibitions

Here are the key UN Charter provisions on the use of force:

CHARTER OF THE UNITED NATIONS Signed June 26, 1945, San Francisco, California

Chapter I. Purposes and Principles Article 2.4: All 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 [behave] in any other manner inconsistent with the Purposes of the United Nations. ... Article 2.7: Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state . . .; but this principle shall not prejudice the application of [UN Security Council] enforcement measures under Chapter VII.

Chapter VII. Actions with Respect to Threats to The Peace, Breaches of The Peace, and Acts of Aggression Article 39: The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall . . . decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security. ... Article 41: The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and may call upon Members of the United Nations to employ such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations. Article 42: Should the Security Council consider that measures provided for in Article 41 would be inadequate . . ., it may take such action by air, sea, or land forces as may be necessary to restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.

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CHARTER OF THE UNITED NATIONS (cont.) ... Article 51: 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. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council to maintain or restore international peace and security.

2.1.2

Other UN Prohibitions

Over the years, the UN General Assembly has added additional strictures against the use of force, but they are not as legally binding as these provisions found in the Charter. However, under the Charter, the General Assembly was granted an ancillary duty toward reducing aggression, with the words “aggression” and “coercion” becoming synonyms for the unacceptable use of force in most UN bodies. In accordance with Article 11.1, the General Assembly “may consider the general principles of co-operation in the maintenance of international peace and security, including the principles governing disarmament and the regulation of armaments . . . .” Toward that goal, the UN passed several non-binding resolutions: 2.1.2.a Friendly Relations Declarations In the first of two related resolutions, the UN General Assembly broadly defined the term “force” in its Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations (1970).19 This comparatively lengthy Declaration contains provisions drawn from a variety of interim UN documents regarding the use of force. The purpose of the 1970 Declaration was to collate these provisions and affirm what states should be willing to accept as a post-Charter norm. The 1970 Declaration “recalls” the duty of states to refrain from military, political, economic, or any other form of coercion directed at the political independence or territorial integrity of another state. It specifies that such “a threat or use of force constitutes a violation of international law and the

19

UNGA Res. 2625 (XXXV) (1970), reprinted in International Legal Materials 9 (1970): 1292.

2 UN Principles on the Use of Force

Charter of the United Nations and shall never be employed as a means of settling international issues.” This declaration provides that a state may not use “propaganda,” “terror,” or “finance” to coerce another state into acting in a particular way. The 1970 Declaration was not the product of a negotiated process. The UN membership did not exchange concessions to produce a binding agreement. It was a statement of principle, containing commonsense provisions that arguably belabored the obvious. The final paragraph, for example, provides that the “principles of the Charter [that] are embodied in this Declaration constitute basic principles of international law, and consequently [it] appeals to all states to be guided by these principles in their international conduct and to develop their mutual relations on the basis of the strict observance of these principles.” In 1987, the General Assembly approved a similar declaration. It augmented the earlier declaration. This was the Declaration on the Enhancement of the Effectiveness of the Principle of Refraining from the Threat or Use of Force in International Relations (1987). This attempt to define aggression more clearly was the product of ten years of committee work. Like the UN’s 1970 Declaration on Friendly Relations, the General Assembly ultimately adopted the 1987 UN Declaration without a vote.20 The 1987 Declaration contains some general clarifications. States must: ▪ refrain from “organizing, instigating, or assisting or participating in paramilitary, terrorist or subversive acts, including acts of mercenaries, in other States”; ▪ abstain from threats against the economic assets of another state; and ▪ avoid “economic, political or any other type of measures to coerce another State” for the purpose of securing advantages of any kind. Taken together, these two declarations broadened the Charter rule prohibiting force by expressly prohibiting particular uses of force, which were not mentioned in the 1945 Charter. However, they also both suffer from the same weakness: lack of concrete measures to enforce these new purported additions to the prohibitions on the use of force. They lack both the legal standing and enforcement mechanisms of most treaties (Chapter 3). On the other hand, they do establish guidelines for what state behavior ought to be (in principle) included under the Charter’s prohibition on the use of force.

20

UNGA Res. 42/22 (1987), reprinted in International Legal Materials 27 (1988): 1672.

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2.2

Exceptions to UN Prohibitions

The UN Charter is more realistic than the League or the Kellogg-Briand Pact in that it does not absolutely prohibit the use of force in all situations, but rather attempts to guide its (apparently) inevitable use. There are three areas of exception to the use of force, each will be treated in turn below.

2.2.1

Force Authorized by the Security Council

The general principle is that the international use of force is legitimate if approved by a majority in the Security Council including at least tacit approval of the Permanent Five members (P5; US, Russia, China, France, and the United Kingdom (UK)), which can be given by an abstention from voting instead of a positive vote. This is much harder to do in practice than it might sound. With the P5 at loggerheads over many issues that often represent at base a struggle for power and the maintenance of that state’s “sphere of influence,” only one veto by any member of the P5 can prevent authorization of the use of force. While avoiding the use of force is generally well advised, in other instances, the judicious use of force can save lives and prevent catastrophic results on a grand scale (see Chapter 9). 2.2.1.a UN Security Council Chapter VII Sanctions Powers A sanctions regime to punish bad behavior is likely to be less effective unless its objective is shared by neighbors of the targeted nation or group. The application of sanctions by an international organization like the UN, as opposed to sanctions being unilaterally imposed, increases the likelihood of both consensus and success. Unilaterally imposed sanctions, on the other hand, tend to encourage the escalation of threats to peace. But when they are imposed by a multilateral body, the sanctioning state(s) is not as readily perceived to be an aggressor. A lone state or small group of states may be perceived as taking advantage of a situation with a view toward achieving some less-than-altruistic objective. Even the Kosovo and Iraq conflicts, for example, have been likened to colonialism. Neither enjoyed the imprimatur of a prior UN Security Council resolution, which could have authorized these “organizational” state-driven uses of force. Each of these conflicts was promptly addressed, however, via after-the-fact Security Council actions (as opposed to prior authorization). The state backers (like the US) of these non-UN authorized coalitions welcomed subsequent UN involvement. That arguably cast a positive glow upon their fait accompli. The state actor who is backed by an international organization is more likely to be characterized as furthering multinational objectives. US president

2 UN Principles on the Use of Force

Carter, for example, applied a series of sanctions against Iran during the 1979–1980 Hostage Crisis. Virtually every nation of the world condemned Iran’s actions when it seized diplomatic hostages. With the backing of the UN Security Council and the International Court of Justice, US sanctions directed at Iran were far more acceptable than any action which the US might have taken without that level of international support. As of this writing, the US and European Union (EU)-led use of sanctions against Russia for its use of force in Ukraine is following a similar path. The UN has been criticized for its previous “blunt sanctions” policy, some of which hurt the very people it was intended to help. This downside to UN sanctions was particularly evident in the interim period between the two Persian Gulf wars. Several states and humanitarian organizations expressed concern at the possible adverse impact of sanctions on the most vulnerable segments of the population. Concerns were also expressed about the negative impact sanctions had on the economy of less-developed countries not directly subject to sanctions. The time had come to introduce targeted or “smart sanctions” (an analogy drawn from smart bombs that are designed to reduce collateral damage in modern conflicts) that were supposed to force changes upon state decision-makers without collectively punishing entire populations. The UN Security Council established a Sanctions Committee within its ranks, pursuant to its Chapter VII authority. Resolution 1267 (1999) was supported by all fifteen members of the Council. The “1267 Committee” was initially established to oversee implementation of measures against the Taliban in Afghanistan, because of its support of Osama bin Laden. The Security Council later facilitated a more refined approach to the design, application, and implementation of mandatory sanctions under its Article 41 non-military powers (Resolution 1904 of 2009). These refinements include measures targeted at specific individuals or entities as well as humanitarian exceptions embodied in various Security Council resolutions. Targeted sanctions, for example, may involve the freezing of assets and blocking the financial transactions of political elites or entities whose behavior triggered the need for UN sanctions. Two more applications demonstrate the difficulty of applying a sanctions regime, even under UN auspices: North Korea and Iran. Sanctions targeting those states, which have lasted decades, have not brought about the desired results, at least not completely.

2.2.2

Anticipatory Defense and Preemptive First Strike

Article 51 of the UN Charter allows for “self-defense” in the case of “armed attack.” Scholars and practitioners alike still hotly contest what Article 51

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means. Three distinct episodes have tested the meaning in practice: (1) the end of World War II in 1945; (2) the Cuban Missile Crisis in 1962; and (3) post-9/11 US national-security policy from 2002 onward. The original meaning was plain: in a world of slow movement of troops, states would have time to go to the Security Council and inform them of the proposed self-defensive action, which the UN Security Council could then endorse and perhaps even assist. However, at the same time that the Charter was being written, nuclear weaponry launched atop rockets (which could reach their target(s) in minutes) were coming into potential use. The Charter-based definition of self-defense quickly became obsolete. Rather than states being limited to “armed attack,” governments and commentators – arguably using revisionist history – asserted that the Charter’s drafters could not have intended to prohibit self-defense until missiles were actually launched. The inherent right of self-defense antedated the expression of that right in the UN Charter. However, other analysts pushed back and doubled down on the view that this UN Charter provision had only one clear meaning. They asserted that self-defense could be properly invoked only in cases where an “armed attack” was underway. Greig criticizes the circular logic of this narrow “plain meaning” argument as an unrealistic interpretation of the UN Charter. By using this term, the Charter did not become the sole source for defining the contours of selfdefense. Customary state practice was thus a viable alternative for defining the contours of the justifications for self-defense. In Greig’s balanced account: Because Article 51 refers solely to situations where armed attack has actually occurred, it has been argued that the Charter only reserves the right of selfdefense to this limited extent. Supporters of this view have inevitably been led into tortuous distinctions between different situations to decide whether each situation qualifies as an “armed attack.” Once a missile is launched, it may be said that the attack has commenced; but does it also apply to the sailing of an offensive naval force? Does the training of guerrillas and other irregular forces for use against another state constitute an armed attack? . . . However, there would appear to be no need to adopt such an unrealistic approach to Article 51, because it is possible to reconcile its wording with the reasonable interests of states. It has already been pointed out that [under] Article 51 [a state] retains the “inherent right of self defence” independently of other provisions of the Charter in cases of an armed attack. In cases where there is no armed attack but where, under traditional [customary] rules of international law, there existed a wider right of action in self-defence . . . [it] still continues to exist,

2 UN Principles on the Use of Force though made subject to the restrictions contained in the Charter [prohibiting the aggressive use of force].21

2.2.2.a Anticipatory Defense Note that the UN International Law Commission’s “Draft Articles on Responsibility,” Article 52.2, authorizes only such countermeasures by states as are “necessary,” while Article 51 of the same document limits countermeasures to those commensurate with the injury suffered, found under its category of “Proportionality,” recalling the doctrine of that name in Just War theory (see Chapter 9).22 These interrelated requirements are the key ingredients for the many applications you will encounter in this chapter. There is a widely cited and debated test of “necessity” that dates to 1842. Great Britain claimed a necessity when it raided the steamship Caroline, which some Canadian forces were using in support of a Canadian insurrection prior to Canadian independence from Britain in 1867. A British raiding party boarded the ship when it was moored on the New York (US) side of the Niagara River. They attacked those onboard and set the ship afloat so that it plunged over Niagara Falls. US Secretary of State Daniel Webster said that although Great Britain possessed a right of self-defense, the exercise of that right should be confined to cases in which the “necessity of that self-defence [sic] is instant, overwhelming, and leaving no choice of means and no moment for deliberation.” This became known as “the Caroline test.” There remains debate in the scholarly literature whether Webster’s interpretation should constitute customary international law from that time.23 Which of these key variables is more easily decided and applied in practice: necessity or proportionality? Are they applied universally? A useful response is offered by Gardam: Although it is true to say that there will be a theoretical divide between States involved in an armed conflict in terms of their respective legal position under the [UN] Charter ban on the use of force, its practical impact is negligible. With some 21

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D. Greig, International Law, 2nd ed. (London: Butterworths, 1976), 892–893. Emphasis added. UN International Law Commission, “Draft Articles on Responsibility for Internationally Wrongful Acts,” UNGA Doc. A/CN.4/L.602/REV.1 (July 26, 2001). Further details on the pre-Charter applications of “necessity” are available in M. Occelli, “‘Sinking’ the Caroline: Why the Caroline Doctrine’s Restrictions on Self-Defense Should Not Be Regarded as Customary International Law,” San Diego International Law Journal 467 (2003): 4; T. Kearley, “Raising the Caroline,” Wisconsin International Law Journal 17 (1999): 325; and “The Caroline Exchange of Diplomatic Notes between Great Britain and the United States” (1842), 2 in J. Moore, Digest of International Law (US Government Printing Office, 1906), 409, 412.

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8 The Use of Force by States notable exceptions [however], States invariably conduct themselves on the basis that, whatever the legal status . . . proportionality and necessity govern their actions. Even States that claim expansive rights to resort to force do not regard themselves as having the right to use unlimited force. ... On reflection, proportionality . . . can be seen as somewhat of a success story. Despite the limitations in that regime and the controversy it always seems to generate, it has been possible to incorporate the restraints of proportionality into concrete norms that have proved capable of broad application to particular situations. . . . The application of the requirement of necessity is more straightforward than proportionality. There are not so many variables that can contribute to the decision-making process in determining the necessity to resort to forceful measures in any given situation. . . . [N]ecessity plays a significant role as a restraint in the use of force under current international law . . . [and] the mere fact of the intense debates . . . where forceful action is [being] considered indicates the constraining role of necessity.24

In 1948, the Tokyo Military Tribunal tried crimes comparable to those adjudicated by the Nuremberg Tribunal. The Tokyo court’s judicial analysis was an exceptionally rare instance of anticipatory self-defense arising in a postCaroline self-defense context. Japan threatened to seize certain Dutch territories in late 1941. The Netherlands relied on that threat in declaring war on Japan in December of that same year. Japan had not directly attacked the Netherlands. Nevertheless, the Tribunal determined that the Japanese attack was sufficiently imminent to authorize the Dutch decision to go to war against Japan.25 In 1986 and 1996, the International Court of Justice (ICJ) confirmed the universal understanding of the role played by necessity and proportionality: “[S]elf-defence would warrant only measures which are proportional to the armed attack and necessary to respond to it, a rule well established in customary international law.”26 In February 2009, and again in May 2021,

24

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J. Gardam, “The Place of Necessity and Proportionality in Restraints on the Forceful Actions of States,” in J. Gardam, Necessity, Proportionality and the Use of Force by States (Cambridge: Cambridge University Press, 2004), 25–27 (emphasis original); 2001 U.S. National Security Strategy (September 17, 2002) https://georgewbush-whitehouse.archives .gov/nsc/nssall.html accessed May 17, 2022. Legal Advisor quote: C. Allan, Panel Reporter, on “Remarks of Oscar Schachter, Implementing Limitations on the Use of Force: the Doctrine of Proportionality and Necessity,” American Society of International Law Proceedings 86 (1982): 39. Tokyo Tribunal: Judgment of the International Military Tribunal for the Far East, www.ibiblio.org/ hyperwar/PTO/IMTFE/index.html accessed May 17, 2022. 1986: Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), International Court of Justice, 1986 ICJ Reports 14, at para. 176. 1996: Legality of

2 UN Principles on the Use of Force

two Israeli prime ministers, Ehud Olmert and Benjamin Netanyahu, respectively, appeared to disregard this bedrock principle. They expressed their frustration regarding the continuing Hamas rocket attacks on Israel. Olmert threatened retaliation that would be disproportionate to the original Hamas rocket attacks. Israel then launched a three-week offensive after years of Hamas rocket attacks, leaving 1,300 Gaza residents dead. More than half were civilians. Similar disproportionate deaths occurred in 2014 and 2021.27 However, the Israelis have not been alone in defending a version of “disproportionality” as the best deterrent to future attacks; see also elements of the so-called Powell Doctrine promulgated by a former top US General during the 1990s.28 We will return to the question of proportionality below. 2.2.2.b Collective Self-Defense Another facet of Article 51 that can and has been used to justify the “defensive” use of force is the phrase “collective self-defense.” It was used by the US as the defendant in the case of Nicaragua v. United States and later, in the Persian Gulf War. The US had supported anti-government forces for the purpose of undermining the mid-1980s Sandinista government. This case presented an opportunity for the ICJ to address the applicability of collective self-defense arguments, which had not been determined during the Cuban Missile Crisis but were now ripe for decision. The issue was whether the US could assert collective self-defense as a legal justification for its political actions, which included the work of US intelligence (Central Intelligence Agency, or CIA) operatives who arranged the mining of strategic harbors in Nicaragua. The US asserted that its interference was justified as a form of self-defense against some future armed attack by Nicaragua on other members of the OAS. Nicaragua was allegedly helping anti-government forces in countries such as El Salvador overthrow democratically elected governments in the region. The ICJ was not receptive to the US claim of justifiable intervention in the name of collective self-defense. For such a general right to legally materialize, the US would have to prove a fundamental modification of the customary international law principle of non-intervention. The ICJ disapproved the US basis for intervention in Nicaraguan affairs, reasoning that it could not be justified with a collective self-defense rationale. In the Court’s words:

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the Threat or Use of Nuclear Weapons, General List No. 95, Advisory Opinion of July 8, 1996, reprinted in International Legal Materials 35: 809, para. 41. Emphasis added. P. Kingsley, “Israel and Hamas Agree to End a Brief War That Reverberated Worldwide,” New York Times, May 20, 2021. C. Powell and J. Persico, My American Journey, 1st ed. (New York: Ballantine Books, 1995).

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8 The Use of Force by States [T]he United States has not claimed that its intervention, which it justified in this way on the political level, was also justified on the legal level, alleging the exercise of a new right of intervention regarded by the United States as existing in such circumstances. As mentioned above, the United States has, on the legal plane, justified its intervention expressly and solely by reference to the “classic” rules involved, namely, collective self-defence against an armed attack. Nicaragua, for its part, has often expressed its solidarity and sympathy with the opposition [anti-government forces] in various States, especially in El Salvador. . . . The Court therefore finds that no such general right of intervention, in support of an opposition within another State, exists in contemporary international law. The Court concludes that acts constituting a breach of the customary principle of non-intervention will also, if they directly or indirectly involve the use of force, constitute a breach of the principle of non-use of force in international relations.29

2.2.2.c Preemption The deadly attacks on the US (New York, Washington, DC, and Pennsylvania) on September 11, 2001, prompted calls to reinterpret UN doctrines on the use of force. The government of the US offered a drastically new formulation of Article 51 “national self-defense” in the following letter to the UN.

LETTER DATED OCTOBER 7, 2001 FROM THE PERMANENT REPRESENTATIVE OF THE UNITED STATES OF AMERICA TO THE UNITED NATIONS ADDRESSED TO THE PRESIDENT OF THE SECURITY COUNCIL UN Doc. S/2001/946 (October 7, 2001) In accordance with Article 51 of the Charter of the United Nations, I wish, on behalf of my Government, to report that the United States of America, together with other States, has initiated actions in the exercise of its inherent right of individual and collective self-defense following the armed attacks that were carried out against the United States on 11 September 2001. . . . Since 11 September, my Government has obtained clear and compelling information that the Al-Qaeda organization, which is supported by the Taliban regime in Afghanistan, had a central role in the attacks. There is still much we do not know. Our inquiry is in its early stages. We may find that our self-defense requires further actions with respect to other organizations and other States.

29

Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), 1986 ICJ Reports 14, paras 208–209. Emphasis added.

2 UN Principles on the Use of Force

LETTER DATED OCTOBER 7, 2001 FROM THE PERMANENT REPRESENTATIVE OF THE UNITED STATES OF AMERICA TO THE UNITED NATIONS ADDRESSED TO THE PRESIDENT OF THE SECURITY COUNCIL (cont.) The attacks on 11 September 2001 and the ongoing threat to the United States and its nationals posed by the Al-Qaeda organization have been made possible by the decision of the Taliban regime to allow the parts of Afghanistan that it controls to be used by this organization as a base of operation. Despite every effort by the United States and the international community, the Taliban regime has refused to change its policy. From the territory of Afghanistan, the Al-Qaeda organization continues to train and support agents of terror who attack innocent people throughout the world and target United States nationals and interests in the United States and abroad. In response to these attacks, and in accordance with the inherent right of individual and collective self-defense, United States armed forces have initiated actions designed to prevent and deter further attacks on the United States. These actions include measures against Al-Qaeda terrorist training camps and military installations of the Taliban regime in Afghanistan. . . . I ask that you circulate the text of the present letter as a document of the Security Council. John D. Negroponte

Unlike the Cuban Missile Crisis, the US was actually attacked in New York, Washington, DC, and Pennsylvania. The perpetrators employed flying “bombs” (the hijacked commercial aircraft). When the US first responded with military and ground forces in Afghanistan, there was no claim that Afghanistan had incurred state responsibility for these attacks. The US did not claim to be protecting itself from either the country it was bombing or its Taliban government. Although the US Congress did not actually declare war, the president repeatedly stated that America was “at war.” In addition, and unlike the 1962 Cuban Missile Crisis and the 2003 Iraq War, the US military response in Afghanistan did have some advance blessing by the UN in two resolutions passed the day after the September 11 attacks. The first was the General Assembly’s September 12 global call for “international cooperation to prevent and eradicate acts of terrorism, . . . [so] that those responsible for aiding, supporting, or harbouring the perpetrators, organizers and sponsors of such acts will be held accountable.” The Security Council’s second resolution recognized “the inherent right of individual or collective self-defence in accordance with the Charter” (emphasis added).

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However, the Council carefully expressed “its readiness to take all necessary steps to respond to the terrorist attacks of 11 September 2001, and to combat all forms of terrorism, in accordance with its responsibilities under the Charter of the United Nations – as proclaimed by the Council’s resolution wording ‘to remain seized of the matter.’” Article 51 of the UN Charter envisions UN oversight so that the Security Council can orchestrate the international reaction to state claims of selfdefense, once the initial threat is contained. But Council control was never achieved in the case of Afghanistan because of the supreme national interests at stake for the US. Turning the war over to the UN did not conform to the US desire to retain maximum flexibility and sovereignty. This would be a “war” against individuals and NGOs, which could, and has, lasted for twenty years. The US would soon implement the above UN ambassador’s letter to the president of the Security Council by making its unilateral claim to the right of preemptive self-defense. The subsequent US involvement in Afghanistan, begun as part of the “global war on terrorism,” morphed into nation building and was the longest ground war in US history. In a 2020 analysis of “what went wrong” in Afghanistan, a senior adviser to the former US Joint Chiefs of Staff (top military command) noted the folly of “going it alone” (or unilateralism, which was easily portrayed as occupation by the Taliban). In addition, Pakistani involvement, combined with over-confidence and wishful thinking by top US decision-makers, all combined to doom the effort, although success (from the US perspective) would have been difficult to achieve in Afghanistan in the best of circumstances.30 In the final section of this chapter, we will return to the question of the legal challenges of fighting terrorism, irregular wars, and small-scale conflict. For now, let us turn to the UN for a summation for this section.

REPORT OF THE UN HIGH-LEVEL PANEL ON THREATS, CHALLENGES AND CHANGE, A MORE SECURE WORLD: OUR SHARED RESPONSIBILITY UN General Assembly Document A/59/565 (December 2, 2004) ... In all cases, we believe that the Charter of the United Nations, properly understood and applied, is equal to the task: Article 51 needs neither extension nor restriction of its long understood scope, and Chapter VII

30

C. Malkasian, “How the Good War Went Bad: America’s Slow-Motion Failure in Afghanistan,” Foreign Affairs 99, No. 2 (2020): 77–91.

2 UN Principles on the Use of Force

REPORT OF THE UN HIGH-LEVEL PANEL ON THREATS, CHALLENGES AND CHANGE, A MORE SECURE WORLD: OUR SHARED RESPONSIBILITY (cont.) [e.g., Article 39 threat assessment and Article 42 collective use of military force] fully empowers the Security Council to deal with every kind of threat that States may confront. The task is not to find alternatives to the Security Council as a source of authority but to make it work better than it has. That force can legally be used does not always mean that . . . it should be used. We identify a set of five guidelines – five criteria of legitimacy – which we believe that the Security Council (and anyone else involved in these decisions) should always address in considering whether to authorize or apply military force. The adoption of these guidelines (seriousness of threat, proper purpose, last resort, proportional means and balance of consequences) will not produce agreed conclusions with push-button predictability, but should significantly improve the chances of reaching international consensus on what have been in recent years deeply divisive issues [p.58]. [Emphasis original.] ... [Para.] 188. . . . The problem arises where the threat in question is not imminent but still claimed to be real: for example the acquisition, with allegedly hostile intent, of nuclear weapons-making capability. 189. Can a State, without going to the Security Council, claim in these circumstances the right to act, in anticipatory self-defence, not just preemptively (against an imminent or proximate threat) but preventively (against a non-imminent or non-proximate one)? Those who say “yes” argue that the potential harm from some threats (e.g., terrorists armed with a nuclear weapon) is so great that one simply cannot risk waiting until they become imminent, and that less harm may be done (e.g., avoiding a nuclear exchange or radioactive fallout from a reactor destruction) by acting earlier. 190. The short answer is that if there are good arguments for preventive military action, with good evidence to support them, they should be put to the Security Council, which can authorize such action if it chooses to. If it does not so choose, there will be, by definition, time to pursue other strategies, including persuasion, negotiation, deterrence and containment – and to visit again the military option. 191. For those impatient with such a response, the answer must be that, in a world full of perceived potential threats, the risk to the global order and the norm of non-intervention on which it continues to be based is simply too

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REPORT OF THE UN HIGH-LEVEL PANEL ON THREATS, CHALLENGES AND CHANGE, A MORE SECURE WORLD: OUR SHARED RESPONSIBILITY (cont.) great for the legality of unilateral preventive action, as distinct from collectively endorsed action, to be accepted. Allowing one to so act is to allow all [to do so].

The third “exception” to the general UN prohibition on the use of force inheres in the humanitarian intervention clauses of the UN Charter, which are discussed in detail in Chapter 9. The final exception that may be inferred from the UN Charter is the role that the UN allows for regional international organizations under Chapter VIII and elsewhere in that document.

2.3

Regional International Organizations and the Use of Force

The marked trend toward the use of force by regional international organizations stems mainly from two trends: (1) the prolonged Cold War between the US and the USSR (Soviet Union) that stymied the envisioned UN Security Council role; and (2) the subsidiary role that the UN Charter foresees for the regional international organizations. The UN Security Council can essentially “delegate” its war-making power to regional international organizations. The role of these regional organizations in humanitarian interventions is treated in Chapter 9; we will confine ourselves here to their role in the use of force. The single most notable military international organization is NATO. Created after World War II between the US and its West European allies, it is the embodiment of the collective security idea pioneered by the League of Nations. Its covenant, the North Atlantic Treaty, contains the key provision in Article 5 in which all signatories pledge to come to the defense of all of the others in case of armed conflict. The success of Article 5 (and, one might argue, collective security in general) has been strengthened in the numerous times that the Article was not invoked, i.e., it was not necessary to invoke it because “all-against-one” deterrence worked. The two notable times that it has used force are relatively recent: the former Yugoslavia and Afghanistan. The use of force by other regional international organizations has been far less frequent or successful (in terms of achieving its political-military objectives). They appear to be hamstrung in the same way that the League of Nations was; when there are a large number of member states, each with an effective veto power, it is difficult to muster the required votes for such

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action. Thus, the EU failed to act in Yugoslavia or in Ukraine to stop bloodshed in those European theaters. The Arab League has a similarly long history of failure to use force when it might have helped end a conflict, including the bloody civil war in Syria, starting in 2011, that has cost hundreds of thousands of people their lives.31 At other times, a regional international organization can be useful in providing legal cover to its leading member for the leading member’s threatened or actual use of force. This was essentially the role of the OAS in the Cuban Missile Crisis in 1962; the Warsaw Pact’s justification for the Soviet forceful takeover of Czechoslovakia in 1968; and the US use of force in Haiti in 1991.32 The same can be said of the various regional collective defense organizations created by the US, Russia, or China (e.g., Association of Southeast Asian Nations (ASEAN), the Australia, New Zealand and US Security treaty (ANZUS), the Southeast Asia Treaty Organization (SEATO), etc.). The final regional international organization worth discussing here vis-àvis the use of force is the African Union (AU). The AU was reticent to use force for most of its fifty-year existence. However, it has authorized force to stop the bloodletting in the Darfur region of the Sudan in 2007 and later in the Central African Republic and in Mali (2013). Unlike the UN (see Chapter 9), it has a standing military unit termed the African Standby Force (ASF) with about 40,000 uniformed and civilian personnel at its disposal.33 The challenge for international law in the use of force by these international organizations is embodied in the second point opening this section – in most cases, the UN Security Council has not explicitly authorized the use of force by the regional international organization before the (at least initial) use of force has taken place. Thus, regional international organizations become another way of finding legitimate “exceptions” to the prohibitions against the use of force and a way to evade Article 51 of the UN Charter.

3 The Laws of War and Arms Control The attempt to control the use of force through international agreement is not a recent phenomenon. A long line of thinkers usually called for a combination of an international organization and international law that would control or outlaw war. The two concepts were inseparable in their 31

32

L. Damrosch and S. Murphy, International Law: Cases and Materials, 6th ed. (St. Paul, MN: West Publishing Co., 2014), 1217. 33 Ibid., 1218–1220. Ibid., 1222.

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minds because the “bloody banners” (national flags) of small European states were so often the casus belli of frequent European wars; only by bringing states together under a common organization and set of rules could this tendency be overcome. This line of thinkers includes Erasmus, Spinoza, Grotius, Kant, Abbé St. Pierre, Penn and so many others. In 1789, English writer Jeremy Bentham published arms-control proposals emphasizing disarmament as the prerequisite to achieving peace. He hoped to pacify Europe via treaties to limit the number of troops that states could maintain. In addition, he envisioned an international court which would resolve any disputes regarding implementation of his proposed regime. He did caution, however, with a relevance that has not faded with the passage of time, that “such a court was not to be armed with any coercive powers.”34

3.1

Terminology Clarification

Scholars writing in this area of international law often use the following terms interchangeably: (1) the Law of Armed Conflict (LOAC); (2) the Laws of War (or LOW); (3) international human rights law; (4) international humanitarian law; even (5) international criminal law. There is considerable overlap between the terms. The distinction made here is between the types of force and ways in which they are used, on the one hand, and the effects that forcetypes have on their objects (i.e., humans caught up in the armed conflict), on the other. The LOAC, strictly speaking, can be found in military field manuals, a “how to” guide to the (im)permissible uses of specific weaponry and techniques. The Laws of War encompass both that and the allowable treatment of those involved in the conflict – soldiers and civilians alike. Human rights law and humanitarian law promulgate rules and rights for the acceptable treatment of humans in a wide variety of situations, not just armed conflict. Therefore, for our purposes, the term “Laws of War (or LOW)” is most appropriate, covering both just treatment in warfare of humans and attempts to limit the use and types of armaments. However, you should be aware that other texts treat (1) and (2) as synonymous terms, and some even equate terms (1) through (5). We treat human rights separately in Chapter 7 of this book.

3.2

Protections in Warfare

The Laws of War are not only applicable to adult military combatants. A 1998 UN report noted that the twentieth-century impact of war on civilians had grown exponentially. In World War I, civilians constituted 34

This account is provided in J. McNeill, “Commentary on Dispute Resolution Mechanisms in Arms Control Agreements,” in L. Fisher and D. Scheffer, eds., Law and Force in the New International Order (Boulder, CO: Westview Press, 1991), 258–259.

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5 percent of all casualties. In World War II, this figure rose to 48 percent. By the last decade of the century, 90 percent of such casualties were civilians. The report also provided the estimate that 300,000 military combatants are under the age of eighteen, many children being used for mine clearance, spying, and suicide bombings. Thus, the need for international control of armed conflict continues to be needed by all sectors of society, and in armed conflict that is within states as well as between them.35

3.2.1

The Geneva Conventions

The primary set of international legal instruments that provide protections for humans in all types of armed conflict (large- and small-scale, international or domestic) are the Geneva Conventions dating from 1949 forward. They began as a limited set of protocols to protect soldiers who became POWs, and they have been expanded over time to include almost all others in warfare. It is up to each state to pass implementing legislation to incorporate the Geneva Conventions into their national legal system and/or enable their prosecution system to enforce the Geneva Conventions. For example, it was not until 1996 that the US passed the War Crimes Act that expressly incorporated the 1949 Geneva Convention into US law. The following 1960 Commentary is the edited official summary of the critical Geneva Convention provisions. The quotation marks within this Commentary identify the actual language of the listed articles.

THE GENEVA CONVENTIONS OF AUGUST 12, 1949 COMMENTARY: III GENEVA CONVENTION RELATIVE TO THE TREATMENT OF PRISONERS OF WAR, J. PICTET, ED., (GENEVA: ICRC, 1960) Article 3: There shall be no “outrages upon personal dignity, in particular, humiliating and degrading treatment. It also prohibits the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”

35

G. von Glahn and J. Taulbee, Law Among Nations, 11th ed. (New York: Routledge, 2017), 543. These authors have even coined a new term for a sub-set of international law to apply to within-state conflict: the “Law of Noninternational Wars (LONIAC),” and cite one instrument in this area, the Geneva Convention-related “Protection of Victims of NonInternational Conflict,” or PA-II of 1978.

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THE GENEVA CONVENTIONS OF AUGUST 12, 1949 COMMENTARY: III GENEVA CONVENTION RELATIVE TO THE TREATMENT OF PRISONERS OF WAR, J. PICTET, ED., (GENEVA: ICRC, 1960) (cont.) Article 4: Detainees who are POWs are protected from being punished for refusing to cooperate with interrogators beyond providing name, rank, and serial number. They must also be repatriated upon the conclusion of the hostilities. Protected persons are “those who at a given moment and in any manner whatsoever find themselves, in case of a conflict of occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.” Article 5: Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal. [The Geneva Convention does not define the term competent tribunal.] ... Article 17: No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind. ... Article 100: Prisoners of war and the Protecting Powers shall be informed as soon as possible of the offences which are punishable by the death sentence under the laws of the Detaining Power. ... Article 102: A prisoner of war can be validly sentenced only if the sentence has been pronounced by the same courts according to the same procedure as in the case of members of the armed forces of the Detaining Power, and if, furthermore, the provisions of the present Chapter have been observed. ... Article 104: In any case in which the Detaining Power has decided to institute judicial proceedings against a prisoner of war, it shall notify the Protecting Power as soon as possible and at least three weeks before the opening of the trial. Article 105: The prisoner of war shall be entitled to assistance by one of his prisoner comrades, to defence by a qualified advocate or counsel of his

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THE GENEVA CONVENTIONS OF AUGUST 12, 1949 COMMENTARY: III GENEVA CONVENTION RELATIVE TO THE TREATMENT OF PRISONERS OF WAR, J. PICTET, ED., (GENEVA: ICRC, 1960) (cont.) own choice, to the calling of witnesses and, if he deems necessary, to the services of a competent interpreter. He shall be advised of these rights by the Detaining Power in due time before the trial. Failing a choice by the prisoner of war, the Protecting Power shall find him an advocate or counsel, and [he] shall have at least one week at its disposal for the purpose. The Detaining Power shall deliver to the said Power, on request, a list of persons qualified to present the defence. Failing a choice of an advocate or counsel by the prisoner of war or the Protecting Power, the Detaining Power shall appoint a competent advocate or counsel to conduct the defence. ... The representatives of the Protecting Power shall be entitled to attend the trial of the case, unless, exceptionally, this is held in camera in the interest of State security. In such a case the Detaining Power shall advise the Protecting Power accordingly. Article 106: Every prisoner of war shall have, in the same manner as the members of the armed forces of the Detaining Power, the right of appeal or petition from any sentence pronounced upon him, with a view to the quashing or revising of the sentence or the reopening of the trial. He shall be fully informed of his right to appeal or petition and of the time limit within which he may do so. ... Article 108: Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities.

There are two 1977 additional protocols to the 1949 Geneva Conventions.36 The first protocol addresses the status of those captured during international military hostilities. The second protocol requires the same humane treatment for individuals who are detained during a conflict that is not international in character.37 Both are set forth below.

36

37

Protocol I: Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of International Armed Conflicts, www.icrc.org/ihl.nsf/FULL/470? OpenDocument accessed May 18, 2022. This Protocol was spawned by the North Vietnamese position, in relation to its treatment of US POWs during the Vietnam War – that the Geneva Conventions do not apply to an internal civil conflict – as opposed to an international conflict. For Protocol II, see

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PROTOCOL I TO THE GENEVA CONVENTIONS OF AUGUST 12, 1949 (1977) Article 45 1. A person who takes part in hostilities and falls into the power of an adverse Party shall be presumed to be a prisoner of war, and therefore shall be protected by the Third Convention, if he claims the status of prisoner of war, or if he appears to be entitled to such status, or if the Party on which he depends claims such status on his behalf by notification to the detaining Power or to the Protecting Power. Should any doubt arise as to whether any such person is entitled to the status of prisoner of war, he shall continue to have such status and, therefore, to be protected by the Third Convention and this Protocol until such time as his status has been determined by a competent tribunal. 2. If a person who has fallen into the power of an adverse Party is not held as a prisoner of war and is to be tried by that Party for an offence arising out of the hostilities, he shall have the right to assert his entitlement to prisoner-of-war status before a judicial tribunal and to have that question adjudicated. Whenever possible under the applicable procedure, this adjudication shall occur before the trial for the offence. The representatives of the Protecting Power shall be entitled to attend the proceedings in which that question is adjudicated, unless, exceptionally, the proceedings are held in camera in the interest of State security. In such a case the detaining Power shall advise the Protecting Power accordingly. . . .

PROTOCOL II TO THE GENEVA CONVENTIONS OF AUGUST 12, 1949 (1977) Preamble The High Contracting Parties, Recalling that the humanitarian principles enshrined in Article 3 common to the Geneva Conventions of 12 August

Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of International Armed Conflicts, www.icrc.org/ihl.nsf/FULL/475?OpenDocument accessed May 18, 2022.

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PROTOCOL II TO THE GENEVA CONVENTIONS OF AUGUST 12, 1949 (1977) (cont.) 1949, constitute the foundation of respect for the human person in cases of armed conflict not of an international character. ...

Article 1. Material Field of Application 1. This Protocol . . . shall apply to all armed conflicts which are not covered by . . . the Geneva Conventions . . . relating to the Protection of Victims of International Armed Conflicts (Protocol I) and which take place in the territory of a High Contracting Party . . . 2. This Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts. [Emphasis added.]

3.2.2

Lawful and Unlawful Orders

Who has the power to stop the mistreatment of others in wartime, and who can be held liable for failure to act? The lines of scrutiny here typically follow one of two scholarly examinations: first, were the orders given by military officers “legal,” i.e., in accordance with the Laws of War? Secondly, did soldiers in combat follow legal orders carefully, or did they use independent judgment to disobey “unlawful” superior orders as is now required by the Laws of War? If a soldier is otherwise willing to serve, but, in a specific circumstance, asserts that s/he will not follow orders, this is known as “selective objection.” An example is the decision of some French soldiers in World War I, who refused to engage in trench assaults that would have resulted in near-certain death. First, consider a situation in which a military officer’s orders appear to violate the Laws of War, or where a military officer failed to properly discipline or control those under his/her command. Under Additional Protocol I to the 1949 Geneva Conventions: The fact that a breach of the Conventions or of this Protocol was committed by a subordinate does not absolve his superiors from penal or disciplinary responsibility, as the case may be, if they knew, or had information which should have enabled them to conclude in the circumstances at the time, that he was committing or was going to commit such a breach and if they did not take all feasible measures within their power to prevent or repress the breach.

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This compendium of rules thus extends liability to the accused, regardless of whether he was, de jure or de facto, in command of the perpetrator – as long as the superior had effective control over the subordinate, i.e., the ability to prevent or punish the commission of the subordinate’s crime. As noted by the International Criminal Tribunal for the Former Yugoslavia (ICTY): “[A] superior’s authority to issue orders does not automatically establish that a superior had effective control over his subordinates, but [it] is one of the indicators to be taken into account when establishing effective control.”38 One of the most widely publicized breaches of the Laws of War took place in 1968 at the Vietnamese village of My Lai. The following US military courtmartial provides a realistic “in the field” perspective about the soldier who must choose between punishment for disobeying the order of a superior – and alternatively, punishment for violating the Laws of War. The dissent raises the troubling question of whether the same yardstick should measure the wartime conduct of all soldiers.

UNITED STATES V. CALLEY US Court of Military Appeals, 22 USCMA 534 (1973) [Excerpted case available at www.cambridge.org/FPIL7]

The superior-orders defense, shunned in both the Calley and Nuremberg judgments, may be gaining ground in the aftermath of the Iraq War. In June 2005, the Federal Administrative Court of Germany acquitted a German army major who had been charged, tried, and demoted because he disobeyed an order in violation of his military duty of obedience and loyal service. His offense was the refusal to participate in a military software project that supported Operation Iraqi Freedom. He believed that the Iraq War was illegal. He was permitted to refuse the order under his German constitutional right of freedom of conscience. The German court held that the serious reservations about the legality of Operation Iraqi Freedom, and thus Germany’s involvement in the Iraq War, required instead that he be offered alternative tasks unrelated to a war that he

38

Book: I. Bantekas, “The Substantive Law of Superior Responsibility,” in I. Bantekas, Principles of Direct and Superior Responsibility in International Humanitarian Law (London: Manchester University Press, 2002), 94–95; Geneva: Article 86.2, Additional Protocol I to the Geneva Conventions; ICTY: Art. 7.3; Authority factor: Prosecutor v. Dragomir Milošević, Judgment (2009), IT-98-29/1-A, 105, para. 280, www.icty.org/x/ cases/dragomir_milosevic/acjug/en/091112.pdf accessed May 18, 2022. Emphasis original.

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reasonably believed to be illegal. Consequently, an order is not binding when it violates human dignity; does not legitimately serve the defense of Germany; and obeying the order would constitute an offense under national or international criminal law. The court further held that an order would not be binding if in support of a war of aggression that would disturb the peaceful coexistence of nations or contravene fundamental rules of international law such as the UN Charter ban on the use of force.39 A similar defense was presented in a US case; however, it had a different outcome than the German case.40 The petitioner (Watada) sought federal habeas corpus review regarding his court-martial for missing his troop movement to Iraq. The petitioner claimed that Iraq was an illegal war.41 The US court never ruled on that premise, but effectively declared a mistrial in his case, and he was given an “other than honorable” discharge from the army. His mistrial hung on the difference between jus ad bellum and jus in bello; the court found that Watada had made an overly broad jus ad bellum assertion, which was beyond his legal ability to make, instead of a more specific jus in bello claim.42 Standardization of international law on this question, if it comes, will have to await future court decisions.

3.2.3

Laws of War Applied to Naval and Air Warfare

These acts occur less frequently than incidents in land warfare, but they can be no less heinous. 3.2.3.a Naval Warfare During the Nazi war crimes trials at Nuremberg, two U-Boat captains were accused of ordering totally unrestricted submarine warfare. One, Admiral Karl Dönitz, was found guilty of sinking all vessels within a neutral shipping zone. The other, Heinz-Wilhelm Eck, was charged (although there was insufficient evidence for conviction) with the crime of killing survivors of sunken ships. Naval captors may not deny quarters (i.e., give shelter or aid) or kill a defenseless enemy. The other captain was not found guilty of this particular charge, partially because the Tribunal found that this was also the US practice in the Pacific.43 39

40

41 42

43

Germany v. N., Decision No. 2 WD 12.04; case analysis of the same is from: I. Baudisch, “International Decisions,” American Journal of International Law 100 (2006): 911ff. K. A. Petty, “Duty and Disobedience: The Conflict of Conscience and Compliance in the Trump Era,” Pepperdine Law Review 45, No. 1 (2018). Watada v. Head, 530 F. Supp. 2d 1136 (W.D. Washington, 2007). Petty, “Duty and Disobedience,” 101. For more discussion of the difference between ius ad bellum and ius in bello see Chapter 9. “Nuremberg Trial Proceedings,” Avalon Project of the Yale Law School [hereinafter Nuremberg Proceedings] https://avalon.law.yale.edu/subject_menus/imtproc_v1menu.asp accessed May 18, 2022 (search under Judgments/Doenitz for a general overview of crimes

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The 1980–1988 Iran–Iraq conflict and 1991 Persian Gulf War added to the relevant principles that states consider under the modern naval Laws of War. First, belligerents have a right to “visit and search” neutral-flagged merchant vessels in the war zone. While this was done routinely during the Vietnamese conflict, only one state (the US) exercised this “right.” “Visit and search” occurred with much greater frequency during the 1991 Persian Gulf War, thus giving rise to a near-certain expectation that states at war may undertake this form of intrusion. It is a necessary technique for states to maintain security against various forms of infiltration by belligerents and violations of neutrality by third-parties. Minelaying is permitted, but not without limitations. The 1907 Hague Convention Relative to the Laying of Automatic Submarine Contact Mines precludes indiscriminate minelaying without proper monitoring by the responsible state. States may not lay mines in the high seas if doing so endangers the shipping of non-belligerent states. UN Security Council Resolution 540 (1983) provides that states may not thereby threaten “the right of free navigation and commerce in international waters.” Notification is an essential requirement. The ICJ commented on this expectation in both its 1949 Corfu Channel Case and its 1986 Nicaragua decision. In the earlier case, Albania was at fault for not removing surface mines hit by British ships passing through an international strait adjacent to its coast. In the latter case, the US was responsible for assisting indigenous forces (the “contras”) in laying mines in key harbors to interrupt Nicaraguan shipping.44 This norm was tested during the Persian Gulf War when Iran threatened to close the Straits of Hormuz – the only entry to the oil-exporting Persian Gulf. De Guttry and Ronzitti comment on the scope of this right of passage as follows: [N]eutral warships are granted the right of passage through international straits even if the littoral [coastal] State is at war. If such right is accorded to warships, so much the more will it be binding for merchant vessels flying a neutral flag. Not all scholars agree on this, but it seems to us that practice in the Gulf is perfectly in tune with what appears to be the dominant trend, a trend which probably now corresponds to precise customary rules. Faced with Iran’s repeated threat to close the Strait, the USA, the United Kingdom, France and Italy . . . firmly emphasized that the right of passage

44

of the Nazi regime in naval warfare). The print copy of this multi-volume set contains an exhaustively complete record of the lengthy proceedings. The same volumes also contain the record of the similar proceedings of the Tokyo defendants also tried by the Allies. Corfu: 1949 ICJ Reports 4, 22; Nicaragua: 1986 ICJ Reports 14, 112.

3 The Laws of War and Arms Control through international straits can never be suspended, even when the littoral State is one of the belligerents.45

Iran has threatened to close the Strait many times since then, and it is likely that this principle will be tested again in practice. In June 2019, Iran attacked two tankers, the British-flagged tanker Front Altair and the Japanese-owned Kokuka Courageous, using limpet mines and other incendiary devices in international waters of the Strait. The attacks left the ships ablaze and taking on water. The crew of the Kokuka was rescued by a third commercial ship, but then that ship was forced to surrender the Kokuka’s crew to an armed Iranian force.46 The Iranians held the Altair and its crew incommunicado for several months until the British seized an Iranian tanker in the Mediterranean and essentially exchanged it for the safe return of the Altair. Another area of naval threat is emerging from the increasingly aggressive actions of China in the Pacific theater. This matter is discussed in detail in Chapter 4. 3.2.3.b Air and Space Warfare International law was slow to regulate air warfare, even after the atrocities of World War II caused massive civilian deaths. There were no charges made in either the Nuremberg or Tokyo Trials for Laws of War violations involving military aircraft. The only reference in those trials was a statement addressing the bombing of a city that kills innocent civilians (without mention of the 1945 US atomic bombings of Hiroshima and Nagasaki). In the words of the Nuremberg Tribunal: This is . . . an unavoidable corollary of battle action. The civilians are not individualized. The bomb falls, it is aimed at railroad yards, [but] houses along the tracks are hit and many of their occupants killed. But that is entirely different, both in facts and in law, from an armed force marching up to these same railroad tracks, entering those houses abutting thereon, dragging out the men, women, and children and shooting them.47

Since then, however, disturbing documents have come to light about the deliberate targeting of civilians in air campaigns, which were glossed over because such “carpet bombing” ostensibly aimed at hastening the conclusion of hostilities. It is doubtful, however, with today’s more precise munitions

45

46

47

A. De Guttry and N. Ronzitti, eds., The Iran–Iraq War (1980–1988) and the Law of Naval Warfare (Cambridge: Grotius, 1993), 7. J. Bolton, The Room Where It Happened: A White House Memoir, 1st ed. (New York: Simon and Schuster, 2020). See especially Ch. 12. Nuremberg Proceedings, Vol. 4, 466–467.

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(e.g., “smart bombs”) that similar action would be justified under emerging international law. Air warfare tactics are regulated by the 1977 Geneva Protocol and the 1980 Convention on Prohibition or Restrictions on the Use of Certain Conventional Weapons. Article 42 of the 1977 Geneva Protocol prohibits ground or air attacks on persons parachuting from aircraft in distress. Such individuals must also be given an opportunity to surrender before engaging them as enemy soldiers. Airborne troops are excluded from this protection. One reason for the protocol was the North Vietnamese position that the 1949 Geneva Conventions did not apply to undeclared conflicts such as the Vietnam War. Missiles

The use of either short or long-range missiles per se is not illegal unless they constitute an “armed attack” on the sovereign territory of another state. However, limitations on the production and type of missiles have been the subject of both state-to-state agreements and regimes (see Section 3.3 below). The complexity and challenge of these new technologies, which are capable of delivery by air or outer space, is well illustrated by Wang in this forwardlooking observation about the direction of the Laws of War in this area: The relevant commentary . . . lists some “lawful weapons” that can be used in air and missile warfare, such as (i) blast weapons; (ii) fragmenting and penetrating munitions, including depleted uranium; (iii) incendiary weapons; (iv) nonincendiary weapons; (v) combined-effects munitions; (vi) smoke; (vii) kineticenergy weapons; (viii) delayed-action munitions. But this kind of listing can certainly cause much . . . confusion . . . For example, the USA developed a new bomb, which is called “super-bomb” or “mother of all bombs.” It belongs to “blast weapons,” and the effects of such super-bomb can not only cause “excessively injurious or to have indiscriminate effects,” but also modify the natural environment of the targeting area. What is the legitimacy of such weapons? As to depleted uranium munitions, their use can also lead to disastrous effects upon the natural environment and unnecessary suffering to victims of war, and they are deadly harmful to the local people for survival after military actions. As to kinetic-energy weapons, they are weapons mainly for space warfare, not limited to warfare at sea or on land or in the air. If they are “lawful,” then there must be the legality for warfare in outer space, but up to now, neither international treaties nor customary rules have provided for such legality. Does this “lawfulness” mean that outer space can be a legal area for air and missile warfare? . . . [W]e would better make it clear that certain weapons are prohibited and restricted in air and missile warfare, and that we should not expressly permit such weapons, nor should we break the threshold

3 The Laws of War and Arms Control of restraints on means and methods of warfare, or undermine the legal basis of [international humanitarian law].48

The US specifically abrogated the Anti-Ballistic Missile (ABM) treaty in order to be free to develop (supposedly defensive) space-based weaponry. With recent rapid advances in rocketry allowing for the less-expensive delivery of (military) payloads into space, it is likely that space, at least the area in the earth’s orbit, will become a new area of competition for the use of force by states, and perhaps by NGOs and wealthy individuals as well. In recognition of this trend, the US created a new branch of its military, the Space Force, in 2019 (see Chapter 4). The potential for nuclear and “kinetic energy”49 weapons in space has been a leading source of friction between the great powers in international relations since the early 1970s. In 2001, US president Bush expressed the desire to amend the 1972 US–USSR ABM Treaty. Doing so would remove the restriction on building a space-based missile-defense system officially called the Strategic Defense Initiative (SDI) by the US – but known popularly as the “Star Wars” defense shield – an idea introduced during the Reagan presidency. The US justified the need to construct a space-based anti-missile system based on its concern with what it called “rogue nations,” such as North Korea. These rogue nations might use whatever nuclear weapons capability they have to attack or politically blackmail the US. The US exploited, at great cost, its head-start in anti-missile systems, including lasers, to “win” the space arms race with the USSR/Russia through the early 2000s (some commentators have even cited the Soviet inability to “keep up” with the US in this arms race as a key reason for the downfall of the old USSR). More recently, Russia’s president Putin stated that if “the United States abandons the 1972 agreement, we will have the right to pull out not only of START II but also from the entire arms reductions and control system.” Putin previously announced Russia’s stance on the potential use of nuclear arms in January 2000 when he appeared to lower the nuclear threshold. Despite this warning, in December 2002, the US provided notice of its unilateral withdrawal from the ABM treaty.50 Putin reiterated this belligerent stance in April

48

49

50

H. Wang, “Comments on the 2007 Draft Manual on International Humanitarian Law in Air and Missile Warfare,” Chinese Journal of International Law 7 (2008): 107, 111–112. Kinetic-energy weapons are those that can operate in a zero-oxygen environment and include such technologies as lasers, rail guns, nets, directed stones (aka “brilliant pebbles”), and other physical projectiles. On the 2000 announcement see M. Evans, “Russia alters Rules On Using Nuclear Arms,” The London Times, January 15, 2000, available on Lexis-Nexis news database; on the 2002 announcement, see M. Wines, “Moscow Miffed Over Missile Shield but Others Merely

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2021 when he declared, that Russia’s “response [to perceived provocations] will be asymmetric, fast and tough,” utilizing, if need be, the nation’s modernized nuclear forces.51 He repeated such threats during the Ukrainian crisis. We further discuss the militarization of outer space in Chapter 4.

3.3

Arms Control

For much of the history of warfare, there were no practical limits on matériel, or the weapons of armed conflict. The more matériel the better, the thinking went, as a sign of prestige, to serve as a deterrent to would-be adversaries, and under the theory that more weapons would yield a shorter conflict in the case of actual hostilities (i.e., overwhelming force). There are still vestiges of this idea in the various military parades that are usually held in authoritarian states, or in doctrines like the “Powell Doctrine” espoused by the former US Secretary of State and Chairman of the Joint Chiefs of Staff, Colin Powell.52 However, as it became clear that weapons-holding-states had reached a level of dangerous overkill after the detonation of two nuclear weapons to conclude World War II, states today are increasingly called upon to limit their military munitions, especially “weapons of mass destruction,” aka the nuclear, biological and chemical (NBC) weapons. But it is not just the NBC weapons that have been regulated, but also a variety of other more conventional and novel (e.g., cyber-weapons) but still highly lethal weapons. The zenith for arms control occurred in the late twentieth century, and then tapered off dramatically after that. US presidents were persuaded by “hawks,” like John Bolton, who served in both the G. W. Bush and Trump Administrations (from 2017–2010), and the late Senator John McCain, that such agreements were a sign of weakness and “unilateral disarmament.” For example, Bolton crowed, “[s]ince my days in George W. Bush’s Administration, I had wanted to extricate the United States from the INF Treaty . . . I knew what to do, having helped Bush 43 get America out of the dangerous, outmoded 1972 ABM Treaty . . . .”53 As a result, the US formally started the process of withdrawing from the Intermediate-Range Nuclear Forces Treaty (INF) on February 1, 2019. Bolton would also like the US to decisively “un-sign” (reject) the Comprehensive Test Ban Treaty 1996 (CTBT), even though the US never ratified it in the first place.54

51

52 53

Shrug,” New York Times, December 19, 2002; and The Associated Press, “China Concerned by Missile Defense Plan,” quoted in the New York Times, December 19, 2002. A. Kramer et al., “Putin Says Nations That Threaten Russia’s Security Will ‘Regret Their Deeds,’” New York Times, April 21, 2021. Powell and Persico, My American Journey. 54 Bolton, The Room Where It Happened: A White House Memoir, 158. Ibid.

3 The Laws of War and Arms Control

In October 1999, the US Senate voted to reject the CTBT, which had been signed by Russia, China, and the US. These nations strongly urged the US Senate to ratify this treaty. It requires nuclear-capable nations to halt their weapons testing. Nations ratifying the CTBT agreed to accept increased international monitoring for detecting unauthorized testing. One downside of the US decision not to ratify the CTBT is the example that it set for others. When the US rejected this major arms control treaty, 151 nations had signed, and fifty-one of those had ratified it. These numbers then included twenty-six of the forty-four nuclear-capable nations. This treaty was supposed to enter into force when all nations believed to have nuclear capacity had ratified it.

3.3.1

Drones and Automatic Weapons Systems

A provocative new question is, what should state responsibility be for automated killing machines (e.g., robots and drones) that are powered by Artificial Intelligence (AI)? The out-of-control use of these autonomous weapons systems (AWS) conjures up nightmare scenarios such as the Terminator movies. This may no longer be science fiction; the first use of a fully automated drone to kill a human combatant reportedly occurred in 2019 in the Libyan theater using a Turkish-designed drone. This scenario begs the question of whether a state could evade responsibility for the use of force by a fully automated machine by claiming that no human pulled the trigger or specifically authorized the killing; instead, the “machine” was adapting to its threat environment using AI. Due to the rapid advance in technology, there is very little legal responsibility for AWS that is ascribed to either states or individuals acting on their behalf in contemporary international law.55 Yoo has vigorously argued that states should not incur responsibility in this area; instead, the use of automated weaponry and smart technologies by states should be encouraged because it will supposedly reduce casualties and foreshorten the resort to force and war.56 Others express exactly the opposite view, arguing that the Rome Statute of the International Criminal Court (ICC) should be amended to hold states and their individual agents responsible for the use of such systems.57 As more states catch up with the US in AWS, the calls for greater international regulation and state responsibility in this area are likely 55

56

57

I. A. Barber, “Autonomous Weapons Systems & Accountability: Rethinking Criminal Responsibility for War Crimes at the ICC,” SOAS Law Journal 7, No. 1 (2020): 5–64. J. Yoo, “Embracing the Machines: Rationalist War and New Weapons Technologies,” California Law Review 105, No. 2 (2017): 443–500. Barber, “Autonomous Weapons Systems.”

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to follow, prompted by the US.58 Of even greater concern would be the union of automated machines, programmed with AI, and nuclear weaponry.

3.3.2

Nuclear Weapons

There has been another prominent US disengagement from the Cold War-era nuclear arms-control regime (see Table 8.1). The 185 signatories of the 1968 Nuclear Non-Proliferation Treaty pledged never to acquire, nor help another nation acquire, nuclear weapons. By the turn of the century, however, seven states, including rivals India and Pakistan, were declared nuclear powers. A total of forty-four states are now believed to have varying capacities to produce nuclear weapons (but not necessarily to launch them). There are now nine confirmed nuclear weapons states (in order of number of stockpiled weapons): the US, Russia, France, China, the UK, India, Pakistan, Israel, and possibly North Korea, based on its October 2006 claim that it had tested a nuclear weapon. Per the responsive UN Security Council resolution, this test violated the “Joint Statement issued on 19 September 2005 by China, the Democratic Peoples’ Republic of (North) Korea, Japan, the Republic of (South) Korea, the Russian Federation and the United States, to achieve the verifiable denuclearization of the Korean Peninsula and to maintain peace and stability on the Korean Peninsula and in north-east Asia . . . .”59 There have been various diplomatic and military actions to prevent other nations from joining the nuclear club. For example, various UN Security Council resolutions have sought to frustrate Iran’s objective to become a nuclear state. The fate of the 2015 Joint Comprehensive Plan of Action (JCPOA), designed to limit Iran’s ability to produce a nuclear weapon, is currently unclear after the Trump Administration effectively scuttled it.60 The US had been quite active in its various treaty initiatives, especially with Russia, to reduce their respective stockpiles of nuclear weapons. In an about face, however, in 2010, the US announced its Prompt Global Strike capability. This fresh addition to the arms race is a new class of weapons, capable of reaching anywhere on earth, within an hour. It is allegedly 58

59

60

P. O. Jackson, “Drone Interdiction: Use of Force as a Countermeasure against Unmanned Vehicles at Sea,” Military Law Review 226, No. 4 (2018): 223–263. Resolution: UNSC Res. 1718, UN Doc. S/RES/1718 (2006) www.un.org/securitycouncil/s/ res/1718-%282006%29; Joint Statement: “Joint Statement of the Fourth Round of the SixParty Talks,” https://2001-2009.state.gov/r/pa/prs/ps/2005/53490.htm; Korea and Nuclear Non-proliferation Treaty: C. Le Mon, “International Law and North Korean Nuclear Testing,” ASIL Insights (October 20, 2006) www.asil.org/insights/volume/10/issue/27/ international-law-and-north-korean-nuclear-testing, all accessed May 18, 2022. K. Belal, “Uncertainty over the Joint Comprehensive Plan of Action: Iran, the European Union and the United States,” Policy Perspectives 16, No. 1 (2019): 23–39.

3 The Laws of War and Arms Control

483

Table 8.1. Selected nuclear, biological, and chemical arms-control agreements Name of agreement

Effective date(s)

Key tenets

Biological Weapons Convention (BWC)

1975– Present

Multilateral treaty requires disclosure, containment and/or destruction of harmful biological substances such as the causative agents of anthrax, cholera, plague, tularemia, botulism, and biological toxins such as ricin. US expresses concern that China has dual-use (military and civilian) labs and has not fully disclosed them as of 2021. Iran, Russia and North Korea are also cited as non-compliant; North Korea since 1990.1

Chemical Weapons Convention (CWC)

1997– Present

Multilateral; requires the incineration of chemical weapons; update allows alternative and more environmentally friendly destruction methods. US pledges full compliance by 2023.2

Threshold Test Ban Treaty (TTBT)

1990– Present

Bilateral treaty (US–Russian) limits size of underground nuclear weapons tests. Protocol adds yearly disclosure requirements.

Underground Nuclear Explosions for Peaceful Purposes Treaty (PNET)

1990– Present

Bilateral (US–Russian) companion treaty to the TTBT; covers all underground nuclear testing conducted for whatever purpose, at military sites or not.3

Limited Test Ban Treaty (LTBT)

1963– Present

Multilateral treaty that outlaws nuclear testing in outer space and underwater.

Nuclear Non-proliferation Treaty (NPT)

1970– Present

Multilateral treaty that attempts to limit the spread of nuclear weapons to new states that do not currently have them, spur reduction of weapons in current nuclear states, and encourage the peaceful uses of nuclear power, all with limited success. Lacks strong verification and enforcement instruments. Was extended by the Nuclear Weapons Ban Treaty (TPNW) which became effective on Jan. 22, 2021.4

Strategic Arms Limitation Talks Treaties (SALT, I and II) SALT I

A series of bilateral negotiations between US and USSR / Russia never ratified

Begins bilateral arms reduction process between US and Russia (then USSR). Leads to the AntiBallistic Missile (ABM) Treaty which was later effectively ended by the G. W. Bush Administration in 2002.

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Table 8.1. (cont.) Name of agreement

Effective date(s)

Key tenets

SALT II

never ratified (1975–1985)

Was signed but not ratified, but led to START treaties

START I treaty*

1994–2009

US–Russian bilateral treaty; the largest reduction of long-range nuclear weapons to date. Detailed and intrusive inspection regime is credited with success. Was replaced by New START.5

START II

2000–2002

Proposed to reduce the number of warheads per missile (MIRVs); short duration made it ineffective. Russia withdrew the day after the US withdrawal from the ABM treaty.

US–Russian Treaty on Measures for the Further Reduction of Strategic Offensive Arms (New START Treaty / NST)

2011-2026

US–Russian bilateral treaty that aims to halve the inter-continental ballistic missiles (ICBMs) (to about 1,500) of these states; limitations were placed on other nuclear platforms as well. Almost canceled by Trump Administration; treaty was extended under Biden Administration (to 2026) to allow time for full compliance.6

Intermediate Nuclear Forces Agreement (INF)

1988–2019

Bilateral treaty between the US and Russia to limit the number of medium-range nuclear missiles (i.e., between 500 km/325 miles and 5,500 km/3,500 miles). US withdrew on August 2, 2019, citing Russian non-compliance; Russia then “suspended” compliance as well. No replacement treaty at present.7

Notes: 1 US Department of State, “2021 Adherence to and Compliance with Arms Control, Nonproliferation, and Disarmament Agreements and Commitments,” State.gov, 2022, www.state.gov/2021-adherence-to-andcompliance-with-arms-control-nonproliferation-and-disarmament-agreements-and-commitments/#_ Toc69385119 accessed May 30, 2022. 2

State.

3

Arms Control Association, “Peaceful Nuclear Explosions Treaty (PNET),” Arms Control Association, 2008, https://

web.archive.org/web/20130403011336/http://armscontrol.org/documents/pnet accessed May 30, 2022. UN Office for Disarmament Affairs, “Treaty on the Non-Proliferation of Nuclear Weapons (NPT),” UN.org, (effective date 1968) www.un.org/disarmament/wmd/nuclear/npt/text accessed May 30, 2022. 4

5

US Department of Defense, “Strategic Arms Reduction Treaty (START I): Executive Summary,” US Dept. of

Defense Office of the Under Secretary for Acquisition, Technology and Logistics, 2011, https://web.archive.org/ web/20110106051804/http://www.dod.mil/acq/acic/treaties/start1/execsum.htm accessed May 30, 2022. 6

Amy F. Woolf, “New START Treaty: Central Limits and Key Provisions,” Congressional Research Service Reports,

Vol. 1 (Washington, DC, 2021) https://heinonline.org/HOL/Page?handle=hein.crs/govebvl0001&id=1&div=& collection=ustreaties accessed March 25, 2021. Amy F. Woolf, “U.S. Withdrawal from the INF Treaty: What’s Next?,” CRS Reports (Washington, DC, 2020) https://crsreports.congress.gov accessed May 30, 2022.

7

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far more accurate than any current weapons system, thus avoiding the nondiscriminatory feature of most nuclear weapons. This super-weapon is able to travel at 13,000 mph. While still being tested, its success will effectively diminish US reliance on nuclear weapons. In response, the Russian Federation has developed its own “hyper-sonic” missiles, which it provocatively unveiled in 2018 with a video presentation showing those missiles striking what appeared to be the US state of Florida, using technology that could evade most missile-defense systems.61

4 Use of Force in Combating Terrorism and Low-Intensity Conflict After the traumatic events of September 11, 2001, in the US, it was clear that the US intended to push for changes in use of force doctrines and the treatment of “irregular” combatants, because of a widely shared sense in the US that it had allowed its enemies to grow bold in exploiting loopholes in the Laws of War, while the US felt compelled to adhere to the law. There have been two major tracks to combat the use of force by terrorist groups, the first by the UN and other international organizations, and the second led by the US. Below we treat each in turn, and we note some of the pushback against the US-led changes that is currently taking place. A related problem has bedeviled international law far longer: how to combat and control the use of force in small-scale or so-called “low-intensity” conflicts. The word “war” conjures visions of the two world wars of the twentieth century and the Persian Gulf War (1991), in which two-dozen states joined in the fight to liberate the oil-rich sheikhdom of Kuwait from Iraq. But there have been hundreds, if not thousands, of conflicts of a lesser magnitude – termed “low-intensity conflicts” – but ones in which death and destruction have been just as exacting for the affected individuals. The US military definition of low-intensity conflict provides useful insight into this newer, more common use of force in international affairs. Low-intensity conflict is a politico-military confrontation between competing states or groups below conventional war and above the routine, peaceful competition among states. It frequently involves protracted struggles of competing principles and ideologies. Low-intensity conflict ranges from 61

V. Putin, “User Clip: Avangard Hypersonic Announcement,” C-SPAN.Org (Russia: State TV, 2018) www.c-span.org/video/?c4895627/user-clip-avangrd-hypersonic-announcement accessed May 18, 2022.

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8 The Use of Force by States subversion, such as training and paying paramilitary rebels, to the use of armed force. It is waged by a combination of means, employing political, economic, informational, and military instruments. Low-intensity conflicts are often localized, generally in the Third World [Global South], but contain regional and global security implications.62

Examples of low-intensity conflict include border wars between and within less-developed countries, and wars involving national liberation fronts, such as those which occurred in Central and South America in the late twentieth century. Low-intensity and small-scale conflicts are often quite “desperate” affairs fought by poorly disciplined combatants, and they are difficult to control utilizing the traditional instruments of international law on the use of force. The US, for example, has struggled for forty years to develop a “counter-insurgency” (COIN) strategy that would be both effective and stay within the bounds of applicable Laws of War instruments. The tendency toward blurring the lines between hostile state uniformed service personnel and hostile armed combatants without state affiliation that was characteristic of low-intensity conflicts from the late Cold War period was exacerbated by the nature of the 9/11 attackers on the US. On the other hand, one of the clearest mandates of the Laws of War is that, while a state may kill enemy combatants, it may not kill civilians. In today’s environment of guerrilla tactics and low-intensity conflict – as opposed to the traditional state army versus state army – it is often difficult to distinguish between civilian and combatant, a civilian distinction that some of the guerrilla fighters wanted to claim for themselves, exploiting this “loophole” in the Laws of War. However, getting rid of that distinction altogether would put the US, and other states that might follow that path, completely outside of both the Geneva Conventions, and in a larger sense, the Just War tradition, with the probable loss of allies and standing in international relations, upon which favorable economic relations and so much else depends. A similar warning was sounded after 9/11 by Paust, a former military judge: this country [the US] must not engage in inhumane treatment. . . . [W]ar crimes policies and authorizations are not merely a threat to constitutional government and our democracy. They degrade our military, place our soldiers in harm’s way, thwart our mission, and deflate our authority abroad. They can embolden an enemy, serve as a terrorist recruitment tool, and fulfill other terrorist ambitions.63

62

63

Department of the Army and the Air Force, “Military Operations in Low Intensity Conflict,” Army Field Manual 100–20 and Air Force Pamphlet 3–20 (December 1990), 1. J. Paust, “Responding Lawfully to Al Qaeda,” Catholic University Law Review 56 (2007): 759, 803.

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In February 2021, German courts made history when they convicted Eyad al-Gharib of aiding and abetting torture and deprivation of liberty while he served as a low-level guard in Syria’s infamous “Branch 251.” Al-Gharib took part in arresting the protesters who sparked the 2011 civil war in Syria and also had knowledge of the abuse that occurred at Branch 251, Syria’s infamous detention and torture center. While there was no evidence presented to suggest that al-Gharib himself actively tortured detainees, he was tried on the basis of self-incriminating statements and his implication in criminal conduct. In January 2022, Anwar Raslan, a senior official in the Syrian intelligence regime, was convicted by the same court of crimes against humanity (including murder and sexual violence).64 The cases against al-Gharib and Raslan were precedent-setting for several reasons: first, they were tried in Germany for crimes committed in Syria under the principle of universal jurisdiction (see Chapter 3), and second, they were a direct condemnation of Syria’s security apparatus and its abuse of civilians. UN bodies have been active in specifying the permissible use of force by member states in small-scale conflict situations. Two of the leading instruments are as follows:

4.1

UN Treaties and Resolutions against Terrorism

Terrorism, especially transnational terrorism, is a relatively new kind of small-scale conflict or low-intensity conflict. The first UN attempt to address terrorism was the establishment of a Committee on Terrorism by the UN General Assembly in 1974.65 The Committee wrestled with the definitional question of “terrorism” (like the earlier struggles to define “force” and “aggression”), a question that has continued to the present and has hampered effective enforcement of subsequent conventions. Since then, the UN has offered fourteen separate conventions on terrorism. They include the following: Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents (1973); Convention against the Taking of Hostages (1979); Convention on the Physical Protection of Nuclear Material (1980); Convention for the Suppression of Terrorist Bombing (1997); Convention for the Suppression

64

65

R. L. Phillips, “A Drop in the Ocean: A Preliminary Assessment of the Koblenz Trial on Syrian Torture.” Just Security (blog), April 22, 2021, www.justsecurity.org/75849/a-dropin-the-ocean-a-preliminary-assessment-of-the-koblenz-trial-on-syrian-torture/ accessed May 23, 2022. UN General Assembly Res. 3034 (XXVII).

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of the Financing of Terrorism (1999); and Convention for the Suppression of Acts of Nuclear Terrorism (2005).66 In the wake of 9/11, the UN General Assembly adopted the “UN Global Counter-Terrorism Strategy.” This document was long on rhetoric and rather short on enabling mechanisms. It did combine strong condemnations of terrorism and suggestions for how to combat it with calls to respect the rights of those accused of terrorism and to address underlying conditions that made terrorism more likely. The Security Council promulgated Resolution 1377 (2001) criminalizing the financial support of terrorism. It also called upon the Counter-Terrorism Committee to assist in the drafting of model anti-terrorism laws. The UN Security Council added Resolution 2178 (2007) calling for effective border controls to thwart the transit, organizing, supply and training of would-be terrorists. Throughout the creation of these various UN anti-terrorism instruments, almost every organ of the UN has hastened to urge states to observe the Laws of War and international humanitarian law in combating terrorism. Examples include the 2002 call by the UN Secretary-General to ensure that “counter-terrorism measures must not violate human rights,” and the appointment by the UN Human Rights Commission of a “Special Rapporteur” for the protection of fundamental human rights and freedoms while countering terrorism.67

4.2

UN Convention Against Torture (CAT)

Relevant to this struggle is the question of whether “torture” constitutes impermissible use of force even in the battle against terrorism. The exact meaning of “torture” has not always been the subject of universal agreement in international law. Nonetheless, the UN has helped clarify the subject, along with the ICC. First in the UN’s 1948 Universal Declaration of Human Rights, and then more specifically in its 1984 Convention against Torture and Other Cruel Inhuman, or Degrading Treatment (CAT – to which the US is a party, with the reservation described below) the UN provides the internationally accepted definition of torture. Under CAT, Article 1.1:

66

67

The entire collection of UN anti-terrorism treaties can be found on the UNTS website at: https://treaties.un.org accessed May 18, 2022. Two of the most widely cited are the Convention Against Taking Hostages, text available at: https://treaties.un.org/doc/db/ terrorism/english-18-5.pdf accessed May 18, 2022; and Convention for the Suppression of the Financing of Terrorism, text available at: https://treaties.un.org/doc/db/terrorism/ english-18-11.pdf accessed May 18, 2022. M. Shaw, International Law, 8th ed. (Cambridge: Cambridge University Press, 2017), 887–889.

4 Use of Force in Combating Terrorism and LIC “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

Member states and other international organizations are of course free to adopt provisions which go beyond this minimum standard. Article 2 of CAT provides as follows: No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal or political instability or any other public emergency, may be invoked as a justification against torture. Article 3.1 further prohibits a Member-state from sending individuals to states that may torture them. Thus: No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

The US and some of its allies have sought exceptions – both overtly and covertly – to each of these major articles of the CAT, and related covenants (such as the European Covenant on Human Rights, or ECHR), centered around “national-security exceptions.” Protecting national security has apparently meant practices like “enhanced interrogation” but which clearly seemed to fall into the CAT’s definition of torture. Examples of “enhanced interrogation” techniques used by the US include “white noise, sleep deprivation, prolonged nakedness, displays of constant light during interrogations, electric shock treatments, walling, slapping, threats of sexual torture, wall standings and cramped confinement.”68 In other situations, states simply refuse to divulge acts of torture or seek to dismiss international lawsuits under the “state secrets privilege.”69 For more on the CAT, see Chapter 7.

4.3

US-Led Changes to the Use of Force to Combat Terrorism

On September 17, 2002, President Bush confirmed the new US approach to self-defense. He stated the rationale in support of preemptive first strikes as 68

69

O. Anwukah, “The Effectiveness of International Law: Torture and Counterterrorism,” Annual Survey of International and Comparative Law 21 (2016): 14. Ibid.

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part of the war on terror. The US stated that it would undertake extraordinary measures to avoid applying standard US legal procedures to enemy combatants captured in the ongoing “global war on terror.”70 However, even if a state wishes to avoid applying its own legal protections to detainees from armed conflict, there are international standards of detainee treatment as well, the most powerful and comprehensive being the Geneva Conventions. The US ratified all four 1949 Geneva Conventions. It also signed the 1977 Protocol I, but it has not ratified it. According to the terms of Article 5: “A competent tribunal shall determine the status of any person not appearing to be entitled to prisoner of war status who has committed a belligerent act or has engaged in hostile activities in aid of enemy armed forces, and who asserts that he or she is entitled to treatment as a prisoner of war, or concerning whom any doubt of a like nature exists.” The Third Geneva Convention contains two cardinal principles of utmost importance to prisoners. First, a POW cannot be prosecuted and punished merely for taking part in hostilities. Second, POWs must be given humane treatment from the time they fall into the power of the enemy until their final release and repatriation. If a person is not given combatant status, he may be tried for having committed an unlawful belligerent act. As such, he would not have the “license to kill” as would a military combatant. He may thus be subject to the death penalty (in countries which allow it). The problem after 9/11 is that these World War II-era conventions did not specifically address the category of “enemy combatants” and, as the US would have it, “unlawful combatants.” A civilian spy or mercenary might fall into such a gray area. Neither may properly claim “POW” status. But when in doubt, a detainee’s status must be determined by an Article 5 “competent tribunal.” The Additional Protocol I to the Geneva Conventions, however, does not: (1) describe the composition of the tribunal; (2) specify the due process rights of the person undergoing this status determination; nor (3) explain the judicial guarantees to which the detainee is entitled under international humanitarian law.71 The US also altered its stance on “War on Terror” detainees who were imprisoned at Guantánamo Bay. The US claimed that the Combat Status Review Tribunals (CSRTs) operating there were functionally the same as Article 5 tribunals. However, if the CSRTs found that the detainees were “unlawful” (versus) “lawful” combatants, then the US position was that they were not entitled to any of the usual Geneva Convention POW protections

70

71

J. Margulies, Guantánamo and the Abuse of Presidential Power (New York: Simon and Schuster, 2006). For a thoughtful analysis, see Y. Asmin Naqvi, “Doubtful Prisoner-of-War Status,” International Review of the Red Cross 84, No. 847 (2002).

4 Use of Force in Combating Terrorism and LIC

and could (and still are) be detained indefinitely. Indeed, after a March 2005 review, all but thirty-eight of the hundreds of detainees were adjudged to have this status. There is a growing pushback, however, that Guantánamo detainees should have been treated as presumptive POWs.72 After the passage of a few years, however, the US Supreme Court was not willing to grant the Bush Administration such carte blanche. Below is the most fundamental of the three cases that showed the effective limits that the Court placed on these claimed “wartime emergency” powers and the protections that these detainees should have enjoyed.

RASUL V. BUSH 542 U.S. 466 (2004) [Excerpted case available at www.cambridge.org/FPIL7]

Although Rasul and the related cases answered many questions about criminal procedure in US courts, it left unanswered the question of precisely who and what a “lawful” enemy combatant was, thus rendering moot most of the Geneva Convention protections against excessive use of force for the detainees at Guantánamo.

4.3.1

Extraordinary Rendition and Targeted Assassinations

“Extraordinary rendition” is the process by which suspects are “rendered” (or physically deported) to a friendly third country whose protections for those accused are far lower than the US, seemingly in contravention of Article 3.1 of the CAT.73 Many of these foreign locations were still effectively under the control of the US at so-called “black sites” operated by the CIA and other covert US agencies. In those sites, US or US-trained interrogators were free to use both established methods and the newly refined torture techniques (aka “enhanced interrogation”) to try and force information from suspects, or to punish them severely.74 Some of the cooperating states included Saudi Arabia, Egypt, and even Syria for a time.

72

73

74

See “Comment, Combatant Status Review Tribunals: Flawed Answers to the Wrong Question,” Yale Law Journal 116 (2006): 667ff. Anwukah, “The Effectiveness of International Law.” See especially the case of El-Masri v. Macedonia on the Open Society Justice Initiative website: www.justiceinitiative.org/ litigation/el-masri-v-macedonia accessed May 18, 2022, 10. This is also addressed in Chapter 5 of this text. See also Chapter 3. D. Luban and K. Newell, “Personality Disruption as Mental Torture: The CIA, Interrogational Abuse, and the U.S. Torture Act,” Georgetown Law Journal 108, No. 2 (2019): 333–388.

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Even more draconian was the authorization to kill suspects, even those with US citizenship, outside of the US begun by President George W. Bush right after 9/11. The evidence to justify such extra-judicial killing was supposed to meet a higher threshold, such as posing “a continuing and imminent threat” to US interests. The policy continued under President Obama. The US, like Israel, has also undertaken an escalation with the targeted killing of “high-value” non-US citizens to further its national-security interests. The most notorious example was the killing of General al-Soleimani by a US drone just outside the airport in Baghdad, Iraq in 2019 (who clearly was not “actively participating” in hostilities at that moment). In both explicit international law (UN Charter Article 2.4) and in customary international law, the assassination of official state actors by other states was forbidden and seldom breached. The strongest incentive not to engage in targeted assassinations was one of simple reciprocity – assassinating foreign leaders would open up a Pandora’s Box of likely assassination attempts against one’s own leaders.

4.3.2

Pushback to US-Led Changes

There has been a growing pushback in the international legal community, both within the US and abroad, to the attempts by post-9/11 US administrations to redefine international law for the purpose of greater convenience in prosecuting terrorists. Domestic US critics argue that conventions against torture, the protected status of detainees and POWs, and strictures against the use of rendition and targeted assassinations are all forbidden under the Due Process clause of the Constitution.75 Critics abroad argue that all of the foregoing protections are part of the Laws of War as jus cogens norms from which no nation can deviate (“nonderogable”).76 Non-US critics also tend to argue that the US has thwarted attempts to strengthen the relevant international law instruments by taking obstructionist and/or “chauvinistic” stances at international legal conferences, even during the Obama Administration.77 Some of this language could be understood as pushback against the near-hegemonic status of the US in world affairs, but these criticisms should not be dismissed out of hand. While most other states in the world were generous in allowing the US leeway in

75

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77

N. Chapman, “Due Process Abroad,” Northwestern University Law Review 112, No. 3 (2017): 377–452. J. Mendez, “How International Law Can Eradicate Torture: A Response to Cynics,” Southwestern Journal of International Law 22, No. 2 (2016): 247–268. A. Pellet, “Response to Koh and Buchwald’s Article: Don Quixote and Sancho Panza Tilt at Windmills,” The American Journal of International Law 109, No. 3 (2015): 557.

Thinking Ahead

prosecuting the “War on Terror” in the years immediately after 9/11, that goodwill has largely dried up. In any case, there must be both legal and time limits to claims made under international law authorizing extraordinary legal authority to prosecute individuals, groups and other states who may have had some responsibility for the 9/11 attacks.

Thinking Ahead In this chapter we have examined the essential elements of the international Laws of War and Laws of Armed Conflict (LOW and LOAC) and how they have evolved to meet the ever-greater existential threats posed by militarized states and groups in the world. We framed this examination by noting how the perception of legitimate use of force by states has changed dramatically in the last century, driven largely by the rise of public international organizations and their new doctrines on force, aggression, and collective security. In one sense these new strictures in international law have been wildly successful: until the Russian invasion of Ukraine, there had been a qualitative decline in the use of military force by states in their relations with each other. Perhaps the most important sets of rules to protect individuals mired in armed conflict that have emerged during this period are the Geneva Conventions. We noted the need for additions to the Geneva Conventions to deal with non-state actors who nonetheless wield a great deal of destructive force but who need legal protections when captured on the field of battle. Arms control is another essential element, especially of NBC weapons. Very recently, remotely controlled and AWS have added highly complex and difficult-to-regulate methods of delivering massive force; developments that international law is struggling to keep pace with. We have noted that force in and of itself is neither good nor bad, and force is sometimes necessary to bring about discipline and ensure compliance with other key areas of international law: protecting human rights and the environment, for example. The next chapters continue with three related areas in the expanded understanding of security: humanitarian intervention, international environmental law, and finally, international economic relations.

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Intervention and Human Security

Muammar Qhadafi had long been a thorn in the side of Western powers, even while he was a hero to others in the Arab liberation movement for standing up to many Western states and promoting Pan-Africanism through the African Union (AU). Over time, however, his behavior became increasingly erratic. In 1986, Libyan agents placed bombs at a discotheque in Germany, killing three, including two American soldiers, and wounding hundreds of people.1 In 1988, his agents planted a bomb on Pan Am Flight 103, which killed all 270 passengers onboard.2 Elections were a sham, clearly rigged to keep Qhadafi in power. By the early 2000s he claimed to have obtained some nuclear, biological, and chemical weapons, although there was scant evidence to back up that claim (he later agreed to dismantle this program in exchange for diplomatic recognition). His secret police were feared and responsible for forced disappearances and increasing human rights violations around the country against his political foes. By early 2011, a nascent rebellion movement sprung up in the east around the city of Benghazi. But no matter how vexing the leadership of another country, absent an explicit United Nations (UN) Security Council resolution, states, either acting alone or in concert with other states, cannot use force under international law to remove that leadership. On the other hand, the UN Security Council has increasingly authorized missions – either directly under UN auspices, or by others acting on the UN’s behalf – to undertake humanitarian interventions in states in which massive loss of life is occurring or is imminent. This is precisely what occurred in 2011 with the passage of UN Security Council Resolutions 1970 and 1973 (led by France and the United Kingdom (UK), but with abstentions by Russia and others). These resolutions declared an arms embargo and “no-fly” zones in the eastern part of Libya to prevent 1

2

“Berlin Bomb Trial Opens,” BBC World News (November 18, 1997) http://news.bbc.co.uk/2/ hi/32221.stm accessed May 19, 2022. A. Shamis, “Lockerbie: A Sour Pill for Libya,” BBC World News, January 28, 2002, http:// news.bbc.co.uk/2/hi/1786608.stm accessed May 19, 2022.

Intervention and Human Security

loss of civilian life. The greatest threat was from the Libyan government forces. Even the usually stand-offish Arab League voted in favor of armed intervention (without pledging any troops). However, there was no will at the UN to call up a peacekeeping force. The United States (US), still reeling from the 2008 recession and over-extended in Iraq and Afghanistan, was also reticent to become militarily involved, just as it had refrained from doing in Syria with a similar dictator. But the US Secretary of State, Hillary Clinton, made it her personal mission for the US to intervene in Libya. She and Susan Rice finally persuaded President Obama to work with the North Atlantic treaty Organization (NATO) in a “strictly limited way” to enforce the no-fly zones. Obama agreed, only if the US would then step back after the initial air campaign and let the other NATO countries (assisted by a few regional states) fulfill the mission.3 At first, the no-fly zone enforcement was a success and the US stepped back as promised. However, this enforcement did not stop Libyan forces from advancing on the ground against the rebel alliance in the east. That is when NATO commanders made the fateful decision to intervene on behalf of the rebels (saving many lives, no doubt) and directly attacked Libyan government forces, halting their advance. NATO claimed that the authorizing resolutions contained “no drive” (authorizing attacks against ground forces) as well as no-fly provisions.4 France even went as far as providing heavy armaments to the rebels, in apparent violation of Resolution 1970.5 The US and most European states also decided to quickly recognize a loose opposition coalition, the Transitional National Council (TNC) as the legitimate government of Libya deserving external support. Did those actions go beyond the UN Security Council’s mandate? If so, would it make those operations illegal or impermissible under international law? Many international law scholars think so. In practice, however, can one so easily separate the letter from the spirit of the law? Probably tens of thousands of lives were saved, but Libya remains in flux, even today. What would you have done if you were a head of state concerned about Libya, at the UN or a NATO commander? As we will see in this chapter, the decision of when, where, and how to intervene in the affairs of other states, even in pursuit of humanitarian goals, is extremely difficult, both in terms of international legal requirements and the logistics of the operations.

3 4 5

B. Obama, A Promised Land (New York: Crown, 2020). See especially Chs. 25 and 26. Ibid. J. Marcus, “French Arming of Libya’s Rebels Strategic,” BBC World News, June 29, 2011, www.bbc.com/news/world-africa-13966976 accessed May 19, 2022.

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Introduction As feminist scholar J. Ann Tickner noted, the term “security” should signify equally that the individual should be made secure as for the state to be so, since the state is comprised of individuals. Can the state truly be “secure” if significant numbers of its population are not? This idea has come to be known generally as “human security,” and it has been endorsed by the UN in the Millennium Development Goals and other documents since the mid1990s.6 The seven aspects of human security are: economic, food, health, environmental, personal, community, and political.7 Some scholars prefer the broader term “new security” because of their rejection of anthropomorphic (human-centered) notions of planetary security. This chapter is dedicated to the emerging idea in international law of “human security.” This is an area in which the traditional use of force by states intersects with the emphasis on individual rights, including the right to be secure in one’s person and one’s environment. Somewhat similar to international environmental law, however, this emerging area of international law is still somewhat “soft” and “hortatory,” and its future will depend on what value international elites and mass publics place on it going forward. What appears likely at this point is that the worldwide pandemic and resulting death toll (in the millions as of this writing) that began in 2019 has hastened this new framing of security. This chapter explores the potentially positive uses of force to address basic human needs under the new doctrine of human security in international law. The evolving structure and function of UN peacekeeping operations (UNPKO) is demonstrated through cases of specific missions. Next, the possibilities of the 2001 “Responsibility to Protect” doctrine are debated. International laws, cases, and regimes addressing the core constituent elements of human security are addressed in turn: health and personal security and environment and resource security.

1 Changing Norms of Intervention and the Use of Force The time has passed when states could legally intervene – unilaterally or multilaterally – in the affairs of other states with no pretext other than raison 6

7

Hanna S. Kassab, “Reconceptualizing Security Priorities of the Hemisphere,” in B. Bagley, J. Rosen, and H. Kassab, eds., Reconceptualizing Security in the Americas in the Twenty-First Century (Lanham, MD: Lexington Books, 2015), 25–42. UN Development Programme, “Human Development Report 1994” (New York, 1994), 24–25.

1 Changing Norms of Intervention and Use of Force

d’état (reasons of state). Also fading are overt threats coming from other recognized states utilizing readily identifiable state armed forces.8 Threats to international order are just as likely to come from small, well-armed groups, “super-empowered individuals” and increasingly from cyber-attacks. With principles such as stare decisis (respect for precedent), all legal systems, including international law, are fundamentally resistant to change. Change does occur, but it is often only observable over the long term, say in terms of centuries. Finnemore has traced the arc of changing rationales for armed state intervention into other states over the last two centuries in one of the clearest examples of how elite’s perceptions and dialogues (with each other and their electorates) have changed the underlying structure of international law on the use of force9 (Constructivist jurisprudence is the starting point here; please see Table 0.1). In the nineteenth century, for example, it was legally permissible (or at least not prohibited) for state(s) to militarily intervene in other states to collect a debt. Finnemore elaborates: Taking over customs houses and diverting revenues in order to pay creditors of the many weak, insolvent states that exist today is not obviously more difficult . . . now than it was in the nineteenth century, probably less so. Yet such an operation would be extremely costly, and, if proposed, would be rejected out of hand.10

But while Finnemore helps us understand long-term trends, these changes can come about quite rapidly once the foundation for change has begun. As we detail below, the period of rapid change in multilateral humanitarian intervention with an expanded concern for other facets of human security occurred once the artificial freeze of the Cold War on the international legal system was lifted. The changes, however, are tentative and not irreversible. Recall that both the League of Nations and the UN were (at least partially) founded on the novel idea of collective security. Such a security arrangement was favored by many international law practitioners as well because of both its supposed moral superiority to the old “balance of power” system and its practical ability to deter aggression. Any rogue state would face the combined might of all (or most) of the other states if they transgressed international law. In short, collective security would right a legal wrong with 8

9

10

Russia under Putin is the exception here, both for having invaded another state, Ukraine, and annexing part of its territory by force (Crimea), and for making overt threats. See A. Kramer et al., “Putin Says Nations That Threaten Russia’s Security Will ‘Regret Their Deeds,’” New York Times, April 21, 2021. M. Finnemore, The Purpose of Intervention: Changing Beliefs about the Use of Force (Ithaca, NY: Cornell University Press, 2003). Ibid., 17–18.

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much less bloodshed than the balance of power system – in theory, at least. However, for most of the twentieth century collective security failed; only in that century’s last decade did its promise seem to come to fruition in the effort to expel an aggressor state from another aggrieved state. That singular example follows.

1.1

Persian Gulf War

Iraq invaded Kuwait in 1991. The UN’s expressed objective was to defeat Iraq, restore the sovereignty and independence of Kuwait, and then contain it with sufficient force to eliminate its potential for further threats to international peace. The Council thus resolved as follows: Acting under Articles 39 and 40 . . . Demands that Iraq withdraw immediately and unconditionally all its forces . . . Acting under Chapter VII of the Charter [commencing with Art. 39] . . . Decides as a consequence, to take the following measures to secure compliance of Iraq . . . and to restore the authority of the legitimate Government of Kuwait . . . Decides that all States shall prevent: (a) The import into their territories of all commodities and products originating in Iraq or Kuwait exported therefrom after the date of the present resolution; . . . [and other measures designed to boycott Iraq].11

UN Security Council Resolution 687 was a milestone in UN history. This ceasefire resolution, among the many issued by the Council during and after the cessation of hostilities,12 was a major break from the Council’s past assertions of power. One reason was Resolution 687’s breadth; another was its purported control over future state behavior. The Council ordered unprecedented and unparalleled controls in terms of observing international border delimitations, non-use of chemical and nuclear weapons, sanctions, and required war reparations. Resolution 687 provides the foremost statement of conditions ever made by the UN Security Council because of their comprehensive nature and their purported control of future action by Iraq and all members of the international community. The Cold War veto power, held by the five permanent members (P5) of the UN Security Council, precluded a similar resolution in prior conflicts. This resolution signaled a rare moment, a zenith in the

11

12

UN Doc. S/RES/660 (August 2, 1990) and UN Doc. S/RES/661 (August 6, 1990), available at: https://digitallibrary.un.org/record/94221?ln=en accessed May 19, 2022. A detailed account of the relevant UN “Kuwait” resolutions, and supporting national materials, is available in W. Weller, ed., Iraq and Kuwait: The Hostilities and Their Aftermath (Cambridge: Grotius, 1993).

1 Changing Norms of Intervention and Use of Force

willingness of the Council to implement its Charter task of maintaining global peace and security. Adherence to this resolution was not as forthcoming as expected. Iraq chose to restrict UN agents from conducting inspections of its war-making potential. Iraq even seized certain agents during their UN-sanctioned visits. Despite such problems with implementation, this resolution heralded what would appear to be the effective return of the UN Security Council from its Cold War hiatus. Prior exercises of the Council’s powers under Chapter VII of the UN Charter were hampered by political expediency to take a more restrained approach in authorizing the use of force to maintain peace. But Resolution 687 authorized “all necessary means” to force Iraq’s withdrawal from Kuwait in addition to imposing a post-cessation of hostilities regime. Before Resolution 687, the Council had previously authorized forcible sanctions only after less severe ones failed to work. However, its activism in this instance indicated that the Charter could also be a flexible document in terms of the Council’s scope of authority to carry out its mandate to control threats to international peace. Scheffer commented on this broader use of UN Security Council Resolution 687: [t]he Iraq-Kuwait crisis served to remind us that the Charter is a flexible document that can be interpreted as such. Narrow, rigid interpretation of the Charter by UN enthusiasts may have the unintended result of creating unnecessary obstacles to the effective implementation of critical Charter provisions. For example, there was some discussion during the early months of the Iraq-Kuwait crisis that trade sanctions must be proven to have failed before the Security Council could authorize use of force under Article 42 of the Charter. However, the text of Article 42 offers more latitude. . . . The Security Council could make a determination at any time that trade sanctions “would be inadequate” [under Article 41] and move on to Article 42 and the use of force.13

Scheffer’s argument thus favored a liberal Charter interpretation. For analysts like Scheffer, this was a triumph. For others, it ushered in a worrisome new phase of UN activism that served the interests of its most powerful members.

1.2

Post-Cold War Initiative

Resolution 687 was an example of a larger development. The Council’s Gulf War activism triggered divergent perceptions: on the one hand, the UN was 13

D. Scheffer, “Commentary on Collective Security,” in F. Damrosch and D. Scheffer, eds., Law and Force in the New International Order (Boulder, CO: Westview Press, 1991), 101, 103–104.

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casting off the fetters of the Cold War; on the other, states were worried that they could be the next object of powerful-member hegemony. Many lessdeveloped countries perceived the Persian Gulf War and the Council’s related activism as justifying a new form of control by the post-Cold War dominant Western states. This concern is aptly articulated by Matsui: [T]here spreads a wide suspicion, especially among the . . . developing countries, that this United Nations activism may be a Great Power hegemony in disguise, since they are the only possible targets of this activism. This suspicion seems to be reinforced by the fact that almost all the resolutions . . . have not specified the concrete article of the Charter as their basis [for Council actions against Iraq]. This ambiguous constitutionality . . . is not a happy one for the United Nations activism, and Member States have legitimate interests to see that the Security Council acts within the framework of the Charter which they have accepted.14

Reinforcing Matsui’s concern, in neither the Iraqi action nor other conflict resolution activities authorized under the UN Charter, has any state chosen to provide the standing military forces called for in Article 43 of the Charter. Instead, what remains is an ad hoc approach, whereby each state must consent to provide supporting military forces on an incident-by-incident basis. This reinforces the view that Western powers wish to be able to veto any UN use of force – for whatever reason – that might be taken against themselves and approve UN missions only outside of their “sphere of influence” in the developing world. Prior to the Gulf War, the standoff between the P5 UN Security Council members during the Cold War period bred a restrictive application of the Charter’s Chapter VII. These tensions made it difficult for the UN Security Council to take an activist role in maintaining international peace. With near unanimous opposition to Iraq’s invasion of Kuwait, however, the Council was willing to employ more ambitious applications of its Charter VII powers – with less concern about encroaching upon the Article 2(7) qualifier. This atmosphere set the stage for potential UN Security Council intervention in Yugoslavia (humanitarian aid), Somalia (where force was used first by UN troops), Rwanda (humanitarian relief ), and the UN administration of troubled areas such as East Timor and Kosovo (peacekeeping).

1.3

Bosnia-Herzegovina

The UN Security Council’s activism abated temporarily as events were unfolding in the former Yugoslavia. Several sub-state national groups voted 14

Y. Matsui, “The Gulf War and the United Nations Security Council,” in R. MacDonald, ed., Essays in Honour of Wang Tieya (Dordrecht: Martinus Nijhoff, 1994), 511.

1 Changing Norms of Intervention and Use of Force

for independence and were recognized by the international community. Throughout the 1991–2000 period when the UN reacted to various events in the former Yugoslavia, the legal basis for UN Security Council action was by no means obvious. One reason was that the UN’s role in the deployment of its peacekeeping force (UNPROFOR) gradually assumed enforcement characteristics. As characterized by Schweigman: The Council generally refrained from specifying the exact legal basis for its actions. In most cases the Council merely stated that it “was acting under Chapter VII of the Charter,” after a prior determination that a threat to peace and security existed. . . . The deployment of UNPROFOR against the will of the states concerned, however, raises the interpretive issues as to the legal basis for UNPROFOR’s continued presence in Yugoslavia.15

The Bosnian Serbs, aided by the Serbs under Milosevic in the rump state of Yugoslavia,16 perpetrated a full-scale war, marked by the brutal infliction of extreme violations of humanitarian norms on Bosnia’s Muslim and Croatian civilian population. Bosnian Serbs mistreated those in detention, ignored the basic international safeguards intended to protect civilians and medical facilities, and perpetrated a policy of “ethnic cleansing,” resulting in the disappearance or uprooting of hundreds of thousands of refugees based on their ethnicity and religion. Unlike the Council’s activism during the Persian Gulf War, there was a waning optimism about the UN Security Council’s continued role in actively maintaining peace in the Bosnian theater. The major powers engaged in a form of political “hot potato” regarding who should take charge of the international response to the Bosnia crisis. The eventual assumption of responsibility in Bosnia by NATO proved to be decisive. The NATO-based ultimatum that Serb weapons be withdrawn from UN-designated safe havens was the most effective tool for shifting political and military responsibility. NATO was simultaneously courting Russian membership while the UN was hoping for a face-saving device in the aftermath of Serb defiance of various UN directives. The UN would thereby exercise some degree of control, via its plan to give NATO authority to order

15

16

D. Schweigman, “Former Yugoslavia 1991–2000,” para. 3.6, in D. Schweigman, ed., The Authority of the Security Council under Chapter VII of the UN Charter: Legal Limits and the Role of the International Court of Justice (The Hague: Kluwer, 2001), 111. The “rump” state was the much smaller geographical entity still claiming the title “Yugoslavia” even after many of the former regions (Croatia, Slovenia, BosniaHerzegovina, and Kosovo) had effectively seceded from it. The UN refused to recognize the Serbian-controlled area as the state of Yugoslavia.

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air strikes as needed to control Serbian nationalism. Serbian forces withdrew and the bloodshed in Bosnia was abated.

1.4

Kosovo Administration

The high-water mark for multilateral approaches to security came in 1999 when the UN Security Council employed an unheralded degree of activism. When NATO’s Kosovo airstrikes stopped in June 1999, the Security Council immediately adopted Resolution 1244. It created a transitional civil administration in Kosovo, known as the UN Interim Administration Mission in Kosovo, or UNMIK. This would be only the second time that the UN ever governed sovereign territory, the first instance of which was in East Timor.17 Relying on several prior resolutions, promulgated pursuant to its Chapter VII powers, the Council thus established a framework for nation building.18 This cooperative venture had the following characteristics: (1) the UN headed the civil administration (all essential government functions) of Kosovo from 1999 until shortly after independence in 2008; (2) NATO provided military security; (3) the European Union (EU) was responsible for Kosovo’s physical reconstruction as well as providing administrative oversight after Kosovo’s independence; and (4) the Organization for Security and Co-operation in Europe was in charge of institution-building and democratization (along with the UN High Commission for Refugees’ humanitarian mission, which has since dissolved).19 While this blueprint is extraordinary in terms of nation building in the aftermath of long-term ethnic hostilities, the UN’s effort to rebuild the judicial system has experienced challenges to its credibility and legitimacy. It did not incorporate resources from the local population. A summary recommendation was provided by those with direct personal experience: “A number of the problems experienced by the international community could be avoided in future situations by using a more developed, phased approach, which ultimately allows for full participation by the local population, but in the short-term relies on international standards and expertise.”20 17

18

19 20

See N. Azimi and Chang Li Lin, The United Nations Transitional Administration in East Timor (Leiden: Martinus Nijhoff, 2003). See “Symposium: State Reconstruction after Civil Conflict: M. Matheson, United Nations Governance of Postconflict Societies,” American Journal of International Law 95 (2001): 76; H. Strohmeyer, “Collapse and Reconstruction of a Judicial System: The United Nations Missions in Kosovo and East Timor,” American Journal of International Law 95 (2001): 46. UNSC Res. 1244, UN SCOR, 54th Sess., 4011th mtg., UN Doc. S/RES/1244 (1999). W. Betts, S. Carlson, and G. Gisvold, “The Post-Conflict Transitional Administration of Kosovo and the Lessons-Learned in Efforts to Establish a Judiciary and Rule of Law,”

1 Changing Norms of Intervention and Use of Force

More broadly, UNMIK has been assessed in radically different ways. For some analysts, Kosovo was a tantalizing glimpse of how the international community could undertake humanitarian intervention and restore “wartorn” states in a legitimate (i.e., multilateral and humanitarian) way, unlike the old colonial period. For others, however, it represented dangerous interference in the affairs of other states, and a violation of Article 2.7 of the UN Charter. Still others have objected on “procedural and operational grounds.”21 The repeated pushback by the governments of Russia and China, two P5 members on the UN Security Council, against similar proposals in Syria and elsewhere probably sounds the death knell for such Security Council activism, at least for now. The experience in Kosovo was specifically cited by the Russian Federation to justify its takeover and occupation of the Crimean region from the state of Ukraine, although most observers found this logic to be self-serving and strained at best (see Chapter 4). As a practical matter, UNMIK could be adjudged a success, in terms of reestablishing peace and security, and laying the groundwork for an independent state, both economically and politically. The UN itself rated the mission there as “partially satisfactory.”22 As Walzer notes, the likelihood of success is an important (but not the only) rationale for justifying humanitarian intervention.23 As a legal matter, there were numerous deficiencies that would need to be addressed for any future international organizationadministered nation-building exercise.24 Although Kosovo declared independent statehood in 2008 and has been recognized by a “sufficient number”

21

22

23

24

Michigan Journal of International Law 22 (2001): 371, 372–373. See generally H. Krieger, The Kosovo Conflict and International Law: An Analytical Documentation 1974–1999 (Cambridge: Cambridge University Press, 2001). There is an extensive literature here. For a summary, see G. von Glahn and J. Taulbee, Law Among Nations, 11th ed. (New York: Routledge, 2017), 537–539. UN Office of Internal Oversight Services, “Audit of the United Nations Interim Administration in Kosovo – Report 2016/029” (New York, 2016). According to this report, “[a] rating of partially satisfactory means that important (but not critical or pervasive) deficiencies exist in governance, risk management or control processes, such that reasonable assurances may be at risk regarding the achievement of control and/or business objectives under review” (p. 2, n.1.). M. Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations, 1st ed. (New York: Basic Books, 1977). For a highly critical legal analysis of UN Security Council activism in humanitarian missions in general, and Kosovo in particular, see A. Orakhelashvili, Akehurst’s Modern Introduction to International Law, 8th ed. (London and New York: Routledge, 2019), especially 468–470.

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of other states since (about 108),25 relations between Kosovo and Serbia remain fraught, with Serbia refusing to recognize Kosovo’s legal independence.26

2 UN Peacekeeping Operations (UNPKO) The multilateral use of force designed to keep international peace and promote stability was pioneered by the UN, and that organization’s efforts have been a focus of worldwide attention since its inception.

2.1

Evolution of UNPKO

The UN’s first peacekeeping mission was the 1948 UN Truce Supervision Organization (UNTSO). UNTSO is still carrying out its mission with observers, who remain in the Middle East to monitor ceasefires, supervise armistice agreements, and attempt to prevent escalation of the conflict. The UN actually conducted a number of other “peacekeeping” operations before the 1956 Suez Canal Crisis, which was the first operation to officially use that moniker. It took the creativity of the UN Secretary-General at the time, Dag Hammarskjöld, as well as UN General Assembly president Lester Pearson, to find a “loophole” in the UN Charter in order to call up a UN Emergency Force (UNEF) in response to the East-West stalemate in the UN Security Council and to designate the resulting multinational armed group as a peacekeeping force. The authorizing mechanism remains the same to this day.27 Since then, approximately 1 million troops operating under the UN peacekeeping banner have been deployed in many regions of the globe.28

25

26

27

28

T. Carney, “What Zeman’s Comments Mean in Kosovo’s Quest for International Recognition,” Opinio Juris (blog), 2019, http://opiniojuris.org/2019/11/21/what-zemanscomments-mean-in-kosovos-quest-for-international-recognition/ accessed May 19, 2022. UN Security Council, “Antagonistic Gestures, Accusations Prevailing over Efforts to Resume Kosovo Talks, Special Representative Tells Security Council,” UN Meetings Coverage and Press Releaases, February 7, 2019, www.un.org/press/en/2019/sc13693.doc.htm accessed May 19, 2022. C. Bildt, “Dag Hammarskjöld and United Nations Peacekeeping,” UN Chronicle (UN) www .un.org/en/chronicle/article/dag-hammarskjold-and-united-nations-peacekeeping accessed April 8, 2021. The United Nations, “United Nations Peacekeeping Operations, Special Political Missions and Other Political Presences,” UN Missions, 2021, www.unmissions.org/ accessed May 19, 2022.

2 UN Peacekeeping Operations (UNPKO)

2.1.1

Limitations

From the outset, there were problems with the laudatory objective of the UN as keeper of the peace. No effective armed force under UN command and control ever materialized, as arguably contemplated by some participants in the drafting of Article 43 of the Charter. The Cold War blocked effective peacemaking. Contemporary UN peacekeeping problems include inadequate funding, insufficient national resolve to continue participation, and the severely limiting US guidelines promulgated by Presidents Clinton and G. W. Bush. Related to these limitations is the composition of UNPKOs: they are heavily composed of troops and other personnel from countries of the developing world. Developed, wealthy, and Western states have been very reluctant to place their military and civilians directly under the command of the UN, which lessens both the status of these forces, and the funding and training support for them. Member states’ unwillingness to cede the requisite degree of state sovereignty to the UN is the basic limiting factor. The Charter was drafted with a view toward ensuring that the UN would not become a form of world government possessing the preeminence to override national sovereignty. Therefore, Article 2.7 of the Charter retained the primacy of state sovereign power, in the following terms: “Nothing contained in the present Charter shall authorize the United Nations to intervene in matters [that] are essentially within the domestic jurisdiction of any state . . . .” This constitutional limitation historically precluded the organization from operating in any theater absent consent of the state, giving rise to the perennial UN role as “peacekeeper” rather than “peacemaker.”29 The UN learned this lesson in the expansion of its “Operation Restore Hope” in Somalia in 1991. In practice, a peacekeeping invitation had always been understood to mean that the UN troops would take on a somewhat passive role. In Somalia, this meant the primary duty was to assist in the delivery of food aid to address mass starvation in that country at that time. In that role the mission was a huge success, saving some 400,000 lives. Militarily, the UN “Blue Helmets” were to serve as neutral troops, acting only as a buffer between hostile forces, only after a hostility-ending agreement with all sides. In a classic illustration of “mission creep,” however, UN troops in Somalia seized arms and conducted raids in search of Somalian warlord Mohmed Farrah Aidid. This activity violated the accepted practice that a UNPKO would not act in ways not authorized under its strict UN Security

29

See G. Garvey, “United Nations Peacekeeping and Host State Consent,” American Journal of International Law 64 (1984): 642.

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Council mandates. This was one of the primary reasons that President Clinton put severe restrictions on new US participation in future UNPKOs. Another preliminary handicap limited the UN’s peacekeeping potential, and that is the tension within the UN Charter itself regarding the use of armed force by the UN. Article 43 was inserted into the UN Charter as an open-ended provision that was, in effect, only an agreement to negotiate about a UN force. The Charter did not specify the intended composition of a UN force. The members opted not to furnish the putative “armed forces.” There would never be a standing military force. The Council was not destined to have an immediately available, and thus rapidly deployable, military subdivision at its disposal when hostilities arose. However, Article 43 notwithstanding, Article 47 spells out in considerable detail a Military Staff Committee, which would assist the UN Security Council in developing “military requirements for the maintenance of international peace and security, the employment and command of forces placed at its disposal, the regulation of armaments, and possible disarmament.”30 Thus, despite the contradictions and elisions over the use of force within the Charter, the general lack of specificity allowed the national representatives to quickly conclude the drafting of that foundational document. Unfortunately, it also vitiated the UN Security Council’s power to effectively maintain peace since it had no standing army, or even an ad hoc rapid reaction force available for potential police actions to deal with threats to international peace as they arose, when there is arguably a limited window of opportunity to prevent dangerous escalation.31

2.1.2

Uniting for Peace Resolution

Frustration with the Security Council’s inaction led the UN General Assembly to adopt the 1950 Uniting for Peace (UFP) Resolution. With the UN Security Council effectively precluded from controlling hostilities – because of the veto power of any one of the five permanent members – the UN General Assembly decided to fashion its own method for taking action independently of the Council, mentioned nowhere in the Charter. The Assembly’s UFP resolution was designed to remedy the potential failure of the UN Security Council to discharge its responsibilities to maintain peace and security on behalf of the General Assembly’s numerous member 30

31

The United Nations, Charter of the United Nations and Statute of the International Court of Justice (San Francisco, 1945), 10. A succinct, authoritative account of the UN Charter drafting process, including Article 43, is available in B. Simma, ed., The Charter of the United Nations: A Commentary, 2nd ed. (Oxford: Oxford University Press, 2002), 636.

2 UN Peacekeeping Operations (UNPKO)

states. The resolution’s supporters devised a strategy, outside the explicit language of the Charter, purporting to authorize the General Assembly to initiate measures to restore peace – including the use of armed force. This resolution was rarely employed by the UN General Assembly in practice, but it was nevertheless important to the future of UNPKO. The League of Nations had failed to prevent the outbreak of World War II. The promoters of this resolution did not want history to repeat itself. If the UN Security Council was unsuccessful in exercising its “primary” responsibility to maintain peace because of permanent-member vetoes, then the General Assembly must assist in the achievement of the fundamental objectives of the organization. This resolution effectively amended the UN Charter’s Security Council provisions by augmenting the organizational source for dispatching peacekeeping forces. The UFP Resolution was the basis for the first formal UN peacekeeping operation: the 1956 Suez Canal Crisis. The president of Egypt nationalized the Suez Canal, one of the major transnational shipping points of the world and threatened to close it to international shipping. Its closure would require additional time and great cost to circumnavigate continents to deliver goods and troops. Control of the canal could also affect the price of transporting Middle Eastern oil to the rest of the world. The significant economic and military threats posed by Egypt’s control of the Suez Canal concerned the entire international community. Great Britain, France, and Israel secretly decided that Israel would attack Egypt. Great Britain and France would rely on that attack as the basis for their own police action. After the Israeli attack, Great Britain and France then vetoed a UN Security Council resolution calling on Israel and Egypt to cease their hostilities. These vetoes by permanent members of the Council temporarily precluded the establishment of a UN peacekeeping force. Great Britain, France, and Israel thus presumed that they could protect their own interests in the canal without any UN interference.32 However, to much of the rest of the world, when the secret collusion between Israel, the UK, and France was revealed, it looked to them like a neo-colonial invasion, not a true multinational police action. The UNEF was established in 1956. The General Assembly invoked the UFP Resolution to enable it to act after the UN Security Council was stalemated by the British and French vetoes. A 5,000-troop force was drawn from states that were not members of the UN Security Council. They were deployed to Egypt to serve as a buffer between Egypt and its British, French, and Israeli adversaries. In 32

A detailed account is provided in D. Neff, Warriors at Suez (New York: Simon & Schuster, 1981).

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1967, at the request of Egypt, the UN Secretary-General took the controversial step of withdrawing this force at the time of the Six-Day War between Israel and its Arab neighbors. This suspended the UNEF operation until 1973, when it was revived to keep peace and order in the Sinai Desert and Gaza Strip. This time, the UN Security Council exercised its Charter powers to establish the next of many Council operations in that theater. In 1965, the president of the UN General Assembly established a Special Committee on Peacekeeping Operations, consisting initially of thirty-three states. In 1992, Secretary-General Boutros Boutros-Ghali established the Department of Peacekeeping Operations (DPO) under the auspices of the Secretariat and headed by the Under-Secretary-General for Peacekeeping Operations.33 The scope of these operations has dramatically increased over time, particularly during the period after the Cold War. In 1992, the number of UN peacekeeping forces quadrupled from 11,000 to 44,000. By 2021, there were about 90,000 UN peacekeepers in twelve operations.34 The recent high-water mark was 2008, when there were 110,000 peacekeepers in the field. US combat troops were assigned as UN peacekeepers for the first time in UN history when they were sent to Macedonia to aid in containing the Bosnian conflict so that it would not spill over into bordering states. There is not adequate space here to survey every UNPKO. See Table 9.1 or the UN website for a complete list of current peacekeeping and political missions with helpful links for each.35 As Table 9.1 makes clear, the range of UN intervention is vast and includes “preventive diplomacy” and “political” missions as well as traditional lightly armed UNPKOs. As exemplars, we highlight two historical (and completed) UNPKOs below: El Salvador and Cambodia. The cases of El Salvador and Cambodia represented long-running and complex internal conflicts, resulting in a high toll of deaths and injuries over time. They were also conflicts that were embedded in larger regional and even global struggles, and thus presented some of the most difficult situations for international law and armed intervention.

33

34 35

The United Nations, “United Nations Peacekeeping,” UN Peacekeeping, 2021, https:// peacekeeping.un.org/en accessed May 19, 2022. Click on “About Us” for a history of UN peacekeeping operations. Ibid. The United Nations, “United Nations Peacekeeping Operations, Special Political Missions and Other Political Presences,” UN Missions, 2021, www.unmissions.org/ accessed May 19, 2022.

2 UN Peacekeeping Operations (UNPKO)

509

Table 9.1. Selected UN peacekeeping and political missions Name of Mission (location)

Effective Dates

Mandate

MINURSO (Western Sahara)

1991– present

Monitor the ceasefire between the government of Morocco and the Frente Polisario; administer a referendum on independence or integration of the region into Morocco; monitor landmines

MINUSCA (Central African Republic)

2014– present

Protect civilians; promote implementation of the Peace Agreement; disarmament, demobilization, and reintegration (DDR) of armed groups

MONUSCO (Democratic Republic of Congo, DRC)

2010– present

Assist the government of the DRC in stabilization operations and protecting civilian human rights; DDR of armed groups

UNDOF (The Golan Heights)

1974– present

Supervise disengagement of Syrian and Israeli forces in the Golan Heights; maintain the ceasefire

UNFICYP (Cyprus)

1964– present

Maintain a buffer between Greek and Turkish Cypriot forces; enforce the ceasefire; assist in humanitarian operations

UNIFIL (Lebanon)

1978

Monitor cease fires; assist the Lebanese army in the south of the state; humanitarian support; safe return of internally displaced persons (IDPs)

UNISFA (Sudan-Abyei region)

2011– present

Authorized to use force to protect civilians and patrol ceasefire area between Sudan and South Sudan

UNMIK (Kosovo)

1999– present

Initially near total governmental control over the territory; since independence (declared) in 2008 shifted to the promotion of democracy, stability and human rights

UNMISS (South Sudan)

2011– present

Initially to help South Sudan assume statehood in 2011; now civilian protection, humanitarian aid and implementing ceasefire agreement

UNMOGIP (India and Pakistan)

1949– present

Continue to monitor the disputed states of Kashmir and Jammu between the two states of India and Pakistan

UNTSO (Israel and Lebanon)

1948– present

First UNPKO; monitors ceasefires; reports new conflicts; use experience to assist other UNPKOs.

UNSOS (Somalia)

2009– present

First time UNPKO was tasked with supporting another international organization’s mission, specifically the AU’s mission to support the Somalia Security Forces

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Table 9.1. (cont.) Name of Mission (location)

Effective Dates

Mandate

UNOCA (Central Africa)

2011– present

Coordination with other international governmental organizations (IGOs) in the region, including Economic Community of Central African States (ECCAS), in promotion stability and economics; support other UNPKO efforts

UNSMIL (Libya)

2011– present

Assist with transitional government; arms reduction; supporting human rights, mine clearing, DDR, women’s empowerment.

UNSOM (Somalia)

2013– present

Support the federal government of Somalia to promote human rights, prevent gender violence and strengthen the judiciary; provide policy advice on peacekeeping.

UNITAMS (Sudan)

2020– present

Special transitional mission to assist new government with peacekeeping and transition to democracy

UNOWAS (Sahel/subSaharan region of western Africa)

2013– present

A political, not peacekeeping, mission using preventive diplomacy and mediation to facilitate peace and democratization in the region

UN Verification (Colombia)

2017– present

Verifies and monitors implementation of the peace agreement between the government of Colombia and the FARC-EP

BINUH (Haiti)

2019– present

Promote long-term development, democratization and stability, including human rights protection and judicial reform

UNAMA (Afghanistan)

2002– present

A political mission that supports the government of Afghanistan in DDR, human rights, anti-corruption and regional cooperation

UNRCCA (Central Asia)

2007– present

Political mission focused on preventive diplomacy to prevent regional conflict, drug trafficking and environmental degradation

UNAMI (Iraq)

2020– present

Promote democratization, economic reform, legal reform and good governance in Iraq; aid distribution; help IDPs

UNSCOL (Lebanon)

2007– present

Political mission to reduce conflict and promote development in southern Lebanon

UNMHA (Yemen)

2018– present

Support ceasefire and implement the Stockholm Agreement between the government and Houthis

2 UN Peacekeeping Operations (UNPKO)

2.1.3

El Salvador, 1991–1995

The UNPKO in El Salvador came toward the end of an extended civil war that had begun almost a decade earlier and had involved frequent skirmishes between government armed forces and irregular rightist militias (known as “death squads”) on the one side, and guerrilla36 fighters allied under the FMLN (Farabundo Martí National Liberation Front) on the other. Civilians were caught in the middle and many were killed, in addition to the fighters. There were notorious episodes such as the massacre of an entire village, known as El Mozote, and the killing of nuns and even the Archbishop while he prayed in church by forces allied with the government. Kidnapping, extortion, and bribery were also used by the FMLN. In addition, this conflict occurred within the larger context of the Cold War struggle between the US and the USSR for “spheres of influence” dominance of the region, so funding was supplied (both overtly and covertly) by both superpowers to each side, extending the conflict and increasing the bloodletting. After about a decade of conflict, the Security Council established the UN Observer Mission in El Salvador (ONUSAL) under UN Security Council Resolution 696 (1991) in May of that year. The authorizing resolution stipulated extensive reforms within the government, the armed forces, the police and the judiciary, as well as the creation of development programs like the Land Tenure and Reintegration Program (PTT). Under economic and social issues, it monitored human rights compliance, tackled the difficult question of land redistribution and reform and support for disabled persons and the agricultural sector. Under ONUSAL auspices, a peace agreement was signed between the FMLN and the government in 1992 formally ending the conflict, and a democratic election was successfully held in 1994.37 Later, the Truth and Reconciliation Commission’s work was key in promoting accountability and a sense of justice for those who had suffered at the hands of armed forces, both those of the government and FMLN. The ONUSAL was later held up as a model for resolving the Colombian conflict. Politics were stabilized and a burst of economic activity followed the completion of this mission. However, long-standing patterns of resource insecurity (below) dating back to El Salvador’s status as a “backwater” in the Spanish colonial system and patterns of organized crime in Central America mean that significant challenges remain in that state and region.38 36

37

38

Guerrilla fighters are non-state soldiers engaged in small-scale/low intensity conflict. The term comes from Spanish for “little war.” See Chapter 8 for more details. UN Archives and Records Section, “Summary of AG-043 United Nations Observer Mission in El Salvador (ONUSAL) (1991–1995)” (New York, 2006). A. Bustamente, “Development and Inequality in the Americas,” in B. Bagley, J. Rosen, and H. Kassab, eds., Reconceptualizing Security in the Americas in the Twenty-First Century (Lanham, MD: Lexington Books, 2015), 235–250.

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2.1.4

Cambodia, 1991–1993

Many of the same elements as in the El Salvador case were present in Cambodia. Internal schisms were exacerbated by the intervention – both overt and covert – of the superpowers, in addition to neighboring China and Vietnam. The level of bloodletting was even higher than El Salvador, however, because of the Marxist-inspired fervor of the Khmer Rouge regime that came to power with the withdrawal in 1975 of the US from Vietnam. Following the ideology to “turn society upside down” and to re-make it into a Communist utopia from the bottom up, the Khmer Rouge instituted a system of prison camps, forced labor, torture, and murder that was made famous by the movie, The Killing Fields. As Perkins and Cronley note, “an estimated two million Cambodians were killed, tortured, or starved to death.”39 Complicating matters further, after the 1979 invasion by Vietnam there were now four factions struggling to control the country. After a long indecisive struggle, in 1992 the UN was invited in and set up a UNPKO known as UNTAC (UN Transitional Authority in Cambodia), whose peacekeeping mandate went far beyond the usual.40 UNTAC was assigned a prominent role in government (along with a unique power-sharing arrangement known as the Supreme National Council, or SNC, headed by King Sihanouk) and tasked with setting up and administering the first democratic elections in the country’s history in 1993. The election was successful, and UNTAC remained in country afterwards to help stand up necessary governing institutions in a successful example of “nation building.” When its mandate expired, UNTAC withdrew on schedule. Although challenges remained in Cambodia, UNTAC is usually held up as a model for successful multilateral humanitarian intervention.41 In separate legal action, two of the most notorious of the Khmer Rouge officials, Khieu Samphan (its ideological architect) and Nuon Chea, were convicted in 2018 of genocide, crimes against humanity, and breaches of the Geneva Conventions.42

2.1.5

Post-Millennium Evolution

At the turn of the twenty-first century, world leaders made a commitment to act upon the UN’s Millennium Declaration that resolved “[t]o make the United Nations, more effective in maintaining peace and security, by giving it the

39

40

41 42

E. Perkins and C. Cronley, Mr. Ambassador: Warrior for Peace, 1st ed. (Norman, OK: University of Oklahoma Press, 2006), 491. UN Security Council, “Final Act of the Paris Conference on Cambodia – Report A/46/608” (New York, 1991). Perkins and Cronley, Mr. Ambassador: Warrior for Peace, 493. Von Glahn and Taulbee, Law Among Nations, 659.

2 UN Peacekeeping Operations (UNPKO)

resources and tools it needs for conflict prevention, peaceful resolution of disputes, peacekeeping, post-conflict peace building, and reconstruction. In this context, we take note of the Report of the Panel on United Nations Peace Operations and request the General Assembly to consider its recommendations expeditiously.”43 The UN’s December 2004 High-level Panel Report reconfirmed this commitment. It further noted that the “developed States have particular responsibilities here, and [they] should do more to transform their existing force capacities into suitable contingents for peace operations.”44 As of June 2021, the UN’s overall annual budget was about $11 billion, of which $6.58 billion was for peacekeeping.45 That is about the same size as it was ten years ago, but roughly double the size of thirty years prior, as the UN Security Council was about to break out of its veto-laden history that had precluded it from such progressive activities. UNPKOs are likely to come under severe strain in the aftermath of the COVID-19 global pandemic when, as a result of a global recession and loss of populations, resources will be diverted elsewhere while the need for stability operations will be more pressing than ever before.46 In an effort to offer a more effective and timely response to crises with legitimate use of multilateral force, Secretary-General Kofi Annan offered this March 2006 proposal: the UN should have at its disposal a 2,500member Rapid Reaction Team. That force would be the modern but greatly downsized equivalent of the UN Charter Article 43 standing army, which never materialized (above). However, while such forces may exist on paper, they have never been utilized. A similar proposal by the Scandinavian countries for a “Standby High Readiness Brigade” (SHiRBRIG) did exist for a while (see Table 9.2), providing planning and logistical support to peacekeeping forces. It claimed to be able to muster up to 80,000 highly trained troops when needed, but this proposed military force also has never been deployed.47

43

44

45

46

47

UN Millennium Declaration, A/55/L.2 (September 6, 2000) issued by the Heads of State Summit at the UN, New York. UN Secretariat, Report of the UN High-level Panel on Threats, Challenges and Change – A More Secure World: Our Shared Responsibility (December 2, 2004). United Nations, “United Nations Peacekeeping,” https://peacekeeping.un.org/en accessed May 19, 2022. C. De Coning, “COVID-19 Will Change the Way That UN Conducts Peacekeeping Operations in the Future,” Norwegian Institute of International Affairs, May 8, 2020. J. Koops and A. Novosseloff, “United Nations Rapid Reaction Mechanisms: Toward a Global Force on Standby?,” Contemporary Security Policy 38, No. 3 (2017): 427–442.

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Table 9.2. Selected non-UN peacekeeping missions Name of Mission (location)

Dates

Mandate

Inter-Arab Deterrent Force (Lebanon)

1976

30,000-force mustered by the Arab League to enforce the Christian-Muslim peace agreement after the civil war.

British Commonwealth Force (Rhodesia-Zimbabwe)

1979

5,000-force composed of soldiers from five Commonwealth states enforced a ceasefire agreement between the guerrillas and the government.

West African Community (WAC) Force (Liberia)

1990

Five-state force from the WAC found and seized the leader of the rebel movement in Liberia.

OAS Observer Force

1993

Observed and reported on effects of coup that deposed Haiti’s first democratically elected leader.

ECOMOG (Sierra Leone)

1997–1999

UN Security Council-authorized mission created a “Military Observer Group” created by the Economic Community of West African States (ECOWAS) to maintain order in Sierra Leone’s civil war; had between 7,000–20,000 peacekeeping troops.

European Defense Force (Kosovo and Macedonia)

1999–2001

A NATO-created force sent to provide security in these areas breaking away from the former Yugoslavia.

International Stabilization Force (Afghanistan)

2001–2021

Force first composed of troops from fifteen states to provide stability in post-Taliban Afghanistan; later replaced by NATO and US Coalition forces (2003).

AU Force (Burundi)

2003

Provided stability operations in country in first AU peacekeeping force (AUPKO) until replaced by UNPKO in 2004.

EUFOR (Bosnia)

2004– present

An EU peacekeeping force tasked with stabilizing Bosnia and preparing for possible EU integration.

International Coalition (Iraq)

2003– present

UN Security Council-authorized force led by the US to stabilize Iraq and promote democratization.

AU Force (DarfurSudan)

2004–?

A small AU force composed primarily of Nigerian soldiers tasked with protecting human rights in this volatile region of the Sudan; expansion to a large joint AU–UN force was blocked by Sudan.

2 UN Peacekeeping Operations (UNPKO)

Table 9.2. (cont.) Name of Mission (location)

Dates

Mandate

Standby High Readiness Brigade (SHiRBRIG)

1996–2009

A semi-independent force created by the Scandinavian states, with eventually twentythree states contributing members toward five UNPKOs and two African-assistance missions; closest the UN has had to an Article 43 “standing army.” Failed when member states did not provide promised troops.1

Operations Turquoise, Licorne, Sangaris, Serval, Barkhane

2000– present

French “parallel” PKOs operating mostly in Africa that emphasize conflict resolution backed by use of force over the UN’s combined diplomatic and non-kinetic approach to peacekeeping.2

Notes: 1 Joachim A Koops, “Effective Inter-Organizationalism? Lessons Learned from the Standby High Readiness Brigade for United Nations Operations (SHiRBRIG),” Studia Diplomatica 62, No. 3 (2009). Alexandria Novosseloff and Lisa Sharland, “Partners and Competitors: Forces Operating in Parallel to UN Peace Operations Report” (Institute for Peace, 2019), 15. 2

2.2

UN Accountability

No treaties specifically address the responsibility of an international organization to observe the Laws of War. The UN, of course, is not a state party to the Geneva Conventions governing the Laws of War. By analogy, however, national contingents operating in the service of the UN, NATO, or other organizations would be at least theoretically bound by the same requirements, as if they were operating on behalf of their own states, or at the behest of member states. The International Committee of the Red Cross often requests that the UN promote the practice of having its member states provide renewed instructions into permissible behavior under the Geneva Conventions to their national contingents, prior to departure for UN service abroad. In 1961, there were reports that UN emergency forces were violating the Geneva Conventions during the UN operation in the Congo. Now that some of the UNPKOs have exercised the option of firing first, in situations carefully prescribed after the 1993 Somalian conflict, this concern has taken on a new significance. Several Geneva Convention articles incorporate the state responsibility of instructing its military forces about the Geneva Conventions and other instruments regulating the use of force in conflicts. The Red Cross document pleads “that such contingents receive, before leaving their own

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countries, appropriate instruction so that they may acquire a sufficient knowledge of these Conventions.”48 In 1999, Kofi Annan promulgated a Secretary-General’s Bulletin requiring UN forces to observe international humanitarian laws (IHLs).

Section 3. Status-of-forces agreement In the status-of-forces agreement concluded between the United Nations and a State in whose territory a United Nations force is deployed, the United Nations undertakes to ensure that the force shall conduct its operations with full respect for the principles and rules of the general conventions applicable to the conduct of military personnel. ...

Section 5. Protection of the civilian population 5.1 The United Nations force shall make a clear distinction at all times between civilians and combatants and between civilian objects and military objectives. Military operations shall be directed only against combatants and military objectives. Attacks on civilians or civilian objects are prohibited.49

What about non-governmental organizational (NGO) responsibility? Militarized non-state actors such as Al-Qaeda would incur (theoretical but likely unenforceable) responsibility for indiscriminate attacks on civilians. If the UN Security Council can resolve that states must exercise due care to prevent civilian deaths, Al-Qaeda would incur that same responsibility – to the extent that: (1) state practice recognizes its post-9/11 international status in the war on terror; and (2) belligerent entities already have that responsibility under the Laws of War (on belligerent recognition, see Chapter 2). As non-traditional war/small-scale conflict continues to become the norm, the question of responsibility for non-state actors engaged in armed conflict will increasingly become a subject of study and rule-making in international law. Gone are the days when such non-state actors can continue to exploit the “loophole” in claims that states they are facing are bound by the Laws of War but as non-state actors, they are not.

48

49

“Memorandum of the ICRC to the Governments of States Party to the Geneva Conventions and Members of the United Nations on the Application of the Geneva Conventions by the Armed Forces Placed at the Disposal of United Nations,” November 10, 1961, reprinted in International Review of the Red Cross (Geneva, 1961). UN Doc. ST/SGB/1999/13.

2 UN Peacekeeping Operations (UNPKO)

Former UN Secretary-General Boutros Boutros-Ghali advocated a more forceful method for applying Charter principles to future hostilities. In 1992, he proposed that UN forces be made available for the rapid deployment of force under the Charter’s Chapter VII powers. There had never been a standing army as envisioned by UN Charter Article 43. Yet the time seemed ripe in the aftermath of the Cold War to establish some force capable of quickly responding to threats to peace. Although not enacted, this plan deserves to be studied both for its creativity and for the likelihood that it would be resurrected in some form in a future period of renewed global reliance on UNPKOs. In his report, “An Agenda for Peace,” which was prepared in response to a request from the heads of state of the Council members, Boutros-Ghali proposed a new, much more robust set of UNPKOs. Learning from lessons that the Persian Gulf War had taught the community of nations, he suggested that there should now be five levels of UNPKO, three beyond the existing two levels. These semi-permanent bodies should be on call to serve as a deterrent to future threats to peace. Under this proposal, the “ready availability of armed forces could serve, in itself, as a means of deterring breaches of the peace since a potential aggressor would know that the Council had at its disposal a[n immediate] means of response.” 1. Preventive diplomacy: This is formal fact-finding mandated by the UN General Assembly or UN Security Council; utilize regional international governmental organizations (IGOs) and NGOs to increase fact-gathering; expand the use of de-militarized zones, even if only one party agrees to it. As the name implies, this is any action that can help forestall local disputes from spreading and from becoming armed conflicts.50 2. Peacemaking: This is mediation or negotiation by an individual to be designated by the UN Security Council or UN General Assembly; use of the International Court of Justice (ICJ) to settle disputes; use of the whole of the UN system to provide more adequate assistance; use of the financial institutions and other components of the UN system to insulate states with economic problems from the consequences of economic sanctions under Article 41; states making armed forces available to the Council, “on a permanent basis,” when it decides to initiate military action under Article 42.51

50

51

UN Secretary-General, “Boutros Boutros-Ghali: An Agenda for Peace: Preventive Diplomacy, Peacemaking and Peace-Keeping” (New York: UN Department of Public Information, 1992), 16–19. Ibid., 21–25.

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3. Peacekeeping: there was no proposed fundamental change to this longstanding UN activity, but there was a call for greater contributions of personnel, especially civilian and police personnel, and for scarce equipment and supplies to be provided free or at cost to the UN from the wealthier member states. 4. Peace-enforcement: this was Boutros-Ghali’s most ambitious part of the plan; it envisioned the use of “heavily armed” and “extensively trained” forces under the Secretary-General’s direct command that would respond to “outright aggression, imminent or actual.”52 Unlike the Article 43 standing army discussed above, these would be “provisional measures” under Article 40; troops who would be available “on call” only as needed in “clearly defined circumstances and with their terms of reference specified in advance.”53 This never-implemented proposal sought the development of a UN rapid deployment force(s) by the Security Council. In the Secretary-General’s view, adoption by the Council would have bolstered the UN’s diplomatic role, while simultaneously providing the manpower to be an effective peacemaker – rather than continuing to serve in its perennial role as mere peacekeeper. 5. Peace Building: An equally ambitious vision akin to “nation building” discussed elsewhere in this text. The proposal envisioned a large cadre of both military specialists, who could help “de-militarize” a country, and professional technicians (i.e., non-military specialists) and others to help war-torn states rebuild both the economic and political structures (rule of law, transparency, etc.) necessary for stability after the devastation of war.54 Although these goals may appear laudable, or even necessary, for longterm international peace, a consensus emerged among the Great Power UN member states at the time that Boutros-Ghali had vastly overstepped his authority as Secretary-General. That, along with the role of Boutros-Ghali in pushing for the “mission creep” in Somalia (above) resulted in a behind-thescenes agreement that his term as Secretary-General should not be renewed. The major powers of the system, led by the US, rejected the increase in contributions to the UN budget (and their state budgets) that these visionary plans would have required.55 Whatever the financial shortcomings, BoutrosGhali was surely correct in asserting that the political/diplomatic aspects of peacekeeping were as important as the use of force.

52 55

53 54 Ibid., 26. Ibid. Ibid., 32–34. Perkins and Cronley, Mr. Ambassador: Warrior for Peace. See the chapter titled “The United Nations.”

3 “Just War,” R2P, and Humanitarian Intervention

2.3

Non-UN Peacekeeping

The UN is not the only international organization that dispatches international peacekeeping forces. The “legality” of these operations under international law, unless explicitly authorized by the UN Security Council, is not clear. NATO, the Organization of American States (OAS), AU and the EU – as well as some individual states – have attempted multilateral uses of force in peacekeeping and humanitarian missions. As with UNPKOs, the zenith for such operations appears to have occurred in the early 2000s, as Table 9.2 demonstrates. Two individual states stand above the rest in providing “parallel” (to the UNPKOs) peacekeeping: France and the US. These PKOs are designed either to assist a UNPKO that needs additional resources, or to operate in areas where the UN is absent. Additional rationales are the desire to maintain separate command and control over state forces and the “incompatibility” of a “warrior” use-of-force culture with that of UN peacekeeping.56 France and the US have some of the world’s best-trained and equipped military forces, usually far better than the Global South forces that tend to populate UNPKOs. An example was the French “Operation Artemis” force that relieved the MONUSCO (DRC) to prevent an “impending humanitarian crisis,” and to provide security to vital infrastructure.57 France remains the most committed state to peacekeeping operations in the north/central African theater. NATO has authorized the use of air strikes since 1993, for example, under extensive international pressure to react to the Bosnian Serb attacks on civilian targets. NATO awaited UN authorization before it carried out its threat by bombing some Serbian positions when the Serbs failed to retreat and then attacked UN-designated safe havens in Bosnia. NATO’s 1994 air strikes were the first attacks on ground troops in NATO’s existence. In 2001, NATO assembled a European Defense Force to deal with future problems – first used in Macedonia to disarm Albanian rebels.

3 “Just War,” R2P, and Humanitarian Intervention We now turn to reasons why intervention can and should be undertaken in the first place. In this section, we discuss the conceptions of “just war,” the Responsibility to Protect (R2P) and other forms of humanitarian intervention. What are the legal and moral justifications for cross-border interventions that are backed by the use (or threat) of armed force? 56

57

A. Novosseloff and L. Sharland, “Partners and Competitors: Forces Operating in Parallel to UN Peace Operations Report” (Institute for Peace, 2019). Ibid., 14–15.

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3.1

Just War

Scholars typically cast analysis of the “just” reasons for the use of force by states and other international actors into two categories. One is jus ad bellum, the morality of the decision to go to war. For example, wars are considered either “legal or illegal,” “just or unjust.” What are “just” reasons for going to war? Walzer asserts war is just “when it is a response (with reasonable expectations of success) to acts ‘that shock the moral conscience of mankind.’” He sketches out three scenarios for Just War undertaken across international borders: (1) to support representative secessionist movements that have a reasonable chance of achieving independence; (2) to “balance” prior interventions unjustly undertaken; (3) to “rescue” peoples and nations threatened with extinction.58 Despite what might appear to be somewhat “permissive” conditions, Walzer and others have stressed a number of additional limiting factors, including: legitimate authority, last resort, declaration of intent, reasonable hope of success, and right intention.59 The other category, jus in bello, is analytically distinct: it is concerned with the morality of the way in which the war is waged. In other words, assuming that a conflict is already underway – regardless of whether it is just or unjust – there are internationally imposed limitations on whether particular methods or munitions are moral or immoral. The phrase, “humanitarian intervention” is not mentioned in the UN Charter, the NATO Charter, or any similar organizational document. Arguments have been made that Article 56 of the UN Charter serves as a legal basis for justifying humanitarian intervention. It states: “All Members pledge themselves to take joint and separate action in cooperation with the Organization for the achievement of the purposes set forth in Article 55.” Subsection (c) of the latter article encourages “universal respect for human rights . . . without distinction as to race, sex, language, or religion.”60 In the nineteenth century and before, there were very few limitations on state use of force and therefore little emphasis was placed on humanitarian intervention to “justify” state use of force. In this regard, scholars that eschew philosophical and religious traditions (like “Just War”) in international law will be hard pressed to justify limits on the use of force without

58

59

60

M. Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations, 1st ed. (New York: Basic Books, 1977), 107–108. W. Qureshi, “Examining the Legitimacy and Reasonableness of the Use of Force: From Just War Doctrine to the Unwilling-or-Unable Test,” Oklahoma City University Law Review 42, No. 3 (2017): 221–280. United Nations, “Charter of the United Nations and Statute of the International Court of Justice,” 11-12.

3 “Just War,” R2P, and Humanitarian Intervention

circular logic.61 Limited sovereignty and restraints on state(s)’ use of force can and have been justified in the natural law and Just War traditions.62 However, even today there is no universal acceptance of the concept of forceful (armed) humanitarian intervention. Critics believe that it unnecessarily weakens the “streamlined” international prohibitions on the use of force that emerged in the UN Charter.63 Scholars have debated whether the pledge in Article 56 of the UN Charter should be considered a legal obligation or merely a moral one. The most prominent reason offered in favor of regarding the pledge as a legal obligation is that the term “pledge” itself connotes a legal undertaking. A further elaboration of the meaning of, and practice under, Article 56 comes from a UN “Repertory document.”64

I. General Survey 3. . . . [T]here was no elaboration of the meaning of the word “pledge” in the decisions of the United Nations and instances occurred where a word other than “pledge” was used in the decisions referring to Article 56. For example, in the preamble of the resolution concerning the question of the establishment of a special United Nations fund for economic development reference was made to “the obligations of the United Nations and its Members under Articles 55 and 56 of the Charter,” and in a decision concerning the question of race conflict in the Union of South Africa the General Assembly referred to “the obligations contained in Article 56 of the Charter.”

II. Analytical Summary of Practice ... 6. In the decision taken at its ninth [annual] session the General Assembly made no express reference to Article 56, but it did refer to “the pledge of all

61

62

63 64

An example of the circular logic is the assertion that the UN restricts state use of force, drawing on customary international law (CIL) and that CIL has evolved to prohibit use of force because the UN prohibits it. For a thorough treatment of the topic, see M. Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations, 5th ed. (New York: Basic Books, 2015). Orakhelashvili, Akehurst’s Modern Introduction to International Law, 469. B. Lepard, Rethinking Humanitarian Intervention: A Fresh Legal Approach Based on Fundamental Ethical Principles in International Law and World Religions (University Park, PA: Penn State University Press, 2002), 119.

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Member States to respect human rights and fundamental freedoms without distinction as to race.” At the tenth session the General Assembly adopted resolution 917 (x) which reiterated resolution 6l6 B (VII) in which the General Assembly had declared [and couched in moral, rather than legally obligatory terms,] that “it is in the higher interests of humanity to put an immediate end to religious and so-called racial persecution and discrimination and that governmental policies which are designed to perpetuate or increase discrimination are inconsistent with the pledges of the Members under Article 56 of the Charter . . . .”65

This seeming duty to intervene is often counter-balanced by citing the UN General Assembly’s 1965 “Inadmissibility of Intervention in Domestic Affairs,” Resolution 2131 – associated with the decolonization movement of the 1960s – that focused on self-determination on the African continent. It then reaffirmed the principle of non-intervention proclaimed in numerous global and regional charters. It recognized “that full observance of the principle of non-intervention of States in the internal affairs of other States is essential to the fulfillment of the purposes and principles of the United Nations.” What this resolution did not do was foresee the many war-torn states that would wreak havoc on their own people in Africa and other developing regions after the end of the Cold War. Such interventions may be military or non-military, unilateral or collective. The UN has authorized collective interventions with military forces that were designed to endorse the Charter’s humanitarian objectives. The UN Security Council has thus relied on its Chapter VII powers to establish the ad hoc International Criminal Tribunals for Rwanda and Yugoslavia. Because Article 39 authorizes the Council to “decide what measures shall be taken . . . to maintain or restore international peace and security,” it authorized this form of non-military intervention to address the atrocities perpetrated within those arenas by forces within those countries.66 Unilateral humanitarian intervention may conflict with the norms associated with territorial sovereignty and the use of force. The extent to which a state may unilaterally intervene for various purposes, including the rescue of political figures and hostages, is fraught with complex issues of legitimacy. 65

66

UN Publications, Codification Division, “Repertory of Practice of UN Organs, Supplement No. 1, Vol. 2” (New York, 1954–1955), 34, https://legal.un.org/repertory/art56.shtml accessed May 19, 2022. Charter of the United Nations, 9. See all of Chapter VII, which includes Articles 39–51.

3 “Just War,” R2P, and Humanitarian Intervention

The next section focuses on situations which some states have conveniently characterized as “humanitarian” interventions, especially when they have a dual purpose in mind.

3.2

Defining Humanitarian Intervention

As classically articulated by the nineteenth-century British philosopher John Stuart Mill: To go to war for an idea, if the war is aggressive, not defensive, is as criminal as to go to war for territory or revenue; for it is as little justifiable to force our ideas on other people, as to compel them to submit to our will in any other respect. But there assuredly are cases in which it is allowable to go to war, without having been ourselves attacked, or threatened with attack; and it is very important that nations should make up their minds in time, as to what these cases are.67

One should undertake a contemporary analysis with the question of whether there is an emerging right to, or duty of, humanitarian intervention – at least by international organizations regarding matters within their geographic or political competence. The current state of the relevant literature has been summarized by Corten in the following terms: two trends have developed in legal scholarship. The first considers that the link between maintaining the peace and protecting human rights does not call into question the cardinal principle of the sovereignty of states. By exercising their sovereignty to commit themselves to respect and guarantee certain fundamental rights, states have accepted that these rights go beyond their national competence and have accordingly waived the invocation of the principle of nonintervention . . . Should . . . [the UN Security Council] find that severe violations of human rights constitute a threat justifying the adoption of coercive measures, as expressly indicated by Article 2(7) . . . there is no breach of the principle of non-intervention. ... A second line of scholarship, on the contrary, interprets the strengthening of rules protecting human rights as a challenge to the principle of the sovereignty of states. . . . [T]he emergence of a “right of humanitarian intervention” has been . . . understood as consecrating the progress made in recent years in the human rights area. . . . “Right” means here a legal title by definition incompatible with the traditional rules of international law, and in particular, with the concept of sovereignty. 67

J. S. Mill, “A Few Words on Non-Intervention” (1859), reprinted in Essays on Politics and Culture (New York: Doubleday, 1962), 382.

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9 Intervention and Human Security “Intervention” is used to mean an offensive military action that goes well beyond not only coercive measures that may be taken in the economic sphere . . . “Humanitarian” is used to indicate an official justification directed at satisfying the most basic needs of a civilian population.68

3.3

Responsibility to Protect (R2P)

The latter portion of Mill’s above nineteenth-century quest for definitional clarity finds contemporary expression in the widely heralded 2001 report by the International Commission on Intervention and State Sovereignty (ICISS). The report was endorsed by the UN Secretary-General and recommended to all states for consideration. It announced a new doctrine and rationale for international humanitarian intervention known as the “Responsibility to Protect” or “R2P.” Noting state sovereignty, the Commission acknowledged that primary responsibility for the protection of its people lies with the state itself. Having recognized that principle, the second of its two main principles goes on to state that: “Where a population is suffering serious harm, as a result of internal war, insurgency, repression or state failure, and the state in question is unwilling or unable to halt or avert it, the principle of nonintervention yields to the international responsibility to protect.”69 In its Principles for Military Intervention, the above Commission on Intervention and State Sovereignty70 defines its “Just Cause Threshold” as follows: Military intervention for human protection purposes is an exceptional and extraordinary measure. To be warranted, there must be serious and irreparable harm occurring to human beings, or imminently likely to occur, of the following kind: A. large-scale loss of life, actual or apprehended, with genocidal intent or not, which is the product either of deliberate state action, or state neglect or inability to act, or a failed state situation; or B. large-scale ‘ethnic cleansing’, actual or apprehended, whether carried out by killing, forced expulsion, acts of terror or rape.71 68

69

70

71

O. Corten, “Human Rights and Collective Security: Is There an Emerging Human Right of Humanitarian Intervention?,” in P. Alston and E. MacDonald, eds., Human Rights, Intervention, and the Use of Force (Oxford: Oxford University Press, 2008), 139. “The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty XI” (Ottawa: International Development Research Centre, 2001), xi. This private Canadian-based entity reported to the UN Secretary-General, and has completed its mission. The Government of Canada continues to lead follow-up efforts on the findings of the commission. “The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty XI” (Ottawa: International Development Research Centre, 2001), xii (emphasis in original text).

3 “Just War,” R2P, and Humanitarian Intervention

This formulation arguably builds upon the finding of the ICJ in its 1986 Nicaragua case, wherein the Court commented as follows: There can be no doubt that the provision of strictly humanitarian aid to persons or forces in another country, whatever their political affiliations or objectives, cannot be regarded as unlawful intervention, or as in any other way contrary to international law. The characteristics of such aid were indicated in the first and second of the fundamental principles declared by the Twentieth International Conference of the Red Cross.72

There may thus be a duty to intervene in appropriate circumstances. Gross violations of fundamental human rights that would violate the Genocide Convention enable the UN to act under Article VIII of that Convention “to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide.” And as stated in the UN’s December 2004 High-level Report on Threats, Challenges, and Change: 201. The successive humanitarian disasters in Somalia, Bosnia and Herzegovina, Rwanda, Kosovo and now Darfur, Sudan, have concentrated attention not on the immunities of sovereign Governments but their responsibilities, both to their own people and to the wider international community. There is a growing recognition that the issue is not the “right to intervene” of any State, but the “responsibility to protect” of every State when it comes to people suffering from avoidable catastrophe – mass murder and rape, ethnic cleansing by forcible expulsion and terror, and deliberate starvation and exposure to disease. ... 203. We endorse the emerging norm that there is a collective international responsibility to protect, exercisable by the Security Council authorizing military intervention as a last resort, in the event of genocide and other large-scale killing, ethnic cleansing or serious violations of international humanitarian law which sovereign Governments have proved powerless or unwilling to prevent.73

The Global Centre for the Responsibility to Protect, founded in 2008, seeks to capitalize on this UN 2005 World Summit agreement addressing the R2P populations from genocide, ethnic cleansing, war crimes, and crimes against humanity. Its mission is to help transform the R2P into a practical guide for action in the face of mass atrocities. This Centre engages in advocacy

72

73

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. US), 1986 ICJ Reports 14, 14, para. 124. UN Secretariat, Report of the UN High-level Panel on Threats, Challenges and Change. Emphasis original.

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involving specific crises; conducts research designed to further understanding of R2P; recommends and supports strategies to consolidate the norm and help states build capacity; and works closely with NGOs, governments, and regional bodies which are seeking to operationalize R2P.74 One must be cautious, however, not to overstate the application of a core value like R2P – that is, attribute to it a legally binding character beyond its limited intent. The international legal system functions in a manner that is constantly being reconstructed, epitomized by states extending and retracting their international commitments (e.g., the rippling effects of the US Trump Administration’s unsigning the Obama Administration’s commitment to the Paris Climate Change Accord and World Health Organization (WHO)). As cautioned by the Special Adviser to the UN Secretary-General on R2P: At its core, “responsibility to protect” is really a political concept, not a legal one. It is based firmly and unambiguously on existing international law in terms of four specified crimes and violations: genocide, war crimes, ethnic cleansing, and crimes against humanity. . . . What R2P has done is to draw them together into a singular, purposeful package. . . . In the process, R2P has moved from the area of law to the area of public policy. Its force derives from its attractiveness as a political concept, one based on fundamental values and widely held moral precepts. Adding a legal veneer to R2P would add little value to its legal potency, just as trying to extend the scope of R2P to cover behaviors or policies beyond the four specified crimes would not provide an additional legal basis for action.75

The case of Rwanda was the 1990’s worst-case scenario. Yet, the international community was hesitant to label Darfur – aka “slow-motion Rwanda” – as “genocide.” The Genocide Convention Article VIII, international responsibility to intervene, would be triggered by the application of that term. However, the costs, UN limitations, donor fatigue, the low priority of saving strangers, and a host of other priorities explain why the international community is so slow to act in such cases.76 The facts are often clear, but not the motives. Multilateral intervention is often undertaken by a regional or global organization for the purpose of aiding people who are enduring intolerable conditions. The underlying cause may be a civil war or degradation at the 74

75

76

Details on the “Global Centre” NGO are available at: www.globalr2p.org/about/ accessed May 20, 2022. E. Luck, “Environmental Emergencies and the Responsibility to Protect: A Bridge Too Far?,” in Proceedings of the 103rd Annual Meeting, American Society of International Law, 32 (2009): 33. N. Wheeler, Saving Strangers: Humanitarian Intervention in International Society (Oxford: Oxford University Press, 2002).

3 “Just War,” R2P, and Humanitarian Intervention

hands of a despotic political regime. The intervention may take the form of military or economic action designed to bring about a policy change by the targeted state. At times, especially in prior centuries, intervention has been a convenient rationale for political domination by outsiders (see Chapter 4). States have long recognized the practical utility of characterizing their actions as having a moral and legal benevolence, which has been ostensibly undertaken for “humanitarian” purposes.77 This use of force is often justified by a state or an international organization on the basis that the inhabitants of some state are not receiving the protection they deserve under international human rights law. In other words, the government is accused of arbitrarily and persistently abusing its inhabitants or a particular ethnic group. The US unilaterally intervened in Cuba in 1898, for example, to “put an end to barbarities, bloodshed, starvation, and horrible miseries.”78 However, as Finnemore points out, it is becoming increasingly difficult for (usually Western, developed) states to intervene militarily in other states without an explicit and credible humanitarian justification.79 In addition, the prevalence of real-time satellite photos showing troop movements and the ubiquitous on-the-ground video is making it unlikely that large-scale use of force can be concealed from the public in most democratic states. The emerging patterns, pushed by these technological advances and changing values, indicate that democratic states, at least, will likely seek the imprimatur of international law before undertaking future interventions. Of course, some elements of self-interest will remain, and authoritarian regimes are not as tightly bound by public opinion but still face some constraints in international action, including world public opinion, and the opinion of those who “select” them.80 In addition to the opinion of domestic audiences, organizations such as the UN must be cautious not to allow member states to elide the difference between unadulterated altruism and contaminated intervention. UN authorization for a humanitarian intervention must not trump any inconvenient,

77

78

79 80

On the historical background to interventions, see J. Fonteyne, “The Customary International Law Doctrine of Humanitarian Intervention,” California Western International Law Journal 4 (1974): 203; on the often-self-serving rationales for intervention, see M. Bazyler, “Reexamining the Doctrine of Humanitarian Intervention in Light of the Atrocities in Kampuchea and Ethiopia,” Stanford Journal of International Law 23 (1987): 547. See T. Franck and N. Rodley, “After Bangladesh: The Law of Humanitarian Intervention by Military Force,” American Journal of International Law 67 (1973): 275, 285. Finnemore, The Purpose of Intervention. B. de Mesquita and A. Smith, The Dictator’s Handbook: Why Bad Behavior Is Almost Always Good Politics (New York: Public Affairs, Perseus Books Group, 2011).

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but durable, recognized national legal regime governing a particular territory. But the permissible contours of “humanitarian intervention” have not been defined in a way that represents a meaningful state consensus. One reason is that this term became an overused part of the post-Cold War lexicon; however, neither word in this phrase has been precisely defined. Murphy comments on this vacuum: The adjective “humanitarian” is very broad and in common parlance is used to describe a wide range of activities of governmental and nongovernmental actors that seek to improve the status and well-being of individuals. . . . The international community is not fully in agreement on the normative content of many human rights. . . . Assuming certain core human rights upon which there is more or less universal agreement, there is nevertheless an inherent subjectivity in assessing whether, for any given situation, those rights are threatened and must be protected. This subjectivity in turn raises important questions about who is competent to make the assessment. Is it important that the international community regard an intervention as “humanitarian,” or is it sufficient that the state or group conducting the intervention consider it humanitarian? . . . The noun “intervention” is, likewise, quite broad and has been the subject of extensive debate in the United Nations and of scholarly treatises on international law. When a state, group of states, or international organization takes action against a state . . . [it] “intervenes” in the affairs of that state in the lay sense of the term, even if no military coercion is brought to bear. Indeed, all of international law and international relations consists of varying levels of states interacting and thereby “intervening” in each other’s affairs.81

Collective intervention is more readily justifiable than a unilateral intervention by one state. Chapter VII of the Charter gives the UN Security Council broad powers to intervene when there are threats to peace, although the Charter contains potentially conflicting norms. Members are expected to avoid the use of force because it threatens peace, while at the same time not acquiescing to ongoing human rights atrocities. The Charter’s expressed expectation is that UN members pledge “to take joint and separate action” in cooperation with the UN for the achievement of its humanitarian purposes. They must therefore promote “universal respect for, and observance 81

S. Murphy, Humanitarian Intervention: The United Nations in an Evolving World Order (Philadelphia, PA: University of Pennsylvania Press, 1996), 8–10. See also: T. Seybolt, Humanitarian Military Intervention: The Conditions for Success and Failure (Oxford: Oxford University Press, 2009).

3 “Just War,” R2P, and Humanitarian Intervention

of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.”82 As acknowledged in the Restatement (Third) of Foreign Relations Law of the United States: Whether a state may intervene with military force in the territory of another state without its consent . . . is not agreed or authoritatively determined. Such intervention might be acceptable [however] if taken pursuant to [a] resolution of a United Nations body or of a regional organization such as the Organization of the American States.83

The UN Charter further authorizes regional arrangements in Chapter VIII. It does not specify the interplay between that chapter of the Charter and the Council’s Chapter VII enforcement powers. A collective regional action, undertaken in the name of humanitarian intervention, would not be necessarily authorized by UN Security Council inaction or silence. Under Article 53, regional enforcement actions require authorization from the UN Security Council.84 On the other hand, there is room for the argument that customary state practice may augment or clarify the meaning of the term “humanitarian intervention,” given the inherently imprecise nature of that term, as noted in the above-quoted material from the ICJ’s1986 Nicaragua case. This “right” might support one state’s provision of humanitarian supplies in specified emergencies. It would not include the right to intervene in a way which violates the intervener’s duty of neutrality in a civil war. One can readily observe the problems associated with a regional organization’s use of force under the banner of “humanitarian intervention.” Without the imprimatur of a UN Security Council prior/subsequent resolution, bombing another state’s territory – even if for humanitarian purposes – is the category of humanitarian intervention which has drawn the most criticism from the international community of nations.

3.4

Rescue

Certain states employ clandestine forms of coercion in their international relations. One of these is the taking of hostages as a means of placing political pressure on another state(s). The aggressor state takes hostages or

82 83

84

Humanitarian purposes: Article 55(c). Action pledge: Article 56. American Law Institute, Restatement (Third) of the Foreign Relations Law of the United States, Vol. 2, para. 703, Comment e., “Humanitarian intervention to rescue victims or suppress human rights violations” (St. Paul, MN: American Law Institute, 1987), 177. See R. Lillich, ed., Humanitarian Intervention and the United Nations (Charlottesville, VA: University Press of Virginia, 1973).

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financially supports a group of individuals to force another state to act pursuant to the captors’ demands. Hostage-taking occurred with alarming frequency in the 1970s when it became a useful tool for accomplishing national political objectives. The UN responded to this phenomenon with the 1979 International Convention against the Taking of Hostages.85 The primary impetus for this convention was Iran’s 1979 seizure of American diplomats and military personnel at the US embassy in Tehran. Article 1 of the Hostage Convention provides that any person who detains and threatens to kill another person to compel a state “to do or abstain from doing any act as an explicit or implicit condition for the release of the hostage commits the offense of taking hostages.” Under international law, a person acting on behalf of a state may not take a hostage to coerce another state to act in a certain way. When this occurs, the responsible state breaches this prohibition. Some states have disregarded this principle, giving rise to countermeasures by the targeted state(s), such as rescue, a related issue in international law. When one state’s citizens are held hostage in another country, there is intense national pressure to free them by acceding to the hostage-takers’ demands. However, state elites resist giving in to that pressure because acquiescing to the captors’ demands encourages further hostage-taking. This dilemma has triggered the occasional but widely publicized use of an innovative form of countermeasure. Rescue missions have been carried out to save hostages facing certain death or injury. Military rescue missions present both practical and legal problems. The state launching the rescue mission clearly breaches the territorial sovereignty of the state where the hostages are held. The rescuing country claims, however, that necessity dictates this response. One reason for the necessity is that international law does not (at present) enforce the Hostage Convention’s principles when a state either commits or effectively condones hostage-taking. Where no action appears to be on the horizon other than the usual diplomatic efforts to free the hostages, the hostages have often been harmed or killed. It is therefore argued that the rescuing state’s right of selfdefense supports the existence of a limited right to breach the sovereignty of the captor nation for this humanitarian purpose. While not a completely altruistic form of humanitarian intervention, there are similar concerns regarding the violations of sovereignty that may accompany such forms of self-help.

85

The United Nations, “International Convention against the Taking of Hostages,” UNTS I21931, opened for signature 1979 (entry into force 1983).

3 “Just War,” R2P, and Humanitarian Intervention

There is, however, a viable legal basis for an international organization’s activities that extract its agents if they are carrying out UN Security Council enforcement actions. In 1992, a UN anti-mine team rescued a convoy that had braved two days of crossfire to deliver food to the besieged Bosnian town of Gorazde. While returning to the Bosnian capital of Sarajevo, this convoy was trapped by landmines. Neither warring faction would come to the aid of these UN workers to ensure their safe return. In this instance, no country would vigorously object to organizational action to retrieve such international civil servants from their dilemma. The dominant problem with hostage rescue is the unilateral use of force by a single state, which can quickly escalate into war or other armed conflict. The US has been involved in several such rescue attempts. In 1980, a US military operation in Iran failed in its attempt to retrieve US diplomats held captive for more than one year. This operation continues to color US–Iranian relations to the present. The classic hostage-rescue mission occurred in 1976. A French passenger plane, containing mostly Israeli citizens, was hijacked in Athens by a Middle East terrorist organization and flown to Entebbe, Uganda. Some newspaper accounts of this event reported that a Middle Eastern country clandestinely promoted this hijacking. The hijackers threatened to systematically kill the hostages unless other Middle Eastern citizens were freed from Israeli prisons. Uganda’s president, Idi Amin, refused to help the hostages. He apparently wanted to avoid losing political capital with any Arab nation that may have sponsored the hijacking. A group of Israeli commandos then flew into Uganda in a clandestine hostage-rescue mission. They killed a number of Ugandan soldiers at the airport where the hostages were being held but succeeded in freeing the hostages.

3.5

NGO Humanitarian Intervention

Given the difficulties of establishing criteria for legitimate humanitarian intervention by states, certain international non-governmental organizations (INGOs) have sought the right to privately intervene in appropriate conflicts. At France’s insistence, the UN General Assembly supported this development in its three resolutions between 1988 and 1991 on “[h]umanitarian assistance to victims of natural disasters and similar emergency situations.”86 France sought to establish the right of private French groups (especially medical groups like Doctors Without Borders/Médecins Sans Frontières) to cross international borders, unhindered by sovereign limitations which otherwise 86

UNGA Resolution 43/131, December 8, 1988; 45/100, July 29, 1991; 46/182, December 19, 1991.

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prevented them from treating the victims of armed hostilities and other disasters. France has argued, against empirical evidence,87 that joint operations between private NGO groups like Doctors Without Borders and military forces are less effective than when the NGOs act alone, and they put the NGO personnel into greater danger. These UN General Assembly resolutions paved the way for the 1991 UN Security Council Resolution 688. It demanded that Iraq provide immediate access to those in need of humanitarian assistance – especially its Kurdish population, which had been the subject of government poison gas attacks several years before. Resolution 688 did not, however, authorize armed intervention. Council members were then reluctant to set any precedent, regardless of Iraq’s extremely provocative conduct. International humanitarian organizations, such as the International Red Cross, were thus given a new justification for their ongoing humanitarian relief missions – often blocked by the competing notion of state sovereignty. It is arguable that states have a duty under international law either to provide humanitarian assistance to their own populations or, failing that, to accept external humanitarian assistance. In appropriate circumstances, other states could provide such help, presumably without the consent of the state whose populace needs such intervention. Because the oft-stated basis for humanitarian intervention is to limit or eliminate human suffering, then accessibility to any afflicted group by NGOs would be a reasonable compromise. It would balance sovereign concerns with the evolving human rights regime discussed in Chapter 7. As stated by Schindler: Access by private humanitarian organisations to victims without the consent of the government of the State concerned must be considered lawful in the following two cases. First, in a non-international armed conflict [civil war], an impartial humanitarian body, such as the International Committee of the Red Cross, may bring humane assistance to victims of the insurgent party without the consent of the legal government. . . . Second, if a State refuses a humanitarian organization [to have such] access to its territory in contradiction to its duties, such organizations can assert the same rights as a State. They may bring assistance to the victims in spite of the refusal of the government.88

87

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S. Bell et al., “‘Force Multipliers’: Conditional Effectiveness of Military and INGO Human Security Interventions,” Journal of Human Rights 12, No. 4 (October, 2013): 397–422. D. Schindler, “Humanitarian Assistance, Humanitarian Interference and International Law,” in R. Macdonald, ed., Essays in Honour of Wang Tieya (Dordrecht/Boston: Martinus Nijhoff, 1994), 689–700.

4 Human Security

However, as a practical matter, unless the host state grants explicit permission, the insertion of non-citizens working for an international NGO is likely to be viewed as a hostile act, putting the NGO workers in harm’s way in that setting. Part of the solution to the problem of granting access to humanitarian NGOs like the International Committee of the Red Cross without international use of force may lie in how refugees are depicted at home and abroad. Instead of calling them “free loaders” or “welfare cheats,” as has been the trend lately among populist politicians, language should be used which emphasizes their humanity and contributions to society in communications directed to various international law “audiences.”89

4 Human Security One of the newest areas of international law moves the idea of “security” from its “state necessity” use in the post-Westphalian world to the idea of “human security.” At its broadest, it can be understood as the judicious use of armed forces to promote human dignity and help provide for basic human needs. It remains a set of aspirational principles, or “soft law,” and has not achieved the status of fundamental “human rights” in international law. Nonetheless, these emerging ideas have the potential to fundamentally transform what “security” means and to assist states in redirecting the use of their armed forces from purely kinetic (i.e., the destructive application of highly lethal weaponry) applications to operations that can prevent/lessen the widespread loss of human life and even help promote a higher quality of life for large populations.

4.1

Evolution of the Concept

The traditional understanding of security can be defined as the military defense of state territory and other state interests.90 However, even the older Just War (jus in bello) tradition considered what effect the use of different weapons and tactics by the military would have upon the civilian population. In general, civilian death, injuries and hostage-taking were to be avoided and, if not avoidable, they should be minimized.91 Part of the newer 89

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F. Donnelly, “In the Name of (de)Securitization: Speaking Security to Protect Migrants, Refugees and Internally Displaced Persons,” International Review of the Red Cross 99, No. 904 (2017): 241–262. E. Titko and M. Kurtynets, “Human Security as a New Concept of International Security of the 20th Century,” Juridical Tribune 9, No. 3 (2019): 562. Walzer, Just and Unjust Wars, especially Ch. 10, “War against Civilians.”

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construction of the meaning of security and its fundamental purpose holds that militaries should strive to achieve not just the prevention of harm to civilians (“negative” security), but also should attempt to provide or support (in partnership with civilian agencies) a “positive” security for individuals. Some of these positive elements of human security would include the “right” to personal safety, basic health, and a clean environment.92 Other scholars would expand the notion further to include all human rights, as well as economic and social security. There are numerous critics of this approach. Some critics argue that it stretches the concept of “security” beyond any reasonable definition or usefulness;93 others suggest that the concept is highly underdeveloped and awaits further efforts to give it more analytical precision.94 Nonetheless, the reconceptualization of security in this manner can be traced back to the UN Development Program’s 1994 Human Development Report.95 That work proposed seven forms of human security: health/sanitation security, economic security, environmental security, community security, political security, personal security, and food security.96 These are grouped below into health and personal security, environment and resource security. The UN furthered this work by creating the Commission on Human Security in 2001 that attempted to redefine the concept as “security of fundamental freedoms necessary for life.”97 In 2010, the Secretary-General presented the “Human Security Report” tying human security to the UN Millennium Development Goals (MDGs) and, by extension, the Sustainable Development Goals. The UN General Assembly weighed in with Resolution 66/290 (2012) to assert that human security should not normally involve the use of force and that it could be implemented without violating state sovereignty or the principle of non-interference without specifying exactly how that was to be accomplished in practice.98 Finally, the UN has issued a 92

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H. Kassab, “Reconceptualizing Security Priorities of the Hemisphere,” in B. Bagley, J. Rosen, and H. Kassab, eds., Reconceptualizting Security in the Americas in the Twenty-First Century (Lanham, MD: Lexington Books, 2015), 25–42. Ibid., 27. J. Herington, “Health Security and Risk Aversion,” Bioethics 30, No. 7 (September 1, 2016): 479–489. S. Porcelain, “Health Security Challenges in the Americas: Newly Emerging and Reemerging Infectious Diseases,” in B. Bagley, J. Rosen, and H. Kassab, eds., Reconceptualizting Security in the Americas in the Twenty-First Century (Lanham, MD: Lexington Books, 2015), 265–286. D. Estrada Tanck, “Human Security and Public International Law,” Anuario Español de Derecho Internacional 32 (2016): 373–406. 98 Titko and Kurtynets, “Human Security as a New Concept,” 566. Ibid., 568.

4 Human Security

Development Report covering the period from 2014–2017 in which concrete steps were to be taken to increase the use of the phrase “human security” across UN agencies, and foster cooperation between the UN and regional international organizations and NGOs to use and promote the concept.99 Legal requirements and specific duties are still lacking at this point, however. During the same time period, the regional legal systems in the Americas and Europe were giving ever greater legal content to elements of human security by tying them, in specific cases, to IHL. The European Court of Human Rights (ECtHR) in the 2004 case, Önerylidiz v. Turkey, asserted a positive obligation on part of the state to prevent known risks to human life when such risks are well known. This case asserted that duty was especially clear in “zones of the poor” where crowded tenement conditions near a city dump made such risks even more pronounced.100 In a series of cases originating in Colombia in 2005–2006, the Inter-American Court of Human Rights (IACtHR) spelled out the obligations of the state to protect humans and groups utilizing a similar “doctrine of known risks” and the “inevitable and foreseeable created risk” to “extremely vulnerable groups.”101

4.2

Health and Personal Security

Especially after COVID-19, there is an emerging consensus that prevention or amelioration of the international spread of infectious diseases is a key component of health security under international law. As Martin puts it, “The Coronavirus crisis already has many people questioning the scope and focus of [US] national-security efforts, and reframing national security in terms of human security.”102 In addition to COVID-19, this includes other diseases such as cholera, dengue fever, tuberculosis, Ebola, and SARS (Sudden Acute Respiratory Syndrome).103 The primary international organization tasked with providing this kind of health security has been the WHO, an agency with some 7,000 employees working in 150 countries, and headquartered in Geneva, Switzerland. The WHO reports to, and is partially 99 100

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Ibid., 569. Estrada Tanck, “Human Security and Public International Law,” 385. The citation for this case is: GC, Appl. No. 78939/99. Estrada Tanck, “Human Security and Public International Law.” See Caso de la Masacre de Mapiripán v. Colombia IACtHR (2005), Ser. C, No. 134; Caso de la Masacre de Ituango v. Colombia IACtHR (2006), Ser. C, No. 148; Caso de la Masacre de Pueblo Bello v. Colombia IACtHR (2006), Ser. C, No. 140. C. Martin, “Climate Wars and Jus Ad Bellum: Part I,” Opinio Juris, August 13, 2020, http:// opiniojuris.org/2020/08/13/climate-wars-and-jus-ad-bellum-part-i/ accessed May 20, 2022. Porcelain, “Health Security Challenges in the Americas: Newly Emerging and Reemerging Infectious Diseases,” 266.

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financed by, the UN.104 In addition to UN funding, it receives direct funding from a small number of states, both for its general budget, and to its Contingency Fund for Emergencies (CFE); the CFE had about $23 million in 2020. The combined general and CFE budgets amount to a modest sum to deal with the many worldwide health challenges that it faces.105 The WHO’s effectiveness in addressing the COVID-19 crisis has also been affected by a tug-of-war between two of its largest member states (China and the US) over the origin of COVID-19 and who should pay more to finance effective disease-containment efforts.106 With the WHO unable to adequately address all global threats to public health, regional governmental organizations have begun to emerge as important legal and functional administrators of health security. A prominent example is the Association of Southeast Asian Nations (ASEAN), located in the region where many of the highly infectious diseases and pandemics have emerged in the last twenty years. The catalyst for taking regional health security seriously was the SARS outbreak of 2003.107 Reframing SARS as a “security,” instead of just a “development,” issue was key to creating an effective international response (with unified border controls, risk communication and capacity-building and other necessary steps) in the region.108 The rapid emergence of similar diseases since (H5N1, H1NI, H7N9) has only strengthened the trend among ASEAN member states, and the latest five-year plan is broadening health security to include promoting a healthy lifestyle, responding to all emerging health threats, and ensuring food safety.109 Human security also includes the right to security and dignity of the person, especially as one transits international borders. Migration flows are a worldwide phenomenon affecting not just the US, but are also concentrated in regions like southeast Asia, Central America, eastern and southern Europe, and central Africa.110 Realists in international relations theory have characterized migration flows as a traditional state-security problem. They blame porous borders for allowing the ingress of international criminals into a

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World Health Organization, “About WHO,” (2021) www.who.int/about accessed May 20, 2022. 106 Ibid. For more on the WHO, see Chapter 6. M. Caballero-Anthony, “Health and Human Security Challenges in Asia: New Agendas for Strengthening Regional Health Governance,” Australian Journal of International Affairs 72, No. 6 (November 2, 2018): 602–616. 109 Ibid., 605. Ibid., 606–607. R. Zepeda Martínez, “Collateral Effects of Migration in the Americas,” in B. Bagley, J. Rosen, and H. Kassab, eds., Reconceptualizing Security in the Americas in the Twenty-First Century (Lanham, MD: Lexington Books, 2015), 305–321.

4 Human Security

state, the so-called “migration-security nexus.” Martínez points out that the latter concern is highly exaggerated.111 In either case, force would be required to protect, or prohibit, such threats to security. Migration worldwide has increased significantly in the last thirty years and the causes of this surge are complex and beyond the scope of this text.112 Both the US and the EU have devoted increasing resources to hardening their borders, resources which often include the use of militarized forces trying to stem immigration from adjacent developing states. The use of force on children and young families at the US border with Mexico during the Trump Administration has brought international condemnation and a search for a more humane way under international and municipal law to balance the state-security needs with the human security needs of migrants. The IACtHR113 has not (as of this writing), ruled decisively on the use of force by state authorities at the US–Mexican border, but it has ruled in other cases involving use of force and international migration in the Americas. For example, the IACtHR ruled against the massive use of force by the Dominican Republic when it detained and then expelled large numbers of immigrants from neighboring Haiti in the early 2000s.114 When it comes to the migration-security nexus, there does not exist (yet) an effective international police agency to apprehend alleged criminals either in transit or upon arrival at a new destination. It is therefore up to individual states to apprehend, detain, prosecute, or export such international criminals when they transit borders; what some scholars have termed “crimmigration.”115 But how can sovereign states utilize alleged crimes from another state(s), which may have occurred long ago, as a basis to control the influx of (alleged) international criminals into their state? The US has devised an approach to do so, through its Department of Homeland Security, the 111 112

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Ibid., 306–307. A. M. Messina and G. Lahav, eds., The Migration Reader: Exploring Politics and Policies (Delhi: Viva Books, 2007). This court is more widely known in Latin America as “CIDH” or “Corte IDH” for Corte Interamericana de Derechos Humanos. Order of the Interamerican Court of Human Rights: Provisional Measures Requested by the IACHR in the Matter of the Dominican Republic, Case of Haitian-Origin Dominican Persons in the Dominican Republic (2000). Readers can access the case order at the following URL: www.oas.org/en/iachr/jsForm/?File=/en/iachr/r/dm/medidasprovisionales .asp accessed May 20, 2022. See Estrada Tanck, “Human Security and Public International Law.” See also: Medidas provisionales, haitianos y dominicanos de origen haitiano en la República Dominicana (2000). For a representative case in a long line of similar cases, see Niñas Yean y Bosico v. República Dominicana (2005). J. Rowen and R. Hamlin, “The Politics of a New Legal Regime: Governing International Crime through Domestic Immigration Law,” Law and Policy 40, No. 3 (July 1, 2018): 243–266.

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Human Rights Violators and War Crimes Unit, or HRVWCU. This Unit uses evidence of falsifying or omitting evidence of participation in crimes abroad, especially genocide, to threaten or achieve deportation, which often has a powerful deterrent effect on the perpetrator(s) and perhaps even would-be perpetrators of international crimes in the future.116 The IACtHR has also announced a novel doctrine stemming from a 1999 case, informally known as Niños de la calle,117 (or “street children”) tying the use of state force to the protection of human rights, especially in vulnerable groups, a doctrine termed “the reinforced obligations of protection.” In announcing this doctrine, the IACtHR sought legal grounding in the Vienna Convention on the Law of Treaties 1969 (VCLT) that held that international humanitarian law treaties “are living instruments whose interpretation should evolve [according to] the times and in view of the existing circumstances.”118 In other words, courts should take a regional approach and acknowledge the realities of life in that region. Vulnerable groups in Latin America included children, especially “street children,” women, indigenous peoples, and the poor.119 In the European context, the ECtHR has identified three groups that deserve special state protection due to their “group vulnerability”: mentally incapacitated persons, gypsies (or “Roma”), and asylum seekers.120 The right to be secure in one’s person and one’s effects (possessions) is yet another component of human security. There is a growing consensus among both the public and governing elites that the mushrooming power over personal data by large information technology (IT) firms is a threat to personal security, and in some cases, national security.121 Here is yet another area where the UN or other international or regional governmental organizations might be called upon to use (virtual?) force in safeguarding personal cyber-security, but such a UNPKO is probably several years off. The trigger may occur only after a large-scale cyber-crisis, according to Dorn.122 He notes: “It took the Suez Crisis of 1956 for UN member states to accept the

116 118 119 120

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117 Ibid. CIDH/IACtHR, “Niños de la calle” (Villagrán de otros) v. Guatemala (1999). Estrada Tanck, “Human Security and Public International Law,” 389. Ibid., 389–392. Connors v. Great Britain, Appl. No. 66746/01 (2004); Chapman v. Great Britain (GC), Appl. No. 27138/95 (2001); Aksu v. Turkey (GC), App. Nos. 4149/04 and 41029/04 (2012). P. Mozur et al., “A Global Tipping Point for Reining in Tech Has Arrived,” New York Times, April 20, 2021. W. Dorn, “Cyberpeacekeeping: A New Role for the United Nations?,” Georgetown Journal of International Affairs 18, No. 3 (2017). See also the discussion of cyber-security in Chapter 11.

4 Human Security

notion of armed peacekeepers . . . A catastrophic cyberattack . . . would cost the world dearly since commerce, governance and personal communications are now so deeply dependent on the Internet.”123 Even Google acknowledges the need for more effective international laws in the area. According to Walker, Senior vice president of Google, “[if] done right, well-aligned rules can promote innovation, increase competitiveness and help consumers and small businesses.”124 There is a unity across all areas of human security; threats in one area tend to spill over into one or more of the other area(s). The following discussion of the environment and resource security illustrates the point.

4.3

Environment and Resource Security

In this section we will lay out environmental degradation as a security threat in the traditional sense – to national security – and then building upon that understanding, show the same trends as a threat to human security more broadly understood. First, the threat to state security. Given modern technology and rapid advances in weapon system capabilities, one must acknowledge environmental warfare and degradation. The common applications involve biological and gaseous substances. The 1976 Environmental Modification Convention prohibits hostile uses of the environment to destroy the enemy.125 Ensuing protocols exhibited the international concerns regarding acts that affected lives far beyond the immediate military theater. The 1977 protocol precludes any use that would cause “widespread, severe damage to the environment.” Reprisals that use the environment are also prohibited. These conventions proved ineffective when the most disastrous environmental act of war occurred in 1991. During its retreat from Kuwait at the end of the Persian Gulf War, Iraq’s military forces set fire to over 600 oil wells. This wartime tactic sent flames and smoke into the upper atmosphere for a period of nine months until all wells could be capped. This event also generated the call for a new “Fifth” Geneva Convention dedicated solely to the protection of the environment in time of armed conflict.126

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124 Ibid., 143. Mozur et al., “A Global Tipping Point.” Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, UNTS I-17119, open for signature 1976 (entry into force, 1978). The London Conference of 1991 is discussed in G. Plant, Environmental Protection and the Law of War: A “Fifth Geneva” Convention on the Protection of the Environment in Time of Armed Conflict (London: Belhaven Press, 1992).

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Since the early 1990s, as scientific evidence mounted of the deteriorating state of the international environment, the condition of the environment itself has become the subject of increased scholarly and practitioner concern, both for its own sake and for its potential to impact international, national, and human security. Now, some thirty years later, the vast scientific consensus is that a steady rise in average temperatures is producing a cascade of related problems: sea-level rise with concomitant flooding, weather extremes, habitat and species loss, crop and food loss, and increased respiratory ailments, among other major effects. Clearly, these effects threaten most of the elements of human security already cited: food, health, political, and environmental human security. The question for international law then becomes what to do about it. Martin has issued the clarion call for the field in the following terms: The nature of the threat posed by the [climate] crisis has not yet become politically salient, and the international law regimes related to international peace and security have not yet been implicated by calls for action on climate change. [However] . . . I suggest that this is likely to change, and possibly quite radically, in the not too distant future. As the consequences of the climate crisis begin to manifest themselves in ever worsening ways, the relationship between climate change and national security will become much more viscerally understood, not only by governments, but also by the general public in countries around the world. The international climate law regime, comprised of a growing body of treaties and customary international law, provides a web of increasingly specific obligations of both conduct and result in relation to the mitigation of GHG emissions, reducing the destruction of carbon sinks, and other contributions to climate change.127

Martin and Nevitt have both suggested that as environmental effects become more pronounced and undeniable the UN Security Council, using many of the mechanisms in the UN Charter discussed above, can and will be used to act against “rogue climate states,” intervening militarily to stop practices that would produce further environmental degradation.128 Nevitt builds on this premise to argue that the UN Security Council should follow a three-step plan to combat the security effects of climate change, culminating with the use by the UN Security Council of Article 39 (see Section 2.1) to identify, and act

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C. Martin, “Atmospheric Intervention? The Climate Change Crisis and the Jus Ad Bellum Regime,” Columbia Journal of Environmental Law 45, No. 2 (2020): 333–334. Ibid.

Thinking Ahead

upon, climate change as a security threat.129 It will be important that this is a multilateral effort through the UN or other international organization, however, to avoid the tendency of states to use international law (like that of state responsibility) in order to shift blame and find scapegoats, like the US did in trying to pin all the effects of COVID-19 on China.130 Resource security is felt most keenly in the developing world, where, ironically, much of the world’s natural resources are located. Problems arise when those resources are overused, extracted without adequate compensation, converted into polluting substances, and/or when local citizens are blocked from accessing them. Access to these resources is one of the leading causes of armed conflict in the underdeveloped Global South.131 Resources essential for human security include: water, food, minerals, biodiversity, energy, shelter, and materials for clothing and maintaining a basic standard of living. Central America is an example of “unsustainable” overuse of resources and of the connection between resource security and health security.132 The hurricanes of 2020 added to the resource deprivation in Central America. To move beyond these basic human resource needs, access to clean and reliable energy is paramount.133 Such energy access is often denied to citizens in much of the Global South, either because they cannot pay high prices for it, or because there are inadequate or destroyed power-producing facilities in their area. We discuss international environment law more in Chapter 10, but we note here that the protection of, and access to, vital resources may require access agreements backed by the international use of force, much in the same way as Martin and Nevitt apply the international use of force to address climate change, above.

Thinking Ahead Assessments of the effectiveness of the use of force in pursuing human security and humanitarian interventions are surprisingly rare. A thorough 129

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M. Nevitt, “Climate Change: A Threat to International Peace and Security?,” Opinio Juris (blog), 2020, http://opiniojuris.org/2020/08/29/climate-change-a-threat-to-internationalpeace-security/ accessed May 20, 2022. Martin, “Climate Wars and Jus Ad Bellum: Part I.” R. Piet, “Resource Security in the Americas and Beyond,” in B. Bagley, J. Rosen, and H. Kassab, eds., Reconceptualizting Security in the Americas in the Twenty-First Century (Lanham, MD: Lexington Books, 2015), 251–264. D. Suman, “Ecosecurity and Climate Change Vulnerabilities in Central America,” in B. Bagley, J. Rosen, and H. Kassab, eds., Reconceptualizting Security in the Americas in the Twenty-First Century (Lanham, MD: Lexington Books, 2015), 287–304. Piet, “Resource Security in the Americas and Beyond,” 255.

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assessment of UNPKOs found that they are, on the whole, successful, as noted by Fortna in her empirical work.134 McGuiness, citing RAND Corp. and Economist studies, claims that, in general, UNPKOs do a better job of postconflict stability operations and nation building than US armed forces do, at a fraction of the cost.135 Clearly, the “re-securitization” of the use of force from just promoting state security to human security has now moved from the realm of the theoretician to the public and their political leaders.136 In addition, there is a growing use of multilateral forces to carry out this broadened notion of security, forces like UNPKOs. As we noted, several factors are driving that direction: growing public insistence (at least in the democracies) that the use of force abroad be tied to legally sanctioned and humanitarian missions; public (and donor) fatigue with “go it alone” (unilateral) interventions; and the sense of global vulnerability to transnational threats like climate change and COVID-19 with a concomitant re-prioritization of resources to address such human, and not just national, security threats. However, traditional state-to-state security threats (discussed in Chapter 8) like the ongoing conflict between Russia and Ukraine, and potential conflicts involving China and the US, have not and will not lessen in importance in international law and relations. This presents a much more complex challenge for international regulation, as practitioners try to simultaneously prevent inter-state conflict from escalating out of control while addressing emerging human security concerns. Indeed, a recent edition of the US intelligence agencies’ estimate of future security threats offers a gloomy assessment of the ability of international law and international organizations to effectively address these mushrooming challenges when public confidence and support of these institutions has significantly lessened.137 Also for the first time, the same report acknowledges the reality of human security challenges as co-equal to traditional state-security threats.138 Many of these human security threats are longer term and will therefore take dedicated rule-making and execution to address; climate change being

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V. Fortna, Does Peacekeeping Work? Shaping Belligerents’ Choices after Civil War (Princeton, NJ: Princeton University Press, 2008). P. McGuinness, “UN Better Than US at Peackeeping and Nation Building?,” Opinio Juris (blog), March 23, 2005, http://opiniojuris.org/2005/03/23/un-better-than-us-atpeackeeping-and-nation-building/ accessed May 20, 2022. D. Sanger, “With Afghan Decision, Biden Seeks to Focus U.S. on New Challenges,” New York Times, April 13, 2021. National Intelligence Council, “Global Trends: A More Contested World” (Washington, DC, 2021) www.dni.gov/index.php/gt2040-home/introduction accessed May 20, 2022. Ibid. See especially the chapter entitled “Structural Forces.”

Thinking Ahead

the prime example. Without the credible use of force to hold “rogue climate states” and industries accountable, it is unlikely that critical targets for the reduction of greenhouse gases will be met before the “tipping point” occurs in the next few decades. Once again, the UN Security Council is the most important single body to authorize use of force in the service of human security needs. As we noted in the chapter, regional approaches will be necessary as well, but the relationship between regional organizations (like the EU and NATO) needs to be clarified in international law. We have now laid the groundwork for a more detailed consideration of the treatment of the international environment, to which we turn next, and economic relations in international law, which we examine in Chapter 11.

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International Environmental Law

The realities of global climate change firmly in mind, world leaders descended upon Paris, France, in December 2015 to hash out an agreement that would take over where the Kyoto Protocol (which expired in 2012) had left off. The result of that meeting, which represented a continuation of conversations on combating climate change that had happened every year since 1995, was the historic Paris Agreement. The Paris Agreement had much more buy-in than its predecessor; 196 countries had negotiated its terms, and by late 2021 nearly every member state had become a party to it. It is the most widely supported climate agreement to date. “We have entered a new era of global cooperation on one of the most complex issues ever to confront humanity,” then-United Nations (UN) Secretary-General Ban Ki-moon said. He continued, “For the first time, every country in the world has pledged to curb emissions, strengthen resilience, and join in common cause to take common climate action. This is a resounding success for multilateralism.”1 Indeed, although the Agreement was far from perfect, there was no denying the urgency that led to its creation. Two years before the historic Paris meeting, the Philippines’s lead negotiator Yeb Sano addressed the opening session of the climate summit that was then taking place in Warsaw, Poland. The Philippines was still catching its breath after Typhoon Haiyan (also known as Super Typhoon Yolanda) ravaged the country in early November 2013. “Up to this hour, I agonize while waiting for word as to the fate of my very own relatives,” he said. “This process under the UN’s Framework Convention on Climate Change (UNFCCC) has been called many names. It has been called a farce. It has been called an annual carbonintensive gathering of useless frequent flyers. It has been called many names. But it has also been called the project to save the planet. It has been called

1

R. Harrington, “Here’s What the U.S. Actually Agreed to in the Paris Climate Deal,” Business Insider, June 1, 2017, http://businessinsider.com/what-did-us-agree-to-paris-climate-deal2017-5 accessed May 20, 2022.

Introduction

‘saving tomorrow today.’ We can fix this. We can stop this madness. Right now.”2 The Paris Agreement appeared to be the global effort Sano was searching for. Indeed, as state representatives symbolically affixed their signatures to the document, it looked for a moment like the climate crisis was on its way toward meaningful mitigation. This optimism was rattled, however, just two years later, when new US president Donald Trump announced from the White House Rose Garden that the United States (US) would no longer be party to the agreement. He criticized the agreement (as he eventually would other international agreements) as unfair to the US and minimized its contribution to carbon emissions reduction.3 After winning the 2020 presidential election in the US, Joe Biden immediately rejoined the agreement. The Paris Agreement’s broad appeal is evidence that climate change is now considered an apocalyptic threat to humanity, much like nuclear holocaust once was. While the UN Charter does not directly address environmental issues, Article 74 suggests that its state members’ “policy in their metropolitan areas must be based on the principle of good neighborliness.” That, in turn, requires them to consider “the interests and well-being of the rest of the world, in social, economic and commercial matters.” The big question is: will self-interested states rise to the challenge? What power does international law have to compel them to do so?

Introduction This chapter outlines the major features of international environmental law, beginning with a brief history of global environmental governance. This is necessary to understand the progress that has been made so far and the structures that have been created for states to work within, and to see how far the international community has left to go. We begin with a broad outline of the major environmental conferences, culminating in the architecture of climate change governance. Because climate change is an environmental issue that exacerbates so many other issues, you will see that this chapter 2

3

Climate Home News, “‘It’s Time to Stop This Madness’ – Philippines’ Plea at UN Climate Talks,” Climate Home News, November 11, 2013, http://climatechangenews.com/2013/11/ 11/its-time-to-stop-this-madness-philippines-plea-at-un-climate-talks/ accessed May 20, 2022. D. Trump, “Statement by President Trump on the Paris Climate Accord,” Transcript of speech delivered at the White House Rose Garden, Washington, DC, June 1, 2017, https:// trumpwhitehouse.archives.gov/briefings-statements/statement-president-trump-parisclimate-accord/ accessed May 20, 2022.

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pays it particular attention. We also highlight some of the major environmental agreements outside of climate change related to the marine environment, the atmosphere, and the preservation of biodiversity. The essential principles of international environmental law are presented in a framework developed by Dupuy and Viñuales that highlights the twin efforts of “prevention” and “balance.” Prevention principles highlight the need to create conditions under which environmental degradation does not occur or is less likely to occur, while balance principles underscore the need for each state to uniquely shoulder its part of the burden of tackling major environmental problems. Here, we include cases that show how these principles are used in practice by international courts. The penultimate section of the chapter details the intersection of environmental law and human rights. While we devote an entire chapter of this book to human rights (Chapter 7), the boundary between the environment chapter and the human rights chapter is fluid. We examine whether a healthy environment is necessary for the enjoyment of human rights, and whether or not there is indeed an international right to a healthy environment. Regional supranational courts have presented some very different ways of thinking about these issues; for that reason, we spotlight the European Court of Human Rights (ECtHR), the Inter-American Court of Human Rights (IACtHR), and the African Court of People’s and Human Rights (ACtHPR). Finally, we take a brief look at the relationship between conflict and the environment. War is destructive of the environment, but environmental issues can also be a driver of conflict. In this final section of the chapter, we also consider the impact of multinational corporations on the environment and the limited ways in which public international law can hold them to account. The environment knows no boundaries. The materials presented in this chapter provide insight into the tensions inherent in environmental problems: How do we assign responsibility for transboundary issues? What remedies are available to states who have suffered environmental degradation due to another state’s or a corporation’s actions? What enforcement options exist for states? And – perhaps most difficult – how can we balance the interests of the international community’s “haves” and “have-nots”?

1 International Environmental Governance Understanding the development of international environmental law requires a bit of background on the innovations in global environmental governance. In this section, we outline the various conferences and agreements that

1 International Environmental Governance

created the environmental architecture that underpins international environmental law today. We then move on to an examination of the major environmental principles that have either emerged from or have been solidified by these events. We begin our discussion of global environmental governance in 1972, but it is important to note that movements toward state responsibility for the environment (broadly defined) began many decades earlier – indeed, the Bering Sea Fur Seals Arbitration, which centered on the over-exploitation of fur seals, was concluded in 1893.4 Before talking about the elements of global environmental governance, let us first establish the major actors. For the most part, the cast is predictable, but the script is slightly different than it is in other, more settled areas of international law. States are again the most prominent, and the problem of sovereignty is especially daunting due to the transboundary nature of most environmental problems. It is important to recognize that environmental problems exist “when people consider human impacts on nature as negative, whether or not the human benefits of the responsible activities generate more-than-offsetting benefits and whether or not solutions are available and sufficiently cheap that people support their adoption.”5 This explains why, as Mitchell notes, there is outcry when hazardous waste is dumped into rivers, but little outcry when water is chlorinated or fluoridated to promote human health. Outcry is all but guaranteed as soon as a negative environmental impact is felt internationally. It is at that point that sovereignty often hampers efforts at collective action to solve environmental problems, and also the point at which states may choose to bring their disputes before international courts for resolution. But states are not the only relevant actors in international environmental law. International organizations like the UN have worked to help states coordinate their actions to prevent or resolve problems. Organizations such as the UN’s Food and Agriculture Organization (FAO), for example, have a specific focus (e.g., ensuring food security). Organizations like the UNFCCC, on the other hand, exist to bring states together on a regular basis in order to help states regulate a problem (e.g., climate change). While these governmental organizations work to coordinate the efforts of states, nongovernmental organizations (NGOs) like Greenpeace or Conservation International work to harness the power of the public, raising awareness about environmental issues and working toward grassroots solutions, often

4

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Bering Sea Fur Seals Arbitration Award, RIAA, August 15, 1893, https://legal.un.org/riaa/ cases/vol_XXVIII/263-276.pdf accessed May 20, 2022. R. Mitchell, International Politics and the Environment (Thousand Oaks, CA: Sage, 2010), 22–23.

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with a focus on changing consumption behavior. Still other organizations, like the Intergovernmental Panel on Climate Change (IPCC) serve as coordination points for scientists and clearinghouses for reliable research, with major impacts on the global conversation about human-generated environmental problems. Corporations occupy an uncertain place in international environmental law. For the most part, corporations cannot be subjects of international environmental law because they are not states, and they operate under the domestic rules of the state of their incorporation. But they are undeniably actors with tremendous power, and have been held to account, in limited fashion, in international human rights law, as we saw in Chapter 7. But the enforcement of international environmental law is weaker; as Morgera notes, “[m]ultinationals benefit from the protection of international investment law and from gaps in international criminal and civil liability regimes with respect to environmentally damaging corporate conduct.”6 While private international law has been able to target private operators for environmental damages, the same is not true in public international environmental law. But it is individuals who feel the impacts of environmental problems most acutely. As we noted in Chapter 2, individuals cannot access international courts directly; their states must act on their behalf, if at all. Individuals can, however, access local and national courts and attempt to hold their governments accountable to international agreements and standards. We will see several examples of individuals pressing their international environmental concerns in this chapter. Because of the global challenge presented by climate change, we have deliberately chosen to focus most of our attention in this section on that. This is not to say that other issues have not resulted in international cooperation and agreement; rather, it is an acknowledgment of the overarching and unprecedented nature of the problem of global temperature rise. We discuss agreements on other environmental issues in different sections of this chapter.

1.1

1972 Stockholm Conference

We can trace the beginning of the modern environmental movement to 1972. The 1972 Conference on the Human Environment in Stockholm, Sweden was the first major UN conference on the environment.7 The resulting 6

7

E. Morgera, Corporate Accountability in International Environmental Law (New York: Oxford University Press, 2020). See “Report on the UN Conference on the Human Environment,” UN Doc. A/CONF.48/14/ Rev.1, reprinted in International Legal Materials 11 (1972): 1416.

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proclamations recognized that preservation of the environment is essential to the continued enjoyment of life itself. The importance of preserving the environment was succinctly stated in the aspirational proclamation providing (in part) as follows: 1. . . . In the long and tortuous evolution of the human race on this planet a stage has been reached when, through the rapid acceleration of science and technology, man has acquired the power to transform his environment in countless ways and on an unprecedented scale . . . [M]an’s environment . . . [is] essential to his well-being and to the enjoyment of basic human rights – even the right to life itself. 2. The protection and improvement of the human environment is a major issue [that] affects the well-being of peoples and economic development throughout the world; it is the urgent desire of peoples of the whole world and the duty of all Governments.

The bulk of the Stockholm Conference work product, the Stockholm Declaration, consists of twenty-six principles that call on states and international organizations to “play a coordinated, efficient and dynamic role for the protection and improvement of the environment” (Principle 25). This conference established the Governing Council of the UN Environment Program (UNEP), headquartered in Nairobi, Kenya – a signal of the important role the developing world would play in environmental protection. The UNEP’s functions include implementation of environmental programs and “[t]o keep under review the world environmental situation in order to ensure that emerging environmental problems of wide international significance receive appropriate and adequate consideration by Governments . . . .”8 The key provisions are Principles 21 and 22, which set the stage for an evolving regime for establishing both standards and remedies: Principle 21 States have, in accordance with the Charter of the United Nations and the principles of international law, . . . the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction. Principle 22 States shall cooperate to develop further international law regarding liability and compensation for the victims of pollution and other environmental damage

8

Section I, 2(d), Resolution on the Institutional and Financial Arrangement for International Environment Cooperation, General Assembly Resolution 2997, A/8370 (1973), reprinted in International Legal Materials 13 (1974): 234.

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The fourth proclamation of the Stockholm Declaration notes that “[i]n the developing countries most of the environmental problems are caused by under-development . . . Therefore, the developing countries must direct their efforts to development, bearing in mind their priorities and the need to safeguard the environment.”9 The focus of international environmental law soon became sustainable development. This phrase represents the symbiotic relationship between economic development (the benefit) and environmental degradation (the burden). In an ideal world, the improvement of underdeveloped economies would not be accompanied by unacceptable costs to the environment, despite the fact that the trajectory of development of the world’s most powerful economies was built on environmental degradation (e.g., the Industrial Revolution). As Gordon observes: Sustainable development appears to address what is essentially an enigma without meaningfully challenging existing power structures or the impact that the modern quest for a higher material standard of living has had on the natural world. Indeed, in many respects it only reinforces these constructs, as it essentially negates the view that environmental conservation inevitably constrains development or that development, as currently fashioned in the global North, unavoidably means an unacceptable level of environmental degradation.10

This creates a set of problematic starting points for both developing and developed states in all environmental negotiations: developing states feel disadvantaged by the expectation that they develop sustainably, and developed countries are reluctant to change the polluting ways that allowed for their prosperity. It effectively pits the industrialized “Global North” against the lesser-developed “Global South.” States of the former group seek comparatively more regulation to control environmental degradation. Lesser-developed states seek economic prosperity, which may indeed come with costs to the environment. How to overcome this impasse? The UN Secretary-General appointed Gro Harlem Brundtland to lead the World Commission on Environment and Development, which came to be known as the Brundtland Commission, in 9

Stockholm Declaration on the Human Environment, in Report of the United Nations Conference on the Human Environment, UN Doc.A/CONF.48/14, at 2 and Corr.1 (1972). 10 R. Gordon, “Unsustainable Development,” in S. Alam et al., eds., International Environmental Law and the Global South (New York: Cambridge University Press, 2015), 63–64.

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1983. The Commission drafted principles that have served as a yardstick for measuring the acceptable scope of “sustainable development” for developing countries. The Brundtland Commission Report, Our Common Future, defined sustainable development as “development which meets the needs of the present generation without compromising the ability of future generations to meet their needs,” a definition that has become standard.11 The Brundtland Report became the most influential perspective on sustainable development, which was the topical focus of the UN’s subsequent 1992 Rio Conference as well as the contemporary sustainable development dialogue. Indeed, sustainable development has become “the worldwide dominating leitmotif for shaping international environmental and developmental relations,”12 and its influence on the global conversation about environmental protection is undeniable. It underlies all of the core principles of international environmental law, as you will see further in this chapter. Additionally, it ties environmental, social, political, and economic issues together, but makes environmental protection a kind of minimal standard: if the “sustainable” label is employed, environmental protection is often assumed. And yet it is not a legal principle; it does not have its own subheading in this chapter. Instead, “sustainability provides a framework for writing, modifying, and implementing laws, and for developing appropriate institutions and institutional arrangements, to further sustainable development in specific places and specific contexts.”13 Sustainable development, then, is not just about environmental protection. Indeed, over the years it has taken on different guises, bending to encompass important problems as they arise and are inevitably linked to the environment. One need look no further than the 2015 Sustainable Development Goals (SDGs), the most recent and more specific iteration of the 2000 Millennium Development Goals. There are seventeen SDGs, each of them with specific targets that states should aim to achieve by 2030. No SDG is meant to be more important than the next; they are equal. They range from poverty and hunger eradication to gender equity to affordable energy.14 As Dupuy and Viñuales write, “Sustainable development is turning brownish . . . the environment-development equation still grapples with the question of 11

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UN General Assembly, Forty-Second Session, Report of the World Commission on Environment and Development, A/42/427, August 4, 1987. U. Beyerlin and T. Marauhn, International Environmental Law (Oxford: Hart/Bloomsbury, 2011), 76. J. Dernbach and F. Cheever, “Sustainable Development and Its Discontents,” Transnational Environmental Law 4, No. 2 (2015): 251. Sustainable Development Goals available at: https://sdgs.un.org/goals accessed May 20, 2022.

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implementation. Fresh thinking is required to move beyond the (transitory) answers provided by the broad concept of sustainable development. This is perhaps the most important intellectual frontier in contemporary international environmental law.”15

1.2

1992 Rio Conference

On the twentieth anniversary of the Stockholm Conference states assembled once again to reassess the interplay between maintaining the earth’s environment and the development of the Global South. Nearly 180 States and 100 heads of government all gathered in Rio de Janeiro, Brazil, for the UN Conference on Environment and Development (UNCED). How to manage the connected but often competing objectives of economic development and environmental protection was the central issue. As provided in the resulting UN declaration, the Rio objectives are “to promote the further development of international environmental law, taking into account the [1972] Declaration of the UN Conference on the Human Environment, as well as the special needs and concerns of developing countries, and to examine . . . the feasibility of elaborating general rights and obligations of states, as appropriate, in the field of the environment . . . .”16 This widely heralded gathering of diverse states produced – though not all were negotiated at the conference – the five major documents of the international environmental agenda for the twenty-first century. The primary components of “Rio 1992” are the following: (1) Agenda 21; (2) the Rio Declaration; (3) the Biological Diversity Convention; (4) the Framework Convention on Climate Change; and (5) the Forest Principles. Agenda 21 is Rio’s 800-page blueprint for managing all sectors of the environment in the twenty-first century.17 Many of the action items are quite specific; as Beyerlin and Marauhn note, its “very complex catalogue of duties, which is divided into several programme areas, has still not been completely implemented to date.”18 The document addresses everything from atmospheric protection to desertification, as well as land-use and ocean protection. As expected after the discussions in Stockholm, sustainable development figured prominently in this Rio document as well; indeed, a new Commission on Sustainable Development (CSD) was formed in the UN’s 15

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P-M. Dupuy and J. Viñuales, International Environmental Law, 2nd ed. (Cambridge: Cambridge University Press, 2018), 24. UN General Assembly, Eighty-fifth Plenary, “United Nations Conference on Environment and Development,” A/RES/44/228, December 22, 1989. Emphasis added. Report of the United Nations Conference on Environment and Development, A/CONF.151/ 26/Rev.1 (Vol. 1), Resolution 1, Annex 2: Agenda 21, June 1992. Beyerlin and Marauhn, International Environmental Law, 17.

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Economic and Social Council (ECOSOC) to monitor progress on Agenda 21’s ambitious goals. The Rio Declaration on Environment and Development, which, like the Stockholm Declaration, has no legally binding force, consists of twenty-one principles.19 It is significant in that it lays out several key environmental principles that are central to our understanding of international environmental law and state responsibility, taken up in greater detail later in this chapter. Predictably, Principle 1 of the Rio Declaration declares that humans are “at the center of concerns of sustainable development” and are entitled “to a healthy and productive life in harmony with nature.” Principle 3 further notes the need for “intergenerational equity,” echoing the Brundtland Commission’s definition of sustainable development, which is also carried through in Principle 4 that links environmental protection to the development process. Other Rio Declaration Principles, notably 2, 15, and 16, directly impact state responsibility (see below). Rio’s Convention on Biological Diversity (CBD) was opened for signature at the conference, though it had actually been negotiated prior to the conference itself. It mandates national development, monitoring, and preservation of all forms of life.20 It requires the maintenance of “variability” among living organisms from all sources and ecosystems – a form of endangered-species protection. The desired diversity is not limited to the earth’s soil. Vessels and planes traversing the world’s oceans and airways introduce pollutants that disturb the world’s biodiversity. Article 3 of the CBD contains an important principle designed to dovetail environmental protection and sustainable development: States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the [concomitant] responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or areas beyond the limits of national jurisdiction.

This feature of the sustainable development doctrine now permeates the various international environmental debates.

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UN General Assembly, Rio Declaration on Environment and Development, A/CONF.151/26 (Vol. I), August 12, 1992. Convention on Biological Diversity, opened for signature June 5, 1992, UNTS Vol. 1760: 79, https://treaties.un.org/doc/Treaties/1992/06/19920605%2008-44%20PM/Ch_XXVII_08p .pdf accessed May 20, 2022.

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It was after the Rio Conference that the world’s attention started to shift dramatically toward climate change as the preeminent environmental issue. The next sections focus on collective efforts to regulate and reduce global greenhouse gas emissions in pursuit of climate change mitigation.

1.3

1992 UN Framework Convention on Climate Change

Like the CBD, the UNFCCC was opened for signature at the Rio Conference in 1992 but was similarly negotiated slightly before the Rio Conference. It has near-universal membership, and entered into force in March 1994. States who are party to the UNFCCC meet annually to discuss next steps in reducing greenhouse gas emissions and slowing the increase in overall global temperatures. The UNFCCC has become the umbrella convention under which global climate change efforts reside; its importance in the environmental governance architecture cannot be overstated. In accordance with Article 3.2 of the Convention, state parties should: protect the climate system for the benefit of present and future generations of humankind on the basis of equity and in accordance with their common but differentiated responsibilities. Accordingly, the developed country Parties should take the lead in combating climate change and the adverse effects thereof.

Furthermore, the Convention exhorts them in Article 3.3 to “take precautionary measures to anticipate, prevent, or minimize the causes of climate change and mitigate its adverse effects.”21 Recognizing that states are differently vulnerable and differently able to act, the UNFCCC distinguished most developed countries as “Annex I” parties that had different requirements than less-developed countries. Annex I states were required to develop national policies that would help to mitigate the effects of climate change by limiting greenhouse gas emissions and protecting carbon sinks (e.g., forests and large bodies of water that can absorb greenhouse gases from the atmosphere). The UNFCCC required the parties to submit periodic reports about their greenhouse gas emissions. Significantly (and problematically), it also required developed countries to provide funding to assist developing countries in meeting their emissions reduction obligations (see Article 4.3), a requirement that caused friction between the Global North (and particularly the US) and the Global South.

21

United Nations Framework Convention on Climate Change, open for signature May 9, 1992, UNTS Vol. 1771: 107, https://treaties.un.org/doc/Treaties/1994/03/19940321%2004-56% 20AM/Ch_XXVII_07p.pdf accessed May 20, 2022.

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1.4

1997 Kyoto Protocol

Unlike the UNFCCC, the 1997 Kyoto Protocol set comparatively clear targets for the abatement of greenhouse gas emissions.22 For developed countries, Kyoto required reductions of approximately 5 percent as compared to 1990 levels; it did not similarly bind developing states. As Beyerlin and Marauhn note, “[u]nlike the UNFCCC, the Kyoto Protocol favours the strategy of ‘mitigating climate change through the reduction of GHG emissions’ over the complementary strategy of ‘adaptation to climate change.’”23 The Kyoto Protocol was the result of compromise. For the first time, developed states adopted an agreement accepting (in principle) that they would meet specific targets/timetables so that greenhouse gases, the drivers of climate change, would be dealt with in a binding “hard law” treaty. It was also a recognition that developed states were largely responsible for the climate crisis, and thus should bear the primary responsibility for its resolution. Kyoto’s primary innovation is its creation of new mechanisms designed to harness market forces for determining how and where to reduce greenhouse gas emissions. The first of these mechanisms, emissions trading, allowed developed countries to achieve their emissions targets by trading emission credits among themselves. Emission reductions were achieved in a cost-effective manner because nations could buy and sell credits earned by reducing their CO2 emissions. The hope was that uniform adoption of the Kyoto Protocol would result in the 5.2 percent reduction of such gases by 2012. In July 2001, President George W. Bush announced that the US would not participate further because of the administration’s projection of the Kyoto Protocol’s financial impact on US corporations and the public. The US signed the Kyoto Protocol during the Clinton presidency, but never ratified it. Bush felt that there were too many unanswered questions in the Kyoto Protocol including how the emissions trading would actually function and how to address a ratifying party’s failure to comply with the stated targets and timelines.24 While the US rejection of the Kyoto Protocol could have doomed its existence, it nevertheless entered into force in February 2005. The 170 ratifying countries included all members of the European Union (EU), Russia, and

22

23 24

For a detailed presentation of facts and figures, see C. Brown, “The Kyoto Protocol Enters into Force,” ASIL Insights 9, No. 8 (February 7, 2005) www.asil.org/insights/volume/9/ issue/8/kyoto-protocol-enters-force accessed May 20, 2022. Beyerlin and Marauhn, International Environmental Law,161. For a succinct but comprehensive analysis, see “U.S. Rejection of Kyoto Protocol Process,” American Journal of International Law 95, No. 3 (2001): 647.

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both of the US’s North American Free Trade Agreement (NAFTA) partners, Canada and Mexico. Even China, one of the major industrializing countries of the world that was not assigned a binding emissions reduction target, ratified the Kyoto Protocol in 2002.

1.5

2015 Paris Agreement

The first “commitment period” – the time during which countries were expected to meet their emissions reduction targets – of the Kyoto Protocol expired in 2012, which meant that states urgently needed either to renew their pledges to reduce emissions under Kyoto or devise a new instrument to combat climate change. In order to provide continuity in the fight against runaway climate change, states convened at least once per year after 2012 to decide on a successor to Kyoto. The next step was the Doha Amendment to the Kyoto Protocol, which created a second commitment period that expired in 2020. The Doha Amendment required 144 states in order to enter into force; disappointingly, the 144th state to endorse the Amendment, Nigeria, did so only in October 2020 – just a few months before the second commitment period expired.25 Tellingly, Canada, Russia, and Japan never signed on to Doha. The weakness of the Doha Amendment went largely unnoticed, however, because the Kyoto process had been superseded in 2015 by the Paris Agreement. The Paris Agreement did not suddenly appear in 2015; rather, it was the culmination of years and years of incremental negotiation and agreements made by states.26 The incubation period for the Paris Agreement began in discussions of a post-Kyoto regime in 2005 but really intensified in 2009, when states met in Copenhagen, Denmark to lay the groundwork for what would become the Paris Agreement. The resulting Copenhagen Accord: pointed the way forward. In contrast to the Kyoto Protocol, which had set emission reduction targets through a collective process of international negotiations, the Copenhagen Accord established a bottom-up architecture, in which countries defined their own targets and actions and then recorded them internationally. Also in contrast to Kyoto, it began to erode the sharp differentiation between developed and developing country parties. For the first

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C. Ferand, “Nigeria, Jamaica Bring Closure to Kyoto Protocol Era, in Last Minute Dash,” Climate Home News, February 10, 2020, www.climatechangenews.com/2020/10/02/ nigeria-jamaica-bring-closure-kyoto-protocol-era-last-minute-dash/ accessed May 20, 2022. Indeed, the road to the Paris Agreement is more complex than we can describe here. For an excellent and detailed treatment, see DuPuy and Viñuales, International Environmental Law. See also D. Bodansky, “The Paris Climate Change Agreement: A New Hope?,” American Journal of International Law 110 (2016): 292.

1 International Environmental Governance time, China, India, Brazil, and other emerging economies put forward national emission limitation pledges. The result was a fundamental reorientation of the climate change regime, away from the rigidly differentiated approach of the Kyoto Protocol, toward a more bottom-up, global approach.27

The Paris Agreement thus looks quite different from its predecessor, thanks in no small part to the US. Obama Administration negotiators, concerned about subjecting the eventual treaty to the US Senate for its consent (which, while dominated by Republicans, it surely would not have received), were intimately involved in the crafting of the agreement and ensuring that it could survive a future Republican administration. The Agreement’s wording – using “should” instead of “shall,” for example – carefully avoids creating a strict international legal obligation. This was done so that then-president Obama could adopt the Agreement by Executive Order rather than go through the treaty process, thus bypassing a hostile Senate.28 Additionally, the Agreement detailed a withdrawal process that requires a waiting period before official exit; in the case of the US, which had declared in 2017 it would leave the Agreement, it could not officially start the withdrawal process until November 4, 2019, and then had to wait until November 4, 2020 to officially exit the Agreement – conveniently timed to coincide with the aftermath of the 2020 US presidential election.29 Joe Biden, winner of the 2020 election, quickly rejoined the Paris Agreement after taking office.30 What are the goals of the Paris Agreement? First and foremost, the aim is to hold global temperature rise to less than two degrees Celsius, and preferably less than 1.5 degrees Celsius. This is done by each state submitting their nationally determined contribution to greenhouse gas reduction – essentially setting their own reduction target – and then submitting them for review every five years, with the intent of increasing their commitment (“ratcheting up”) in each review period. Parties should also create their own adaptation plans and must agree to support developing states in creating sustainable development practices. The Agreement is designed to be transparent, with states openly submitting their plans to the international community for

27 29

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28 Ibid. Ibid., 297. United Nations, “On the Possibility to Withdraw from the Paris Agreement: A Short Overview,” United Nations Climate Change News, June 14, 2017, https://unfccc.int/news/ on-the-possibility-to-withdraw-from-the-paris-agreement-a-short-overview accessed May 20, 2022. H. J. Maj, “U.S. Officially Rejoins Paris Agreement on Climate Change,” NPR News, February 19, 2021, www.npr.org/2021/02/19/969387323/u-s-officially-rejoins-parisagreement-on-climate-change accessed May 20, 2022.

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comment. Additionally, a “global stock take” will occur every five years starting in 2023 in order to assess progress on the Agreement’s goals.31 Despite these negotiations and conventions, how do we know they are influencing state practice? That is, do states sign international environmental agreements – which, like most international agreements, have weak enforcement mechanisms – and continue behaving as though they never signed them? The answer to that question is likely yes. Mitchell notes the key difference between compliance and effectiveness: a state can be compliant with an environmental treaty, but it does not necessarily follow that the treaty itself was effective; i.e., the goals/targets set forth in the treaty were accomplished. States can be compliant intentionally (they changed their behavior because of the treaty) or accidentally (they were going to do whatever the treaty asked them to do even without signing the treaty). They can also be non-compliant intentionally (they signed the treaty in bad faith, or just for show) or in good faith, but they lacked the capacity to comply.32 This distinction is important because it gets at the question of how treaties like environmental agreements matter; if they are truly making a difference, state behavior should change in some way.

1.6

Intergovernmental Panel on Climate Change

We would be remiss not to include here some mention of the IPCC, the group of scientists whose work has helped to drive international action on climate change. The IPCC emerged in the period between the Stockholm and Rio Conferences, and found itself in high demand with the creation of the UNFCCC.33 In 1988, the UNEP and the World Meteorological Organization (WMO) established the IPCC, whose membership is open to states who are part of both organizations. Currently, there are 195 member states of the IPCC. The IPCC does not conduct its own, primary research. It does not review climate data. Its role is “to assess the state of the scientific literatures on all aspects of climate change, its impacts and society’s options for responding to it.”34 Its assessments are thus premised on data appearing in peer-reviewed literature from experts around the world. 31

32

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United Nations, “What Is the Paris Agreement?,” United Nations Climate Change, https:// unfccc.int/process-and-meetings/the-paris-agreement/what-is-the-paris-agreement accessed May 24, 2021. R. Mitchell, International Politics and the Environment (Thousand Oaks, CA: Sage, 2010), 147ff. See G. Provost, “Rigorous and Relevant: Applying Lessons from the History of IPCC Special Reports to the Post-Paris Agreement World,” Harvard Environmental Law Review 43, No. 2 (2019): 507–546. Intergovernmental Panel on Climate Change, “IPCC Statement: Clarifying the Role of the IPCC in the Context of 1.5 Degrees Celsius,” IPCC Newsroom, September 21, 2021,

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This international panel has three working groups (and a special task force on greenhouse gas inventories). The focus of each of them is as follows: Group I: physical science of climate change; Group II: impacts of, adaptation, and vulnerability to climate change; and Group III: mitigation efforts. Perhaps the IPCC’s most visible and headline-grabbing activity is its Assessment Reports, which it produces in cycles of six to seven years. The Assessment Reports are the synthesis of the work of each of the three working groups, and they provide a broad overview of the state of climate research. The Fifth Assessment Report was released in 2014, a year before the negotiations began on the Paris Agreement; the Sixth Assessment Report was released in 2022, just in time for the very first “stock take” under the Paris Agreement.35 The Assessment Reports are useful, in part, because of the style in which they are written. They are written for policymakers and non-experts, more readily comprehensible to non-scientists than academic journals might be. The readable “Summary for Policymakers” contains only the highlights of the broader report, information designed to encourage action. For example, the Fifth Assessment Report notes that “[h]uman influence on the climate system is clear, and recent anthropogenic emissions of greenhouse gases are the highest in history. Recent climate changes have had widespread impacts on human and natural systems.”36 At a time in which climate science had been met with skepticism, particularly in the US, such a statement was important for the IPCC to make. The Assessment Reports are careful to indicate the certainty behind the statements they issue, as this statement from the Summary for Policymakers (SPM) illustrates: Anthropogenic greenhouse gas emissions have increased since the pre-industrial era, driven largely by economic and population growth, and are now higher than ever. This has led to atmospheric concentrations of carbon dioxide, methane and nitrous oxide that are unprecedented in at least the last 800,000 years. Their effects, together with those of other anthropogenic drivers, have been detected throughout the climate system and are extremely likely to have been the dominant cause of the observed warming since the mid-20th century.37

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www.ipcc.ch/2017/09/21/ipcc-statement-clarifying-the-role-of-the-ipcc-in-the-contextof-1-5oc/ accessed May 20, 2022. Intergovernmental Panel on Climate Change, “AR6 Synthesis Report: Climate Change 2022,” IPCC, www.ipcc.ch/assessment-report/ar6/ accessed May 23, 2022. Intergovernmental Panel on Climate Change, “IPCC Fifth Assessment Report Summary for Policymakers,” Summary for Policymakers (SPM) 1 (February 2018): 2, www.ipcc.ch/site/ assets/uploads/2018/02/AR5_SYR_FINAL_SPM.pdf accessed May 20, 2022. IPCC Fifth Assessment Report, SPM 1.2, 4, www.ipcc.ch/site/assets/uploads/2018/02/AR5_ SYR_FINAL_SPM.pdf accessed May 20, 2022. Emphasis original.

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The SPM has a targeted audience, and scholars have noted that only the “likely” or “extremely likely” claims are published there, as substitutes for statistical probability. One author of the Summary for Policymakers was interviewed about how the IPCC decides which statements to publish: We only want the most robust messages in the SPM because we have to go through government approval – and if we have a whole bunch of low confidence statements in there, the governments can rightly ask, “if we have low confidence in this, why are you telling us about it? Tell us the things you know, not the things you don’t know.”38

The IPCC has to be extra-careful in its guidance if it wants to have an impact. Straddling the line between science and politics is difficult: policymakers want definite answers, but science is not about absolute certainty; thus, there is a large chance that these two important groups can talk past each other. However, the IPCC has grown into its role, especially as it has operated alongside the UNFCCC. As Provost notes, the IPCC has learned how to time the release of its reports in order to have maximum impact: releasing a report well in advance of a major negotiation “ensures that the new science serves as part of the background of the negotiation, rather than as a lastminute addition to be ignored or disputed.”39 Additionally, the IPCC has demonstrated its value in presenting options to policymakers who may, due to their lack of scientific knowledge or experience, artificially limit their own options. The IPCC must, however, take care not to venture into the world of policymaking themselves, lest they tarnish their own credibility. “The line between clearly communicating tradeoffs and prescribing policy is a fine one, but it is a line the IPCC must walk. Today, more than ever, the IPCC is in a position to enable policy action, but it can only do so if it communicates clearly and maintains the accuracy and credibility of its science.”40

2 Other Achievements of International Environmental Law We have thus far told the story of the development of global environmental governance through major UN conferences and agreements designed at first to avoid and later to mitigate the impacts of global climate change. But even as these conferences and agreements were being constructed – and 38

39

Quoted in Scott Janzwood, “Confident, Likely, or Both? The Implementation of the Uncertainty Language Framework in IPCC Special Reports,” Climactic Change 162 (2020): 1666. 40 Provost, “Rigorous and Relevant,” 532. Ibid., 534.

2 Other Achievements

sometimes well before then – other major environmental agreements were concluded on a wider variety of environmental concerns. We highlight a few of those achievements here: the UN Convention on the Law of the Sea (UNCLOS), the Montreal Protocol, and the Convention on International Trade of Endangered Species of Wild Fauna and Flora. We close this section with a profile of the IPCC due to its significant role in helping to shape the discourse on climate change for policymakers and courts alike.

2.1

UN Convention on the Law of the Sea

One of the largest and most successful – though not exclusively environmental – international agreements is the result of the 1958, 1960, and 1974–1982 Conferences on the Law of the Sea: the UNCLOS, which came into force in 1994. Part a treaty on resource use and part a treaty on protection of the marine environment, UNCLOS helped to define the ocean space and the jurisdiction of states over that space. As discussed in Chapter 4, UNCLOS defines areas of the sea (and the abundant resources they contain) that are part of the property of coastal states, how those areas are to be measured, and where international waters – not subject to the jurisdiction of any one state – begin. The major environmental section of UNCLOS is Part XII, which includes forty-six articles on the “Protection and Preservation of the Marine Environment.”41 Perhaps the most important article of UNCLOS Part XII is Article 192, which succinctly notes that “[s]tates have the obligation to protect and preserve the marine environment.” A large part of this obligation is preventing, reducing, and controlling pollution (Article 194[1]) and not harming other states by pollution within their jurisdiction (Article 194[2]). The rest of Part XII details how states should cooperate to protect the marine environment (Section 2), including notification requirements, technical assistance (Section 3), monitoring risks (Section 4) and adopting laws and regulations that aim to reduce and regulate pollution from land-based sources (Section 5). Section 6 details enforcement mechanisms (particularly the requirement that all vessels fly the flag of their home state, which has responsibility for enforcement with international rules and standards), while Section 7 speaks to facilitation of any civil proceedings that should arise. The final, shorter sections of Part XII briefly describe state responsibility and liability (states “shall be liable in accordance with international law”42) and note that 41

42

UN Convention on the Law of the Sea (UNCLOS), opened for signature December 10, 1982, UNTS Vol. 1883:3, Part XII, https://treaties.un.org/doc/Treaties/1994/11/19941116%200526%20AM/Ch_XXI_06p.pdf accessed May 20, 2022. UNCLOS, Article 235(1).

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UNCLOS does not void state obligations assumed by a state in other agreements, so long as they are consistent with the general principles set forth in UNCLOS. International courts have long recognized laws of the sea as customary international law, or evidence of consistent state practice. Indeed, courts have recognized laws of the sea even before UNCLOS was concluded, and still refer to “laws of the sea” that are not explicitly found in the otherwise comprehensive UNCLOS.43 Why does this matter? If most of the provisions of UNCLOS are widely accepted as customary international law, then even states that are not signatories to the Convention (e.g., the US44) can be bound by it. That said, there are some weaknesses within the UNCLOS, as Mossop points out. Among them is the dependence on flag states, which should mean that the flag state assumes responsibility for enforcement and punishment of international law on vessels flying their flag. “Unfortunately, many states are not willing – or are unable – to exercise effective control over vessels flying their flags,” she writes. “This means that states may have little ability to prevent vessels flagged to other states that are blatantly violating international legal rules on the high seas.”45 Additionally, Mossop notes that the UNCLOS suffers from the lack of a single decision-making body that can make authoritative, nimble decisions over all issues related to the oceans, forcing states instead to resort to other, more specialized conventions for answers and resolution. Importantly, UNCLOS also tends to conceptualize “marine resources” as something separate from the ocean as an entire ecosystem, which seems counter to the idea of sustainable development – while fish and other resources can be exploited for economic benefit, they are not disconnected from the survival of the entire ocean system.46 Despite not having a centralized decision-making body, UNCLOS does have a dispute settlement body, established in Annex VI of the Convention: the International Tribunal for the Law of the Sea (ITLOS), located in the busy port city of Hamburg, Germany. Charged with interpretation and application of the UNCLOS, the Tribunal has only heard a limited number of cases – twenty-nine – since it delivered its first decision

43

44

45

46

See J. A. Roach, “Today’s Customary International Law of the Sea,” Ocean Development and International Law 45, No. 3 (2014): 239–242. The US was involved in the development of UNCLOS but is not a full member due to its objections over Part XI, which discusses the use and management of resources and the International Seabed Authority. J. Mossop, “Can We Make the Oceans Greener? The Successes and Failures of UNCLOS as an Environmental Treaty,” Victoria University Wellington Law Review 49, No. 4 (2018): 581. Ibid., 582–583.

2 Other Achievements

in 1997.47 While ITLOS has not been particularly radical in its decisions48 it has has handed down decisions49 related to the marine environment; it has cautiously referenced the precautionary principle50 (discussed in Section 3 below); and encouraged cooperation and notification of possible risks.51

2.2

Montreal Protocol

The Montreal Protocol of 1987 was the result of a perfect storm of favorable conditions for cooperation on an environmental problem. The environmental problem was clear: the rapid depletion of ozone in the atmosphere, brought to the attention of the public via images of a large “hole” in the ozone layer in 1985, had potentially devastating consequences if not addressed. The ozone layer protects the earth from the sun’s harmful ultraviolet rays, which can cause a wide array of problems for human and environmental health. Overall, scientists around the world were in agreement about the problem itself and its potential solution: a strict treaty that would regulate chlorofluorocarbons (CFCs) in the atmosphere. The focus on CFCs was a result of the 1974 Rowland-Molina hypothesis, which demonstrated how the chlorine in CFCs destroyed stratospheric ozone.52 Haas demonstrates how the scientific epistemic community – essentially, a network of experts – were able to influence not only policymakers but also large, industrial producers of CFCs to take action. He writes: [Epistemic] community members were effective at persuading the two major actors of the need for strong CFC controls: the United States, which was the largest CFC-producing and CFC-consuming nation, and DuPont, which was the 47

48

49

50

51

52

The ITLOS maintains a current list of cases on its website: www.itlos.org/cases/ accessed May 20, 2022. For a concise summary of cases that have come before ITLOS since 1997, see Helmut Tuerk, “20 Years of the International Tribunal for the Law of the Sea (ITLOS): An Overview,” Revue Belge de Droit International / Belgian Review of International Law 49, No. 2 (2016): 449–486. On this point, see A. Boyle, “The Environmental Jurisprudence of the International Tribunal for the Law of the Sea,” International Journal of Marine and Coastal Law 22, No. 3 (2007): 369–381. For example, see Southern Bluefin Tuna (New Zealand v. Japan; Australia v. Japan), Provisional Measures, Order of August 27, 1999, ITLOS Reports (1999): 296, paras 77 and 79. MOX Plant (Ireland v. United Kingdom), Provisional Measures, Order of December 3, 2001, ITLOS Reports (2001):110, para. 82; see also Land Reclamation in and around the Straits of Johor (Malaysia v. Singapore), Provisional Measures, Order of October 8, 2003, ITLOS Reports (2003): 25, para. 92. American Chemical Society, “Chlorofluorocarbons and Ozone Depletion,” American Chemical Society, April 18, 2017, www.acs.org/content/acs/en/education/whatischemistry/ landmarks/cfcs-ozone.html accessed May 20, 2022.

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10 International Environmental Law world leader in CFC production. The United States in turn compelled other nations to accept its view, while DuPont’s eventual decision to phase out CFC production changed the international market and compelled its competitors to follow.53

The ability of all of these groups – scientists, policymakers, and industry leaders – to come to agreement on both the problem and the solution makes the Montreal Protocol one of the biggest success stories in international environmental history. How does the Montreal Protocol work? States are divided by development status: “Article 5 parties” (developed states) and “non-Article 5 parties” (developing states), each with different commitments to reducing CFCs and halons (compounds that are also destructive of ozone). Developed states were required to freeze production and reduce consumption of the regulated substances, while developing countries were given a grace period to use them before regulations took effect. Article 10 of the Protocol created a “Multilateral Fund” to cover some of the costs of compliance with the Protocol; the US provided most of the funding for the Fund. Parties were also required to attend regular Meetings of the Parties (MOPs) to make adjustments to the agreement, which became legally binding after ratification by enough parties.54 The “adjustments” sometimes resulted in the regulation of new substances, or modifications to the trading or transfer of regulated substances. Finally, the Montreal Protocol has a non-compliance procedure by which non-compliance is managed (not necessarily punished) by an Implementation Committee that seeks to remove technical and financial barriers to compliance.55 The MOPs have occurred over thirty times since the Montreal Protocol came into force. The 28th MOP, held in Rwanda in 2016, marked a major shift in the Protocol’s scope. The so-called “Kigali Amendment” to the Montreal Protocol extends the Protocol’s substance regulation to hydrofluorocarbons (HFCs) due to the contribution of HFCs to global climate change. It is significant that this alteration was made in Africa: Africa is undoubtedly among the most vulnerable to the impacts of climate change, and the Kigali Amendment is perhaps the most productive step – especially since there is yet

53

54 55

P. Haas, “Banning Chlorofluorocarbons: Epistemic Community Efforts to Protect Stratospheric Ozone,” International Organization 46, No. 1 (1992): 221–222. Beyerlin and Marauhn, International Environmental Law, 156. Dupuy and Viñuales, International Environmental Law, 167.

2 Other Achievements

no data on the effectiveness of the Paris Agreement – on reducing substances that are directly connected to global temperature rise.56 The Montreal Protocol, then, is lauded for several reasons. First, it brought together a wide variety of actors united for a common purpose. Second, it was able to pinpoint the exact problem it was designed to solve and was flexible enough to be able to expand its focus as scientific knowledge increased. Third, it provided funding to assist states that had trouble complying with the agreement. And finally, it has the ability to gently move states toward compliance instead of punishing them for non-compliance. Unfortunately, few other environmental agreements can claim such a structure. It is important to recognize that the Montreal Protocol is just one in a long line of conventions that aim to limit the use, production, movement, and disposal of a variety of hazardous substances. To it, we must add the Stockholm Convention on Persistent Organic Pollutants (the so-called “POP Convention”) that went into force in 2004, the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (the “PIC Convention” of 2004), and the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (the “Basel Convention” of 1992). These conventions are unlike the Montreal Protocol in that they regulate substances not to protect a certain object (e.g., the ozone layer), but rather to protect the environment and public health as a whole.57

2.3

Convention on International Trade in Endangered Species of Wild Fauna and Flora

The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) entered into force in 1975, the eventual product of an earlier meeting of the International Union for the Conservation of Nature (IUCN). There are currently 183 state parties to the convention, all of whom agree that “wild fauna and flora in their many beautiful and varied forms are an irreplaceable part of the natural systems of the earth which must be protected for this and the generations to come.”58 The Convention follows 56

57 58

See UNEP, “The Kigali Amendment to the Montreal Protocol: Another Global Commitment to Stop Climate Change,” UNEP News, December 8, 2016, www.unenvironment.org/newsand-stories/news/kigali-amendment-montreal-protocol-another-global-commitmentstop-climate accessed May 20, 2022. For more detail, see Dupuy and Viñuales, International Environmental Law, 251–289. Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), open for signature March 3, 1973, UNTS Vol. 993: 243, https://treaties.un.org/Pages/ showDetails.aspx?objid=0800000280105383 accessed May 20, 2022.

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a form that many other environmental agreements have followed: it consists of three Appendixes that are essentially lists of species to be protected, sorted according to their vulnerability. Appendix I, species, for example, are threatened with extinction or may be particularly impacted by trade. CITES works through an elaborate system of permits and certificates, issued by a CITES Management Authority in each state. The Management Authority works in tandem with a national CITES Scientific Authority, who dispenses advice on the vulnerability of particular species to trade. Appendix I species, those threatened with extinction, are only granted permits for trade in exceptional circumstances; Appendix II species are carefully permitted so as to manage their numbers and avoid pushing them into extinction; and Appendix III species are protected in at least one country that would like other CITES members to help them control trade in that species.59 A Conference of Parties (COP) to the Convention was established as the supreme decision-making body, and it determines the species that are listed in Appendixes I and II. Some have criticized the list approach, noting that it would be better for “the world to move away from the ‘categorizing’ of species toward an approach that affords protection to ecosystems and habitats rather than to selected species,” insisting that singling out species for inclusion on various lists pays little heed to the interdependence of species within ecosystems.60 It is important to note, however, that CITES is just one of many biodiversityrelated agreements; indeed, the heads of the Secretariats of the largest biodiversity conventions meet regularly as the “Liaison Group of Biodiversity-Related Conventions.”61 The major biodiversity conventions are listed in Table 10.1. What happens if a CITES member state is found violating some provision of the Convention and engages in illegal wildlife trafficking? Under Article XIV.1 of the Convention, states are empowered to take “stricter domestic measures regarding the conditions for trade, taking, possession or transport of specimens of species included in Appendices I, II and III, or the complete prohibition thereof.”62 This essentially means that states are allowed to use trade restrictions or trade bans (embargoes) on other states. If the parties themselves cannot come to an agreement on a compliance issue, and if the

59 60

61

62

CITES, “How CITES Works,” https://cites.org/eng/disc/how.php accessed May 24, 2021. E. Couzens, “CITES at Forty: Never Too Late to Make a Lifestyle Change,” Review of European, Comparative and International Environmental Law 22, No. 3 (2013): 311. Convention on Biological Diversity, “Liaison Group of Biodiversity-Related Conventions,” www.cbd.int/blg/ accessed May 22, 2021. CITES, Article XIV.1.

2 Other Achievements

Table 10.1. Biodiversity-related conventions CONVENTION

YEAR

International Whaling Convention

1946

International Plant Protection Convention

1952

World Heritage Convention

1972

Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)

1975

Convention on Conservation of Migratory Species

1983

Ramsar Convention on Wetlands

1991

Convention on Biological Diversity (CBD)

1993

International Treaty on Plant Genetic Resources for Food and Agriculture

2004

CITES Secretariat and the CITES Standing Committee similarly fail to come to resolution, the CITES COP or Secretariat can authorize an embargo. These embargoes can be on a single species or can ban trade with an entire country – a sizable economic blow to the state affected. As Sands notes, these extreme measures are effective: in more than 80% of the cases, trade suspensions could be lifted within less than a year, on the basis of evidence that the targeted country had returned to compliance (by enacting or amending the necessary legislation, submitting overdue reports, or complying with action plan requirements). Even in cases where recommended trade bans were not implemented by all member States, denial of market access in a few key countries usually proved sufficient to induce compliance.63

But are such sanctions compatible with customary international law? Do they violate the rules of the World Trade Organization (WTO) or the Draft Articles on State Responsibility? Sands provides an answer, writing that “in light of all these elements, the CITES sanction scheme, as codified in Resolution 14.3 (2007) after 25 years of continuous practice . . . would appear to satisfy the general requirements for lawful response (‘collective retorsion’) to persistent non-compliance by parties to the Convention, as well as to unfriendly acts (persistent refusal to comply with documentation requirements) by non-parties.”64

63

64

P. H. Sands, “Enforcing CITES: The Rise and Fall of Trade Sanctions,” Review of European, Comparative and International Environmental Law 22, No. 3 (2013): 255. Ibid., p. 260.

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Table 10.2. Principles of international environmental law Principles of Prevention

Principles of Balance

No Harm

Polluter Pays

Prevention

Common But Differentiated Responsibilities (CBDR)

Precaution

Participation Intergenerational Equity

Source: Adapted from Dupuy and Viñuales, International Environmental Law, 62.

3 Principles of International Environmental Law As we have established in earlier chapters, states have obligations to other states – statehood entails responsibility, as the International Law Commission’s Draft Articles on State Responsibility make clear.65 In international environmental law, that responsibility is found in principles that have evolved over decades and are enshrined in caselaw, international agreements (treaties, conventions) and state behavior. Dupuy and Viñuales describe two different sets of principles: those that are oriented toward prevention (i.e., avoiding irreversible, irreparable environmental damage) and those that are oriented toward balance (accounting for the fact that states are not equal in their vulnerabilities or capacities vis-à-vis the environment).66 This is a useful way of thinking about the principles that follow in this chapter, and we use this distinction throughout this section. Table 10.2 provides an overview of these principles, which are then discussed in turn in this section.

3.1

No Harm

The principle of “no harm” developed from the 1941 Trail Smelter case, though it is important to note that environmental problems are definitely not new. Ancient Roman smelters emitted enough lead to contaminate the entire northern hemisphere, rivaling gasoline as a cause of pollution in the modern era.67 But the Trail Smelter case classically articulated a fundamental norm which still resonates in contemporary environmental law eighty years later. A smelter located in Trail, British Columbia, Canada – about 10 miles from the US state of Washington – emitted extraordinary amounts of sulfur dioxide fumes from its 400-foot-high stacks, harming the atmosphere and 65 66 67

For more discussion on the ILC’s Draft Articles, see Chapter 2. Dupuy and Viñuales, International Environmental Law, 61–62. L. Lipuma, “Roman Mining Activities Polluted European Air More Heavily Than Previously Thought,” Phys.org, May 8, 2019, https://phys.org/news/2019–05-roman-pollutedeuropean-air-heavily.html accessed May 20, 2022.

3 Principles of International Environmental Law

the agricultural industry in Washington for more than a decade. The US and Canadian governments twice resorted to legal arbitration – once from 1928 to 1931 and again from 1935 to 1941 – in an attempt to resolve the dispute. In 1931, a joint commission decided that (1) the Canadian smelter should limit its sulfur dioxide emissions; and (2) Canada should pay the US $350,000 as compensation for damages. In the latter arbitration, the US and Canada established a three-member Arbitral Tribunal that consisted of Canadian, US, and Belgian arbitrators (the third being a neutral arbitrator selected by the other two). The Tribunal determined that Canada had incurred state responsibility for environmental damage although the smelter was privately owned and operated: The Tribunal, therefore, finds . . . that, under the principles of international law, as well as of the law of the U.S., no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence.68

This was the first tribunal to deal authoritatively with cross-border air pollution. Legal commentators have varied perceptions about whether the Trail Smelter holding – “no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another” – has, in fact, stood the test of time. As Bratspies cautions: Although almost every discussion of state responsibility begins with its talismanic invocation, time has not been kind to the Trail Smelter arbitration. . . . While these Trail Smelter principles have become customary international environmental law, the arbitration itself is often viewed as a quaint remnant of a bygone world. Many scholars view Trail Smelter’s marginalization as inevitable in light of international law’s [post-World War II] evolution from a state-to-state realm to one of multi-lateral, consensus-based actions . . . [leading one] to conclude that Trail Smelter has little relevance for resolving the thorny transboundary environmental challenges that beset our everglobalizing world. . . . Hampered by a lack of scientific evidence, the Trail Smelter tribunal crafted an adaptive decisional structure in order to fulfill its charge to be just to all parties while resolving a conflict over pollution flowing across the Canadian border and causing harm in Washington State. . . . This structure – using preliminary measures to prevent harm while information sufficient to create a permanent regime fair to all parties is

68

Trail Smelter (U.S. v. Canada) (1941), UN Reports of International Arbitral Awards 3 (1949): 1938, reprinted in American Journal of International Law 35 (1941): 684.

569

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10 International Environmental Law developed – is the Trail Smelter arbitration’s (semi) precautionary legacy. Regardless of the critiques of the arbitration’s holdings or its normative relevance, this (semi) precautionary legacy resonates profoundly in modern international environmental law.69

While the state parties purported to seek a final resolution of this major environmental decision for the next forty years, Trail Smelter authoritatively set the stage for an emerging principle routinely cited in national and international litigation: a state must not knowingly permit the use of its territory to harm other states. It has the obligation to protect other states from the injurious acts of individuals and corporations within its borders. Sovereign rights also entail the responsibility to respect the territory of other sovereigns. The fact that this authoritative and oft-cited pronouncement came from a dispute between two private parties (Washington farmers seeking remedy from a Canadian smelting company) that eventually rose to a dispute between state parties makes Trail Smelter’s legacy even more intriguing. Similarly, state responsibility for harm featured in early jurisprudence of the International Court of Justice (ICJ). The ICJ’s first decision (Corfu Channel Case)70 pronounced the obligation of states not to allow the use of their territories to interfere with the rights of other states. The case was not, on its face, related to the environment. In Corfu Channel, the ICJ determined that Albania was liable for its failure to notify the United Kingdom (UK) about the presence of mines in Albanian waters within the international strait adjacent to its coastline. In its decision on this case, the ICJ transformed the principles embodied in Trail Smelter into international law, allowing it to serve as the basis for future international instruments protecting the environment. The Court’s decision notes that it is “every state’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other states.”71 The ICJ considered its first contentious environmental case in 1993 in Certain Phosphate Lands in Nauru (Nauru v. Australia). The small, formerly resource-rich state of Nauru alleged that Australia had incurred state responsibility for the environmental degradation of Nauru. It claimed that Australia (and others) mined the phosphate-rich soil of Nauru to satisfy the fertilizer needs of Australia’s agricultural industry, but at great expense to Nauru’s

69

70 71

R. Bratspies, “Trail Smelter’s (Semi)Precautionary Legacy,” in R. Bratspies and R. Miller, eds., Transboundary Harms in International Law: Lessons from the Trail Smelter Arbitration (Cambridge: Cambridge University Press, 2006). Corfu Channel Case (United Kingdom v. Albania), 1949 ICJ Reports 4. J. Viñuales, “The Contribution of the International Court of Justice to the Development of International Environmental Law: A Contemporary Assessment,” Fordham International Law Journal 32, No. 1 (2008): 243.

3 Principles of International Environmental Law

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future. Nauru received a woefully inadequate share of the profits from its natural resources in addition to experiencing a depletion that also degraded its economic, social, and cultural environment as previously announced by an independent Commission of Inquiry.72 The parties settled this case shortly after the ICJ announced its Environmental Chambers Constitution in 1993, with Australia agreeing to a cash settlement paid to Nauru over the course of twenty years, as well as to “provide development co-operation assistance after the 20 year period at a mutually agreed level.”73 One might presume that the Court’s pending consideration of Nauru’s contentious case, coupled with the establishment of a specialized environmental chamber, may have combined to pressure Australia into pursuing a settlement – rather than face the consequences of an adverse ICJ judgment. One possible consequence could have been a courtmandated requirement that Australia restore Nauru to the position it would have enjoyed but for the environmental degradation. Australia would not necessarily honor such a decision because of the immense economic impact of such a mandate. Australia would then have been in the unenviable position of ignoring an ICJ order. The obvious harm possible via nuclear weapons presented a challenge for the Court as well. The World Health Organization (WHO), which had requested the Court’s Advisory Opinion, essentially wished the Court to answer a single overarching question: Is the threat or use of nuclear weapons in any circumstance permitted under international law? All states and international organizations with an interest in the resolution of this case submitted their written input to the Court. One of the issues the Court wrestled with was how to balance environmental degradation with national prerogatives to use any means available to preserve the state. The following excerpt is illustrative of the Court’s reasoning:

LEGALITY OF THE THREAT OR USE OF NUCLEAR WEAPONS International Court of Justice. General List No. 95 (Advisory Opinion of July 8, 1996) [Excerpted case available at www.cambridge.org/FPIL7]

72

73

Certain Phosphate Lands in Nauru (Nauru v. Australia), 1989 ICJ Reports 12; Settlement: 1993 ICJ Reports 322. “Australia-Republic of Nauru: Settlement of the Case in the International Court of Justice Concerning Certain Phosphate Lands in Nauru,” International Legal Materials 32: 6 (November 1993): 1471–1473.

572

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It is in this Advisory Opinion that we see protection of the environment as a state responsibility – and not merely the protection of states from harm – emerge in international law for the first time. The 1972 Stockholm Declaration determined that state responsibility for environmental harm exists even when that harm results from permissible activities, a sentiment later formalized in Article 1 of the International Law Commission’s Draft Articles on Prevention of Transboundary Harm from Hazardous Activities.74 States are responsible for exercising due diligence: the principle of no harm applies only when it is clear that damage has occurred despite the state’s best efforts to prevent it. The harm caused must also be significant, though there is no specific measure of harm that has emerged from conventions, treaties, or caselaw. In addition, Principle 21 of the Stockholm Declaration introduced a principle of prevention. As Dupuy and Viñuales note: What Principle 21 seeks to highlight is less the protection of the interests of other States than that of the environment per se. Once this caveat has been made, it is easier to understand the difference between no harm and actual prevention. The focus of this new perspective is not on the determination of liability for damage caused to another State, but, rather, on the obligation to prevent damage to the environment in general. The underlying conception held that prevention is particularly important in the context of environmental protection because environmental damage is often irreversible.75

A state is responsible for both intentional and unintentional uses or misuses of its resources which cause an adverse environmental impact in another state. The resolution of transboundary environmental harm disputes involves important considerations. Even assuming that liability is clear, which remedies should a decision-maker employ? Should the responsible state pay damages for the “environmental harm”? If so, how much would appropriately compensate the harmed state? Would it be fairer to require the offending state to restore the status quo as it existed prior to the environmental degradation? Is restoring the status quo even possible? In 2018, the ICJ awarded damages for harm for the very first time, in Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua).76 In this case, Nicaragua had dredged part of a river in a 74

75 76

International Law Commission, Draft Articles on the Prevention of Transboundary Harm from Hazardous Activities, With Commentaries, UNGAOR, Fifty-Third Session, Supplement No. 49, UN Doc. A/RES/56/82 (2001) https://legal.un.org/ilc/texts/instruments/english/ commentaries/9_7_2001.pdf accessed May 20, 2022. Dupuy and Viñuales, International Environmental Law, 66. Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), ICJ General List No. 150, Judgment of December 16, 2015.

3 Principles of International Environmental Law

disputed part of the border between Nicaragua and Costa Rica in order to improve navigability. Three years earlier, the Court had ruled that the disputed territory between the countries indeed belonged to Costa Rica, and that Nicaragua’s activities were illegal. In the 2018 case, Costa Rica argued that Nicaragua’s dredging of the San Juan River had resulted in the loss of 300 trees and had cleared over six hectares of vegetation – in wetland territory protected by the Ramsar Convention.77 The Costa Rican government wanted compensation for the reduced ability of Costa Rica to provide “environmental goods and services” such as carbon sequestration. The Court agreed, and ruled that Nicaragua compensate Costa Rica $120,000 for the damage (which was, incidentally, far less than it had requested). Another aspect of this case is interesting, however, and worth mentioning here. Before the dispute occurred, Costa Rica had built a road in the same sensitive area but had failed to conduct an environmental impact assessment, which the Court had earlier determined was required.78 So while Costa Rica’s actions were also wrong – even on its own territory – they did not cause environmental harm to Nicaragua, while Nicaragua’s activities did indeed harm Costa Rica. But Da Silva notes that the Court missed several opportunities in this case to outline how environmental reparations should be calculated, and also how states should be held accountable for their failure to do something as vital to environmental protection as carrying out environmental impact assessments. She writes: The Costa Rica decision states that environmental preservation is the subject of several international agreements and customary international law . . . Nevertheless, the Court determined the method of appropriate reparation by using general rules on state responsibility. The ICJ did not make clear what criteria it considered in choosing compensation as the sole remedy for material damage and what standards were used to determine the amount . . . The challenges for international courts and tribunals in environmental protection cases are complex. There are widespread scientific concerns and disagreements about the consequences of human activity on the preservation of the environment and sensitive ecosystems. When judging these disputes, international courts and arbitral tribunals should not approach environmental harm as a mere material harm. Instead, future case law needs to consider the

77

78

Convention on Wetlands of International Importance, Especially as Waterfowl Habitat (Ramsar Convention), open for signature December 21, 1975, UNTS Vol. 996: 245, https:// treaties.un.org/doc/Publication/UNTS/Volume%20996/volume-996-I-14583-English.pdf accessed May 20, 2022. See Pulp Mills on the River Uruguay, ICJ General List No. 135, July 13, 2006. And see below for further discussion of this case.

573

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10 International Environmental Law relevant science, and consider how to help ecosystems recover and prevent irremediable damage to nature.79

In other words, international law must grapple with the fact that environmental harm is more akin to human rights abuses than it is to territorial disputes or other sovereignty issues: once the environment (or human life) is destroyed, it cannot ever again be made whole.

3.2

Prevention

Following Principle 21 of the Stockholm Declaration, states have the “responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.” In its Draft Articles on the Prevention of Transboundary Harm from Hazardous Activities, the International Law Commission (ILC) notes that “the emphasis upon the duty to prevent as opposed to the obligation to repair, remedy, or compensate has several important aspects. Prevention should be a preferred policy because compensation in case of harm often cannot restore the situation prevailing prior to the event or accident.”80 In many ways, the idea of prevention is key to understanding international environmental law. It is best to ensure environmental harm does not happen in the first place rather than try to correct it after the fact. Article 3 of the ILC’s Draft Articles reads as follows: “The State of origin shall take all appropriate measures to prevent significant transboundary harm or at any event to minimize the risk thereof.”81 What does this mean? The ILC exhorts states to practice due diligence: the state is required to “exert its best possible efforts to minimize the risk . . . [but] it does not guarantee that the harm would not occur.”82 This could entail implementing legislation to set environmental standards, for example, or having a process in place to inform neighboring states of actions that might pose some known risk. The principle of prevention is outlined further in the following landmark environmental case from 2010, Pulp Mills on the River Uruguay (Argentina v. Uruguay). This ICJ case involves Argentina’s claim against Uruguay that the latter violated a 1975 bilateral treaty regulating the use of a river on their border. Uruguay unilaterally authorized construction of two pulp mills in ways that damaged Argentina’s environment and negatively impacted the 79

80

81

M. Da Silva, “Compensation Awards in International Environmental Law: Two Recent Developments,” International Law and Politics 50 (2018): 1425, 1430. International Law Commission, Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, with Commentaries, 148. 82 Ibid., 153. Ibid., 154.

3 Principles of International Environmental Law

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operation of nearby tourist resorts. The Court’s 2010 judgment clarified the norm of environmental impact assessments, crucial to prevention. Significant passages are included in the selections below.

PULP MILLS ON THE RIVER URUGUAY Argentina v. Uruguay, Judgment of April 20, 2010, ICJ Reports 2010 197. . . . [T]he obligation to “preserve the aquatic environment, and in particular to prevent pollution by prescribing appropriate rules and measures” is an obligation to act with due diligence in respect of all activities which take place under the jurisdiction and control of each party. . . . The obligation of due diligence . . . in the adoption and enforcement of appropriate rules and measures is further reinforced by the requirement that such rules and measures must be “in accordance with applicable international agreements” and “in keeping, where relevant, with the guidelines and recommendations of international technical bodies.” This requirement has the advantage of ensuring that the rules and measures adopted by the parties both have to conform to applicable international agreements and to take account of internationally agreed technical standards. ... (a) Environmental Impact Assessment ... 204. It is the opinion of the Court that in order for the Parties properly to comply with their obligations . . . they must, for the purposes of protecting and preserving the aquatic environment with respect to activities which may be liable to cause transboundary harm, carry out an environmental impact assessment. As the Court has observed . . . “there are situations in which the parties’ intent upon conclusion of the treaty was, or may be presumed to have been, to give the terms used – or some of them – a meaning or content capable of evolving, not one fixed once and for all, so as to make allowance for, among other things, developments in international law” (Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, ICJ Reports 2009, p. 242, para. 64). In this sense, the obligation to protect and preserve . . . has to be interpreted in accordance with a practice, which in recent years has gained so much acceptance among States that it may now be considered a requirement under general international law to undertake an environmental impact assessment where there

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PULP MILLS ON THE RIVER URUGUAY (cont.) is a risk that the proposed industrial activity may have a significant adverse impact in a transboundary context, in particular, on a shared resource. Moreover, due diligence, and the duty of vigilance and prevention which it implies, would not be considered to have been exercised, if a party planning works liable to affect the régime of the river or the quality of its waters did not undertake an environmental impact assessment on the potential effects of such works. 205. The Court observes that neither the 1975 Statute [party agreement] nor general international law specify the scope and content of an environmental impact assessment. . . . Finally, the Court notes that the other instrument to which Argentina refers in support of its arguments, namely, the UNEP [Environmental Programme] Goals and Principles, is not binding on the Parties, but, as guidelines issued by an international technical body, has to be taken into account by each Party . . . in adopting measures within its domestic regulatory framework. . . . Consequently, it is the view of the Court that it is for each State to determine in its domestic legislation or in the authorization process for the project, the specific content of the environmental impact assessment required in each case, having regard to the nature and magnitude of the proposed development and its likely adverse impact on the environment as well as to the need to exercise due diligence in conducting such an assessment. The Court also considers that an environmental impact assessment must be conducted prior to the implementation of a project. Moreover, once operations have started and, where necessary, throughout the life of the project, continuous monitoring of its effects on the environment shall be undertaken.

The principle of prevention relies on harm that is known. States cannot knowingly harm other states, or use their own territory to harm another state’s territory. But as Chen notes, the principle of prevention is of little use when there is no reliable evidence of harm or potential harm. “Thus, when clear scientific evidence does not exist or when an environmental risk has not been reasonably foreseeable, the obligation of prevention is unable to require states to regulate environmental risks. The emergence of the precautionary concept was an attempt to fill that gap.”83 It is to the precautionary principle that we now turn.

83

L. Chen, “Realizing the Precautionary Principle in Due Diligence,” Dalhousie Journal of Legal Studies 25, No. 1 (2016): 4.

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3.3

Precaution

Principle 15 of the Rio Declaration is referred to as the “precautionary principle.” Certain types of environmental damage are so severe that any related state action that risks them requires the following: “Where there are threats of serious or irreversible damage, [the] lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.” This was later echoed in Article 3.3 of the UNFCCC, and has been restated as “the precautionary approach” or “precautionary measures” in other international documents as well.84 The IUCN put it this way: “The Principle is based on the recognition that a false prediction that a human activity will not result in significant environmental harm will typically be more harmful to society than a false prediction that it will result in significant environmental harm.”85 In the above Pulp Mills case, the ICJ ruled that notification of environmental threats was part of the state’s fulfillment of the obligation of prevention, which was also part of the obligation of due diligence. But the dissenting and separate opinions in this case, as Chen points out, are revealing. In it, Judges Awn Al-Khasawneh and Simma doubt the Court’s ability to assess ever-more complex scientific evidence, noting that the Court has the ability to consult third-party experts in order to make sense of the cases before them. They lament the “wasted opportunity” in the Pulp Mills case, in which scientific experts were not consulted. They write: “[I]n a case concerning complex scientific evidence and where, even in the submissions of the Parties, a high degree of scientific uncertainty exists, it would have been imperative that an expert consultation, in full public view and with the participation of the Parties, take place.”86 In a lengthy and passionate separate opinion, Judge Trindade also expressed regret that the Court missed another opportunity in Pulp Mills to fully apply the precautionary principle: The Court had a unique opportunity to do so, in the present case of the Pulp Mills, when both contending Parties, Uruguay and Argentina, expressly referred to both the preventive principle and the precautionary principle. Yet, the Court, once again, preferred to guard silence on this relevant point. It escapes my comprehension why the ICJ has so far had so much precaution with the precautionary principle. I regret to find that, since 1973, the Court has not 84 85

86

Ibid., 7–9. IUCN, “Guidelines for Applying the Precautionary Principle to Biodiversity Conservation and Natural Resource Management,” 2007, www.iucn.org/sites/dev/files/import/ downloads/ln250507_ppguidelines.pdf. Emphasis original accessed May 20, 2022. Pulp Mills on the River Uruguay, ICJ General List No. 135, July 13, 2006, Joint Dissenting Opinion of Judges Al-Khasawneh and Simma at para. 19.

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10 International Environmental Law displayed more sensitiveness to the invocation of precaution before it, when it comes to protecting human beings and their environment, even well before the corresponding precautionary principle began to take shape in contemporary International Environmental Law.87

The ICJ has not been the only judicial body to wrestle with the application of the precautionary principle. The ECtHR, in its decision in Tatar v. Romania (2009), invoked the precautionary principle when it decided in favor of Paul Tatar, a man with several medical conditions who lived in the vicinity of a gold mine and was thus subject to toxic sodium cyanide. It concluded that Romania had failed to allow the public to assess the risks the gold mining company’s activities might entail.88 However, it ruled in a later case, Hardy and Maile v. United Kingdom (2012) that the state had fulfilled its obligations with respect to Article 8 of the European Convention on Human Rights (ECHR), which guarantees the right to the protection of private and family life. In this case, the ECtHR ruled that the UK had sufficient regulatory and legislative frameworks in place to ensure respect for Article 8 rights vis-à-vis the construction and operation of two liquefied natural gas sites.89 The state’s actions were sufficient, in the ECtHR’s view, to minimize threats to Article 8 rights. Thus, the use of the precautionary principle is variable. It is worth noting that for its part, the EU itself – with which the ECtHR is not officially affiliated – has formally adopted the precautionary principle. It appears in Article 191 of the Treaty on the Functioning of the EU, and covers not only environmental policy in the bloc, but also consumer policy and policies related to food and human and animal health. Article 191(2) reads: “Union policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Union. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay.”90 While the principles of no harm and prevention appear to be sufficiently enshrined in customary international law, it is not clear that the precautionary principle has fully reached that status. The US, for example, generally rejects the precautionary approach, and this has led to multiple

87 88

89 90

Ibid., Separate Opinion of Judge Trindade, at 67. Emphasis original. Summary Judgment, Tatar v. Romania, ECtHR, Application No. 67021/01, January 27, 2009. Hardy and Maile v. United Kingdom, ECtHR, Application No. 31965/07, July 9, 2012. Consolidated Versions of the Treaty on European Union and the Treaty on the Functioning of the European Union, Official Journal C326, October 26, 2012, Article 191, https://eur-lex .europa.eu/legal-content/EN/TXT/?uri=celex%3A12016E191 accessed May 20, 2022.

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confrontations with its European trading partners, who are risk-averse when it comes to technologies whose long-term impacts are as yet unclear, such as genetically modified organisms.91

3.4

Principles of Balance

If no harm, prevention, and precaution are the international environmental law trifecta that guards against environmental destruction, the principles of balance – polluter pays, common but differentiated responsibilities (CBDR), participation, and intergenerational equity – are about ensuring that states are able to engage in environmental protection without discrimination. We will discuss each of these briefly in this section.

3.4.1

Polluter Pays

This principle seems straightforward on its face: whoever is responsible for pollution (in whatever form) must pay to clean it up. As with each of these principles, however, the superficial simplicity belies its contentious complexity. Principle 16 of the Rio Declaration sets out the polluter-pays principle in international environmental law: “National authorities should endeavor to promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment.” What does this mean? Pollution can be described as a negative externality: it is the unwanted by-product (cost) of some economic activity. Fertilizer run-off from farm fields that pollutes nearby waterways is an externality, as are the greenhouse gas emissions that result from many different activities (e.g., driving cars, flying, or raising cattle) across the globe. Principle 16 asks states to internalize these costs. This means that states must devise ways to compensate for environmental damage by increasing the costs of goods and services that cause environmental harm, passing those costs along to the consumer. A steak you buy at the grocery store, then, should have the costs of the environmental damage used to create it built into the price. But as Zahar notes, the state is also responsible for passing along the costs of regulating and monitoring externalities: the cost which may be charged includes the regulatory cost: that is, not only the cost of environmental damage but also the cost of determining and assigning responsibility for that damage; and not only the cost of purchasing a pollution 91

L. Pellizzoni and M. Ylönen, “Responsibility in Uncertain Times: An Institutional Perspective on Precaution,” Global Environmental Politics 8, No. 3 (2008): 59.

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10 International Environmental Law allowance certificate or paying some such fee but also the cost of administering that pollution-limiting or preventative regulatory regime. If the operating cost of the government’s environmentally beneficial intervention were not included in what the polluter is charged for, the government (and therefore the public at large) would remain inequitably burdened with pollution costs, contrary to the objective of the polluter pays principle.92

The polluter-pays principle has already been enshrined in environmental governance. The Kyoto Protocol, for example, noted some countries as “Annex I” states, all of whom were large greenhouse gas emitters. These highly developed states were required to offset their future greenhouse gas emissions by either trading with other developed states who did not plan to emit as much (emissions trading), or by funding emissions reduction projects in developing countries that were unlikely to emit much in the first place. Of course, they could have also decided to voluntarily reduce their emissions, but this was (and remains) a task more difficult than most wanted to undertake.

3.4.2

Common But Differentiated Responsibilities

It is a bit of a fiction to talk about each of these balance principles separately, as they are all related. The idea behind CBDR is that all states must cooperate if they wish to combat massive environmental issues like climate change, with the acknowledgment that states are different in their capacities (economic, technical) to respond to global problems and in their responsibility for creating those problems. A small state like Zambia, for example, has the same overall commitment to reduce global temperature rise as the US, but it is (1) not a major contributor to global greenhouse gas emissions; and (2) not able to contribute as much to climate change mitigation or adaptation efforts. In an example like this one, the polluter-pays principle becomes very complicated: which states must internalize the costs of global climate change, and how should those costs be assessed? How could any of this be done fairly, and who decides what is fair? Rio Principle 7 contains the language of CBDR. “States have common but differentiated responsibilities. The developed countries acknowledge the responsibility that they bear in the international pursuit for sustainable development in view of the pressures their societies place on the global environment and of the technologies and financial resources they

92

A. Zahar, “Implementation of the Polluter Pays Principle in China,” RECIEL: Review of European, Comparative, and International Environmental Law 27 (2018): 295.

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command.”93 The sentiments of Principle 7 are also found in the UNFCCC Article 3.1 and, as mentioned, in the Kyoto Protocol, and have been the source of much of the disagreement about how best to address the climate crisis. States like China and India, large emitters of greenhouse gases, were allowed to continue their emissions since they were classified as developing (non-Annex I) states, while at the same time these two states were large competitors to developed countries (like the US) that were saddled with emissions reduction targets. Questions of fairness inevitably arose on both sides: less-developed countries of the Global South (including up-andcomers India and China) wanted the opportunity to develop in the same fashion as countries of the Global North; developed Global North countries did not want to be put at a competitive disadvantage if they simply had to swallow the costs of compliance with Kyoto. Ultimately, this impasse helped to seal the fate of Kyoto’s two commitment periods. The idea of CBDR is also present in the Paris Agreement, but it is tempered. It notes that states have “common but differentiated responsibilities and respective capabilities, in the light of different national circumstances.”94 Recall that the Paris Agreement asks states to make nationally determined contributions to climate change mitigation efforts. This means that each state can tailor its contribution to its own circumstances – a marked shift from the rigid structure created under Kyoto. This likely increases the ability of states to comply with the Paris Agreement without feeling they have somehow been treated unfairly by its terms. The excerpt from the following case marks the first time that the principle of CBDR was used by a court to determine a state’s legal obligation to fight climate change. The case, Urgenda Foundation v. State of the Netherlands, offers a glimpse of the future arguments that may occur as climate change becomes a more frequent subject of litigation in national and international courts.

URGENDA FOUNDATION V. STATE OF THE NETHERLANDS (MINISTRY OF INFRASTRUCTURE AND THE ENVIRONMENT) HA ZA 13-1396, C/09/456689, The Hague District Court, June 24, 2015 [Excerpted case available at www.cambridge.org/FPIL7]

93 94

Rio Declaration, Principle 7. United Nations, “Paris Agreement,” UNTS Vol. 3156, opened for signature 2016 (entry into force 2016) https://treaties.un.org/doc/Publication/MTDSG/Volume%20II/Chapter% 20XXVII/XXVII-7-d.en.pdf accessed May 23, 2022, Article 2.2. Emphasis added.

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This excerpt is from a Netherlands District Court, and the ruling was appealed by the Dutch Government. The government lost in the Court of Appeals. The case eventually made it to the Dutch Supreme Court, which issued its judgment in December 2019. In its decision, the Court upheld the Court of Appeals ruling. Urgenda is thus the first case in which a state was ordered by a court to address a changing climate.95

3.4.3

Participation

International law is typically the province of states, as we have learned. But increasingly, individuals are both actors in and subjects of international law, and this is especially true in environmental matters. Rio Principle 10 acknowledges this: Environmental issues are best handled with participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.96

Why is participation in environmental matters so important? Van Bekhoven argues that public participation can make environmental decisions better overall because they are the product of a larger number of viewpoints and perspectives. The public can also put pressure on the government when political will to act is weak, or when authorities claim that their hands are tied. Empowered with information and access, citizens provide an element of accountability to government officials, and transparency decreases the likelihood of social unrest. These benefits come with another benefit: increased awareness about environmental issues in the population at large.97 95

96 97

The Dutch court was also responsible for another landmark ruling: in May 2021, the Hague District court ordered the oil company Royal Dutch Shell to cut its emissions by 45 percent by 2030. The suit against Shell was brought by the non-profit group “Friends of the Earth.” It is the first ruling of this kind. See S. McFarlane, “Shell Ordered by Dutch Court to Cut Carbon Emissions,” Wall Street Journal, May 26, 2021, www.wsj.com/articles/shellordered-by-dutch-court-to-cut-carbon-emissions-11622038961 accessed May 20, 2022. Rio Declaration, Principle 10. J. van Bekhoven, “Public Participation as a General Principle in International Environmental Law: Its Current Status and Real Impact,” National Taiwan University Law Review 11, No. 2 (2016): 229–230.

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The Urgenda decision, referenced above, is a perfect example of this: the Urgenda Foundation is a non-state actor that represented both current and future generations of Dutch citizens and pressed the state into action it likely would not have otherwise taken.

3.4.4

Intergenerational Equity

The final principle is at the heart of all environmental concerns: ensuring that resources that are here today are also here for the people of tomorrow. The Brundtland Commission’s now-famous definition of sustainable development eloquently captures this notion when it refers to meeting the needs of the present without compromising the ability of generations after us to meet their needs. Rio Principle 3 restates it, as does Article 3 of the UNFCCC. The idea of intergenerational equity is inherently optimistic, looking forward to a better future for those who have yet to be born. Judge Trindade, writing his separate opinion on the aforementioned Pulp Mills case, expounded on intergenerational equity for several pages, noting: The need has thus been keenly felt to give clear expression to inter-generational equity, so as to fulfil the pressing need to assert and safeguard the rights of present as well as future generations, pursuant to – in my perception – an essentially anthropocentric outlook. Here, in the face of likely risks and threats, the precautionary principle once again comes into play. Nowadays . . . it can hardly be doubted that the acknowledgement of inter-generational equity forms part of conventional wisdom in International Environmental Law.98

Climate change presents a compelling argument for intergenerational equity, and again the Urgenda case is illustrative. Indeed, the framing of the Urgenda case was quite broad, as Mayer notes. The Urgenda Foundation “claimed to represent the interests of present and future generations in the Netherlands and abroad – essentially anyone born or to be born.”99 The Netherlands objected to the Urgenda Foundation’s claim to represent people who did not yet exist, to which the Court of Appeals responded as follows: After all, it is without a doubt plausible that the current generation of Dutch nationals, in particular but not limited to the younger individuals in this group, will have to deal with the adverse effects of climate change in their lifetime if global emissions of greenhouse gases are not adequately reduced. Therefore, the

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Pulp Mills on the River Uruguay, ICJ General List No. 135, July 13, 2006, Separate Opinion of Judge Trindade, 122. B. Mayer, “Case Note: the State of the Netherlands v. Urgenda Foundation,” Transnational Environmental Law 8, No. 1 (2019): 176.

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10 International Environmental Law Court does not have to consider the questions raised by the State in this ground of appeal.100

Another decision, Leghari v. Federation of Pakistan (2015), was handed down at nearly the same time as Urgenda and makes some similar arguments. In Pakistan, Ashgar Leghari claimed that his family’s sugar cane farm suffered from climate change-induced water shortages and temperature changes. He accused the Pakistani government of failing to adhere to its 2012 National Climate Change Policy, and that its failure constituted a breach of his right to life and to the inviolability of human dignity that are enshrined in the Pakistani Constitution. In a sweeping judgment, Judge Mansoor Ali Shah ordered the creation of a Climate Change Commission to oversee Pakistan’s progress on climate policy and required all government ministries to appoint a Climate Change Focal Person, among other things.101 He writes: Fundamental rights, like the right to life (article 9) which includes the right to a healthy and clean environment and right to human dignity (article 14) read . . . with constitutional principles of democracy, equality, social, economic and political justice include within their ambit and commitment, the international environmental principles of sustainable development, precautionary principle, environmental impact assessment, inter and intra-generational equity and public trust doctrine. Environment and its protection has taken a center stage in the scheme of our constitutional rights.102

Among the many interesting things about these cases is the fact that both of these consequential decisions used international law principles to interpret national provisions. National courts have used overarching principles like those described in the preceding pages, harnessing their power in order to press for domestic-level changes. And these are, of course, not the only cases out there, especially related to climate change: indeed, the Sabin Center for Climate Change Law maintains a searchable database of hundreds of US and non-US cases related to climate change.103

100

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State of the Netherlands v. Urgenda Foundation, Hague Court of Appeal, C/09/456689/ HA ZA 13–1396 (October 10, 2018), para. 37. E. Barritt and B. Sediti, “The Symbolic Value of Leghari v. Federation of Pakistan: Climate Change Adjudication in the Global South,” King’s Law Journal 30, No. 2 (2019): 203–210. Leghari v. Federation of Pakistan, W.P. No. 25501/2015, September 4, 2015, para. 12, https://elaw.org/system/files/pk.leghari.090415_0.pdf accessed May 20, 2022. Climate Change Litigation Databases, “Non-U.S. Climate Change Litigation,” http:// climatecasechart.com/non-us-climate-change-litigation/ accessed May 25, 2021.

4 Environment and Human Rights

4 Environment and Human Rights In the opening chapter of this book we presented a famous case, Flores v. Southern Peru Copper Corporation (SPCC, 2002), in order to introduce different sources of international law. Recall that in that case, the plaintiffs alleged that the SPCC’s levels of pollution were endangering their rights to life, health, and sustainable development. Judge Haight, in his opinion for the US District Court for the Southern District of New York, took pains to demonstrate that, in a long line of previous cases brought before US courts under the Alien Tort Claims Act (ATCA), US courts were largely unwilling to (1) concede that there was a well-established right to life, health, or sustainable development; and (2) interfere with another state’s environmental laws. Haight writes: I conclude that plaintiffs have not demonstrated that high levels of environmental pollution, causing harm to human life, health, and sustainable development within a nation’s borders, violate any well-established rules of customary international law. While nations may generally agree that human life, health, and sustainable development are valuable and should be respected, and while there may be growing international concern over the impact of environmental pollution on humanity, plaintiffs have not demonstrated any general consensus among nations that a high level of pollution, causing harm to humans, is universally unacceptable.104

Haight also notes that state actions violating human rights do not yet include environmental pollution, citing Section 702 of the Restatement (Third) of Foreign Relations Law of the United States (1987), but does not deny that in the future, this may change. Has it changed? In some ways it has. At the very least, environmental concerns have come before courts all over the world with increasing frequency, and plaintiffs have experienced some successes. But there is still a long way to go.

4.1

Claiming the Environment as a Human Right

To what extent is a healthy environment a prerequisite for other human rights? The Office of the High Commissioner for Human Rights published a report in 2011 that established that “the environment is a precondition to the enjoyment of human rights. This approach underscores the fact that life and human dignity are only possible where people have access to an environment 104

Flores v. Southern Peru Copper Corp., 253 F. Supp. 2d 510 (S.D.N.Y. 2002), 519.

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with certain basic qualities. Environmental degradation, including pollution of air, water and land can affect the realization of particular rights, such as the rights to life, food and health.”105 Think of the Universal Declaration of Human Rights (UDHR): Article 3 of the UDHR states that everyone has the right to “life, liberty, and security of person.” Article 25 provides that “[e]veryone has the right to a standard of living adequate for the health and well-being of himself and of his family . . . .” 106 Similarly, other human rights documents seem to assume access to a healthy environment. Article 8 of the ECHR grants that “[e]veryone has the right to respect for his private and family life . . . ,”107 and the American Convention on Human Rights (ACHR) notes a right to property (Article 21). None of these rights can reach their full expression without assuming a healthy environment. Indeed, Principle 1 of the Stockholm Declaration makes the link between human rights and the environment clear: “Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations.”108 Environmental degradation can make land uninhabitable (via pollution, for example, or rising sea levels), excessive levels of pollution can lead to illness or death, and conflicts over resource scarcity can lead to displacement and war – the link between human rights and the environment seems obvious. And yet, it has been difficult for individuals to hold states and corporations accountable for infringement of human rights due to environmental factors. One of the major reasons for this is that it is difficult to link environmental degradation directly to a human rights violation. Another reason is that different courts approach environmental degradation and human rights linkages in different ways, which has led to inconsistent results. In this section, we investigate these difficulties.

4.2

European Court of Human Rights

The ECtHR, perhaps the most powerful human rights court in the world (see Chapter 7), has heard many cases that attempt to link human rights and the 105

106

107

108

Office of the High Commissioner for Human Rights, “Analytical Study on the Relationship between Human Rights and the Environment” (2001), A/HRC/19/34. Universal Declaration of Human Rights, www.un.org/en/universal-declaration-humanrights/ accessed May 20, 2022. European Convention on Human Rights, www.echr.coe.int/documents/convention_eng .pdf accessed May 20, 2022. Stockholm Declaration. For more information see: www.un.org/en/conferences/ environment/stockholm1972 accessed May 20, 2022.

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environment. As Fitzmaurice and Marshall have demonstrated, its initial decisions were attempts to balance the rights of individuals with their larger communities. In a case involving claims of excessive noise pollution from Heathrow Airport, for example, the applicants drew on the ECHR’s Article 8 and Article 13 provisions.109 The Court, however, rejected their claims, and ruled that even though the noise was indeed impacting the applicants’ quality of life, it was necessary to endure because of the economic impact of Heathrow Airport on the greater community.110 In a later case, Lopez-Ostra v. Spain (1994), the ECtHR came to a different conclusion and revealed, in part, the circumstances under which it might find a substantial link between human rights and environmental degradation. Gregoria Lopez-Ostra lived near a waste treatment plant that had not been licensed by the Spanish government. The plant released foul-smelling fumes that caused health issues for residents and made life generally unpleasant. After finding no remedy in her domestic courts, her case was lodged before the ECtHR, where she claimed a violation of ECHR Articles 3 (which guards against degrading treatment) and 8 (respect for private and family life). The ECtHR found in her favor on the Article 8 claim, granting that the pollution had been serious enough to impact her private and family life, yet not serious enough to constitute degrading treatment.111 Here, the Court viewed the balance differently: the Spanish state had not done enough to protect Lopez-Ostra’s Article 8 rights, and the harm to her health and well-being outweighed the state’s own economic interests. The ECtHR’s jurisprudence regarding the nexus of human rights and the environment has been both progressive and frustrating. On the one hand, the Court has demonstrated that, when it comes to individual health concerns, especially, it is willing to consider that environmental degradation can have an impact on individual rights. On the other, however, it is as yet reluctant to deviate from what Dupuy and Viñuales term a “personal-injury-based legal system” in which individuals must show a direct link between environmental degradation and significant personal harm.112 Furthermore, there is little to suggest that the ECtHR is moving toward a more holistic approach to

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112

Powell and Rayner v. United Kingdom, ECtHR, Application No. 9310/81 (A.172), Case No. 3/1989/163/219, January 24, 1990. M. Fitzmaurice and J. Marshall, “The Human Right to a Clean Environment – Phantom or Reality? The European Court of Human Rights and English Courts’ Perspective on Balancing Rights in Environmental Cases,” Nordic Journal of International Law 76 (2007): 116. López Ostra v. Spain, Merits and just satisfaction, ECtHR, App No. 16798/90, A/303-C, [1994] ECHR 46 (1995), 20 EHRR 277, IHRL 3079 (ECHR 1994), December 9, 1994, [ECHR]. Dupuy and Viñuales, International Environmental Law, 371.

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environmental protection, in which the environment and human rights are intertwined and inseparable. In short, there is still no “right to a healthy environment” as part of a full package of human rights in Europe. Francioni expands on this frustration: But in spite of the undeniable progress marked by these judgments toward the opening up of an environmental horizon of human rights, they still fail to achieve the objective of the recognition of an independent right to a decent environment. This is prevented, first, at a substantive level by the purely individualistic conception of human rights still pervading the jurisprudence of the Strasbourg Court. Negative impacts on the environment, even where severe, are relevant only in that they produce an interference with the sphere of rights guaranteed by the convention to 0 individuals0 . Thus, environmental integrity is not seen as a value per se for the community affected or society as a whole, but only as a criterion to measure the negative impact on a given individual0 s life, property, private and family life.113

4.3

Inter-American Court of Human Rights

Quite a different picture emerges in Latin America, where the IACtHR interprets the American Convention on Human Rights. Not only has the IACtHR used the right to property in Article 21 of the Convention to connect indigenous property and cultural rights tightly to the environment, but the Protocol of San Salvador (which came into effect in 1999) enshrined a “right to a healthy environment” in Article 11: 1. Everyone shall have the right to live in a healthy environment and to have access to basic public services. 2. The States Parties shall promote the protection, preservation, and improvement of the environment.114

It is important to note that Article 11 (among many other articles in the Protocol) cannot be invoked via individual petitions.115 113

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F. Francioni, “International Human Rights in the Environmental Horizon,” European Journal of International Law 21 (2010): 41. Protocol of San Salvador, www.oas.org/juridico/english/treaties/a-52.html accessed May 20, 2022. As Melish explains: “Contrary to popular belief, then – which often views the Protocol as ‘filling the gap’ in regional treaty law – the Protocol is in fact of notably limited direct use in supranational adjudicatory processes at present. This comes in spite of its detailed protections of the rights to health, a healthy environment, food, work, just and equitable conditions of work, social security, the benefits of culture, and special protection for the family, children, elderly, and persons with disabilities, none of which may be directly

4 Environment and Human Rights

Two cases among many are worth mentioning here. The first, Mayagna (Sumo) Awas Tingni Community v. Nicaragua (2001), involved Nicaragua’s failure to protect the ancestral lands and natural resources of the Awas Tingni community from a logging company. The ruling is famous for its clear protection of the property rights of indigenous people. In its ruling the Court notes that: Indigenous groups, by the fact of their very existence, have the right to live freely in their own territory; the close ties of indigenous people with the land must be recognized and understood as the fundamental basis of their cultures, their spiritual life, their integrity, and their economic survival. For indigenous communities, relations to the land are not merely a matter of possession and production but a material and spiritual element which they must fully enjoy, even to preserve their cultural legacy and transmit it to future generations.116

It also said that Nicaragua had failed the community by not clearly delimiting their territory, which it ordered it to do so that the community would know the extent of their property rights and the resources to which they were entitled.117 Other IACtHR cases118 continued in this vein. The second noteworthy case was decided in 2020 and is perhaps more significant for international environmental law: Indigenous Communities Members of the Lhaka Honhat Association v. Argentina. The Lhaka Honhat Association represents more than 10,000 people and the land of more than 100 indigenous groups who had continuously occupied the land in the Salta province of Argentina since at least 1629. Other groups (Creole, of European descent) lived there as well, and had encouraged illegal logging, installed fencing, and raised livestock in the area, which had the effect of reducing biodiversity and altering the community’s access to food and water

116

117 118

invoked in the individual petitions process under the Protocol.” See T. Melish, “Rethinking the ‘Less as More’ Thesis: Supranational Litigation of Economic, Social, and Cultural Rights in the Americas,” International Law and Politics 39 (2006): 233. See also M. Banda, “InterAmerican Court of Human Rights’ Advisory Opinion on Environment and Human Rights,” ASIL Insights 22, No. 6 (May 10, 2018) www.asil.org/insights/volume/22/issue/6/interamerican-court-human-rights-advisory-opinion-environment-and-human#_edn8 accessed May 20, 2022. Mayagna (Sumo) Awas Tingni Community v. Nicaragua, IACtHR Ser. C, No. 79 (Judgment of August 31, 2001), para. 149. Ibid., para. 153. See, e.g., Kaliña and Lokono Peoples v. Suriname, Merits, Reparations and Costs, Judgment, IACtHR, Ser. C, No. 309, para. 61 (November 25, 2015); Kichwa v. Ecuador, Merits, Reparations and Costs, Judgment, IACtHR, Ser. C, No. 245, para. 58 (June 27, 2012).

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resources.119 The Lhaka Honhat Association brought a complaint before the Inter-American Commission on Human Rights120 in 1998, and the Commission agreed that the community’s rights under the American Convention had been violated by Argentina. This was not the end of the dispute, however: after several years, Argentina had done very little to rectify the situation, which resulted in the Commission forwarding the case to the IACtHR in 2018. In the ruling that was issued in 2020, the IACtHR followed its own precedent but also broke new ground. It ruled that the community must be issued a title to the 400,000 hectares of land they had continuously inhabited. It set a deadline for this to be completed. According to the IACtHR, Argentina had failed the Lhaka Honhat Association members on several fronts by not guaranteeing their property rights, issuing titles for the land, or consulting them when it made changes to the property in question. In so doing, the Court ruled that Argentina had violated the community’s rights to food and water and cultural identity as well, employing a more expansive reading of the ACHR’s Article 26 on “progressive development.”121 The Court also ruled that the community’s right to a healthy environment had been violated – the first time the right had been affirmed in Court. Consider the Court’s reasoning in the following excerpt.

CASE OF THE INDIGENOUS COMMUNITIES OF THE LHAKA HONHAT (OUR LAND) ASSOCIATION V. ARGENTINA Inter-American Court of Human Rights, Judgment of February 6, 2020 [Excerpted case available at www.cambridge.org/FPIL7]

119

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121

M. Tigre, “Lhaka Honhat Association v. Argentina: the Human Right to the Environment in the Inter-American Court,” The Global Network for Human Rights and the Environment (GNHRE), April 10, 2020, https://gnhre.org/2020/04/10/lhaka-honhat-association-vsargentina-the-human-right-to-environment-in-the-inter-american-court/#:~:text=In% 20its%202020%20decision%20in,identity%2C%20food%2C%20and%20water accessed May 20, 2022. We provide a full discussion of the structure of the Inter-American system (Commission and Court) in Chapter 7. See M. Tigre, “Inter-American Court of Human Rights Recognizes Right to a Healthy Environment,” ASIL Insights 24, No. 14 (June 2, 2020) www.asil.org/insights/volume/24/ issue/14/inter-american-court-human-rights-recognizes-right-healthy-environment accessed May 20, 2022.

4 Environment and Human Rights

4.4

African Court on Human and People’s Rights

The African Commission and Court, established in 2004, is the newest body making decisions about the connections between the environment and human rights. The African system was created well after the major environmental conventions were signed and ratified, thus it has the advantage of being able to build on the decisions made by courts that have existed long before it. Indeed, Article 60 of the African Charter on Human and People’s Rights explicitly calls on the court to “draw inspiration from international law on human and people’s rights” and Article 61 requires it to take into consideration other conventions and principles of law.122 Perhaps most importantly, so-called “third generation” human rights – collective, or group rights – are included in the African Charter. Since environmental issues, by their very nature, are likely to impact large groups of people, the African system seems ideally suited to adjudicate environmental human rights disputes. The Ogiek case (African Commission on Human and People’s Rights v. Kenya, 2017) is illustrative of the Court’s reasoning on the connection between the environment and human rights, and it comes on the heels of several other important cases decided in the African system. The Ogiek community is an indigenous group of about 20,000 people that has long made its home in the Mau Forest Complex in Kenya’s Rift Valley, relying on the forest for food, shelter, and cultural identity. In 2009, the Kenyan government issued an eviction notice to the Ogiek “on the grounds that the forest constitutes a reserved water catchment zone, and was in any event part of government land under Section 4 of the Government Land Act.”123 The Ogiek community alleged eight violations of their rights under the African Charter, namely the rights to life, property, natural resources, development, religion, and culture. The Kenyan government, on the other hand, claimed that the Ogiek people were the source of environmental degradation, and that evicting them was a means to protect the Mau Forest Complex. The Court did not agree, and sided with the Ogiek community, in a major victory for the long-embattled group. In this case, the Ogiek’s land rights were tied to its cultural and religious rights – without its rights to ancestral lands, the group could not access its cultural and religious rights. It also tied the group’s right to food to its right to natural resources. Under the African Charter, a group’s rights to natural 122

123

See M. Talbot, “Collective Rights in the Inter-American and African Human Rights Systems,” Georgetown Journal of International Law 49, No.1 (Fall 2017): 163–190. African Commission on Human and People’s Rights v. Kenya (006/0212) [2017] AFCHPR 28 (May 26, 2007), para. 8.

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resources is a stand-alone right, and in the Ogiek case the court derived from that a right to food.124 These are interesting developments that are in line with some of the previous jurisprudence of this Commission and Court.125 The African Charter and its inclusion of third generation or group rights places it in an advantageous position to consider other major environmental challenges, such as those posed by climate change. But at the same time, establishing a link between harm to a group of people and an environmental issue like climate change is tricky. As Dupuy and Viñuales note, “for environmental degradation to be brought under human rights instruments, a link must be established between acts or omissions of a State, environmental degradation and an impairment of a collective right.”126 This is an extraordinarily high bar.

5 The Environment and Armed Conflict Protocol I of the Geneva Convention of 1949 prohibits the use of “methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment” (Article 35). Later, Article 55 states: 1. Care shall be taken in warfare to protect the natural environment against widespread, long-term and severe damage. This protection includes a prohibition of the use of methods or means of warfare which are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population. 2. Attacks against the natural environment by way of reprisals are prohibited.127

124

125

126 127

R. Roesch, “The Ogiek Case of the African Court on Human and Peoples’ Rights: Not So Much News After All?,” EJIL Talk! (blog), June 16, 2017, www.ejiltalk.org/the-ogiek-caseof-the-african-court-on-human-and-peoples-rights-not-so-much-news-after-all/ accessed May 20, 2022. See, e.g., the Ogoni case (Social and Economic Rights Action Center (SERAC) and Another v. Nigeria (2001) AHRLR 60 (ACHPR 2001)) and the Endorois case (Center for Minority Rights Development (Kenya) and Minority Rights Group International on Behalf of Endorois Welfare Council v. Kenya 276/2003, African Commission on Human and Peoples’ Rights, February 4, 2010). Dupuy and Viñuales, International Environmental Law, 394. A. Bouvier, “Protection of the Natural Environment in Time of Armed Conflict,” International Review of the Red Cross 285 (December 1991) www.icrc.org/en/doc/ resources/documents/article/other/57jmau.htm accessed May 20, 2022.

5 The Environment and Armed Conflict

Principle 24 of the Rio Declaration is similarly clear: “Warfare is inherently destructive of sustainable development. States shall therefore respect international law providing protection for the environment in times of armed conflict and cooperate in its further development, as necessary.”128 All of these authorities were cited by the ICJ in its Advisory Opinion on the Legality of Nuclear Weapons. And yet, there are countless examples of lasting damage to the environment in the wake of armed conflict. The reasons for this make sense: in a conflict situation, the very authorities that might have protected the environment are likely no longer functional, people are desperate, and the environment – like the humans involved voluntarily or involuntarily in war – will bear longlasting battle scars. The ILC, as it has done in several other areas, has drafted principles on Protection of the Environment Related to Armed Conflict (PERAC). These draft articles, in progress since 2013, have been submitted for review by UN member states and international organizations. The hope is that the ILC will be able to finalize its work sometime in 2021,129 though delays due to the COVID-19 pandemic may occur. In many ways, the work on PERAC further illustrates the relationship between the environment and human rights, as described above. There are twenty-eight draft articles on PERAC, requested of the ILC by the UNEP. The ILC was instructed to consider the environment not only during armed conflict, but also before and afterwards. This is referred to as the “temporal approach.” As Lehto notes: Following the chosen temporal approach, the Commission has identified measures that can be taken to prevent or minimize environmental harm in conflict, including those to be taken before a conflict breaks out. Likewise, special attention has been paid to the aftermath of armed conflict, which is known to be a critical period from the point of view of building a sustainable peace, as well as of addressing environmental damage and degradation caused in conflict.130

What can be done to protect the environment before conflict breaks out? The ILC’s recommendations include elements such as designating certain

128 129

130

Rio Declaration, Principle 24. See “Summaries of the Work of the International Law Commission,” last updated December 11, 2019, https://legal.un.org/ilc/summaries/8_7.shtml accessed May 20, 2022. M. Lehto, “Armed Conflicts and the Environment: the International Law Commission’s New Draft Articles,” Review of European, Comparative, and International Environmental Law 29 (2020): 68.

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areas of environmental or cultural importance as “protected zones,” and taking care not to locate military installations on indigenous lands.131 After conflict, parties should share information and conduct post-conflict environmental assessments, among other things.132 During conflict, occupying powers also have responsibilities vis-à-vis the environment as per draft Principle 21, which states that if occupying powers are to administer and exploit the natural resources of the territory they are occupying, they must do so sustainably and with minimal environmental impact. Furthermore, in a nod to the “no harm” principle, occupying powers must ensure that whatever activities they are undertaking in the territory they are occupying do not impact the environment elsewhere.133 In these ways, the ILC’s draft articles on PERAC take a broader view of the impact of conflict on the environment: it is not just about the battles fought on the land, but about the long-lasting impacts that armed conflict can have on air, water, soil, and biodiversity.134 A famous example of these wide-ranging impacts took place during the Persian Gulf War, and similar examples exist today in war-ravaged places like Syria. In 1991, near the close of the Persian Gulf War, retreating Iraqi forces set fire to over 600 Kuwaiti oil wells. That single military campaign sent millions of tons of contaminants into the biosphere during the nine months it took to extinguish all of the resulting fires. The following assessment of the conflict and its environmental impacts by the UN Compensation Commission is particularly notable, however, because of its compensation for other damages to the environment. It analyzes issues that had rarely come before an international body, such as whether compensation is owed for damage to natural resources that have no commercial value and if so, how that loss should be valued.135 The $252 million award decision (a fraction of the $50 billion that was sought), rendered by the UN Security Council’s tribunal for war claims against Iraq, is a model for the ICJ or any other international decisionmaker that might seek guidance about how to identify and apply international environmental law to a military conflict:

131 132 133 135

ILC Draft Principles 4 and 5, as noted by Lehto, “Armed Conflicts and the Environment.” ILC Draft Principles 24 and 25, as noted by Lehto, “Armed Conflicts and the Environment.” 134 See ibid., 71. Ibid., 72. C. Payne, “UN Commission Awards Compensation for Environmental and Public Health Damage from 1990–91 Gulf War,” ASIL Insights 9, No. 25 (August 10, 2005) www.asil.org/ insights/volume/9/issue/25/un-commission-awards-compensation-environmental-andpublic-health-damage accessed May 20, 2022.

5 The Environment and Armed Conflict

UNITED NATIONS COMPENSATION COMMISSION GOVERNING COUNCIL, REPORT AND RECOMMENDATIONS MADE BY THE PANEL OF COMMISSIONERS CONCERNING THE FIFTH INSTALLMENT OF “F4” CLAIMS UN Doc. S/AC.26/2005/10 (June 30, 2005) [Excerpted case available at www.cambridge.org/FPIL7]

Conflict can have an impact on the environment, to be sure, but the reverse situation must also be considered: the environment can be – indeed, already is – a driver of conflict. Homer-Dixon’s research on environmental scarcity and violent conflict showed early on that such conflicts tend to be “persistent, diffuse, and subnational” and will “probably jump sharply in the next decades as scarcities rapidly worsen in many parts of the world.”136 He described conflicts related to depleted resources such as water, cropland, and fisheries as the most disruptive, with larger environmental issues like climate change interacting to worsen those existing scarcities. Indeed, that has come to pass, with climate change only deepening the issues facing the world’s oceans, forests, water supply, and tracts of arable land. National governments and international bodies have been slow, however, to begin planning for climate change as a security issue. Framing climate change as a security issue (e.g., “the climate crisis”) has not led to the rapid response necessary to mitigate or adapt to it.137 For some states, the threat is more real than for others. Small island developing states (SIDS), for example, face the very real threat of complete extinction if sea levels continue to rise; states in northern Africa must struggle to combat the expansion of the desert; and poor states like Bangladesh face increasing rainfall in areas that are already destabilized by rapid deforestation and massive influxes of refugees from Myanmar. Each of these scenarios has an impact not just in the immediate areas of concern, but internationally as well. On a warming planet that is increasingly interconnected, the plight of one country quickly becomes the plight of all.

136

137

T. Homer-Dixon, “Environmental Scarcities and Violent Conflict,” International Security 19, No. 1 (1994): 39. See, e.g., J. Warner and I. Boas, “Securitization of Climate Change: How Invoking Global Dangers for Instrumental Ends Can Backfire,” EPC Politics and Space 37, No. 8 (2019): 1471–1488.

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The Paris Agreement does not mention armed conflict, nor does the UNFCCC. In accordance with the ILC’s Draft Articles on the Effects of Armed Conflict on Treaties, however, it is assumed that these agreements would hold even in the event of war. 138 But international law as a whole is ill-equipped to resolve disputes, armed or otherwise, whose underlying cause is climate change. If the ICJ heard such a case, the applicant state would have to show a direct link between the respondent state’s behavior and an internationally wrongful act, or significant transboundary harm. The respondent state’s actions – not meeting its greenhouse gas reduction targets, for example – would have to be linked to transboundary harm in the applicant state. This is tremendously difficult, uncharted territory, and climate change is a multi-faceted problem. And even though the ICJ now has a separate “Chamber for Environmental Matters” for hearing environmental disputes, it has not been used in all the years of its existence.139 Nevertheless, the ICJ’s 1970 Barcelona Traction case140 established that there are some obligations that states owe to the entire international community. These are erga omnes obligations, though the ICJ has not identified environmental obligations as being such (yet); nor has it been asked to decide a contentious climate change case.141 But there have been rumblings in that direction. In 2011, for example, the small island state of Palau planned to seek an Advisory Opinion from the ICJ on whether or not states had a responsibility to ensure that greenhouse gas emissions were not harming other states.142 It did not follow through with the request, but it is easy to imagine that another similar request is on the horizon.

6 Corporations and the Environment What responsibilities do multinational corporations (MNCs) bear for environmental protection in international law? Are they held to the same standards as states? Since MNCs are known to release greenhouse gases and other pollutants, to negatively impact biodiversity in the areas in which they operate, and to contribute to toxic waste flows all over the world, it is important to understand their evolving role in international environmental

138

139 141

142

K. Davies, T. Riddell, and J. Scheffran, “Preventing a Warming War,” Goettingen Journal of International Law 10, No. 1 (2020): 326. 140 Ibid., 329–330. Barcelona Traction, 1970 ICJ Reports 3. D. Bodansky, J. Brunnee, and L. Rajamani, International Climate Change Law (New York: Oxford University Press, 2017), 49. Ibid., 47.

6 Corporations and the Environment

law. They are among the most powerful international actors, able to move with relative ease across borders, employ millions of people, and create massive profits for their shareholders. Recent history is replete with accounts of environmental disasters wrought by corporate actors, and the disasters often come to an incomplete resolution. For example, a long-standing (and still unsettled) dispute involving Ecuador and Texaco (now Chevron) alleged that Texaco’s operations in the Lago Agrio oil fields had resulted in severe environmental contamination. In the class action suit that began in 2010, the plaintiffs alleged that the contamination had led to widespread increases in rates of cancer and other illnesses in the region’s inhabitants. The case has been heard in several venues, with the Ecuadorian Constitutional Court finally upholding a $9.5 billion judgment against Texaco/Chevron in 2018. Chevron in turn sued Ecuador in the Permanent Court of Arbitration (in The Hague, Netherlands), which resulted in a victory for Chevron: the Court annulled the Ecuadorian Constitutional Court’s judgment, noting that it was made in violation of the MNC’s fundamental procedural rights.143 Chevron, for its part, has concluded that the case against it is fraudulent, and devotes an entire page of its website to an explanation of the case.144 Oil companies are frequently involved in environmental disputes in the states in which they operate. The following excerpt about another oil company – Royal Dutch Shell – and its activities in Nigeria illustrates the pressures, as consistently proclaimed by numerous human rights and environmental organizations, on states and private corporations to acknowledge what is often joint responsibility for environmental fiascos: According to the complaint, Shell Nigeria coercively appropriated land for oil development without adequate compensation, and caused substantial pollution of the air and water in the homeland of the Ogoni people . . . Allegedly, Shell Nigeria recruited the Nigerian police and military to attack local villages and suppress the organized opposition to its development activity. . . . [W]hile these abuses were carried out by the Nigerian government and military, they were instigated, orchestrated, planned, and facilitated by Shell Nigeria under the direction of the defendants. The Royal Dutch/Shell Group allegedly provided money, weapons, and logistical support to the Nigerian military, including the vehicles and ammunition used in the raids on the villages,

143

144

For a detailed summary of this convoluted case, see Business and Human Rights Resource Center, “Chevron,” www.business-humanrights.org/en/companies/chevron/ accessed May 25, 2020. This is a searchable database of major world companies. Chevron, “Ecuador Lawsuit,” www.chevron.com/ecuador accessed May 25, 2021.

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10 International Environmental Law procured at least some of these attacks, participated in the fabrication of murder charges against Saro-Wiwa . . . and bribed witnesses to give false testimony against them.145

We discuss this case and other cases involving MNCs in Chapter 7, but the important lesson is that environmental abuses and human rights abuses often go hand-in-hand. Corporations are not only the subject of public international law but also of private international law, as there are limitations on the controls a host state and government can place over an MNC operating within its boundaries. In theory, the state in which an MNC is incorporated or headquartered should be able to exercise control over it. It can impose its own standards, for example, even when the MNC is operating in another country. As Morgera notes, some less-developed countries, while happy with the financial investment of MNCs in their communities, assume that “developed states owe a duty of control over the MNCs to the international community . . . As MNCs’ activities eventually benefit the home state’s economic prosperity, they should not be secured through injury to other states or to welfare of the international community as a whole.”146 But exercising that extraterritorial jurisdiction can lead to confusion, especially if there are conflicts between the standards of the home state and the host state, or of different MNCs with different home states applying their own standards in the same host state.147 What this has meant for MNCs and international environmental law is that there exists, in Morgera’s words, a “web of related liability regimes” in various fields, such as the transportation of goods and hazardous waste or oil pollution.148 Instead of states “monitoring” MNCs operating outside their borders and the sovereignty questions that might arise from that, states have harmonized their national standards and shifted liability to private operators. Morgera writes: The accepted solution to deter harmful acts and remedy environmental damage is to transfer the question from the inter-state level to the interpersonal level, from public to private international law. Such a trend is the result of states’ preference for channeling liability for environmental damage to private operators rather than resort to the international law of state responsibility.149

145

146

147

Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 92–93 (2d Cir. 2000), cert. denied, 532 U.S. 941 (2001). E. Morgera, Corporate Accountability in International Environmental Law (Oxford: Oxford University Press, 2009), 30. 148 149 Ibid., 31. Ibid., 40. Ibid., 30.

Thinking Ahead

Thinking Ahead Will the Paris Agreement succeed in keeping the global temperature rise under control, such that the worst of the possible impacts of climate change are avoided? The Paris Agreement is the latest in a long line of international agreements designed to mitigate the impacts of climate change, featuring not “top-down” obligations decided by an international body like the UN, but rather “nationally determined contributions” to fighting climate change, decided by each state for itself. It remains to be seen whether this type of agreement – which also does not have punishments for non-compliance – will incentivize states rich and poor to take the domestic actions necessary for global salvation. This chapter has featured a host of environmental treaties designed to solve global collective action problems – problems too large for one state to tackle alone, but that impact states very differently. Few treaties have the track record of the Montreal Protocol, with its innovative structure that incentivizes states to ban compounds that impact the atmosphere. Instead, many are frustrated by the lack of real commitments, or have been weakened by the need for a greater number of states to participate. The chapter has sampled some of the treaties that have been developed to help preserve various aspects of the planet. Because of the slow-moving nature of environmental problems, international environmental law can be frustrating: problems that are identified and acted on (like the hole in the ozone layer that spurred the development of the Montreal Protocol) might take years to show progress. The hole in the ozone layer has not closed due to quick international action; the level of ozone-depleting substances is falling, but it will take many more decades before they are at pre-hole levels.150 Nevertheless, international courts are beginning to see the urgency of taking action to prevent further damage that will certainly impact future generations. The Urgenda decision, for example, is a good illustration of several of the principles of environmental law outlined in this chapter at work simultaneously. The final chapter of this book begins where this one leaves off, with the attempt to rein in global corporations. Corporations have not only powerful impacts on the environment, but on virtually every other aspect of human security, as was discussed in the previous chapter. How can international law, through states, attempt to control this actor that so easily jumps national borders?

150

UNEP, “Thirty Years On, What Is The Montreal Protocol Doing to Protect the Ozone?,” UNEP News and Stories, November 15, 2019, www.unep.org/news-and-stories/story/ thirty-years-what-montreal-protocol-doing-protect-ozone accessed May 20, 2022.

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International Economic Relations

Just as it appeared that the “trade war” between the United States (US) and China was ending, on May 9, 2019, then-president Trump announced an additional round of tariffs of $200 billion worth of Chinese imports on top of existing tariffs. The tariff rate would increase to 25 percent. These new tariffs came during a delicate time of US–Chinese bilateral trade talks. In reply, China’s Ministry of Commerce said that its government “deeply regrets that it will have to take necessary countermeasures.” However, China had already placed tariffs on nearly all of America’s exports, including agricultural products.1 Searching for new ways to retaliate against the US, in December of that year China prohibited the import of American books. It was unclear if such a restriction was meant to serve the dual purpose of hurting the US economically and to censor unwelcome political content.2 While many scholars of international economic relations believe that China had indeed engaged in unfair trade practices for many years (e.g., currency manipulation, dumping), they prescribed working within the World Trade Organization (WTO) to address these problems. Trump and his administration envisioned a far more unilateral and radical way to “deal” with China. As early as Trump’s Inauguration, presidential aide Stephen Miller said that “[t]he President [Trump] is revolutionary, so he has to break China.”3 However, another administration insider wrote that, during his term in office, Trump did not follow any consistent process in economic matters – domestic or international – and the predictable result was a lose/lose for both sides in trading relations.4 Since the election of Joe Biden to the US presidency, economic 1

2

3

4

A. Swanson and A. Rappeport, “Trump Increases China Tariffs as Trade Deal Hangs in the Balance,” New York Times, May 9, 2019. L. Qiqing and P. Mozur, “China Blocks American Books as Trade War Simmers,” New York Times, December 27, 2019. P. Rucker and C. Leonnig, A Very Stable Genius: Donald J. Trump’s Testing of America (New York: Penguin Press, 2019), Ch. 2. J. Bolton, The Room Where It Happened: A White House Memoir, 1st ed. (New York: Simon and Schuster, 2020). See especially Ch. 10: “Thunder Out of China.”

Introduction

relations between China and the US have not seen much improvement; poor economic relations between these two economic superpowers have vast and troubling implications for the economic health of states and peoples throughout the world.

Introduction The legal instruments that govern international economic transactions reflect the shared assumptions and goals of state elites over time. We term this body of international law international economic relations (IER). In the post-World War II period, international liberalism was such a strongly shared assumption among international actors that it was referred to as the “embedded” liberalism5 of the so-called Liberal International Economic Order (LIEO). See Table 0.1 for more insights on liberal jurisprudence. However, there was – and is – nothing inevitable about the goals that have been shared or the regimes and institutions that were created to regulate international economics during this time period. Despite their clear utility in fostering growth in aggregate world trading volumes, these liberal practices and norms are not permanent either. Other goals shared among elites might include the following: targeted economic development for individuals, states, and regions; obtaining and/or buttressing political power for state elites; and harnessing economic resources to tackle joint and “spillover” challenges in international humanitarian law and international environmental law. The mix of the goals of IER (and international political economy more broadly) has undergone rapid change in the last twenty years, and that is reflected in the changing instruments of contemporary IER. These changing assumptions and goals cannot be reduced to simply a “Western” or “Eastern” or LIEO (Global North) vs. New International Economic Order (NIEO) (Global South) framework,6 as has been common in past treatments of the subject. In this chapter, we note the growing importance of IER within international law, make the distinction between public international law and comparative public law as it relates to IER, and examine instruments that reflect the international liberalism that has prevailed in international 5

6

D. Deudney and G. J. Ikenberry, “The Nature and Sources of Liberal International Order,” Review of International Studies 25, No. 2 (1999): 179–196. The NIEO stands for the New International Economic Order that emerged as a counterpoint to the LIEO in international economic relations in the 1960s through the 1990s. See Section 7 in the chapter for a fuller explanation.

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business relations for the last half-century. The resulting instruments include the articles of the WTO, the World Intellectual Property Organization (WIPO), the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), and anti-corruption instruments, along with various nongovernmental organizations (NGOs) that also shared the goals and processes of international liberalism. Section 6 below provides an overview of attempts to thwart one of the greatest challenges to a successful LIEO: the various and increasingly sophisticated forms of corruption and fraud in international business transactions. The final section of the chapter notes a growing re-orientation among state elites toward economic nationalist goals, and anti-competitive behavior among business elites, attitudes that are in strong tension with the earlier liberal economic order.

1 Development of International Economic Relations The development of economic relations across political boundaries marking the division between discrete populations takes us back to the fundamentals of international law and its jurisprudence. Readers are invited to reconsider the justifications and foundations for each theoretical perspective in Table 0.1. Some possible questions might be, what is the purpose of IER? Who does and who should benefit from them? Who should control the system of economic relations? With that preparation in mind, we move to a consideration of development of economic relations, which involved a combination of intentional design and accidents of history. The system continues to change at present, a theme we will return to in Section 7 of this chapter.

1.1

Evolution of International Economic Relations

For much of human history, there existed little true international law that governed the economic relations between states (or other political groups before states were formally recognized in 1648). Political leaders were understandably concerned with regulating economic transactions within their political unit, the only area which they could realistically control and which they could legally regulate. However, understanding the laws concerning the regulation of domestic economics in various states is an important separate area of study and comprises comparative public law (or CPL).7 It is only recently in historical terms that international law regulating 7

Note the technical distinction between the study of just one legal system not one’s own is entitled “foreign law,” but when the discipline encompasses the study of more than one

1 Development of IER

economic relations between states and peoples has emerged. Only the most salient parts of that history will be cited here; the detailed study of either economic CPL or the complex evolution of IER is well beyond the scope of this text.8

1.1.1

Tariffs, Blockades, and Sanctions

Before free trade became the goal in modern IER, economic relations between political units were often marked as much by measures meant to impede trade as well as promote it – using trade as an extension of foreign policy. At its extreme, political elites were not averse to collective punishment – using embargoes and blockades to starve a foreign adversary into compliance or submission as is recounted in vivid detail in the famous siege of Melos in Thucydides’ “Melian Dialogue.”9 This economic punishment could be conducted not only by military invasion, as in that case, but also by physical barriers at a common border, high taxes (tariffs) on the import of goods from the targeted country, or naval blockades preventing shipping of goods to or from the targeted state’s harbor(s). More recently, sanctions have been used in increasingly novel ways, such as an attempt to protect the environment and endangered species by sanctioning states and NGOs that ignored the CITES treaty guidelines.10 Now, the judicious use of sanctions can be seen as promoting freer trade, unlike in earlier times. The use of sanctions of all types has increased dramatically in IER, especially in trade disputes since the 1980s.11 We will

foreign legal system at the domestic level it is “comparative public law.” The subject of this text is, however, the study of law made at the international level purporting to regulate economic relations that occur across state boundaries, or international economic law. 8 A good overview of the history of developing international economic relations can be found in D. Armstrong, T. Farrell, and H. Lambert, International Law and International Relations, 2nd ed. (Cambridge: Cambridge University Press, 2011); also, a little-known treaty between ancient Russia and the Byzantium city-state (now in Turkey) in 860 AD is the subject of M. Braychevskiy’s article, “On the Legal Content of the First Treaty of Russia with the Greeks,” found in the Soviet Yearbook of International Law (Moscow: Nauka Publisher, 1983), 296ff. in the English translation. 9 Thucydides, The History of the Peloponnesian War (R. Crawley, trans.) (Some Good Press, n.d.), Book V, Ch. XVII. 10 P. Sand, “Enforcing CITES: The Rise and Fall of Trade Sanctions,” Review of European, Comparative and International Environmental Law 22, No. 3 (November 2013): 251–263. CITES stands for the Convention on International Trade in Endangered Species of Wild Fauna and Flora. See Chapter 10. 11 T. Morgan, N. Bapat, and Y. Kobayashi, “Threat and Imposition of Economic Sanctions 1945–2005: Updating the TIES Dataset,” Conflict Management and Peace Science (2014): 1–18.

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return to the increased use of sanctions and tariffs in the final section of this chapter.

1.1.2

Development of the International Trading System

Despite the earlier use of trade as a military tool, the natural evolution of closer ties between states and peoples necessitated the codification of the first sets of international law that attempted to regulate private international economic transactions. As noted by liberal trade theory, low-trust situations12 can be (at least partially) overcome by repeated trust and confidence-building measures. Why is trust critical in trade? Because without that basic trust (e.g., that prices are fairly set, key information has been transparently shared by all parties, commitments will be met, goods or services will be delivered on time at a specific place), no trade is possible, especially as trade moves up the levels from the local to the international. From ancient Athens through the medieval city-states, the primary role of trade was to create wealth that, in turn, could be harnessed by the political unit (e.g., empire, confederation) to facilitate domestic advances including a more potent military. But trade ultimately led to diplomatic and other exchanges among these congregations of people. Likewise, exploration and improvements in transportation fostered trading relations, for example, those links forged by the voyages of exploration sponsored by the ancient Phoenicians, and later the Spanish, Portuguese, Dutch, English, and others. A positive side effect of trade was that it helped foster more peaceful relations in general between trading partners. Finally, trade also exposed trading political entities to broader social and cultural perspectives as merchants and sailors operating under their flag cast their net ever wider in search of more trade and new markets. An early form of international trust-building in trade was the lex mercatoria, or the “Law of Merchants,” that is, private tribunals that were established in medieval Mediterranean port cities to resolve trade disputes. The body of private commercial law that resulted established customary practices that were later incorporated into the commercial codes of many 12

A classic example of a low-trust situation is exemplified in an example from Game Theory known as “the Prisoners’ Dilemma.” In its simplified form, the game is composed of two “players,” typically two prisoners held in separate jail cells. Neither one knows what the other has said to the police. Each has two basic choices to make: to “cooperate” with each other and keep silent, or to “defect” or “cheat” and tell the police all they know in hopes of a lesser sentence. Since neither can fully trust the other, the best choice/move is to “defect” before the other one does. For a comprehensive explanation of the Prisoners’ Dilemma, and how it can be overcome, see R. Keohane, After Hegemony (Princeton, NJ: Princeton University Press, 2005).

1 Development of IER

subsequent states. Under the lex mercatoria, beginning in the twelfth century, Letters of Credit passed between private shippers to vouch for the trustworthiness of medieval Mediterranean shippers and to spell out the specifics of the exchange.13 Disputes between international merchants could be conveniently heard and solved by neutral third-parties. These practices spread far beyond the Mediterranean over time. Principles derived from these tribunals continued to shape and inform nascent international trade law until the mid-twentieth century. In one twentieth-century case, a London court used the medieval lex mercatoria principles to help determine when and how payment was to be delivered from the buyer to the seller when the mechanism for delivery was not specified in the original contract.14 This is an example of how individual judicial decisions became incorporated into the commercial practices of maritime and trading states. That repeated practice then became part of the customary rules of international commercial law. Additionally, some of these practices were then codified into national legislation and treaties. As the volume of trade grew, simple barter systems (exchange of equally valued goods) were insufficient. The growing use of a neutral means of payment – money and credit – that would be accepted across borders also demonstrates the evolutionary nature of IER over the centuries to meet that need. This truly was a system of trial and error. Various forms of currency were experimented with (stones, breakable coins, etc.) until relatively lightweight and transportable forms (precious metal small coins and paper) were settled upon for practical reasons. Money itself has absolutely no value; it only has the value and utility that is derived from agreements, especially international agreements.15 It is to these agreements and arrangements that we now turn in the development of IER. In the modern era, IER has evolved from a very narrow, technical area of interchange between state economic elites (e.g., Finance Ministers) regarding their currencies’ values and effect on trade relations, to a highly complex mixture of formal state agreements and private business interests, most notably those of the multinational corporation (MNC; discussed in Section 4 of this chapter). Based on new understandings of international economics

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V. Nanda, U. Draetta, and R. Lake, Breach and Adaptation of International Contracts: An Introduction to Lex Mercatoria (Salem, NH: Butterworths, 1992). Horst v. Biddell Brothers (1962), available in All England Law Reports Vol. 93, 101, Judge Loreburn presiding (London: Butterworths). R. Gilpin, “The Era of Specie Money,” in R. Gilpin, The Political Economy of International Relations (Princeton, NJ: Princeton University Press, 1987), 119–123.

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and the war experience, there was a re-ordering of the international monetary system right after World War II.

2 The GATT, WTO, and the Promotion of “Free Trade” The great lesson that emerged from the ashes of World War II for international political-economic policymakers was that economic nationalism – specifically high inter-state protectionism and tariff barriers known as “beggar thy neighbor” – was not only inefficient for trade and bad for consumers but was in itself an underlying cause of the devastating war. In the war’s aftermath, therefore, creating a new international monetary and trading system was top priority, primarily for political, not just economic, reasons.

2.1

Bretton Woods System and the GATT

To achieve political stability through economic development and free trade, delegates from forty-four states met at the Bretton Woods ski resort in the US state of New Hampshire, in June 1944 under the auspices of the UN Monetary and Financial Conference. The institutions they created were known collectively as the “Bretton Woods Agreement”; they included the International Monetary Fund (IMF), the International Bank for Reconstruction and Development (the IBRD, or “World Bank”), and the informal ideas for an International Trade Organization (ITO). The ITO ideas collapsed when the US returned to protectionism after World War II, so an informal regime16 was proposed in 1947 called the General Agreement on Tariffs and Trade (GATT). The GATT later became the WTO in 1995 after almost fifty years of negotiations; the enabling treaty was the “Final Act.”17 It took eight difficult and increasingly lengthy “rounds” of negotiations, which should be counted as one of the triumphs of IER in the modern era. The task was assisted by the establishment of a permanent Secretariat in 1955, located in Geneva. There were sixty charter states in the WTO; twenty-one additional states immediately applied for membership. Since then, there have been controversial applications, such as China and Russia, due to their trade and internal labor practices, but both were eventually admitted. 16

17

“Regimes” are defined as a set of often informal agreements in a given issue-area that are widely shared by international elites, and around which actor expectations converge. They can serve as “work-arounds” when a treaty or other formal international agreement is not possible. See S. Krasner, “Structural Causes and Regime Consequences: Regimes as Intervening Variables,” International Organization 36, No. 2 (1982): 185–205. “Final Act,” International Legal Materials 22 (1994): 1143.

2 The GATT, WTO, and the Promotion of “Free Trade”

Building on lessons learned from prior international monetary systems, the technical goals of the Bretton Woods institutions were to promote greater liquidity, currency adjustments, and overall confidence and stability in the international monetary system. Judged on those terms, it has been a remarkable success and has achieved important goals related to liquidity, currency adjustments, and confidence. Liquidity, or easy access to capital, has several important justifications behind it: first, it is a primary tool of development for strife-torn and underdeveloped states; and second, it helps developing states overcome a balance-of-payments problem. In the previous rigid international monetary systems, like the gold standard, once a state fell into a balance-of-payments deficit, it was virtually impossible for it to crawl out of it18 because every currency was rigidly tied to the value of gold. Closely related to liquidity are currency adjustments. Under the rigid gold standard, currency adjustments were not permitted due to the direct tie between a country’s gold reserves and gold’s value on the world market. Currency adjustments (within acceptable ranges) are useful for a variety of reasons: to meet a balance-of-payments problem externally or internally (i.e., deficit spending); to make a country’s exports more competitive on the world market; and for other technical reasons. Short and long-term lending from the IMF and World Bank can help states, especially developing states, with currency adjustments, within limits.19 However, taken to an extreme, adjustments can produce instability in markets, distortion of prices, and charges that a state is “gaming” the system. An example of the latter is the charge by the Trump Administration that China was a currency manipulator, unleashing a “tariff war” between the two states.20 The third and final goal of the Bretton Woods system was that the system must inspire confidence in both state financial elites and private business interests alike. They must believe the international monetary system as a whole is stable and that the value of currencies will not fluctuate wildly. A sense of confidence was the great strength of the gold standard,21 and the Bretton Woods conferees knew that their system must provide this as well. Confidence was provided both by the strength of the US economy, and by

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19 Gilpin, The Political Economy of International Relations, 124–127. Ibid., 133. A. Swanson and E. Sullivan, “Trump Aims New Threat at China as Mnuchin Warns of Trade War,” New York Times, April 6, 2018. The “Gold Standard” was an international monetary system in which every state’s currency was tied to the value of gold. If there was a balance-of-payments deficit, a state would be forced to buy gold; if there was a surplus, to sell gold. For many developing states that ran chronic balance-of-payments deficits, they struggled to buy sufficient gold.

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pegging the value of the US currency (the dollar) directly to gold.22 Confidence was also provided by having “lenders of last resort”: the World Bank and the US Treasury, if needed. While the US dollar remains the world’s “reserve currency” under the Bretton Woods system and its managed successor system (other state currencies are vying for that distinction), individuals and some corporations (like Facebook) are pushing for an alternative “virtual” or “crypto-currency” like Bitcoin because this type of currency, in theory, would be more “convenient.” This controversy is likely to grow as crypto-currencies become more widely used.23 Convenience can come at a high price: virtual currency is far more difficult to trace and regulate, it is not backed by any government or commodity of agreed-upon value, and it has been a prime catalyst for cybercrimes (discussed in Section 6.4 below). One scholar asserts that Bitcoin is “the first Ponzi scheme in history where investors know about the scheme and still think that it is wise to invest . . . one thing is certain; further regulation is necessary.”24 In the US, the Securities and Exchange Commission (SEC) has only just begun to regulate crypto-currencies like Bitcoin. This is likely to change with the listing of the virtual currency exchange company Coinbase in 2021, whose initial public offering eclipsed the value of the NASDAQ and the New York Stock Exchange combined.25 At the international level, it is unclear what future steps, if any, will be taken.26

2.2

Goals and Articles of the WTO

The WTO was built upon a six-part policy program to promote free trade and development in each of the following key areas. These were its goals when it was established; not all goals were achieved in practice. ▪ Tariffs: Import taxes and other tariff barriers were to be reduced on 85 percent of the world’s trade. The associated taxes are called customs

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Note, however, that President Nixon “de-linked” the US dollar from the value of gold in 1972, thus undercutting confidence somewhat. Confidence has been maintained since then by a complex set of agreements among G-7 finance ministers, who effectively intervene in markets when necessary to maintain the value of the dollar and other “reserve” and leading currencies. Since the de-linking, the international monetary system is known as the BWS managed system, or the post-BWS system. E. Livini, “Tesla will accept Bitcoin in payment, Elon Musk says,” New York Times, March 25, 2021. J. Warren, “A Too Convenient Transaction,” Journal of Law and Cyber Warfare 8, No. 1 (2020): 5–29. Bloomberg, “Coinbase Valuation Likely to Hit $100b,” Atlanta Journal-Constitution, April 13, 2021. Warren, “A Too Convenient Transaction.”

2 The GATT, WTO, and the Promotion of “Free Trade”

▪

▪ ▪

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▪

duties, charges, tolls, assessments, or levies, but the most common term is “tariff.” Anti-Dumping: The WTO was to be dedicated to resisting the practice of temporarily selling imports at a price below cost in the target market. This is a predatory tool for eliminating local competition. After market access is secured, the pricing structure increases significantly so that ultimately new profits recoup previous losses after eradication of most or all competitors. Agriculture: Farm subsidies, which artificially reduce the cost of production, were to be reduced by an average of 36 percent. Textiles: Import quotas on textiles from developing countries – which help the local market’s competitors maintain a greater market share – were to be phased out over a ten-year period. Service sectors: Markets in “service” sectors such as banking, shipping, and insurance were subject to international trade controls for the first time. Only “goods” were regulated under the 1947–1994 version of the WTO (GATT). Intellectual property: The WTO regime would extend protection against unauthorized copying of “intellectual” property such as books, films, music, computer programs, and pharmaceutical products, thus providing additional copyright and patent protection on a global basis.

2.2.1

Evolution of the WTO

The primary difference between these two free trade regimes is that the GATT was more informal versus the more formal structure of the WTO, but there are several other important differences. The WTO is a truly international organization, the centerpiece of treaty-based international trade law.27 Three of the most important differences are as follows: first, this de jure international economic organization is endowed with jurisdictional powers ceded by its member states; second, the WTO has a power that was withheld from the GATT process by its participating states – the WTO can force compliance when one of its 164 member states breaches organizational obligations (as analyzed in the next subsection); and third, there is now room for economies that were not historically free-market economies. Although it took some time, both formerly Communist economic systems in Russia and China have been admitted to the WTO; they were only granted Observer Governments status in the GATT system.

27

R. Bhala and K. Kennedy, World Trade Law: The GATT-WTO System, Regional Arrangements and U.S. Law (Charlottesville, VA: Lexis Law Publishers, 1998).

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The US initially opposed China’s participation because of the latter’s extensive piracy of patented and copyrighted US goods and services. These products include computer hardware, software, books, movies, and a host of other items protected by the WTO treaty. US estimates were that China’s breach of international copyright and patent treaties had cost US companies more than $1 billion a year in lost revenues. Ninety-four percent of USdesigned and patented products in China were pirated copies. China and the US thus entered into a bilateral treaty in November 2001, which enabled China to enter the WTO. However, former US president Trump’s actions against China, going well beyond the complaints about currency manipulation (above) have renewed bilateral trade tensions between the two states. The admission of the Russian Federation was also initially opposed due to lack of market reforms, but it was finally granted membership of the WTO in August of 2012. There are smaller, yet still significant, differences between the old GATT and the WTO. A GATT member could pick and choose among the various GATT “obligations” based on expediency. This selective incorporation produced a very complex web of varying obligations, doing little to promote GATT’s universal appeal. This is one of the reasons why regional trade organizations virtually eclipsed the (former) GATT in importance. The WTO treaty, on the other hand, requires that participating states agree to all the basic provisions (with some temporary exceptions). In another example, the GATT was limited to regulating only commodities or “goods.” The WTO covers four additional areas, as described in the 1994 Final Act: (1) trade in goods; (2) services; (3) intellectual property rights; and (4) investment rules. The “goods” portion of international commerce continues to be the primary area of concern. It is summarized below as the focal point in this section. The primary legal difference between GATT and the WTO is the latter’s mandatory dispute resolution mechanism. The former GATT panels of experts often issued their determinations without the ability to force compliance with the basic obligations described below. A far more formal adjudicatory system currently provides enforceable remedies. The significance is aptly summarized by Andreas Lowenfeld, a prominent international commercial arbitrator: dispute settlement in the GATT has generally reflected a certain ambivalence. Some states and many “old GATT hands” within the secretariat and among the delegations in Geneva believed that GATT dispute settlement should aim at lowering tensions, defusing conflicts, and promoting compromise; others, notably American officials and writers, have looked to the dispute mechanism of GATT as an opportunity to build a system of rules and remedies. Over the forty

2 The GATT, WTO, and the Promotion of “Free Trade” years of GATT dispute settlement, there has been an ebb and flow between the diplomatic and the adjudicatory models. It seems clear that the adjudicatory model prevailed in the Uruguay Round.28

Under GATT, the losing party could essentially ignore (or “block”) a GATT panel report. A powerful trading partner could even block the GATT Secretariat from organizing a panel that was supposed to decide a complaint. In contrast, the WTO discourages unilateral fact-finding by an individual member of the organization. The agreement establishing the WTO provides that, should a member seek redress for a violation of GATT obligations, it “shall have recourse to, and abide by, the rules and procedures of this understanding . . . .” Members may not make their own determinations and must instead seek “recourse to dispute settlement in accordance with the . . . [WTO] understanding.”29 Under this understanding on Rules and Procedures Governing the Settlement of Disputes, there is still an adjudicatory “panel” process. But state members of the WTO can no longer ignore a panel decision. In addition, unlike before, states now have access to an appeals process through the WTO’s Appellate Body in Geneva. This process also offers a clear advantage: the losing party has the opportunity to rectify a perceived mistake – a common attribute of democratic systems of governance, which adds to the integrity and credibility of the WTO process. An international organization may have similar “nationalist” or neomercantilist concerns as would a state. For example, some European Union (EU) rules may be inconsistent with WTO requirements. An example was the EU’s policy that favored imports of bananas from its former colonies in Africa, the Caribbean, and the Pacific. A business entity (“legal person”) within the EU may not plead that activities compliant with WTO rules are a defense to contradict EU rules. In March 2005, the Court of Justice for the European Union (CJEU), in Van Parys v. BIRB, ruled that a Belgian company was unable to import the quantity of bananas it had imported over the prior twenty years.30 A WTO panel had ruled that the restrictive EU regulations 28

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A. Lowenfeld, “Remedies Along with Rights: Institutional Reform in the New GATT,” American Journal of International Law 88 (1994): 477, 479. Article 23, Annex 2, Agreement Establishing the World Trade Organization, Final Act Embodying Results of the Uruguay Round of Multilateral Trade Negotiations, GATT Doc. MTN/FA (December 15, 1993), reprinted in International Legal Materials 33, No. 1 (1994): 13. ECR, Van Parys NV v. Belgisch Interventie- en Restitutiebureau (BIRB) (2005), Case C-377/ 02 [2005] I ECR 1499 (Grand Chamber). Note that since 1989 cases of the Court of Justice of the European Union (CJEU) have a “C” prefix, and cases of the Court of First Instance of the European Union (CFI) have a “T” prefix.

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were incompatible with the WTO’s more liberal rules. This decision echoes the pre-WTO concern of the more powerful states about a loss of sovereignty to the WTO dispute settlement process. This reticence to accept WTO rules has been partially overcome, now that nearly 165 states in the world have accepted the WTO and its mandatory settlement provisions. A later pair of 2008 decisions brought before the CJEU affirmed that businesses affected by a loss of revenue due to incompatible EU–WTO regulations over the importation of bananas from African, Pacific, and Caribbean countries cannot seek compensatory damages.31

2.2.2

Essential Articles of the WTO

What obligations does a state undertake when it opts to join this international organization of states? Following the LIEO, the fundamental objective is to promote free trade and to combat trade barriers. National representatives thereby attempt to reduce or eliminate the varied forms of trade barriers: tariffs, non-tariff barriers, and discriminatory trade practices. The essential obligations of the WTO are set forth in Articles I, II, III, and VI of the original 1947 GATT document, supplemented by later agreements.32

ARTICLE I – MOST-FAVORED-NATION TREATMENT 1. With respect to customs duties and charges of any kind imposed on or in connection with importation or exportation or imposed on the international transfer of payments for imports or exports, and with respect to the method of levying such duties and charges . . . any advantage, favor, privilege or immunity granted by any contracting country shall be accorded immediately and unconditionally to the like product originating in or destined for the territories of all other contracting parties.

Under international law, states are generally free to discriminate in their economic dealings. This is an attribute of the sovereign power to engage in international relations with other states. Schwarzenberger explains that:

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A. Alemanno, “European Court Rejects Damages Claim From Innocent Bystanders in the EU–U.S. ‘Banana War,’” ASIL Insights (October 22, 2008). See the website of the WTO for this and related legal documents: www.wto.org/english/ docs_e/legal_e/gatt47_01_e.htm accessed May 21, 2022.

2 The GATT, WTO, and the Promotion of “Free Trade” in the absence of bilateral and multilateral treaty obligations to the contrary, international law does not ordain economic equality between States nor between their subjects. Economic sovereignty reigns supreme. It is for each subject of international law to decide for itself whether and, if so, in which form, it desires to grant equal treatment to other States and their subjects or give privileged treatment to some and discriminate against others.33

A state’s tariffs may thus discriminate against the goods from one country and favor those of another. Groups of states may combine to charge discriminatory tariffs. The states within the EU want to eliminate tariffs on the exported commodities of only their own members. They do not have to extend this favorable tariff treatment to other countries. The Article I most-favored-nation (MFN) clause had been a centerpiece of GATT, and is now a centerpiece of the WTO. Even prior to the GATT, many bilateral treaties contained such a clause. Each state thereby promised that the tariff rate on the imports of its trading partner would be the lowest rate imposed on like imports from any other state. Then, under the GATT, member states agreed to grant MFN status to the imported products from other GATT members. The WTO process is the same. For example, assume that South Africa imposes a 10 percent tariff on imported Italian shoes. Both of these countries are members of the WTO. The MFN article requires South Africa to charge Italy the lowest shoe tariff that it levies on like shoes from any other country. South Africa may charge a higher 12 percent tariff on shoes from State X if X is not a WTO member. If X is a WTO member, and South Africa were to reduce its tariff on like shoes from some other nation, South Africa would then have to reduce its tariff to the same rate for State X and other WTO members.

ARTICLE II – SCHEDULES OF CONCESSIONS 1. (b) The products described in Part I of the Schedule relating to any contracting party, which are the products of territories of other contracting parties, shall, on their importation . . . be exempt from ordinary customs duties in excess of those set forth therein. . . . 1. (c) The products described in Part II of the Schedule relating to any contracting party which are the products of territories entitled under Article I to receive preferential treatment upon importation into the territory to

33

G. Schwarzenberger, “Equality and Discrimination in International Economic Law,” Yearbook of World Affairs 25 (London: Sweet & Maxwell, 1971): 163.

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ARTICLE II – SCHEDULES OF CONCESSIONS (cont.) which the Schedule relates shall, on their importation . . . be exempt from ordinary customs duties in excess of those set forth and provided for in Part II of that Schedule.

Each state’s tariffs on imported products are listed in “concessions,” referred to as “schedules.” These schedules have been renegotiated during various periodic rounds since 1947. Members have thereby updated and published their latest tariff schedules, giving their tariff for each item on the list. There is a dual system of tariffs. Article II(1.c) authorizes a member to place the imports of designated nations on its “Part II Schedule” of tariffs. That action results in lower tariffs being imposed on imports from a developing state. Each member may publish different tariffs for the same category of import on its Part I and Part II lists. The lower tariffs on a member’s Part II schedule of tariffs favor the products of certain developing countries. The more they can benefit by developing their markets through lower tariff schedules, the larger their markets will be for exports from developed nations. Although it may appear to violate liberal trade theory (by favoring one set of states over another), in the long run, these mechanisms should result in a “win-win” for both wealthy, developed states and poorer, less-developed states. Since the WTO came into existence in 1995, there has been renewed emphasis on assisting developing states integrating into the global economy. The US’s massive post-World War II Marshall Plan for Europe was channeled to specific economic sectors, including redevelopment, reconstruction, industry, infrastructure, and the education of skilled labor forces. In contrast, the resources allocated to Africa have not been designed to create managerial capabilities and technical or vocational skills. Indeed, direct aid to Africa has always been on a comparatively small scale. Furthermore, many aid programs do not create the institutions that resulted in the economic power now wielded by the EU members who benefited from the post-World War II Marshall Plan. As concisely articulated by Stegar: “When the world emerged from the ravages of WWII, . . . [it] needed to rebuild the war-ravaged economies of Europe and Asia, in order to ensure economic growth and prosperity. They also realized that with economic growth and prosperity, peace and security would also be maintained.”34 A similar realization and will has been singularly lacking vis-à-vis Africa and other underdeveloped states.

34

D. Stegar, Peace through Trade: Building the World Trade Organization (London: Cameron May, 2004).

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ARTICLE III – NATIONAL TREATMENT ON INTERNAL TAXATION AND REGULATION ...

2. The products of the territory of any contracting party imported into the territory of any other contracting party shall not be subject, directly or indirectly, to internal taxes or other internal charges of any kind in excess of those applied, directly or indirectly, to like domestic products.

A tariff increases the cost of selling a particular product in a foreign market. A domestic business in that market obviously does not have to pay any import tariff. It can compete without having to factor in a tariff on its products. If a US company wants to sell steel to State X, for example, the latter’s tariff on that steel is an added cost of doing business in State X for the American company. State X steel producers do not have to pay this same cost in their internal State X market. If the international steel market is very competitive, then price differences will normally be minimal. Thus, State X’s tariff may present an insurmountable cost barrier, making it unprofitable for a US company to sell steel in the State X steel market. The amount of a disclosed tariff can be considered when an international seller is deciding whether the country imposing that tariff would be an efficient market for its products. However, in addition to direct import tariffs, the importing country might impose an indirect barrier to trade. This is known as a “hidden” or non-tariff barrier (NTB) to competition for that product. NTBs protect local industries from foreign competition. They create another cost above that already assessed on the imported product by the published import tax. They also prevent would-be exporters from making completely rational decisions because of the lack of completely transparent and full (“perfect”) information, required by free trade theory. Article III(2) prohibits such indirect barriers on imports. If the importing company has already paid an express tax (tariff ) on its product, then its cost of doing such business should be transparent rather than being hidden in the form of some costly restriction imposed after the product has already been taxed via the importing state’s scheduled tariff rate. Assume that a US steel company determines that after accounting for the State X tariff it is still profitable to export its American-made steel to the State X market. Representatives of the State X steel industry then convince the State X legislature to enact a law that requires new inspections for

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structural defects in steel. This new law applies only to foreign steel imported into State X. The US steel company must now pay the added cost of this new inspection procedure. This law is a prohibited NTB. It discriminates against foreign steel producers without imposing the same cost of doing business on domestic State X steel producers. There are various forms of NTBs. The simplest is a quota on the quantity of foreign imports from a particular country. Another example is the “buy national” law. This kind of NTB provides economic and/or patriotic incentives to local consumers to buy domestically made products instead of competing foreign-made products. There is also the dual-purpose protectionist NTB. The US Congress, for example, passed environmental protection legislation in 1986 that discriminated against foreign oil. Congress created a new tax on oil to establish the “Superfund” for cleaning up US wastedisposal sites. The tax was set at 11.7 cents per barrel of imported oil, but only 8.2 cents per barrel for domestic oil. Many oil-exporting states complained that this was an indirect tariff on their oil sold in the US. A GATT dispute panel found that this tax violated the GATT because it was an NTB to compete with foreign oil. The US accepted the findings of the GATT panel and changed the law.35

ARTICLE VI – ANTI-DUMPING 1. The contracting parties recognize that dumping, by which products of one country are introduced into the commerce of another country at less than the normal value of the products, is to be condemned if it causes or threatens material injury to an established industry in the territory of a contracting party or materially retards the establishment of a domestic industry. . . .

A state may not “dump” its products onto another state’s market at a price below the fair market value at which it is sold in the importing or third countries. The goal of dumping is to gain control of the market in foreign states for a particular good or service, and then once a monopoly is achieved, the price can be successfully raised to much higher than fair market value in a competitive market. Such conduct normally “causes or threatens material injury to an established industry.” Dumping is the type of business conduct 35

For details on the unlawful US NTB tax on oil imports of 1986, see the report by the Bureau of National Affairs of the International Trade Representative Vol. 4 (Washington, DC: BNA, 1987): 786ff.

2 The GATT, WTO, and the Promotion of “Free Trade”

that most likely “retards the establishment of a domestic industry” where none is already present in the target market. The mechanism that enables product dumping is usually a state subsidy (payment) to the industry or industries that are exporting the product to one or more other countries, although it can also take the form of subsidies that originate within a privately owned business (below). On the other hand, when dumping is policed, cheaper imports are one of the common benefits of participation in the WTO regime. This anti-dumping provision also controls predatory business plans, such as those designed to initially flood a foreign market with cheap imports. These are first sold at a price below their value (factoring in production, shipping, and insurance costs). After capturing the foreign market, then the original producer or their agent is in a position to charge a higher, monopolistic price. In other situations, there may already be domestic producers of the same product who can be driven out of business by the artificially lower imported price, after which point the foreign manufacturer can again capture the market, and then raise the price. Should an entity within the exporting state be suspected of dumping, the importing state “shall be free . . . [to] suspend the obligation in whole or part or to withdraw or modify the concession.” It may thus initiate a Safeguard Measure when it objectively determines “that such product is being imported into its territory in such increased quantities, absolute or relative to [its] domestic production, and under such conditions as to cause or threaten to cause serious injury to the domestic industry that produced like . . . competitive products.”36 The US, for example, instituted a Safeguard Measure on a wide range of steel imports in 2000 because of the struggling US steel industry. The US measure thereby imposed extra tariffs on foreign steel imports into the US. The EU responded by threatening to impose counter tariffs on US steel exports. It also filed an action in the WTO. In November 2003, the WTO Appellate Body definitively ruled that the US Safeguard Measures were, instead, a violation of GATT Article XIX and its related Safeguards Agreement. Both prohibit tariffs designed to subsidize local industry in a way that adversely impacts like products from abroad. Then-president Bush’s Trade Representative later claimed that the president had independently reversed course. The president no doubt realized that to ignore the WTO

36

The “suspension” authority comes from Article XIX of the GATT 1994. The “Safeguard Measure” authority comes from Article II of the WTO Agreement. For these and related documents: www.wto.org/english/docs_e/legal_e/legal_e.htm accessed May 21, 2022.

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ruling against the US would invite other states to ignore other rulings that favored the US.37

ARTICLE VI – COUNTERVAILING DUTIES 2. In order to offset or prevent dumping, a contracting party may levy on any dumped product an anti-dumping duty not greater in amount than the margin of dumping in respect to such product.

A state may augment its scheduled (published) tariff concession on a product when it determines that imports are being dumped onto its domestic markets. This is an anti-dumping or countervailing “duty” which is a special tax imposed on imports in addition to the usual tariff for that commodity. The purpose is to offset the anti-competitive effect of the dumped product.38 The importing state thus elevates the cost of exporting the offending product into the “dumped” market to a level that approximates the normal cost. A major change from the former GATT to WTO is the introduction of the more specific “Agreements on Implementation of the General Agreement on Tariffs and Trade.” This feature embodies the results of the seven-year Uruguay Round of GATT negotiations. Article 3.5 of the Agreement on Implementation of Article VI provides as follows: It must be demonstrated that the dumped imports are, through the effects of dumping . . . causing injury within the meaning of this Agreement. The demonstration of a causal relationship between the dumped imports and the injury to the domestic industry shall [include] . . . any known factors other than the dumped imports which . . . are injuring the domestic industry, and the injuries caused by these other factors [such as contraction of demand, developments in technology, or domestic productivity].39

37

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39

For the facts of the dispute see D. Sanger, “Backing Down on Steel Tariffs, the U.S. Strengthens Trade Group,” New York Times, December 5, 2003. For analysis, see Y. Jung and E. Kang, “Toward an Ideal WTO Safeguards Regime – Lessons from U.S. Steel,” International Lawyer 38 (2004): 919ff; also see D. Caron, “United States – Continued Dumping and Subsidy Offset Act of 2000,” American Journal of International Law 150 (2004). G. Marceau, Anti-Dumping and Anti-Trust Issues in Free-Trade Areas (Oxford, U.K.: Clarendon Press, 1994). World Trade Organization, “WTO Legal Texts – A Summary of the Final Act of the Uruguay Round,” Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations (1994) www.wto.org/english/docs_e/legal_e/legal_e.htm accessed May 21,

2 The GATT, WTO, and the Promotion of “Free Trade”

Such implementing agreements clarify what factors should (and should not) affect the WTO’s determination of whether dumping is actually occurring. They also facilitate the determination of whether dumping is in fact causing harm to the importing market’s domestic industry. Dumping accusations are regularly voiced when the importing state learns that the exporting state has somehow subsidized a product. With this government assistance, the product becomes marketable at a price that gives the exporting state’s company an improper financial advantage over makers of that product in the importing state. The advantage makes a product competitive in a foreign market because it may be sold comparatively cheaply. But subsidies are not known for being transparent. Therefore, related litigation often turns on the issue of whether the government involvement constitutes a subsidy. When it is, the importing state is authorized to levy a countervailing duty on the product. This type of sanction adjusts for the foreign government’s interference with unadulterated market forces.40 The following 2009 US case illustrates the linkage between dumping, countervailing duties, and enforcement.

US V. EURODIF S.A. United States Supreme Court, 129 S.Ct. 878 (2009), 3–4. Petitioners . . . [including] United States Enrichment Corporation, (USEC collectively) run the only uranium enrichment factory in the United States, which was built by the United States Government in the 1950s and run by various federal agencies until it was leased to U.S.E.C. in 1998. In December 2000, U.S.E.C. petitioned the Commerce Department for relief under § 731 of the Tariff Act, alleging that [defendant] LEU imported from France and other European countries . . . was being sold in the United States at less than fair value and was materially harming domestic industry. Notice of Initiation of Antidumping Duty Investigations: Low Enriched Uranium From France, Germany, the Netherlands, and the United Kingdom, 66 Fed. Reg. 1080 (2001). Section 731 of the Tariff Act of 1930 . . . 19 U.S.C. § 1673, provides a two-step process to address harm to domestic manufacturing from foreign goods sold at an unfair price:

40

2022. “Agreement on Implementation of Article VI of the GATT 1994: Section 3.5 of Part I: Article 3, Determination of Injury.” For a more complete explanation, see M. Benitah, The Law of Subsidies under the GATT/ WTO System (Hague: Kluwer, 2001).

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US V. EURODIF S.A. (cont.) (1) [If] the administering authority [the Secretary of Commerce] determines that a class or kind of foreign merchandise is being, or is likely to be, sold in the United States at less than its fair value, and (2) the [United States International Trade] Commission determines that – (A) an industry in the United States – (i) is materially injured, or (ii) is threatened with material injury, or (B) the establishment of an industry in the United States is materially retarded, by reason of imports of that merchandise or by reason of sales (or the likelihood of sales) of that merchandise for importation, Then there shall be imposed upon such merchandise an antidumping duty, in addition to any other duty imposed, in an amount equal to the amount by which the normal value exceeds the export price (or the constructed export price) for the merchandise. ...

The Tariff Act’s antidumping provision derives from similar terms in the Anti-Dumping Act, 1921, . . . which were adopted to “protec[t] our industries and labor against a now common species of commercial warfare of dumping goods on our markets at less than cost or home value if necessary until our industries are destroyed . . .” Following the U.S.E.C. charges, the Commerce Department opened an investigation into the practices of respondents, a French enricher, Eurodif, S.A., its owner, Compagnie Général des Matières Nucléaires . . ., its U.S. subsidiary . . ., and United States utilities that consume LEU (Eurodif collectively) . . . In its final determination, the Commerce Department concluded that [the enriched product] LEU from France . . . was being sold, or likely to be sold, in the United States at less than fair value. ... [Fn. 3, p. 4] There are only five major uranium enrichers in the world, a scarcity that illustrates the “huge financial investment in facilities and a technically skilled work force” necessary to support the enrichment process.

The WTO process is flexible enough to provide unusual remedies that would not likely be available in national forums. Its General Agreement on Trade in Services (GATS) and TRIPS address the WTO regimes for regulating international trade in services and intellectual property, respectively. An

2 The GATT, WTO, and the Promotion of “Free Trade”

intriguing illustration is the 2005 decision of a WTO panel on gambling and public morals. In December 2007, a WTO arbitrator decided the US Measures Affecting the Supply of Gambling and Betting Services dispute. Antigua and Barbuda (Antigua) won the right to suspend WTO concessions and related obligations to the US under the Agreements on TRIPS and GATS. Antigua sought over $3 billion in damages, based on the amount of damage that the US gambling restrictions allegedly caused to the Antiguan economy. The arbitrator concluded that Antigua was entitled to $21 million per year as a result of the US prohibition on Antigua’s online gambling activities. In addition, it was not practicable or effective for Antigua to suspend its concessions or other obligations to the US under the GATS only. Antigua was allowed to suspend concessions and other obligations under the TRIPS Agreement, concerning the protection of intellectual property rights as well. This special relief constituted a “rare form of compensation.”41 The WTO’s flexibility also allows for the judicious use of tariffs (as countervailing duties) to combat genuine violations of free trade and MFN principles. However, there has been a recent trend away from the multilateral framework envisioned under the relevant WTO provisions toward unilateral (single state) imposed tariffs. These moves harken back to the punitive tariffs of the interwar period, such as the Smoot-Hawley tariffs. Clearly, tariff wars can easily escalate in a tit-for-tat fashion; when that occurs, such actions achieve exactly the opposite of what was intended in the creation of the WTO: lower worker productivity, stagnant wages, lost jobs, and higher costs to the end-user. A more recent set of disputes involve the struggle over producers of fossil fuels versus suppliers of renewable energy sources. States that have attempted to produce these “greener” sources of energy have been the subject of selective enforcement and countervailing duties allowed under the WTO. For example, in 2016 and 2017, Peru and the US slapped anti-dumping duties on Argentine biofuels, which effectively halted the production of such fuels for export in Argentina.42

2.3

Intellectual Property Rights and TRIPS

One of the constitutive foundations of the LIEO is the idea that the hard work and investment that goes into intellectual property rights (i.e., patents) 41

42

For details on the WTO’s award to Antigua for damages caused by the US prohibition of gambling, see United States Measures Affecting the Supply of Gambling and Betting Services (Award), WT/DS285/ARB (December 21, 2007). T. Meyer, “Free Trade, Fair Trade, and Selective Enforcement,” Columbia Law Review 118, No. 2 (2018): 547ff.

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should be respected under international law. As a practical business matter, the holders of capital (money) will not take the risk to invest in potentially lucrative ideas if those ideas can be quickly copied and thus rapidly lose their monetary value. It takes vast amounts of wealth to create the goods and services that will provide a better standard of living (e.g., life-saving medicines) throughout the world, and to achieve economies of scale. This area of international law includes copyrights, video and musical rights, trademarks, and patents. There is, however, a counter argument that is made in the developing world (and has long been made by Marxists) that some life-saving innovations should be widely shared and held in common. This argument has been gaining currency as a result of the COVID-19 pandemic among the scientific community; that, especially in the face of an existential threat to humankind, the intellectual work and data that it has taken to develop successful vaccine(s) should be freely available to all scientists, and then later to the general public at minimum cost. However, the US, under “Operation Warp Speed,” in order to develop effective vaccines as rapidly as possible, allowed companies to retain intellectual property rights to these vital medicines and not be forced either to share the “recipes” or distribute the vaccines outside of the US and Europe.43 There is a growing concern by intellectual property owners that their property rights are being diluted as some foreign governments and business enterprises do the following: steal (reverse-engineer) inventions outright; pirate books, films, and videos in the copyright arena; dilute trademarks by opening stores and marketing goods or services that are identified with a particular trademark; and mass produce generic drugs with different names but the identical patented ingredients. The case for international legal protection of intellectual property rights and the difficulty of doing so was well stated by Farkas:44 Innovation and product differentiation are essential to competitiveness in a global economy. The costs of constant innovation and product differentiation are exceedingly high and the rewards are uncertain. Participation in such a highcost risk environment can only be justified by the potential for rewards commensurate with the risks. The protection of intellectual property rights in innovation and product differentiation is essential to reward the entrepreneurs taking these risks.

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S. Gebrekidan and M. Apuzzo, “Rich Countries Signed Away a Chance to Vaccinate the World,” New York Times, March 21, 2021. Mr. Farkas is the past Chair of the Intellectual Property Committee of both the Section of International Law and Practice and the Antitrust Section, of the American Bar Association.

2 The GATT, WTO, and the Promotion of “Free Trade” Innovative industries producing goods and services driven by intellectual property protection compromise a critical sector of, not only the U.S. economy, but also the economies of other developed countries. Indeed, intellectual property protection is arguably a necessary element for the transition of developing nations to advanced industrial economies. In any event, American innovators, particularly those in export-oriented industries such as the computer, entertainment, medical and pharmaceutical industries, are frequently confronted by massive piracy and other infringements of their intellectual property rights which undermine their expenditures on research, development and product differentiation.45

2.3.1

Trade-Related Aspects of Intellectual Property Rights

The two contrasting principles of the LIEO and the pushback by the developing world came into sharp relief in the severe, and pandemic, AIDS crisis of the late twentieth century. In May 2001, the UN World Health Organization (WHO) debated whether to adopt an extraordinary proposal to extend access to inexpensive generic HIV/AIDS drugs to infected people. Brazil proposed that locally produced, cheaper generic drugs should be available to save the lives of infected individuals. The EU, the US, and other developed states’ representatives presented the objections on behalf of MNC producers of brand-name products. The WHO’s March 2000 study in Geneva provides an informative assessment of the underpinnings of the relationship between health and intellectual property rights.46 Six months later, a WTO Ministerial Conference attempted to strike a balance in the following response:

DECLARATION ON THE TRIPS AGREEMENT AND PUBLIC HEALTH WT/MIN(01)/DEC/2, adopted on November 14, 2001 [03/12 India generic pub health patent pharm decision]

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L. Farkas, “Trade-Related Aspects of Intellectual Property: What Problems with Transition Rules? What Changes to U.S. Law? How has Congress Salvaged?,” in T. Stewart, ed., The World Trade Organization: The Multilateral Trade Framework for the 21st Century and U.S. Implementing Legislation (Chicago, IL: American Bar Association, 1996), Ch. 13, 463. For the WHO’s March 2000 study, see “Pharmaceuticals and the WTO Agreement: Questions and Answers” (Geneva: UNAIDS and WHO, 2000), 1–5.

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DECLARATION ON THE TRIPS AGREEMENT AND PUBLIC HEALTH (cont.) 1. We recognize the gravity of the public health problems afflicting many developing and least-developed countries, especially those resulting from HIV/AIDS, tuberculosis, malaria and other epidemics. 2. We stress the need for the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) to be part of the wider national and international action to address these problems. 3. We recognize that intellectual property protection is important for the development of new medicines. We also recognize the concerns about its effects on prices. 4. We agree that the TRIPS Agreement does not and should not prevent Members from taking measures to protect public health. Accordingly, while reiterating our commitment to the TRIPS Agreement, we affirm that the Agreement can and should be interpreted and implemented in a manner supportive of WTO Members’ right to protect public health and, in particular, to promote access to medicines for all. ... 5. Accordingly and in the light of paragraph 4 above, while maintaining our commitments in the TRIPS Agreement, we recognize that these flexibilities include: ... c. Each Member has the right to determine what constitutes a national emergency or other circumstances of extreme urgency, it being understood that public health crises, including those relating to HIV/AIDS, tuberculosis, malaria and other epidemics, can represent a national emergency or other circumstances of extreme urgency. d. The effect of the provisions in the TRIPS Agreement . . . leave[s] each Member free to establish its own regime . . ., subject to the MFN and national treatment provisions of Articles 3 and 4 [set forth in Section 2.2.2 of this chapter, under general WTO obligations]. 6. We recognize that WTO members with insufficient or no manufacturing capacities in the pharmaceutical sector could face difficulties in making effective use of compulsory licensing under the TRIPS Agreement . . . 7. We reaffirm the commitment of developed-country Members to provide incentives to their enterprises and institutions to promote and encourage technology transfer to least-developed country Members pursuant to Article 66.2.

2 The GATT, WTO, and the Promotion of “Free Trade”

DECLARATION ON THE TRIPS AGREEMENT AND PUBLIC HEALTH (cont.) We also agree that the least-developed country Members will not be obliged, with respect to pharmaceutical products, to implement or apply . . . the TRIPS Agreement or to enforce rights provided for under these Sections until 1 January 2016, without prejudice to the right of least-developed country Members to seek other extensions of the transition periods as provided for in Article 66.1 of the TRIPS Agreement. [Emphasis added] ...

The TRIPS Agreement47 provides a robust environment for the patent protection of products less sensitive than life-saving medicines, especially in the trademark arena. The WTO is not the only forum that has contributed to the literature on international economic dispute resolution. The following case illustrates this with a very famous trademark:

CASE OF ANHEUSER-BUSCH INC. V. PORTUGAL European Court of Human Rights Grand Chamber, Application No. 73049/ 01 (January 11, 2007) [Excerpted case available at www.cambridge.org/FPIL7]

The most significant recent attempt to expand the international rights of intellectual property holders came in the negotiations that brought the TransPacific Partnership (TPP), also referred to as “TRIPS-plus,” into fruition in March 2018.48 While the TPP was rejected by the Trump Administration in 2017, it is somewhat likely that the Biden, or subsequent, presidential administration in the US will either ratify the agreement or re-open negotiations to join. The TPP attempted to go far beyond the usual issues in free

47

48

The TRIPS Agreement and explanations of it can be found at: www.wto.org/english/tratop_ e/trips_e/trips_e.htm accessed May 21, 2022. It was signed without the US. The eleven remaining member states of the original TPP negotiations renamed the agreement the “Comprehensive and Progressive Agreement for a Trans-Pacific Partnership,” but it will still be referred to here as the TPP. The eleven members are: Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, and Vietnam.

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trade agreements (tariffs, quotas, investments, goods and services, etc.) to address emerging trade issues in the twenty-first century: “issues fundamental to effective integration of the global economy, such as how to handle state-owned enterprises and building regulatory coherence and administrative transparency . . . supporting global supply chains, including harmonization of industrial standards, rules of origin and efficient customs procedures.”49 It specifically sought to build upon the TRIPS process (above). According to Rogowsky, the TPP was, on balance, an advance of this pillar of the LIEO, especially for wealthy, developed states because of its new protections for intellectual property (IP) rights: (1) criminal penalties for trade-secret theft, including hacking and (2) measures to ensure that state-owned enterprises (SOEs) are covered, notably regarding protection of trade secrets . . . The TPP breaks new ground by addressing crossborder supply chains of counterfeit and pirated goods, including activities that threaten health and safety. The TPP also expands enforcement of IP to online commerce and digital products. It ensures that the existing systems, such as those upon which rights holders, Internet service providers, and consumers have come to rely for digital trade, can stay in place. It ensures copyright exceptions and limitations to permit use of copyrighted materials (“fair use”) for comment, news reporting, teaching, scholarship, and research. It prevents domain name cybersquatting in connection with a member’s country-code top-level domain name registration system . . . More controversial are specific rules related to biologic medicines. The TPP provides a minimum standard of eight years of data protection (exclusivity), but with an option to deliver a comparable outcome through a combination of at least five years of data protection measures and a somewhat unclear provision to use a country’s “other measures” (e.g., regulatory procedures or administrative actions) for an additional three years of protection.50

With all these remarkable advances, painstakingly negotiated over a six-year period, why was this major free trade agreement, with strong protections for IP rights, not adopted by the US? The two major sticking points appeared to have been the reduction from twelve to eight years of “data exclusivity” (the amount of time companies can withhold their data) and insufficient tools to fight currency manipulation.51 Even with a change of administration in the

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50

R. Rogowsky, “Intellectual Property in the Trans-Pacific Partnership,” Brown Journal of World Affairs 22 (2015): 123. 51 Ibid., 130–131. Ibid., 133.

3 Trade Promotion in Regional Organizations

US in 2021, however, adoption of the TPP is not assured, with some Democrat groups opposing the power that the agreement grants to MNCs, especially biologic and pharmaceutical interests.

3 Trade Promotion in Regional Organizations Long before there was the WTO, there were regional international organization approaches to expanding trading volume for mutual benefit among the trading partners. Proposals for such an approach were made by thinkers as early as the 1500s (e.g., Erasmus, Spinoza). To clarify terms, here are the five levels of trading, from low to high, in terms of economic integration: ▪ Preferential trade: Trade preferences are granted in the form of freer access to the respective members’ markets. This is the most basic form of trade association. The US negotiated this form of agreement with its Caribbean neighbors in the 1983 Caribbean Basin Initiative. ▪ Free trade area: Tariffs between the member states are initially reduced and ultimately eliminated. Each member may keep its original tariffs as against countries outside the free trade area. There is no organized policy among the members as to other countries. The North American Free Trade Agreement (NAFTA, now the US–Mexico–Canada Agreement (USMCA)) is an example. ▪ Customs union: The members liberalize trade among themselves while erecting a common tariff barrier against all non-member states. The 1969 South African Customs Union is an example. ▪ Common market: Usually after a customs union has been established, the members remove restrictions on the internal movement of the means of production and distribution of all commodities. The EU is the most successful of all common markets. ▪ Economic union: This is a common market which includes a unified fiscal and monetary policy within the union. The result is similar to the linkage among the fifty states of the US. The difference is that an economic union consists of international states, rather than states in a federal system. The EU made a significant step toward becoming a fully integrated economic union through the implementation of the Single European Act in 1986. In 1999, members of the EU implemented a common currency for use in specified “Eurozone” member states. The “euro” replaced their currency in 2002.52 52

On the Caribbean initiative, see Caribbean Basin Recovery Act of 1983, as amended, 97 Statutes at Large 369 (1990); on the free trade area, see NAFTA textual discussion in this

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As is clear from these examples, the move toward a global free trade regime in the GATT-WTO process continued alongside the regional approach. However, when the momentum toward global free trade appeared to be encountering insurmountable roadblocks in the 1980s, the US government helped to stoke regional free trade agreements in the western hemisphere as an alternative. Some examples were NAFTA, the Central American Free Trade Agreement (CAFTA), and, even more grandly, the Free Trade Agreement of the Americas (FTAA). The distant end goal was for there to be a “critical mass” of these free trade agreements (FTAs) around the world that ultimately would be knitted into one large free trade agreement. An example of this stepping-stone approach is the TPP (see above) that was supposed to lead to a wider Free Trade Area of the Asia Pacific (FTAAP) that would, in time, subsume members of the Asian Pacific Economic Cooperation Forum (APEC).53 NAFTA came to fruition in the western hemisphere, although not without controversy.54 NAFTA accomplished its original goals of increasing trade volumes between the three trading partners and creating a method to adjudicate trading disputes among them, despite minor disagreements such as the one between Mexico and the US over allowing Mexican trucks to deliver cargo within 20 miles of the US–Mexico border.55 The popular perception was often quite different, however, and when President Trump vowed to tear up and replace NAFTA with something “better,” there was not a widespread popular outcry to preserve NAFTA. The USMCA, the replacement for NAFTA negotiated by the Trump Administration, became effective on July 1, 2020. It is too early to tell whether this agreement represents a “deepening” of economic ties between

53

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section; on the Customs Union, see “1969 Agreement Establishing the South African Customs Union,” Yearbook of International Organizations 2 (1990–1991): 975; on the European Common market, see R. Keohane and S. Hoffman, eds., The New European Community: Decision-making and Institutional Change (Boulder, CO: Westview Press, 1991); on the Economic Union, see “Single European Act,” reprinted in International Legal Materials 25 (1986): 503; on the European Monetary Union, see “Treaty on the European Union and Final Act,” reprinted in International Legal Materials 31 (1991): 247. S. Urata, “The Trans-Pacific Partnership,” Journal of Southeast Asian Economics 35, No. 1 (2018): 22–38. P. Krugman, “The Uncomfortable Truth about NAFTA: It’s Foreign Policy, Stupid,” Foreign Affairs No. 4 (1993). Interestingly, the populist criticism of NAFTA at its very inception, led by US presidential candidate Ross Perot, foreshadowed similar populist arguments used some twenty-five years later by Donald Trump and others to replace NAFTA with the USMCA. For further details on the US–Mexico dispute over trucking, see J. Crook, “United States, Mexico Settle NAFTA Trucking Dispute,” American Journal of International Law 105 (2011): 809.

3 Trade Promotion in Regional Organizations

the three states, or something else. The more “progressive” elements in terms of Internet openness, indigenous and labor rights will be difficult to enforce, according to some analysts.56 One early commentator suggests that the “something else” interpretation is correct by concluding his review of the USMCA this way: the USMCA signals a new consensus in Washington – one that not only sees China’s practices of restricting market access and pushing foreign companies to hand over valuable technology as unacceptable, but also views its economic emergence as a threat to an American-led world. This can result in what Anthea Roberts calls a more autonomous (though still competitive) “spheres of influence” approach, in which trade policy is deployed to further strategic goals and to force other nations to pick a side. As reflected in the USMCA, the big loser in this new Geo-economic World Order will be international legal adjudication and the international rule of law more generally.57

However, a more sanguine take on the lasting impact of the shift from NAFTA to the USMCA, for the Canadian and Mexican side, is provided by Canadian scholar Anderson: Whether we are talking about broad areas of policy, such as border security and market access through NAFTA 2.0 [the USMCA], or narrower sectoral disputes like softwood lumber or steel, an assessment of “who won” may look very different five years from now because of the ways power ebbs and flows. More importantly, thinking about how power manifests itself in hierarchical terms can yield important insights into management of a relationship that will certainly remain deeply asymmetrical for a long time to come.58

The EU is the single most successful regional trading organization, which has evolved up the ladder (above) from customs union to common market to economic union (see also Chapter 6). As it takes on more characteristics of a federal state, it, like the US, is keen to conclude its own trading agreements with other regions of the world. By 2015, the EU had concluded its own “next-generation” FTAs with Korea, followed by Singapore, the Andean Community and Canada. With the US rejection of the TPP (see above), the EU is undertaking more bilateral FTAs with Australia and New

56

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S. Puig, “The United States-Mexico-Canada Agreement: A Glimpse into the Geoeconomic World Order,” AJIL Unbound 113 (2019): 56–60. Ibid. G. Anderson, “David and Goliath in Canada–U.S. Relations: Who’s Really Who?,” Canadian Foreign Policy Journal 25, No. 2 (2018): 131.

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Zealand, among other states, using the Closer Economic Relations (CER) framework.59

4 NGOs and MNCs in International Economic Relations There has been an explosion of international organizations, including NGOs since the post-World War II era. Growing international links and technology have lowered the “transaction costs” of cooperation across borders by ordinary citizens and businesses alike. Of the newer NGOs, the vast majority are business related, and it is those NGOs that primarily concern us in this section. They share common goals; most center around promoting international business and making it easier, less costly, and more predictable to conduct business across borders. A good example of an international business-oriented NGO is the “Global Reporting Initiative” (GRI). Membership includes many corporations and academic institutions, including Pepisco, IBM, and Harvard Business School’s Executive Education Department. In 2009, the GRI issued “The Amsterdam Declaration on Transparency and Reporting,” calling on governments to “extend and strengthen the global regime of sustainability reporting.” According to the GRI “the root causes of the current [2009] economic crisis would have been moderated by a global transparency and accountability system based on the exercise of due diligence and the public reporting of ESG [environmental, social and governance] performance.” As a result, governments need to rebuild and revitalize the existing economic framework by: ▪ introducing policy requiring companies to report on ESG factors or publicly explain why they have not done so; ▪ requiring ESG reporting by their public bodies – in particular: state-owned companies, government pension funds, and public investment agencies; and ▪ integrating sustainability reporting within the emerging global financial regulatory framework being developed by leaders of the G20.60

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R. Abbott and H. Lee-Makiyama, “EU and Australia: Europe’s Challenges and Policy Options for Future Trade,” in A. Elijah et al., eds., Australia, the European Union and the New Trade Agenda (Canberra: ANU Press, 2017). GRI, “Setting the Agenda for the Future,” www.globalreporting.org/ accessed May 21, 2022.

4 NGOs and MNCs in IER

4.1

Multinational Corporations

Among the largest, most powerful, and most important non-governmental organizations (NGOs) involved in IER (and international law more generally) are MNCs. MNCs are business entities whose various operations (e.g., gathering of raw materials, product assembly, administration, shareholding, and marketing) are located in more than one country. Unlike the more recent NGOs, however, MNCs have existed for hundreds of years in IER. They have offered many advantages, especially the ability to shift capital and stock rapidly in and out of a host country(ies) without hindrance by the host state(s). As a result, they grew rapidly in number from the 1800s through the 1960s, especially during the decolonization period. They can achieve economies of scale and can dramatically improve profit margins by sourcing raw materials and labor at their least expensive locations.61 Many MNCs have wealth and assets that dwarf the gross national products of the individual states in which they operate. Because of this vast disparity in wealth and power, MNCs are important actors beyond just IER; their actions often have an extraordinary impact in the affairs of states and ordinary citizens alike; as well as in the areas of human rights, environmental protection, and diplomacy in both domestic and international affairs.

4.1.1

Legal Personality of MNCs in International Law

What is the legal personality of MNCs in international law? From their inception through the post-World War II era, the answer was straightforward: only the status and personality that individual states were willing to give to them. They were considered to be merely “objects” of international law. As noted by Tully, “[t]he international legal personality of corporations is derivative [from their home states] and limited, whereas that of states is original and subjective [because states are the self-made subjects of international law].”62 It is still true that MNCs are given recognition and protection primarily by the state in which the MNC filed its original “Articles of Incorporation.” A corporation is considered a legal “person” under the domestic (internal) law of many states. One of the primary benefits of incorporation is that it affords this business entity a (at least partial) shield against liability and litigation, and additional legal rights and protections not afforded to individuals within states. 61

62

A comprehensive history of the rise of MNCs can be found in the work of Robert Gilpin. See Gilpin, The Political Economy of International Relations. S. Tully, “Competence and Authority of Non-State Actors in International Lawmaking,” in S. Tully, Corporations and International Lawmaking (Boston: Martinus Nijhoff, 2007), 15, 16–18.

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However, the clear trend, illustrated in the line of cases below, from Barcelona to CMS Gas, is for MNCs to assume a higher status in international law, from “object” to “subject.” Wallace adds: “The juridical picture has accordingly evolved . . . to take into account some of the changing realities. The involvement of these [corporate] entities with the governments . . . of foreign countries may call for the application of international law or general principles of law and for direct recourse, by the private corporations involved, to international arbitration.”63 In addition, another scholar notes that “corporations can conclude contracts with governments and have standing before arbitral or judicial fora.”64 A central question remains, however: Who speaks for, and who protects, the MNC under international law? This is a highly complex and difficult question for international law because of the intricate, multinational structure of the modern MNC. What constitutes the MNC? The shareholders, the managers, the employees, the corporate headquarters or some combination thereof? As US Supreme Court Justice John Marshall famously noted, “the power to tax [and regulate] is the power to destroy.”65 If a MNC is heavily taxed and regulated, especially by more than one state, it will be harmed; it may even cease to exist. In extreme cases, a foreign state may attempt simply to appropriate, or take over, all of a corporation’s operations in that state in a process known as “nationalization” or “expropriation.” Today’s multinational enterprises are often owned by parent corporations and, in turn, by numerous shareholders residing in various countries. When the enterprise is harmed, it is the individual shareholder-owners who are most harmed. These investors sometimes seek the assistance of the states that have granted them citizenship as individuals to help them obtain a remedy for the wrong done to the multinational enterprise. Other times they seek such help as a group in the name of the corporation. Historically, corporations have had to convince their home governments to present claims on their behalf, usually via diplomatic efforts on their behalf or the national pursuit of litigation in an international tribunal against the offending state. But states are not obligated to present such claims on an international level. States could bestow corporations with the legal capacity to take action on the international level – without the home country having to espouse the claim, although this is rare. However, the 2012 TPP trade negotiations did include a provision authorizing corporations to sue

63

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C. D. Wallace, “MNCs as ‘legal persons,’” in C. D. Wallace, The Multinational Enterprise and Legal Control: Host State Sovereignty in an era of Economic Globalization (Hague: Martinus Nijhoff, 2002), Ch. 1.1a, 10. 65 Tully, “Competence and Authority.” McCulloch v. Maryland, 4 Wheat. 316 (1819).

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governments in private tribunals. As of this writing, the TPP was seriously weakened by the withdrawal of the US in 2017. In an age when many corporations engage in business transactions around the globe, the issue of the corporation’s legal situs – where it can claim citizenship – presents a judicial quagmire. Several European states treat a MNC as a juridical citizen of the country where its headquarters or home office is located. In the US, a corporation is a US national if it is incorporated in one of its fifty states. In the UN International law Commission’s view, corporate nationality is either: (a) the state wherein the corporation was created and thus incorporated; or (b) that of another country, when the corporation consists of foreign nationals; and (i) has no ties with the place of incorporation; and (ii) the corporation is controlled in the other country. Per the 2006 Report of the ILC: the State of nationality means the State under whose law the corporation was incorporated. However, when the corporation is controlled by nationals of another State or States and has no substantial business activities in the State of incorporation, and the seat of management and the financial control of the corporation are both located in another State, that State shall be regarded as the State of nationality.66

Which country may legally espouse a claim on behalf of a corporation? Under international law, the appropriate state is normally the state where the company is incorporated. There are exceptions, however, as discussed in the following case.

BARCELONA TRACTION, LIGHT, AND POWER CO. International Court of Justice, 1970 ICJ Reports (Second Phase) 3 (February 5, 1970) NOTE: Barcelona Traction was incorporated in Canada. It operated a power company in Spain. It was declared bankrupt by a Spanish court, which ordered the seizure of its assets. Belgium, England, Canada, and the US all tried to assist Barcelona Traction in resisting the seizure. Individual citizens in these countries owned the stock of the corporation. The shareholders believed that the Spanish authorities prematurely sought bankruptcy for some ulterior purpose. The corporation was a legal person,

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Article 9, UN Doc., Supplement No. 10 (A/61/10) https://legal.un.org/ilc/documentation/ english/reports/a_61_10.pdf accessed May 21, 2022.

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BARCELONA TRACTION, LIGHT, AND POWER CO. (cont.) separate from its stockholders, and claiming that it was a corporate citizen of Canada. However, Canada exercised its state discretion, by choosing not to process this claim on behalf of the Canadian shareholders or the corporation. Belgian nationals owned 88 percent of the Barcelona Traction stock at the time the bankruptcy was declared. Belgium thus decided to prosecute this action in the ICJ against Spain, because the majority of the individual shareholders were Belgians. The ICJ dismissed this suit. It ruled that Belgium could not represent Barcelona Traction. If the country of incorporation (Canada) was unwilling to pursue the claim, the state of the majority of the individual shareholders (Belgium) could not do so. Selected portions of the ICJ’s opinion present the Court’s rationale for vesting the country of incorporation with the exclusive right of representation on the international plane (in diplomatic or international judicial proceedings). The paragraph numbers are those of the Court. COURT’S OPINION: 70. In allocating corporate entities to States for purposes of diplomatic protection, international law is based, but only to a limited extent, on an analogy with the rules governing the nationality of individuals. The traditional rule attributes the right of diplomatic protection of a corporate entity to the State under the laws of which it is incorporated and in whose territory it has its registered office. . . . However, in the particular field of the diplomatic protection of corporate entities, no absolute test of the “genuine connection” has found general acceptance . . . 71. In the present case, it is not disputed that the company was incorporated in Canada and has its registered office in that country. The incorporation of the company under the law of Canada was an act of free choice. Not only did the founders of the company seek its incorporation under Canadian law but it has remained under that law for a period of over 50 years. It has maintained in Canada its registered office, its accounts and its share registers. Board meetings were held there for many years; it has been listed in the records of the Canadian tax authorities. A close and permanent connection has been established, fortified by the passage of over half a century. This connection is in no way weakened by the fact that the company engaged from the very outset in commercial activities outside

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BARCELONA TRACTION, LIGHT, AND POWER CO. (cont.) Canada, for that was its declared object. Barcelona Traction’s links with Canada are thus manifold. 72. Furthermore, the Canadian nationality of the company has received general recognition. Prior to the institution of proceedings before the Court, three other governments apart from that of Canada (those of the United Kingdom, the United States and Belgium) made representations concerning the treatment accorded to Barcelona Traction by the Spanish authorities. The United Kingdom Government intervened on behalf of bondholders and of shareholders. Several representations were also made by the United States Government, but not on behalf of the Barcelona Traction company as such. ... 75. The Canadian Government itself, which never appears to have doubted its right to intervene on the company’s behalf, exercised the protection of Barcelona Traction by diplomatic representation for a number of years, in particular by its note of 27 March 1948, in which it alleged that a denial of justice had been committed in respect of the Barcelona Traction, Ebro and National Trust companies, and requested that the bankruptcy judgment be canceled . . . 76. In sum, the record shows that from 1948 onwards the Canadian Government made to the Spanish Government numerous representations which cannot be viewed otherwise than as the exercise of diplomatic protection in respect of the Barcelona Traction company. Therefore, this was not a case where diplomatic protection was [totally] refused or remained in the sphere of fiction. It is also clear that over the whole period of its diplomatic activity the Canadian Government proceeded in full knowledge of the Belgian attitude and activity. ... 78. The Court would here observe that, within the limits prescribed by international law, a State may exercise diplomatic protection by whatever means and to whatever extent it thinks fit, for it is its own right that the State is asserting. Should the natural [individuals] or legal [corporate] persons on whose behalf it is acting consider that their rights are not adequately protected, they have no remedy in international law. All they can do is to resort to municipal [internal] law, if means are available, with a

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BARCELONA TRACTION, LIGHT, AND POWER CO. (cont.) view to furthering their cause or obtaining redress . . . However, all these questions remain within the province of municipal law and do not affect the position internationally. 79. The State must be viewed as the sole judge to decide whether its protection will be granted, to what extent it is granted, and when it will cease. It retains in this respect a discretionary power the exercise of which may be determined by considerations of a political or other nature, unrelated to the particular case. Since the claim of the State is not identical with that of the individual or corporate person whose cause is espoused, the State enjoys complete freedom of action. Whatever the reasons for any change of attitude, the fact cannot in itself constitute a justification for the exercise of diplomatic protection by another government, unless there is some independent and otherwise valid ground for that. ... 88. It follows from what has already been stated above that, where it is a question of an unlawful act committed against a company representing foreign capital, the general rule of international law authorizes the national State of the company alone to make a claim. ... 96. The Court considers that the [unsuccessfully argued] adoption of the theory of diplomatic protection of shareholders as such, by opening the door to competing diplomatic claims, could create an atmosphere of confusion and insecurity in international economic relations. The danger would be all the greater inasmuch as the shares of companies whose activity is international are widely scattered and frequently change hands. 100. In the present case, it is clear from what has been said above that Barcelona Traction was never reduced to a position of impotence such that it could not have approached its national State, Canada, to ask for its diplomatic protection, and that, as far as it appeared to the Court, there was nothing to prevent Canada from continuing to grant its diplomatic protection to Barcelona Traction if it had considered that it should do so. ...

The Court’s language in this 1970 opinion solidly vests the appropriate state with the sole discretion to determine whether it will process a claim for

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a corporation. Should the shareholders be able to have their claims espoused by another country? On the contrary, could shareholders, on their own behalf, press a claim as individuals against a state? Consider the following more recent case, decided by arbitration. It presents the contemporary view of the relevant shareholder rights under international law:

CMS GAS TRANSMISSION COMPANY (CLAIMANT) V. THE REPUBLIC OF ARGENTINA (RESPONDENT) International Centre for Settlement of Investment Disputes Case No. ARB/01/8, 42 International Legal Materials 788 (2003) NOTE: CMS is a US corporation. It lodged this arbitration against Argentina in the International Centre for Settlement of Investment Disputes (ICSID), located in Washington, DC. Argentina had suspended a tariff adjustment formula for gas transportation by an enterprise in which CMS had invested (by granting it licenses). Argentina enacted new privatization measures related to the gas sector of its national economy. Those measures applied to a company (“TGN”) in which CMS had invested. Argentina’s new regulations were allegedly applied in a way that therefore harmed CMS investments – supposedly in violation of a bilateral investment treaty (“BIT” – see Section 4.1.5 for details on BITs) between the US and Argentina. The following segment of this case addresses just the question of whether the CMS corporation had the legal standing (“jus standi”) to seek relief from Argentina. The Republic of Argentina essentially claimed that – regardless of the merits of the CMS claim – CMS was not the proper plaintiff to present this claim. Therefore, the CMS claim could not be heard by this tribunal (“admissibility”).

Tribunal’s Opinion: Decision of the Tribunal on Objections to Jurisdiction Objection to admissibility on the issue of the Claimant’s ius standi [legal standing]: 36. The Republic of Argentina has objected to the admissibility of the claim by CMS on the ground that the Claimant does not hold the rights upon which it bases its claim – to wit, TGN being the licensee, and CMS only a minority shareholder in this company, only TGN could claim for any damage suffered. . . . It follows, in the Respondent’s view, that CMS is

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CMS GAS TRANSMISSION COMPANY (CLAIMANT) V. THE REPUBLIC OF ARGENTINA (RESPONDENT) (cont.) claiming not for direct damages but for indirect damages which could result from its minority participation in TGN. ... 43. The parties have turned next to the discussion of the situation under international law, with particular reference to the meaning and extent of the Barcelona Traction decision. Counsel for the Republic of Argentina are right when arguing that that decision ruled out the protection of investors by the State of their nationality when that State is different from the State of incorporation of the corporate entity concerned. . . . However, Counsel for the Claimant [CMS] are also right . . . it did not rule out the possibility of extending protection to shareholders in a corporation in different contexts. Specifically, the International Court of Justice was well aware of the new trends in respect of the protection of foreign investors under the 1965 Convention and the bilateral investment treaties related thereto. ... 46. The Republic of Argentina has advanced the argument that, when shareholders have been protected separately from the affected corporation, this occurred in cases where the shareholders were majority or controlling, not minority shareholders as in the instant [current] case. This fact may be true, but it is equally true, as argued by the Claimant . . .; rather they were concerned with the possibility of protecting shareholders independently from the affected corporation, that is, solely with the issue of the corporate legal personality and its limits [Emphasis added]. 47. State practice further supports the meaning of this changing scenario. Besides accepting the protection of shareholders . . ., the concept of limiting it to majority or controlling participations has given way to a lower threshold in this respect. Minority and non-controlling participations have thus been included in the protection granted or have been admitted to [make a] claim in their own right. Contemporary practice relating to . . . the decisions of the Iran-United States Tribunal and the rules and decisions of the United Nations Compensation Commission . . . evidence increasing flexibility in the handling of international claims. 48. The Tribunal therefore finds no bar in current international law to the concept of allowing claims by shareholders independently from those of the corporation concerned, not even if those shareholders are minority or noncontrolling shareholders. Although it is true, as argued by the Republic of

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CMS GAS TRANSMISSION COMPANY (CLAIMANT) V. THE REPUBLIC OF ARGENTINA (RESPONDENT) (cont.) Argentina, that this is mostly the result of . . . specific treaty arrangements that have so allowed, . . . [and] is so prevalent that it can now be considered the general rule, certainly in respect of foreign investments and increasingly in respect of other matters. To the extent that customary international law or generally the traditional law of international claims might have followed a different approach – a proposition that is open to debate – then that [traditional] approach can [now] be considered the exception.

It is clear that the CMS decision is evidence that the bright-line Barcelona Traction rule (only the state of incorporation can espouse claims on behalf of a corporation) is now held to be too rigid for contemporary cross-border investment decisions. Although the ICSID found “no bar” to individual shareholders suing on behalf of the corporation, the panel still did not announce its own bright-line rule of who can tender claims in an international forum. Should a Nottebohm style “genuine link” test apply to the corporation or to individual shareholders?

4.1.2

MNC Bankruptcies

Separate from the question of international legal personality of MNCs in the above two cases is the subsidiary question raised in Barcelona: How should international bankruptcies be handled in IER? This concern becomes much more urgent in times of a global recession or depression such as the ones stemming from the 2009 economic crash and the 2020 COVID-19 pandemic, when a wave of bankruptcies of international companies is expected. It is a cornerstone of the LIEO that the way a company is dissolved is just as important as how it is created and regulated; otherwise, companies doing business across borders would fail to attract sufficient capital from would-be investors to fund their operations, because investors would be unwilling to take on the risk. In addition, consumers would be left with no recourse if the provider of the good or service that they purchased could simply “disappear” without recompense or product assistance of some kind. In the domestic law of many states, there is a well-developed code that specifies how a company can undergo an orderly bankruptcy (either restructuring or outright dissolution) which includes mechanisms for (at least partial) repayment of the company’s investors, creditors, and consumers.

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The operative question here is whether there is a “universal bankruptcy jurisdiction” that would establish the kind of uniform standards that would help provide certainty like those of the domestic laws of many nations. The following case addresses just this question in a case involving two international financial corporations incorporated under the laws of the United Kingdom but operating primarily “offshore” in the Caribbean, the US, and Canada.

RUBIN V. EUROFINANCE S.A. United Kingdom Supreme Court, reprinted in International Legal Materials 52 (2013): 626 Lord Collins writing for the majority: The theoretical basis for the enforcement of foreign judgments at common law is that they are enforced on the basis of a principle that where a court of competent jurisdiction has adjudicated a certain sum to be due from one person to another, a legal obligation arises to pay that sum, on which an action of debt to enforce the judgment may be maintained: Williams v Jones (1845) 13 M & W 628, 633 per Parke B; Godard v Gray (1870) LR 6 QB 139, 147, per Blackburn J; Adams v Cape Industries plc [1990] Ch 433, 513; Owens Bank Ltd v Bracco [1992] 2 AC 443, 484, per Lord Bridge of Harwich. As Blackburn J said in Godard v Gray, this was based on the mode of pleading an action on a foreign judgment in debt, and not merely as evidence of the obligation to pay the underlying liability: LR 6 QB 139, 150. But this is a purely theoretical and historical basis for the enforcement of foreign judgments at common law. It does not apply to enforcement under statute, and makes no practical difference to the analysis, nor, in my judgment, to the issues on these appeals. Consequently, if the judgments in issue on the appeals are regarded as judgments in personam within the Dicey Rule, then they will only be enforced in England at common law if the judgment debtors were present (or, if the 1933 Act applies, resident) in the foreign country when the proceedings were commenced, or if they submitted to its jurisdiction. It is common ground that the judgment debtors were not present or resident, respectively, in the United States or in Australia, although there is an issue as to whether the New Cap defendants submitted to the jurisdiction of the Australian court, which is dealt with in section VIII below. ... The principal issue on these appeals is whether the rules at common law or under the 1933 Act regulating those foreign courts which are to be

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RUBIN V. EUROFINANCE S.A. (cont.) regarded as being competent for the purposes of enforcement of judgments apply to judgments in avoidance proceedings in insolvency, and, if not, what rules do apply . . . The other issues are whether, in the Rubin appeal, enforcement may be effected through the assistance provisions of the Cross-Border Insolvency Regulations 2006 (section VI) or, in the New Cap appeal, section 426 of the Insolvency Act 1986 (section VII); whether the judgments are enforceable as a result of the submission by the judgment debtors to the jurisdiction of the foreign courts (section VIII); and, in the New Cap appeal, if the judgment is enforceable, whether enforcement is at common law or under the 1933 Act. Disposition [Holding]: I would therefore allow the appeal in Rubin, but dismiss the appeal in New Cap on the ground that the Syndicate submitted to the jurisdiction of the Australian court. . . .

From this case it does not appear that the many states that follow English commonwealth law will submit to the idea of an American-led universal bankruptcy jurisdiction, which will likely seriously impede the development of such an idea. Camp and Bowman have argued that the “effects of the Rubin decision upon international commercial litigation will be dramatic and far-reaching.”67 However, a renewed wave of bankruptcies may prompt a reconsideration by other courts and adjudicatory bodies, or perhaps even the creation of a novel “universal” bankruptcy court under the auspices of an international organization. The overall treatment of MNCs in international law represents a generally favorable view of their utility under liberal jurisprudence (and the LIEO), especially in the foundational early post-World War II period. However, changing attitudes about MNCs (see Table 0.1) resulted in a “see-saw” of international regulation vis-à-vis MNCs in international law. In practice, IER generally sought to protect and promote MNCs in the post-World War II period to the 1960s, followed by regulations to rein them in from the 1970s and 1980s (a period broadly known as the Global South’s NIEO), followed by a return to the original practice of generally promoting and protecting them. Finally, it appears that the new nationalist pushback against globalization means some new attempts to constrain MNCs at present, but such regulation

67

C. Camp and T. Bowman, “Introductory Note to the United Kingdom Supreme Court: Rubin v. Eurofinance SA,” International Legal Materials 52 (2013): 623ff.

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is coming from unexpected quarters as is discussed in the concluding section of this chapter.

4.1.3

Codes of Conduct for MNCs

MNCs established foreign subsidiaries with the ability to rapidly shift capital in and out of the foreign theater of operations at the convenience and for the profit of the MNC. The corporate operation was not subject to effective control by the host state, usually in less-developed states. The corporate parent in the Global North state fostered this arrangement while the host Global South state assisted because it sought the infusion of foreign investment.68 The people of the host state became more and more dependent on the MNC for economic survival – especially in states where the cost of labor was cheap due to high unemployment and other factors. The MNC’s arrival created and supported a job base. This presence conferred economic benefits on the less-developed state. It improved the quality of life for its citizens where there was high unemployment. However, during the height of the ideological struggle of the Cold War and in the decolonization period of the 1960s to the 1980s, the UN, guided by the newly de-colonized states (which now constituted a majority of its membership), sought to put curbs on what they believed to be the excessive behavior of MNCs and the lack of equity in the relationship between host governments and Global North-based MNCs. These less-developed states banded together in a “bloc” in the UN known first as the Group of 77 (the G-77; though the group now has 134 members). The G-77 also prompted the creation of the UN Conference of Trade and Development (UNCTAD) in 1966. This was a form of collective bargaining between the less-developed and the developed states who, the G-77 argued, were effectively dominating their economic systems and future potential. Beyond that, they argued that MNCs were exploiting their laborers and extracting the precious resources of their states, resources that were often non-renewable, without adequate long-term compensation. UNCTAD then began to promulgate a series of codes that purported to govern the conduct of MNCs. These included a Restrictive Business Practices Code and a Transfer of Technology Code. The goal of these codes was to equitably distribute the technology and “excess” profits from MNCs to lessdeveloped states. The G-77 was able to enlist the assistance of the Organization for Economic Co-operation and Development (OECD) in developing more detailed guidelines with similar goals. The May 2011 OECD Guidelines for Multinational Enterprises represent the fifth 68

See generally, M. Sornarajah, The International Law on Foreign Investment (Cambridge: Cambridge University Press, 1994).

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revision since their initial promulgation in 1976.69 The Guidelines have been adopted by the thirty-six OECD member states. They apply to corporations registered in those countries – when operating in OECD states, and worldwide. They are recommendations by governments covering all major areas of business ethics. They include corporate programs designed to obey the law, observe internationally recognized standards, and to respond to other societal expectations.70 The corporate code of conduct theme has lost none of its relevance since it emerged in the 1960s. Today’s situation now includes the uneven possession of sophisticated technology that divides the “have” and “have not” societies. MNCs often possess the most sophisticated knowledge in the world about products and services and protect it behind patents and trademarks internationally (see Section 2.3) for a period of many years. Developing states, however, in order to become economically competitive in the world market and raise standards of living at home, need access not only to the MNCs’ industrial plants but also the knowledge of how to produce cutting-edge goods and services in a sustained fashion. Thus, the inclusion of “technology transfer” clauses in the UN Draft Code of MNC Conduct. These codes envisioned a voluntary transfer of intellectual property, in exchange for an “appropriate” level of compensation.71

4.1.4

Nationalization of MNCs and the Calvo Doctrine

When Codes of Conduct and other attempts to control the behavior of MNCs operating in less-developed states did not result in sufficient technology and wealth transfer from the MNCs to those states, some of these developing states resorted to a more extreme measure: confiscating, or “nationalizing” all of the assets of the foreign corporation operating within that lessdeveloped state; of course, developed-state-based MNCs pushed back hard against nationalization.

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The most recent (2011) version of the Guidelines are available from the OECD at: http:// mneguidelines.oecd.org/guidelines/ accessed May 21, 2022. See, on the Business practices code: “Report of the Intergovernmental Working Group on the Formulation of a Code of Conduct,” International Legal Materials 16 (1977): 719; on the technology transfer code, see “Group of 77 Manila Declaration and Program of Action for Commodities, Trade Negotiations, Transfer of Resources and Technology, and Economic Cooperation,” International Legal Materials 15 (1976): 426; on the OECD, see “Guidelines for Multinational Enterprises,” International Legal Materials 40 (2000): 237; for a useful assessment, see J. Cernic, “The 2011 Update of the OECD Guidelines for Multinational Enterprises,” ASIL Insights 16, No. 4 (2012). R. Ricupero and G. Corea, International Technology Transfer: The Origins and Aftermath of the United Nations Negotiations on a Draft Code of Conduct (The Hague: Kluwer, 2001), xx.

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The International Court of Justice (ICJ) has provided no clear ruling on this perennial debate. The Court made the following observation in the Barcelona Traction case, cited above: Considering the important developments of the last half-century, the growth of foreign investments and the expansion of the international activities of corporations, in particular of holding companies, which are often multinational, and considering the way in which the economic interests of States have proliferated, it may at first sight appear surprising that the evolution of law has not gone further and that no generally accepted rules in the matter have crystallized on the international plane.72

Two statements on nationalization attempted to justify the position that the amount of compensation, if any, owed by a less-developed state to a MNC would be determined by the less-developed host state(s), not international law or any international forum. The first was the 1974 UN Economic Charter, and the second was the “Calvo Doctrine” enunciated by several Latin American states. First, Article 2.2 of the UN Economic Charter stated that each developing state had the “right”: To nationalize, expropriate or transfer ownership of foreign property, in which case appropriate compensation should be paid by the State adopting such measures, taking into account its relevant laws and regulations and all circumstances that the State considers pertinent. In any case where the question of compensation gives rise to a controversy, it shall be settled under the domestic law of the nationalizing State and by its tribunals, unless it is freely and mutually agreed by all States concerned that other peaceful means be sought [to resolve compensation issues] on the basis of the sovereign equality of States and in accordance with the principle of free choice of means.73

The Calvo Doctrine took a different legal approach to achieve the same goal. It insisted that MNCs were “citizens” of the host country, and as such, they were subject to the national laws of the host country, not the country of original incorporation. Formally, a Calvo clause, stated either in the contract or mandated by host state law, precludes a nationalized entity from seeking the diplomatic assistance of its home state. The enterprise is thereby treated as if it were a citizen of the nationalizing state – in which case, it must look to national law for a remedy. The nationalizing state’s decision regarding

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Barcelona Light & Traction Company (Belgium v. Spain), 1970 ICJ Rep. 3, 46–47, para. 89. Emphasis added. UNGA Resolution 3281, UN Doc. No. A/9631 (1975), reprinted in International Legal Materials 14 (1975): 251.

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whether and how to compensate is based on its national law rather than international law. A countervailing legal doctrine was announced in the 1980 ICJ decision74 against Iran in the aftermath of the hostage crisis. That ruling is based upon the customary international law standard that requires “prompt, adequate and effective compensation” due to a government confiscation of foreign corporate assets. In practice, this should mean that the seized property should be compensated in freely transferable currency.

4.1.5

Bilateral Investment Treaties

Starting in the 1980s, there was a re-reconstruction of both the way that MNCs were viewed (by most but not all), and the actual practice of MNCs visà-vis less-developed host states. MNCs dusted off a mechanism that had existed since the 1960s, the direct BIT and insisted on re-negotiating the basic terms of MNC investment and involvement in less-developed host states. For the most part, these states agreed out of the necessity of attracting foreign investment. These treaties are typified by clauses entitling the MNC to fair market value compensation in readily transferable currency in the event of a nationalization. BITs became the standard of the 1990s. The Uruguay Round of the GATT process presented a similar device, TradeRelated Investment Measures (TRIMs), which have been incorporated into the GATT and WTO processes to protect foreign investors and to reverse the capital flight of the 1980s (away from less-developed states). The bilateral treaty approach has not been accepted by all the original members of the G-77, however. To them, the BITs are a sell-out of the UN processes that brought about the NIEO.

4.1.6

Future Trends for MNCs in IER

There has been a marked shift in most areas of IER from the LIEO to a new populism-mercantilism (see “Legal Positivism” in Table 0.1). Thus, it is inaccurate to say that the treatment of MNCs under international law is simply coming “full circle” to a prior time when MNCs conducted their operations without oversight or close public scrutiny of their products, profits, their effect on public health, privacy and human rights, and their effects on the environment. The twenty-first century has brought radical new technologies harnessed by MNCs for unprecedented profit, and the ability to utilize individual data for profit and persuasion; these developments have rapidly outpaced international law and will likely prompt a commensurate 74

Case Concerning United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Judgment on the Merits, ICJ (1980), General List No. 64.

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development of international law to help regulate MNCs in these new areas. The EU has led the way in this regard.75 Other scholars have questioned the very structure of corporate and investor protection under international law and have called for lowering the status of MNCs as “legal persons.” For example, as we saw in the previous chapter in the dispute between Chevron and Ecuador, some MNCs are able to sue states in international arbitral tribunals to reverse state judgments against them, or even to punish the states for having brought the action in the first place.76 The 2016 elections in the US and Europe revealed how Facebook and other MNCs were leveraging their ability to extract and aggregate much more intrusive individual-level data in order to sway the outcome of elections (e.g., Cambridge Analytica), sow divisions, and then to sell other goods and services, all with the ultimate goal to generate greater profit back to the MNCs. Hearings were held after the elections in both the US Congress and the UK Parliament, and again in 2021, that revealed the extent to which these MNCs were using algorithms, psychology and other tools to maximize their profits. Nonetheless, Facebook (now renamed “Meta”) refused to change most of its practices, asserting that it was not responsible for policing itself or the Internet.77 Mired in internal division, the US Congress had not enacted any significant new laws as of this writing.78 However, the EU showed greater willingness to enact EU-wide privacy regulations on Facebook/Meta, Google, Apple and others, levying record fines for past infractions. Now, some prominent US-based international legal scholars are calling for the US to follow the EU’s lead in regulating these influential MNCs. An example of such behavior is that of Google and its “Alphabet” parent company. In the words of Morgan and Dinielli, “in the digital advertising market, virtually all roads lead through Google.” In addition, Google has enjoyed a near-monopoly in search engines. These authors assert that despite the complexity of the technology, standard international law tools, such as forced divestitures, restrictive contracts, forced information and data sharing, mandatory interoperability, etc. could be used to

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F. Morgan and D. Dinielli, Roadmap for a Digital Advertising Monopolization Case against Google (New Haven, CT: Omidyar Network, 2020). L. Johnson and L. Sachs, “International Policy Rules and Inequality,” in J. Ocampo and J. Stiglitz, eds., International Policy Rules and Inequality (New York: Columbia University Press, 2018). “Frances Haugen Says Facebook Is ‘Making Hate Worse,’” BBC World News, October 25, 2021, www.bbc.com/news/technology-59038506 accessed May 22, 2022. C. Kang, “Facebook Whistleblower Urges Lawmakers to Regulate the Company,” New York Times, October 5, 2021.

5 The UN’s Convention on the Sale of Goods

lessen the harm to consumers, advertisers, publishers, and technological rivals in the international space.79 The novel coronavirus (COVID-19) added more urgency in international law to put “people over profits,” i.e., to be more concerned with international public health rather than MNC enrichment. The need for coordinated international action against a common threat was thrown into sharper relief than it had been in the 1980s, when the long trend toward de-regulation at both the state and international level got underway. The inability or unwillingness of MNCs like Google to provide adequate resources to help contain the virus became painfully obvious. Thus the need for adequate funding of public health organizations (like the WHO) was demonstrated.80 An idea that has been floated several times by international scholars is to levy a sort of “sales tax” on international transactions in order to raise funds for effective MNC international regulation and to support public health. A related idea is to establish a “minimum corporate income tax,” which appeared to be gaining acceptance in 2021.81 Taken together, these trends presage a major reconstruction of how MNCs are perceived. It is likely that we will see greater regulation of them in the future.

5 The UN’s Convention on the Sale of International Goods and Letters of Credit One of the areas of IER that remains seriously underdeveloped and uncertain is that of “private international trade law.” While most of this text is focused on public law, this is clearly an area in which private and public law intersect, and it is not always clear which system should dominate: the laws of the state of the sender or receiver, or the larger international system. Business, however, demands relative certainty (in addition to trust) in order to operate. There are two primary instruments that provide some measure of certainty discussed in this section: the UN Convention on the Sale of International Goods (CSIG) and private Letters of Credit and other standard forms.

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Morgan and Dinielli, “Roadmap for a Digital Advertising Monopolization Case Against Google,” 17ff. F. Manjoo, “I Don’t Know Who Needs to Hear This, but Brands Won’t Save You” New York Times, March 18, 2020, Op-Ed Section. A. Rappeport, “Yellen Calls for a Global Minimum Corporate Tax Rate,” New York Times, April 5, 2021.

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Whether a contract is enforceable often depends upon which state’s tribunals are chosen by one of the contracting parties. Also, traders in different countries may operate from different negotiating postures. To demonstrate how differences might affect a common commercial setting, assume that X Corp agrees to sell a load of widgets to Y Corp. X Corp does business in its home country, State X. Y Corp does business in its home country of State Y. X Corp then sends its first shipment of widgets to Y Corp. That shipment contains defects. The written contract between X and Y Corps does not include a seller’s promise that the goods will arrive without defects. Under the national law of State Y, an importer cannot ask a Y court to imply a contractual term not expressed by the parties to a contract. The courts of State Y do not want to rewrite business contracts for the parties which would supply terms. Such terms might have been reasonably included in the sales contract but were not necessarily intended by the parties to the shipping agreement. But under the national law of the exporting State X, the lack of contractual warranties does not preclude Y Corp from seeking a judicial remedy in State X. Y Corp could sue for breach of the contract in State X based on an implied warranty (not mentioned in the contract) that the goods will arrive without substantial defects. In the absence of an international treaty which effectively supplies agreed-upon missing terms (such as an implied warranty against shipping defective parts) to such “private” international law conflicts, the outcome will depend on the country in which the case is filed and/or enforcement is sought. Given the recurring problems generated by differences in national legal systems illustrated by the above example, the UN opened the Convention for the International Sale of Goods (CISG) for ratification by interested states in 1980.82 Under public international law, two states that ratify the CISG thereby choose a uniform rule that governs the contractual relationships of their respective private traders. The CISG does not preclude the parties from a private contractual agreement that differs from the otherwise applicable CISG result under the circumstances of the particular case. Both the buyer and the seller may prefer that the law of one of the host countries should govern their transaction. The CISG authorizes them to agree that the national law of either State X or State Y will apply to their contract. Freedom of contract is thus preserved. The CISG merely sets a minimal floor to these

82

United Nations Convention on Contracts for the International Sale of Goods, opened for signature 1980, UNTS 1489, No. 25567 (entry into force 1988) https://treaties.un.org/Pages/ showDetails.aspx?objid=080000028003e60d&clang=_en accessed May 22, 2022.

5 The UN’s Convention on the Sale of Goods

transactions and clears up common confusions that often result in the practice of international private trade. Until 1998, however, there was no authoritative judicial interpretation of the 1980 CISG for US merchants. The following decision illustrates how this treaty facilitates international trade, when US law would have otherwise resulted in a dismissal of this case.

MARBLE CERAMIC CENTER, INC. (MCC) V. CERAMICA NUOVA D’AGOSTINO, S.P.A. US Eleventh Circuit Court of Appeals, 144 F.3d 1384 (1998), cert. denied, 526 U.S. 1087 (1999) [Excerpted case available at www.cambridge.org/FPIL7]

Even when the CISG clearly applies, as it did in this case, not all disputes between merchants in states that have ratified the CISG are resolved by this treaty. In that instance, gaps are likely to be resolved by resort to the law of the state in which the case is filed, which can frustrate the CISG’s inherent purpose of providing uniformity and certainty.83 A real-world example of how gaps in the CISG are addressed can be seen in the juxtaposition between it and some aspects of the Uniform Commercial Code (UCC), a set of standards that has been adopted by most states in the US. Both of these regulatory frameworks have a “fitness for use” standard that governs the sale of goods and services across state borders; i.e., when a good or service arrives at its destination in a condition that is not “fit” for the purpose for which it is intended, it is deemed in breach of the contract. The CISG, however, does not clarify whether it is the seller or the buyer who bears the burden of proof on “fitness” and thus which party is in or out of compliance with the contract. In 2005, a federal court resolved a case84 against the buyer, although the Canadian seller’s prime ribs were deemed rotten at the US port of entry. As its members noted: because there is little case law under the CISG, we interpret its provisions by looking to its language and to the “general principles” on which it is based. See CISG Art 7(2). The CISG is the international analog to Article 2 of the Uniform Commercial Code.85 83

84 85

H. Gabriel, Contracts for the Sale of Goods: A Comparison of United States and International Law (Oxford: Oxford University Press, 2008). Chicago Prime Packers, Inc. v. Northam Food Trading, 408 F.3d 894 (7th Cir. 2005). Ibid.

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The court then resorted to American academic literature to interpret the UCC (and the CISG) in its quest to assign that burden. Taken together, the UN’s contribution to the progressive development of international law is not limited to managing and facilitating various aspects of state-to-state relations. In addition to the CISG treaty, the UN has facilitated the quest for legal certainty and stability in other private law contexts as well. The UN Commission on International Trade Law produced the 2005 draft Convention on the Use of Electronic Communications in International Contracting. Its purpose is to facilitate uniformity in identifying the time and place in the sending and receiving of electronic communications. Such knowledge is crucial for enforcing contracts, setting prices, and open international trade in general (furthering the LIEO).86 As we noted at the beginning of the chapter, the Letter of Credit is one of the most useful mechanisms for enabling an international business transaction between merchants in separate countries. The term “Letter of Credit” is derived from the historic practice in which the buyer’s bank in the buyer’s home country would send a Letter of Credit to the seller’s bank located in the seller’s home country. The functional equivalent of Letter of Credits was used in ancient Egypt, Greece, Imperial Rome, and Renaissance Europe.87 The Letter of Credit is especially useful for merchants who have conducted few, if any, international business transactions. A documentary credit is the written promise of a bank, undertaken on behalf of a buyer, to pay a seller the amount specified in the Letter of Credit. The seller must comply with the terms set forth in the underlying contract, as manifested by the Letter of Credit agreement. The terms and conditions usually require the presentation of documents that bear title to the goods, which will be shipped by the seller, and the terms of payment. Banks thus act somewhat like escrow agents. They are the intermediaries who collect payment from the buyer in exchange for transfer of the seller’s title documents. This short chain of events enables the buyer to take possession of the goods as soon as they arrive in the buyer’s country. Letters of Credit provide a high level of protection and security to both buyers and sellers. The seller is assured that payment will be made by a bank that is independent of the buyer. The buyer is assured that payment will be released by the bank to the

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As of this writing, the proposed Electronic Communications Treaty has not been offered for signature. B. Wunnicke et al., Standby and Commercial Letters of Credit, 2nd ed. (Rexdale, Ontario: John Wiley & Sons, 1996), 4.

6 Combating Corrupt Business Transactions

seller only after the bank has received the documents of title to the shipped goods described in the Letter of Credit.88 A private NGO, the International Chamber of Commerce (ICOC), located in Paris, composes standardized commercial documents, contract terms, and rules of interpretation. One of the ICOC’s most prominent contributions is the Uniform Customs and Practices for Documentary Credits (UCP). The UCP contains a series of articles that standardize the use of the Letter of Credit in international banking. A Letter of Credit is not required merely because the contract is international in scope. On the other hand, some governments require it for all transactions involving foreign trade. We will now turn to examining situations in which normal IER become dysfunctional for a variety of reasons, thwarting the prevailing post-World War II design of the LIEO.

6 Combating Corrupt International Business Transactions In order for a free market to work, both buyer and seller must have simultaneous access to completely open and transparent information on market conditions, and there must be no “side deals” or “under-the-table” deals that would distort equitable terms of trade. The market price is determined by a large volume of information that is widely shared and is at a price point that is acceptable to both producers and consumers. The giving or receiving of bribes – illicit payments designed to favor one’s economic or personal interests – clearly violates these fundamentals of free trade and are labeled “corrupt international transactions.” Other corrupt international business practices include extortion, kickbacks, identity theft, misinformation, and blackmail. More recently, there has been an explosion of computer-driven (cyber) crimes that easily transcend national borders: e.g., phishing, conversion, malware (including ransomware), piracy, false flag, information warfare, and spyware, among other techniques of cyber fraud.

6.1

The US Foreign Corrupt Practices Act

In 1976, the US Securities and Exchange Commission (SEC) published a report that more than 400 US companies, including 117 of the Fortune 500 companies, made “questionable” payments to foreign officials. In 1977, US President Gerald Ford and the US Congress responded with the Foreign Corrupt Practices Act (FCPA) that: (1) was designed to restore public 88

E. Hinkelman, “Letters of Credit,” in Dictionary of International Trade, 4th ed. (Novato, CA: World Trade Press, 2000), 305–323.

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confidence in US businesses; (2) would have a significant impact on the ability of US business enterprises to do business abroad; and (3) led to claims of cultural relativism because the US was perceived as trying to legislate morality on an international scale. As applied by a federal appeals court in 2004 (and affirmed in 2007): None contend that the FCPA criminalizes every payment to a foreign official: It criminalizes only those payments that are intended to (1) influence a foreign official to act or make a decision in his official capacity, or (2) induce such an official to perform or refrain from performing some act in violation of his duty, or (3) secure some wrongful advantage to the payor. And even then, the FCPA criminalizes these kinds of payments only if the result they are intended to produce – their quid pro quo – will assist (or is intended to assist) the payor in efforts to get or keep some business for or with “any person.”89

Paying a foreign government official is thus illegal if the payment is intended to induce the recipient to misuse his or her position to direct business to the person who pays the bribe. Foreign officials include any officer or employee of a foreign government, department, or agency, member of a royal family, or member of a legislative body who is acting in an official capacity. Payment to an official to induce even a private company to award a contract is also prohibited. The Act excludes payments for routine governmental actions. Although referred to as “grease” payments, fees for obtaining a license or official document, processing governmental papers, or scheduling inspections do not violate the FCPA as long as such payments are authorized under the written laws of the country where the payment is made. Such bribery is more common than is generally recognized, and the FCPA has been used for more prosecutions than are known by the public. Selected examples of major FCPA violations and some prosecutions include the following: ▪ 1994–1998: The CIA found that bribes were used to influence the outcomes of 239 international contract competitions that totaled $108 billion. Seventy percent of the bribes were allegedly offered or paid to ministry or executive branch officials. ▪ 2007: William Jefferson, a Louisiana member of the US House of Representatives, was the first US official charged and later convicted (in 2009) of violating the FCPA. Congressman Jefferson unsuccessfully contended that the US Constitution’s “Speech or Debate Clause” protected him

89

U.S. v. Kay, 359 F.3d 738, 743 (5th Cir. 2004); affirmed on remand, 513 F.3d 432 (2007); cert. denied, 129 S.Ct. 670 (2008). Emphasis original.

6 Combating Corrupt Business Transactions

from prosecution. It generally provides legislators with absolute immunity for their legislative activities, relieving them from defending those actions in court.90 ▪ 2010: The private security contractor Blackwater (see Chapter 8) was accused of offering a $1,000,000 bribe to Iraqi officials after the 2007 shooting in central Baghdad killing seventeen Iraqis and wounding twenty.91 If so, that violated the US FCPA prohibition on US entities bribing foreign public officials. This incident laid the groundwork for the 2019 call by the Iraqi Parliament for the US to withdraw all its forces. While four soldiers were convicted for their role in the shooting, they were eventually pardoned by President Trump. Blackwater and its executives were able to evade prosecutions under the FCPA, but public outcry resulted in the loss of government contracts for the company and it was later sold.92 ▪ 2008–2015: During the years of the Obama Administration in the US, there were 127 separate core actions totaling $8.56 billion in fines.93 ▪ In 2017, the first full year of the Trump Administration, the US government brought a total of thirteen enforcement actions, totaling $1.13 billion. While this was slightly less than the all-time record under the Obama Administration, it did not represent a significant diminution of action under the Trump Administration, as some commentators feared.94 Since 2006, the US Department of Justice and the SEC have more than doubled their prosecutions for foreign bribery. Compliance was enhanced by passage of the 2002 Sarbanes-Oxley Act. With the beginnings of many corporate meltdowns on the horizon at that time, that Act required “internalcontrols review,” making it harder to evade the FCPA. Companies are thereby encouraged to self-report to avoid prosecution under Sarbanes-Oxley. Like many other international legal instruments discussed in this chapter and this book, the FCPA and Sarbanes-Oxley have been under assault in the new populism-mercantilism under way. For example, former US president Trump questioned US officials responsible for enforcing the FCPA, asking

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U.S. v. Jefferson, 546 F.3d 300, 311 (4th Cir. 2008). Jefferson was found guilty in August 2009 – the first ever conviction of a US official under the US FCPA. M. Safi, “Trump Pardons Blackwater Contractors Jailed for Massacre of Iraqi Civilians,” The Guardian, December 23, 2020, www.theguardian.com/world/2020/dec/23/trump-pardonsblackwater-contractors-jailed-for-massacre-of-iraq-civilians accessed May 26, 2022. E. Zaferis, “Proposal for a Treaty to Apply the FCPA Solution to the Corporate Criminal Problem in Private Military and Security Companies,” Loyola Los Angeles International and Comparative Law Review 41, No. 2 (2018): 244. M. Koehler, “Foreign Corrupt Practices Act Continuity in a Transition Year,” South Carolina Law Review 70, No. 1 (2018): 143–208. Ibid.

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why US businesses should be at a “competitive disadvantage” vis-à-vis other states, and questioned why they should not be able to give and receive bribes since some other states allow these practices to occur (or do not enforce laws) – for example, Chinese bribery of African officials.95 This assault on the FCPA anticipates the section below on the “nationalist pushback” (Section 7). It can also be viewed as an example of the Prisoner’s Dilemma: the best move is to cheat first – in this case using bribery – before the other “prisoner(s)” do(es) so. In addition, some sections of Sarbanes-Oxley have been repealed, and there is currently a push in the US Congress (especially the Senate), to weaken it further. The solution to this complaint by the ex-US president and others does not necessarily mean that the FCPA should be abandoned, but rather supplemented by other anti-corruption tools. The “no strings attached” aid and trade policies from China (and India, to a lesser extent) by themselves do put US and MNCs at a competitive disadvantage, and they are largely beyond the reach of the US FCPA. However, other tools, like the US Money Laundering Control Act (the MLCA), could reach corrupt individuals who are cheating their citizens out of their economic heritage, for example, in “the African resource space.”96

6.2

Regional and UN Anti-Corruption Policies and Programs

Fortunately, however, the US is not the only country fighting against bribery and other corrupt acts. Kenya, as early as 1956, enacted the Prevention of Corruption Act. This act was relied upon in the following 2006 arbitration analysis by the ICSID. The analysis in this case provides further depth to the understanding of the evolution of bribery as a subject of international law.

WORLD DUTY FREE COMPANY, LIMITED (CLAIMANT) AND THE REPUBLIC OF KENYA (RESPONDENT) International Centre for Settlement of Investment Disputes, ICSID Case No. ARB/00/7 [Excerpted case available at www.cambridge.org/FPIL7]

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Trump’s comments on the FCPA are reported in P. Rucker and C. Leonnig, A Very Stable Genius (New York: Penguin Press, 2020) and reported in the New York Times and Washington Post. S. Dadhich, “Old Dog, New Tricks: Fighting Corruption in the African Natural Resource Space with the Money Laundering Control Act,” American Journal of Criminal Law 44, No. 1 (2016): 101–110.

6 Combating Corrupt Business Transactions

Other non-US-led attempts to combat bribery and corruption, although numerous, have lacked enforcement, and thus effectiveness. A chronological exhibit of such efforts is as follows: ▪ Organization of American States (OAS) Inter-American Convention against Corruption (1996) and the Quito Declaration on the Impact of Corruption (2004) ▪ EU Convention on the Fight against Corruption Involving Officials of Member States of the EU (1997) ▪ Interim Committee of the Board of Governors of the International Monetary Fund Code of Good Practices on Fiscal Transparency (1998 Declaration on Principles) ▪ Council of Europe’s Group of States against Corruption (2000) ▪ African Union (AU) Convention on Preventing and Combating Corruption (2003) ▪ Council of Europe Convention on Cybercrime (2003), Protocol concerning criminalization of racist and xenophobic online activities, entered into force 2006. The positive, cumulative effect of these efforts, however, is that they have laid the groundwork for comprehensive OECD and UN anti-corruption instruments, which, for the first time, have created an agreed-upon and standard set of definitions of bribery as applied to private international business law. However, as will become clearer below, much work remains to be done in developing effective enforcement mechanisms, and then to apply these standards to state actors, as well. Below we detail four UN anti-corruption policies and programs, beginning with a general resolution by the UN’s General Assembly, and moving to special programs formulated by the UN’s Secretariat and working committees.

6.2.1

UN Anti-Corruption Regime

The 1996 UN General Assembly Resolution 51/59, entitled “On Action against Corruption,” provides as follows: Concerned at the seriousness of problems posed by corruption, which may endanger the stability and security of societies, undermine the values of democracy and morality and jeopardize social, economic and political development, . . . Convinced that, since corruption is a phenomenon that currently crosses national borders and affects all societies and economies, international cooperation to prevent and control it is essential, . . .

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11 International Economic Relations Adopts the International Code of Conduct for Public Officials annexed to the present resolution, and recommends it to member States as a tool to guide their efforts against corruption.97

The 2003 UN Convention against Corruption entered into force two years later after the thirtieth ratification. The intervening UN Oil-for-Food scandal severely tarnished the UN’s image as a competent global corruption fighter. This may explain why only a few EU member states have ratified it. The US ratified it in November 2006.98 The Convention against Transnational Organized Crime was adopted by the UN General Assembly in 2000. The UN has also promulgated two associated protocols. They are (1) Protocol to Prevent, Suppress and Punish Trafficking in Persons; and (2) Protocol on Migrant Smuggling. This treaty regime enjoys US support because of the latter’s 2005 ratification of the basic convention.99 The Stolen Asset Recovery Initiative is a partnership between the UN and the World Bank. The theft of public assets from developing countries is an important contributor to the web of international corruption, not just because it interrupts the efficient functioning of the global market, but also is a key impediment to further development. The World Bank estimates cross-border flow of the global proceeds from criminal activities, corruption, and tax evasion at between $1 trillion and $1.6 trillion per year. The direct dollar amount of bribes received by public officials from developing and transitional nations is estimated at $20 billion to $40 billion per year. As described by the World Bank: Assets stolen by corrupt leaders at the country-level are frequently of staggering magnitude. The true cost of corruption far exceeds the value of assets stolen by the leaders of countries. This would include the degradation of public institutions, especially those involved in public financial management and financial sector governance, the weakening if not destruction of the private investment climate, and the corruption of social service delivery mechanisms for basic health and education programs, with a particularly adverse impact on the poor. This “collateral damage” in terms of foregone growth and poverty alleviation will be proportional to the duration of the tenure of the corrupt leader.

97 98

99

UN Resolution 51/59 found in International Legal Materials (1996): 1039. UN Convention against Corruption, www.unodc.org/documents/treaties/UNCAC/ Publications/Convention/08-50026_E.pdf accessed May 26, 2022. UN Convention against Organized Crime, www.UNodc.org/UNodc/en/organized-crime/ intro/UNTOC.html accessed May 21, 2022.

6 Combating Corrupt Business Transactions While the traditional focus of the international development community has been on addressing corruption and weak governance within the developing countries themselves, this approach ignores the “other side of the equation:” stolen assets are often hidden in the financial centers of developed countries; bribes to public officials from developing countries often originate from multinational corporations; and the intermediary services provided by lawyers, accountants, and company formation agents, which could be used to launder or hide the proceeds of asset theft by developing country rulers, are often located in developed country financial centers.100

This joint initiative is an integral part of the World Bank Group’s Governance and Anti-Corruption Strategy. That program recognizes the need to help developing countries recover stolen assets. The international legal framework would be provided by the UN Convention against Corruption, which entered into force in December 2005. The UN Office on Drugs and Crime Prevention (UNODCP) in Vienna is the custodian and the lead agency that facilitates implementation of that UN Convention, in addition to the World Bank Secretariat to the Conference of State Parties. Legal reform is also needed in developed countries, not just developing countries. Both national groups must ratify and implement the UN Convention against Corruption, if this more concrete initiative is to flourish.

6.2.2

OECD Bribery Convention

The original thirty (now forty-three) members of the OECD drafted the most global of corruption treaty alternatives to date. These industrialized nations were joined in the drafting process by five non-members: Argentina, Brazil, Bulgaria, Chile, and the Slovak Republic.101 The Preamble to the OECD Treaty provides the underlying justification and purposes for action in this critical area: corruption undermines good governance and economic development, while distorting competitive conditions necessary for a true international marketplace to function as designed. The dual purposes of the treaty are to pressure member states to criminalize bribery and to create effective enforcement measures among those ratifying

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World Bank, “Stolen Asset Recovery (StAR) Initiative: Challenges, Opportunities, and Action Plan” (Washington, DC, 2007), 1. For the OECD Treaty, see “Convention on Combating Bribery of Foreign Public Officials in International Business Transactions” (December 18, 1997), International Legal Materials, 37 (1998); for further analysis of this treaty, see M. Pieth, L. Low, and P. Cullen, eds., The O.E.C.D. Convention on Bribery: A Commentary (Cambridge: Cambridge University Press, 2007).

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states. Note, too, the expansive definition of terms which makes clear the broad scope of to whom the treaty should apply.

ARTICLE 1 The Offence of Bribery of Foreign Public Officials 1. Each Party shall take such measures as may be necessary to establish that it is a criminal offence under its law for any person intentionally to offer, promise or give any undue pecuniary or other advantage, whether directly or through intermediaries, to a foreign public official, for that official or for a third-party, in order that the official act or refrain from acting in relation to the performance of official duties, in order to obtain or retain business or other improper advantage in the conduct of international business. 2. Each Party shall take any measures necessary to establish that complicity in, including incitement, aiding and abetting, or authorization of an act of bribery of a foreign public official shall be a criminal offence. Attempt and conspiracy to bribe a foreign public official shall be criminal offences to the same extent as attempt and conspiracy to bribe a public official of that Party. 3. The offences set out in paragraphs 1 and 2 above are hereinafter referred to as “bribery of a foreign public official.” 4. For the purpose of this Convention: a. “foreign public official” means any person holding a legislative, administrative or judicial office of a foreign country, whether appointed or elected; any person exercising a public function for a foreign country, including for a public agency or public enterprise; and any official or agent of a public international organization; b. “foreign country” includes all levels and subdivisions of government, from national to local; c. “act or refrain from acting in relation to the performance of official duties” includes any use of the public official’s position, whether or not within the official’s authorized competence.102

102

For the Preamble to the OECD treaty, see “Convention on Combating Bribery of Foreign Public Officials in International Business Transactions” (December 18, 1997) in International Legal Materials 37 (1998): 1ff.

6 Combating Corrupt Business Transactions

Additional Articles of the OECD Anti-Bribery Convention each add depth to this strong instrument. A 2006 update required members to, among other things: (1) deter bribery in credit support; (2) disclose whether they, or anyone acting on their behalf, have been convicted of bribery in any national court; (3) promptly inform law-enforcement authorities whether any bribe(s) resulted in the awarding of a contract.103 OECD members renewed their commitment to this and related principles in 2019, with a full review due in 2021.104 Is the OECD Anti-Bribery Convention still effective? There has been very little empirical work on this question, and, of course, the answer would depend on how one defines what “effective” means. Nam concludes that the Convention has had a measurable effect on changing the domestic laws and management practices in each of the twenty-five top-gross domestic product (GDP) producing states in the world, plus a sampling of six additional states.105 However, the effectiveness of the Convention (and the FCPA) could be improved by more rigorous enforcement against individuals and by assessing criminal liability against offending corporations (“legal persons”).106 Another review was far less sanguine, finding that only four countries (although these four accounted for over 20 percent of world exports) could be considered “active” enforcers of the OECD provisions, and a second group composed of six countries might be considered “moderate” enforcers. The other two groups, comprised of thirty-one states, would be considered as exercising “limited” or “no” enforcement effort. Much more effort was called for in changing the “culture” of MNCs.107

6.3

Combating Price-Fixing and Related Corrupt Practices

Also contrary to the LIEO are schemes to circumvent the beneficial effects of true competition through systems of price-fixing, guaranteed market share, kickbacks, and other mechanisms. Price-fixing schemes occur most 103

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J. Sloane, “Anti-Bribery Laws and Investigation: Background,” Currents: Journal of International Economic Law 24, No. 1 (2020): 34–41. See Organization for Economic Co-operation and Development, OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, (2021) www.oecd.org/corruption/oecdantibriberyconvention.htm accessed May 21, 2022. S. Nam, “Domestic Impact of the Management Process under the OECD Anti-Bribery Convention,” University of Pennsylvania Journal of International Law 39, No. 4 (2018): 955–1010. Ibid. R. Tomasic, “Global Corporations, Bribery and Corrupt Practices Anti-Bribery Laws and the Limits of State Action,” Law and Financial Markets Review 12, No. 1 (January 2, 2018): 18–30.

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commonly between firms that provide a staple commodity in which there are multiple international suppliers of that commodity. Often these producer/ suppliers are members of a cartel. An example is the conspiracy by US-based MNC Archer Daniels Midland (ADM) to fix the prices of a fertilizer, lysine, and other agricultural products, featured in the movie The Informant.108 The problem in combating these types of corrupt practices is that there is not a single, recognized international body that can claim global jurisdiction over private business entities. It is left up to national or regional courts and/ or their prosecutorial arms to police violations in this area. The classic problem that exists here is the patchwork and often contradictory enforcement actions that result.

6.4

Combating International Cyber Financial Crimes

The explosion of computer-assisted crimes affects far more than IER, but it is one of the most challenging areas for international law to combat. Cybercrime has the potential to be far more disruptive than the old-fashioned crimes discussed above that have existed for centuries in international affairs. As outlined by Homer-Dixon,109 in a world in which an everincreasing proportion of the financial system is controlled by inter-locked computer systems via the Internet using information stored virtually on “the Cloud,”110 the potential for not just economic disruption, but wide-scale financial theft and physical harm, is highly probable absent effective countermeasures in international law. Here is just a brief sample of financial breaches in the recent past, and the damage that they caused to businesses on all levels of the international system: ▪ Hospitals and schools have been early and consistent targets of ransomware attacks because they are relatively easy targets that often use older computers and fail to regularly update their software with security patches. Some examples: MedStar Health and Hollywood Presbyterian Medical Center in 2016, and at least twelve other hospitals throughout North America and Europe, all in the year 2016 alone. These were not merely nuisance attacks but had the potential to endanger lives because of Internet-linked life-saving medical devices. ▪ Businesses, especially MNCs, are an increasingly frequent target of cybercrime and ransomware attacks. Fifty-seven percent of all malicious

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S. Walsh, “ADM To Pay $100 Million To Settle Price-Fixing Case,” The Washington Post, October 15, 1996. T. Homer-Dixon, “The Rise of Complex Terrorism,” Foreign Policy 128 (2002): 52–62. P. Schwartz, “Legal Access to the Global Cloud,” Columbia Law Review 118, No. 6 (2018).

6 Combating Corrupt Business Transactions

attacks against businesses in 2017 were conducted using ransomware. The trend is likely to get worse with the trend of “bring your own tech.” The “use of personal laptops, smartphones, iPads and . . . numerous other personal digital devices interconnecting with employees expose data systems to the vulnerabilities resident on employee devices.”111 ▪ In perhaps the most egregious recent example, on May 12, 2017, a global ransomware attack (“WannaCry”) of unprecedented scale was launched affecting at least 200,000 computers in over 150 countries using stolen tools from the US National Security Agency. The victims included the UK’s National Health Service. ▪ The group “DarkSide” caused massive gas shortages and price spikes in the eastern US when they infiltrated the computers of the biggest US pipeline company. They succeeded in obtaining a $4.4 million ransom, just the latest in a string of ransomware attacks by this group. The largest ransom they obtained was more than $14 million.112 Despite these clear and massive damages, the international legal system has been slow to respond. It is not from lack of alarm among international elites. Efforts have been hamstrung by, in the assessment of one expert, “siloization” and the daunting challenge of regulating a highly complex area by those who lack sufficient technical expertise.113 Another significant roadblock to effective international legal implementation is the growing “nationalist-populist pushback.” The US is loath to give up control of both the Internet and the Cloud, which it pioneered, and other countries, especially China, are just as adamant that the US must do so. If an agreement cannot be reached, it is likely that the “interoperability” of the Internet – that is, the ease of use across state borders that truly makes it the World Wide Web – will be lost or compromised, which means that the international free trade of the LIEO model will also diminish. Equally important, the international cooperation necessary for effective trans-border financial law enforcement will suffer as well. One expert urges cooperation, especially between China and the US in this matter. The US took a step in the right direction with the 2018 passage of the CLOUD Act, paving the way with the “establishment of new rules for government-to-government access to data.”114

111

112

113

L. Trautman and P. Ormerod, “Wannacry, Ransomware, and the Emerging Threat to Corporations,” Tennessee Law Review 86, No. 2 (2018): 539. M. Riley and A. Sebenius, “Ransomware Franchise Mints Money for Hackers,” Atlanta Journal-Constitution, May 17, 2021. 114 Schwartz, “Legal Access to the Global Cloud.” Ibid., 1684.

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7 The Nationalist Pushback to the Liberal Economic Order The liberal practices described in every section of this chapter are under challenge from a growing nationalist backlash, not just in developed states, but in developing states as well. In earlier editions of this text, the main challenger to the institutionalization of LIEO (“free trade” or “globalization”) principles into international law was depicted as being ideological and geographical, a divide between the Global North and the Global South states115 of the world. The South’s “answer” to the LIEO was the NIEO, whose main idea was that the North should acknowledge, and systematically address, great disparities in wealth between the North and South due to past and present colonialization and exploitation of the South by the North. The key mechanism to address the disparities was massive transfers of wealth and technology from the North to the South. When such transfers were not forthcoming from the Global North, various mechanisms and doctrines were devised to seize intellectual and physical property by force. Two that were widely used in Global South states were nationalization and the Calvo Doctrine. Add to that the zero-sum Cold War struggle in this period between the US and the USSR, and IER were an important ideological arena in which to contest the LIEO as being part of the systematic oppression of the Global South by the Global North.116 In particular, it was argued that the global proletariat (the working class) in the “Periphery” of the modern world trading system was being oppressed by the global bourgeoisie (international owners of business and capital) in the “Core” of the system.117 Thus, the NIEO was justified on Marxist-inspired ideological grounds as well (see also other critical international jurisprudence in “Bucket Four” of Table 0.1).

115

116

117

The terms “Global North” and “Global South” are used in this text to connote the differences in both economic levels of development and political systems in states and regions of the world. In general, Global North states have advanced, post-industrial economies, while Global South states are less economically developed and are in a preindustrial or early industrial stage. Politically, Global North states tend to have relatively free (“liberal”) representative political systems based on the rule of law, while the Global South tend to have authoritarian or “illiberal” democracies where the rule of law is less secure. The terms “developed” and “developing” states are useful, but they focus only on the levels of economic development. Both sets of terms are preferable to the old “First World” and “Third World” designation, which is both inaccurate (there is no longer a “Second World”) and judgmental. A. Gunder-Frank, Capitalism and Underdevelopment in Latin America: Historical Studies of Chile and Brazil, rev. ed. (New York and London: Monthly Review Press, 1967). I. Wallerstein et al., Transforming the Revolution: Social Movements and the World System (New Delhi: Aakar Books, 2006).

7.

The Nationalist Pushback

While elements of the North–South struggle remain relevant to understanding IER, a clear shift has taken place in the last ten years that could be better described as a nationalist-populist, neo-mercantilist pushback against globalization in IER that is occurring in both the Global North as well as the Global South. This pushback combines elements of nationalist appeals to the mass public, with an economic theory among elites that trading rules have disadvantaged their state, and therefore such rules must be re-worked or discarded in the name of “fairness.” Recent examples abound from the widespread protests in both the Global South (e.g., Brazil, Chile, Bolivia, Iraq, and Iran) and the Global North. Some Global North examples include the Trump Administration’s tariff wars; the increasing disenchantment with the disparities generated by private equity capital;118 the backlash against French president Macron’s attempt to institute more competitive measures into the French economy; and the example that we elaborate here – the struggle to de-link the economy of the UK from the EU, commonly known as “Brexit.” Despite some predictions that Brexit would be reversed by a subsequent referendum in the UK, the landslide re-election of Prime Minister Boris Johnson in late 2019 let him claim a strong mandate to “get Brexit done.” Brexit now appears to presage a larger trend in IER. Academic defenders of international liberalism will be quick to point out that the LIEO has transformed IER, and it has lifted more people out of poverty in a very short time than any other international economic system in world history.119 But aggregate (or system-level) utility cannot explain this profound shift. State elites operate within particular political systems, and they respond to those who elect them, be it in a dictatorship or a democracy.120 Polling data underscore this growing public skepticism about free trade and its ability to deliver concrete economic benefits at the local level. It is too early to tell, however, what the ultimate impact of “Brexit” will be. Earlier dire predictions now have to be tempered due to the COVID-19 pandemic, and research indicating that Brexit will not have the “domino effect” within the EU or nationalist economic impact once

118

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120

M. Baradaran, “The Neoliberal Looting of America,” New York Times, July 2, 2020, opinion section. R. Kagan, The World America Made (New York: Alfred A. Knopf, 2012). See especially Ch. 2. B. Bueno de Mesquita and A. Smith, The Dictator’s Handbook: Why Bad Behavior Is Almost Always Good Politics (New York: Public Affairs, a member of the Perseus Books Group, 2011).

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feared.121 On the contrary, it may have hastened the EU to push in a more liberal direction.122 As we argued above, the free exchange of information is perhaps the most important basis for the successful operation of an international market. China, however, wishes to control that information for its commercial and political advantage and employs an army of censors (including “Internet Police”) to do so, creating the so-called Great Firewall of China, which some liberal analysts thought could not be technically done. Continued attempts by other states in law and policy to “undo” the Great Firewall have completely failed. The level of censorship has become so complete that other authoritarian regimes look to China as a model.123 Another area in which state political elites are consciously pushing back and undoing the principles of free trade are the increasing use of sanctions not only as a substitute for militarized use of force in international relations, as discussed in Chapter 8, but also to express displeasure by one state against another, or to gain the upper hand in trade negotiations. The Trump Administration in the US sanctioned both allies (the EU, Canada) and perceived enemies (China) alike, using, in some cases, national-security arguments to justify purely neo-mercantilist policies. However, such arguments may outlast Trump; during the Biden Administration the US has created legislation known as the “Chips Act” that attempts to wrest production of semi-conductors (“chips”) away from China and back to the US.124 Harrell warns that this “overuse” (of national-security arguments) will have both practical economic as well as security costs and lessen the effectiveness of sanctions over time.125 Indeed, China’s economy is doing relatively well, and the US trade deficit with China has increased, despite the sanctions.126 Lawrence makes a similar criticism, asserting that the Trump Administration has stretched the authority given to the president under Section 232 of the 1962 Trade Expansion Act beyond its intended use: “[I]t 121

122

123

124

125

126

H. Zimmermann, “Brexit and the External Trade Policy of the EU,” European Review of International Studies 6, No. 1 (2019): 27–46. F. De Ville and G. Siles-Brügge, “The Impact of Brexit on EU Trade Policy,” Politics and Governance 7, No. 3 (September 16, 2019): 7–18. S. Ovide and P. Mozur, “Copying China’s Online Blockade,” New York Times, March 1, 2021. J. Hatch, “Interview with Senator Mark Kelly” (Yale Jackson Institute for Global Affairs, 2021). P. Harrell, “Is the U.S. Using Sanctions Too Aggressively? The Steps Washington Can Take to Guard against Overuse,” Foreign Affairs, 2018, www.foreignaffairs.com/articles/201809-11/us-using-sanctions-too-aggressively accessed May 22, 2022. K. Bradsher, “Trump’s Tariffs? Coronovirus? China’s Exports Are Surging Anyway,” New York Times, August 31, 2020.

7.

The Nationalist Pushback

has always been understood that members [states] will rarely undertake such measures, and only for narrowly defined reasons relating to strictly military needs and extreme circumstances. But the Trump Administration ignored this long-standing tradition and adopted an excessively broad definition of national security.”127 If the US takes such a stance, Lawrence argues, the LIEO itself is at risk – many other states will follow suit arguing “nationalsecurity exemptions.” Yet another area that gets to the heart of free trade is the weakening of anti-corruption measures that the US pioneered from the 1970s to the present. An unusual alliance is coalescing around this new attempt to undermine a fundamental pillar of globalization: nationalists, populists, former Communist ideologues, and dictators. Some German scholars are arguing that the FCPA is nothing more than an attempt to cement US trade advantages into place since the law is selectively written and applied.128 With the rise of China, its unwillingness to follow US law in this matter is understandable. Chinese scholars have long been critical of the FCPA and the OECD Anti-Bribery Convention, arguing that they do not apply to them, and suggesting that China should and will create its own, more effective set of anti-corruption measures.129 Even champions of the FCPA are concerned that “selective enforcement” of the Act, i.e., much greater enforcement against “foreign” MNCs that are not based in the US and who conduct their business wholly outside of the US, undermines the credibility of the FCPA.130 One key tenet of the NIEO that continues to the present is the concern that the LIEO does not sufficiently assist the developmental needs of Global South states. Most WTO member states are developing states. Between the 1950s and 1980s, many of them employed trade policies, which included high tariffs and NTBs, to protect their emerging industries. As the WTO’s roots began to bear fruit in the 1990s, however, it was evident that they would have to liberalize their trade regimes. Failure to join the WTO would marginalize a nation’s economy and discourage foreign investment. These developing states thus made dramatic changes in their economic and development strategies, with a view toward becoming competitive in international trade by developing export-oriented industries, the best example being the four 127

128

129

130

R. Lawrence, “Policy Brief 18-17: How the United States Should Confront China without Threatening the Global Trading System” (Peterson Institute for International Economics, 2018): 3, www.oecd.org accessed May 22, 2022. K. Woody, “Declinations with Disgorgement in FCPA Enforcement,” University of Michigan Journal of Law Reform 51, No. 2 (2017): 269–312. Y. Chen, “FCPA Actions in China and China’s Anti-Bribery Law,” San Diego International Law Journal 21, No. 1 (2019): 71–104. Koehler, “Foreign Corrupt Practices Act: Continuity in a Transition Year.”

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East “Asian Tigers”: Hong Kong, Taiwan, Korea, and Singapore. One result was that they would also attract globally competitive industries. But other developing states who were behind the Asian Tigers in the growth curve reacted adversely to WTO measures designed to constrain their options to pursue a truly free-market economy. Wade captures the essence of this situation: The world is currently experiencing a surge of international regulations aimed at limiting the development policy options of developing country governments. Of the big three agreements coming out of the Uruguay Round – on investment measures (TRIMS), trade in services (GATS), and intellectual property (TRIPS) – the first two limit the authority of developing nations to constrain the choices of [foreign] companies operating in their territory, while the third requires the governments to enforce rigorous property rights of foreign (generally Western) firms. Together, the agreements make comprehensively illegal many of the industrial policy instruments used . . . [by] the successful East Asian developers to nurture their own industrial and technological capacities and are likely to lock in the position of Western countries at the top of the world hierarchy of wealth . . . [T]he three agreements constitute a modern version of . . . “kicking away the ladder.” . . . [T]he practical prospects for change along these lines are slender, but not negligible.131

Looking to the future, based on the recent past, shows that the drive toward closer political-economic harmonization through international law and other instruments has dramatically slowed.132 How can we understand this trend? As identities and priorities change, so does the set of policies that are advocated, no matter what the supposedly immutable rules and logic of consequences are in a given situation. Militating against rapid change in IER is the strong presence of existing rules and norms which constitute the corpus of international law. The strength of “shared norms” and institutions133 among elites and decisionmakers are likely to endure unless confronted by the change agents operating in a sustained manner.

131

132

133

R. Wade, “What Strategies are Viable for Developing Countries Today? The World Trade Organization and the Shrinking of Development Space,” Review of International Political Economy 10 (2003): 621. On the indicators that the post-World War II LIEO is fading, see R. Jervis, F. Gavin, J. Rovner, and D. Labrosse, eds., Chaos in the Liberal Order (New York: Columbia University Press, 2018). Institutions are defined as widely shared beliefs and practices that endure over time, e.g. like the Balance of Power, treaty obligations, etc.

Thinking Ahead

Specific international law scholars offer their own visions of the future of IER. Nagy posits that despite being an “appealing yell,” economic nationalism/mercantilism is “increasingly wishful thinking” for three reasons. First, the structure of international trade makes fully fledged protectionism selfdefeating. Secondly, the WTO rules make a comprehensive protectionist policy impossible. Lastly, protectionism is a costly fantasy.134 On the other hand, Paul posits that instruments of IER have become a substitute for more direct military confrontation between the world’s great and rising powers. He sees a pattern in the use of sanctions, and the subtle use of international institutions, regimes, and alignments to carry out this new “soft balancing.”135 Brummer asserts that the tools of economic statecraft will be used to craft narrower, more focused agreements in a “post-American (and post Western) world where economic power is more diffuse than ever before.”136 He thus bridges the divide between those who see either continuity or rapid change in IER. It appears probable that IER are undergoing a period of change, and the direction of that change appears to be away from the almost pure application of international liberal economic principles in both customary international law and in specific instruments of international law. There is a clear sense that, with the withdrawal of the US from active engagement in promulgating and enforcing the legal instruments of IER (and other areas), the concomitant end of the pax Americana that guaranteed some stability in IER is closer. This slippage of US dominance in IER likely cannot be easily reversed by the Biden and subsequent US Administrations. Add to that the failure of MNCs to ameliorate the COVID-19 pandemic. Finally, with change “entrepreneurs” and activists coming from all sides – the Global South as well as the Global North, from the ideological left as well as the right – change away from the LIEO appears increasingly likely.

Thinking Ahead In this chapter we have examined the various organizations, instruments, and treaties that allow states and international organizations to govern the 134

135 136

C. Nagy, “World Trade, Imperial Fantasies and Protectionism: Can You Really Have Your Cake and Eat It Too?,” Indiana Journal of Global Legal Studies 26, No. 1 (2019): 87–132. T. V. Paul, Restraining Great Powers (New Haven, CT: Yale University Press, 2018). C. Brummer, Minilateralism: How Trade Alliances, Soft Law, and Financial Engineering Are Redefining Economic Statecraft (Cambridge: Cambridge University Press, 2014).

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economic relations between states and peoples. We framed the study of IER as the trend toward free trade and globalization shaped by the constructed post-World War II LIEO. The most important international organization was the WTO, which came into being in 1996 after a long process of development since 1947 known as the GATT. You also learned about regional FTAs that have the goal of spreading the principles of the LIEO in specific geographical and functional areas of world trade. Some of those were the EU, NAFTA/ USMCA, and APEC. Private actors in IER have significance both as actors upon, and recipients of, international rules. The most important of these private actors are the MNCs as they rival the economic power of many states. Also important in constructing globalization has been the long struggle against corruption, spearheaded by the US’s FCPA, with contributions by other states and groups of states like the OECD’s Anti-Bribery Convention. More recently, the struggle to maintain an open trading regime has moved online to combat cybercrime and fraud. The chapter concluded by noting the erosion of the constructed consensus in support of the LIEO/globalization, and the turn toward mercantilism in IER, which may address populist and nationalistic (s)electorates (those with the power to choose national leaders) in the domestic politics of states. This is a long-term battle likely to play out for at least a generation, well into the twenty-first century. In this exploration of the fundamentals of IER, we have continually crossreferenced other areas of international law, as IER undergirds almost every other subject in the discipline. Without the resources that IER provides, the laws, rules, regimes, and organizations that make up the essence of international law can be neither created nor executed. We invite you to review these earlier chapters with new insight into the role that IER played in each area. More broadly, we hope that this text has been a springboard to your engagement with international law, that you will be hungry to explore the myriad of topics we have introduced here in much more detail. Above all, we hope that you will be a part of constructing a more just, fair, and rulesbased world.

Index of Legal Instruments

Act of the African Union, Constitutive, 360 Act, Diplomatic Privileges of (UK, 1708), 186 Act, Espionage (US, 1917), 297 Act, Final of the Uruguay Round, Agreement on Implementation of Article VI, 618 Act, Foreign Corrupt Practices (US, FCPA, 1977), 651 Act, Foreign Sovereign Immunities (US), 99–100 Act, International Organization Immunities (US, IOIA, 1945), 314 Act, Justice Against Sponsors of Terrorism, JASTA (US, 2016), 102 Act, Military Extraterritorial Jurisdiction (US, 2000), 266 Act, Money Laundering Control (US, MLCA), 654 Act, Neutrality (US, 1939), 79 Act, Prevention of Corruption (Kenya, 1956), 654 Act, Sarbanes-Oxley (US, 2002), 653 Act, Space (US, 2015), 254 Act, Torture Victim Protection (US TVPA, 1991), 394 Act, Trade Expansion (US, 1962), 664 Act, Universal Jurisdiction Rejection (US, 2003), 282 Agreement Establishing the World Trade Organization, 611 Agreement, Bretton Woods (BWS, 1944), 606 Agreement, General on Tariffs and Trade (GATT, 1947), 306 Agreement, General on Trade in Services (GATS), 620 Agreement, North American Free Trade (NAFTA), 628 Agreement, Open Skies, 244 Agreement, Paris (2015), 544 Agreement, Trade Related Aspects of Intellectual Property (TRIPS), 602 Agreement, US-Mexico-Canada (USMCA, 2020), 628

Articles, Draft on Prevention of Transboundary Harm (ILC), 572 Articles, Draft on State Responsibility, 90 Articles, Draft on the Effects of Armed Conflict on Treaties (ILC), 596 Articles, Draft on the Protection of the Environment Related to Armed Conflict, ILC (PERAC), 593 Articles, Draft on the Responsibility of International Organizations (ILC, 2011), 316 Articles, ILC Draft on Nationality of Natural Persons in Relation to the Succession of States (UN, 1999), 119 Charter of the Organization of American States (1948), 356, 407 Charter of the UN (1945), 327 Art. 1.2 self-determination principle and, 86 Art. 2.1 sovereign equality principle and, 93 Art. 2.2 good-faith performance and, 156 Art. 2.4 use of force and, 144 Art. 43 use of force and, 505–506 Art. 51 self-defense and, 443, 457 Art. 71 liaison with NGOs and, 323 Art. 73 non-self-governing territories and, 87 Art. 102 registration of treaties and, 155 Charter on Human and People’s Rights, African/ Banjul Charter (1986), 415 Charter, Atlantic (1941), 327 Charter, UN Economic (1974), 644 Code, Article 113-7 of the French Penal, 277 Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT, 1984), 389, 488 Convention Against Transnational Organized Crime, UNGA (2000), 656 Convention and Protocol, Refugee (1951), 122 Convention for the Suppression of Terrorist Bombings, UN (1998), 298

670

Index of Legal Instruments

Convention for the Suppression of Traffic in Women and Children (1921), 88 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA), 241 Convention on Biological Diversity (CBD, 1992), 553 Convention on Consular Relations, Vienna (VCCR), 182 Convention on Diplomatic Asylum, Caracas (1954), 185 Convention on Human Rights, American (1969), 360 Convention on Human Rights, American (ACHR, 1978), 408 Convention on International Trade in Endangered Species of Wild Fauna and Flora Threatened with Extinction (CITES, 1975), 565 Convention on Prohibition or Restrictions on the Use of Certain Conventional Weapons (1980), 478 Convention on Responsibility of States for Damage Done on Their Territory to the Person or Property of Foreigners (1929), 127 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), 382. See also human rights: CEDAW Convention on the Elimination of All Forms of Racial Discrimination, International (ICERD), 141 Convention on the Law of Treaties, Vienna (VCLT, 1969), 135, 143 Article 26, 159 Articles 51–52, 144 Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons Including Diplomatic Agents (UN), 189 Convention on the Prevention and Punishment of the Crime of Genocide, UN (1948), 372 Convention on the Reduction of Statelessness (UN, 1975), 119 Convention on the Safety of UN and Associated Personnel (1994), 313 Convention on the Suppression of Terrorism, European (1977), 298

Convention, Basel on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (Basel Conv., 1992), 565 Convention, Beijing Air (2010), 250 Convention, Chicago Air (1944), 243 Convention, Draft on the International Responsibility of States for Injury to Aliens (1961), 127 Convention, Environmental Modification (1976), 539 Convention, European on Nationality (1997), 107 Convention, Franco-U.S. Consular (1788), 181 Convention, Geneva for the Amelioration of the Condition of the Wounded in Armies in the Field (1864), 449 Convention, Geneva Relative to the Treatment of Prisoners of War, 469 Convention, Genocide (UN), 148–153 Convention, Hague II (1899), 435 Convention, Hague Air (1970), 250 Convention, Hague on Certain Questions Relating to the Conflict of Nationality Laws (1930), 117 Convention, Hague Relative to the Laying of Automatic Submarine Contact Mines (1907), 476 Convention, International against the Taking of Hostages (UN, 1979), 530 Convention, Montevideo Inter-American on the Rights and Duties of States (1933), 59, 130 Convention, Montreal Sabotage (1971), 250 Convention, OECD Bribery, 657 Convention, On the Rights of the Child (1989), 119 Convention, Paris (1919), 242 Convention, Rotterdam on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (PIC, 2004), 565 Convention, Stockholm on Persistent Organic Pollutants (2004), 565 Convention, The Liability (1971), 254 Convention, Tokyo Air (1969), 249 Convention, UN Against Corruption (2003), 656

Index of Legal Instruments Convention, UN Draft on the Use of Electronic Communications in International Contracting (2005), 650 Convention, UN Framework on Climate Change (UNFCCC), 544, 554, 577, 581, 583 Convention, UN on the Law of the Sea (UNCLOS), 232, 561 Convention, UN on the Sale of International Goods (CSIG), 647 Convention, Vienna on Succession of States in Respect of State Property, Archives, and Debts (1983), 83 Convention, Vienna on Succession of States in Respect of Treaties (1978), 83 Conventions, Geneva (1949), 469 Conventions, Hague (1899, 1907), 449 Conventions, Vienna on Diplomatic Relations (VCDR, 1961, 1963), 174 Covenant of the League of Nations (1919), 326 Covenant on Civil and Political Rights, International (ICCPR, 1966), 141, 376 Covenant on Economic, Social, and Cultural Rights, International (ICESCR, 1966), 376 Declaration of Human Rights, Universal (UN, UDHR), 373 Declaration of Independence, US (1776), 370 Declaration of the Rights and Duties of Man, American (1948), 407 Declaration of the Rights of Man and Citizen, (France, 1789), 370 Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations (1970), 454 Declaration on the Enhancement of the Effectiveness of the Principle of Refraining from the Threat or Use of Force in International Relations (UN, 1987), 455 Declaration on the Rights and Duties of States, Draft (ILC), 159 Declaration, Rio on Environment and Development (1992), 553 Declaration, Schuman (1950), 346 Declaration, Stockholm (1972), 549

671

Genocide Convention Article VIII, 526 Guidelines on Reservations to Treaties, Draft (ILC, 2001), 154 Protocol on the Rights of Women in Africa/ Maputo Protocol (1986), 418 Protocol, Kyoto (1997), 555 Protocol, Montreal (1987), 563 Protocol, The Hague Concerning Statelessness (1930), 119 Regulation, General Data Protection of the EU (GDPR), 283 Regulations, International Health (IHR), 304 Resolution 66/290, UNGA (2012), 534 Resolution 377, Uniting for Peace, UNGA (1950), 330, 506 Resolution 687, UNSC, 498 Resolution 688, UNSC (1991), 532 Resolution 2131, Inadmissibility of Intervention in Domestic Affairs (UNGA, 1965), 522 Statute, Rome of the International Criminal Court (ICC, 1998), 97, 433 Kampala Amendments to, 438 Trade-Related Aspects of Intellectual Property Rights (TRIPS), 602 Treaty Banning Nuclear Weapon Tests (1963), 252 Treaty for the Renunciation of War (1928), 451 Treaty of Lisbon (2009), 346 Treaty of Nerchinsk, Sino-Russian (1689), 181 Treaty of Washington (1871), 80 Treaty of Westphalia (1648), 57, 192, 264, 307 Treaty on Extradition (US and Japan, 1978), 290 Treaty on the Rescue of Astronauts, UN (1968), 252 Treaty, Anti-Ballistic Missile (ABM, 1972), 479 Treaty, Comprehensive Test Ban (1996), 480 Treaty, Japanese–American (1858), 182 Treaty, Maastricht (1992), 346 Treaty, Montevideo (1933), 452. See also Convention, Montevideo Inter-American on the Rights and Duties of States

672

Index of Legal Instruments

Treaty, Moon (1984), 253 Treaty, North Atlantic, 353 Treaty, Nuclear Non-Proliferation (1968), 482 Treaty, Outer Space (1967), 251 Treaty, Rio (1947), 357

UN Convention on the Law of the Sea (UNCLOS), 561 Article 5, baseline, 222 Article 18.5, innocent passage, 223 Article 33.1, contiguous zone, 228

Index of Subject Terms

absolute immunity. See under states: immunity of adjudication Continental Shelf Cases and, 236 Administration, Drug Enforcement, US (DEA), 292 Afghanistan, 83, 457 NATO role in, 355 Taliban government of, 463 UN actions and, 463 UNPKO and, 510 US occupation of, 208, 464 African Charter, 415 African Commission on Human and People’s Rights (AfCHPR), 415 African Court on Human and People’s Rights (AfCtHPR). See under human rights and international environmental law, 592 collective rights and, 591 Ogiek community ruling and, 591 African Union (AU), 360–362 Darfur peacekeeping and, 361 International Criminal Court and, 362 Agency, Spanish Data Protection (AEDP), 285 Agenda 21. See under Rio Conference Agenda 2063. See African Union Agenda for Peace (Boutros-Ghali). See UN Peacekeeping Operations aggression, crime of. See human rights: aggression agrément. See relations: diplomatic airspace sovereignty. See sovereignty: airspace al-Assad, Bashar, 261 Albania. See states: responsibility of al-Bashir, Omar Hassan (President of Sudan) genocide in Darfur and, 97, 361 alien (foreign national) unreasonable arrest and detention of. See international minimum standard Alien Tort Statute (ATS). See human rights: Torture Victim Protection Act aliens, 126 Alvarez Machain, Dr. Humberto, 292

ambassador. See also relations: diplomatic career vs. political appointment, 174 Ambassador Extraordinary and Plenipotentiary (AEP). See relations: diplomatic Antarctic Treaty compared with Outer Space Treaty, 253 Antarctica res communis and, 198 Aquinas, Thomas. See also international law: development of Summa Theologica, 23 Arab League peacekeeping operations and, 519 use of force and, 467 arbitration, 89, 116 beginning of, 80 Arbitration, Permanent Court of, 116 arms control. See under laws of war Assange, Julian, 183, 297 assassinations, targeted (US), 492 Association of Southeast Asian Nations (ASEAN) health security and, 536 balance, principles of, 568, 579 Common But Differentiated Responsibilities (CBDR), 580 intergenerational equity, 583 participation, 582 polluter pays, 579 Ban Ki-moon (UN Secretary-General), 178, 320, 544 Bentham, Jeremy, 468 Biden, Joseph (US President) Assange extradition and, 297 economic relations with China and, 600 ICC and, 440 Paris Agreement and, 545 support of WHO and, 303 TPP and, 625 Bill of Rights, US Constitution (1788), 371 Blinken, Anthony, 16, 52 Bosnia-Herzegovina, 423. See also Yugoslavia

674

Index of Subject Terms

Bosnia-Herzegovina (cont.) genocide in, 434 NATO and, 519 peacekeeping and, 519 rescue operation and, 531 Brazil, 326 Copenhagen environment accord and, 557 EEZ development and, 234 generic AIDS drugs and, 623 populist attack on UN and, 342 populist pushback to globalization and, 663 Rio environmental conference in, 552 UNSC enlargement and, 334 Bretton Woods System, 606 reserve currency in, 608 Brexit, 134 and pushback against globalization, 663 bribery, 654 Brundtland Commission. See Commission, Brundtland Burma Massachusetts trade law and, 68 Bush, George W. (US President), 180, 555 ABM Treaty and, 479 approach to self-defense and, 489 economic relations and, 617 ICC and, 434 NGOs and, 323 Canada Arctic dispute and, 236 Barcelona Traction case and, 633 dispute over Hudson Bay and, 220 environmental law and, 568 Huawei dispute and, 277 Northwest Passage claim and, 227 protective principle and, 279 space liability claim (1979) and, 255 Supreme Court's ruling on sovereign immunity and, 93 USMCA and, 628 cases in international law how to brief a case, 4–7 how to read a case, 2–4 Catalonia, 86 chargé d’affaires. See relations: diplomatic Charter of UN, 62–63, 327 core principles of, 327 creation of, 327 environment and, 545 environmental security and, 540

human rights and, 371 humanitarian intervention and, 520 ICJ provisions under, 337 law-making authority and, 331 legal personality of UN and, 309 limitations under, 334 military conquest and, 200 non-interference principle and, 193 outlawing of war and, 328 peaceful settlement of disputes under, 328 R2P doctrine and, 425 regional organizations and, 466 regional treaties and, 41 responsibility in Rwanda and, 317 role of UNGA under, 329 Secretariat provisions under, 340 state responsibility and, 90 UNGA resolutions and, 47 UNSC procedures and, 335 use of force and, 456, 499, 517 China, 161, 239, 343, 439, 557, 654 admission to WTO and, 606 anti-corruption measures and, 665 blocking vetoes on UNSC and, 425 challenge to right of innocent passage and, 232 control of Internet and, 661 COVID crisis and, 303 creation of artificial islands and, 232 CTBT signing and, 481 death penalty and, 379 drafting of UN Charter and, 327 Great Firewall of, 664 human rights and, 371 identification zones and, 232, 246 intellectual property rights and, 610 intervention in Cambodia and, 512 land title and, 194 militarization of space and, 256 Nine-Dashed Line map and, 234 North Korean denuclearization and, 482 P-5 seat on UN Security Council and, 332 ratification of Kyoto Protocol and, 556 South China Sea arbitration and, 191–192 space debris liability and, 255 support of Russian maritime claims and, 236 Tiananmen Square demonstrations in, 183 trade war with US and, 600 Uyghur concentration camps and, 368 Venezuela recognition crisis and, 358 WHO and, 364

Index of Subject Terms Churchill, Winston, 345. See also European Union: evolution of citizenship. See individuals: status in international law: nationality Court of Justice of the EU (CJEU). See European Union: Court of Justice of the EU climate change. See also Paris Agreement CBDR and, 580 changes to law of the sea and, 226 disappearing islands and, 66 environmental security and, 540 erga omnes and, 596 impossibility of treaty performance and, 164 intergenerational equity and, 583 IPCC and, 558 Kigali Amendment and, 564 Kyoto Protocol and, 555 Paris Agreement and, 545 UNSC and, 540 US President Trump and, 355 Cold War, 225, 335, 642 economic relations during, 662 peacekeeping and, 505 regional IOs and, 466 spheres of influence and, 511 UN inaction and, 336 collective security, 497 collective self-defense. See use of force: collective self-defense Colombia, 37 asylum case and, 184 TIAR and, 359 UNPKO in, 508 Combat Status Review Tribunals (CSRT) war on terrorism and, 490 commercial aircraft. See sovereignty: airspace Commission nationale de l’informatique et des libertés (CNIL, France), 286 Commission, Brundtland (1983), 553, 583 Our Common Future, 551 Committee Against Torture. See human rights: Convention Against Torture Committee on the Elimination of Discrimination Against Women. See human rights: Committee on the Elimination of Discrimination Against Women Committee, 1267. See use of force: sanctions Committee, International of the Red Cross (ICRC), 449. See also use of force Committee, UN Security Council Sanctions, 457

675

Common But Differentiated Responsibilities (CBDR). See under balance, principles of Common Foreign and Security Policy. See European Union: evolution of Community, European Atomic Energy (EURATOM), 346 Community, European Coal and Steel (ECSC), 346 Comprehensive Test Ban Treaty (CTBT) US rejection of, 481 Conferences, Hague. See use of force: Hague Conferences confiscation of property. See states: responsibility of: confiscation of property conflict, low-intensity (LIC). See under laws of war Congo Arrest Warrant case and, 98 case against Rwanda and, 153 peacekeeping operations in, 515 use of child soldiers in, 438 Congress of Vienna, 169 Constitution of WHO, 363 constitutive theory. See states: recognition of consular immunity. See diplomats, immunity of consular posts. See relations: diplomatic consulates. See diplomacy: consular Contiguous Zone (CZ). See sovereignty: maritime Continental Shelf. See sovereignty: maritime Convention Against Torture, UN (CAT). See under human rights; use of force Convention on Consular Relations, Vienna (1963), 179 Convention on International Trade in Endangered Species (CITES). See international environmental law: CITES Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). See under human rights Conventions, Geneva. See laws of war: Geneva Conventions and Corporation, International Finance (IFC), 321 corporations. See multinational corporations corrupt international transactions. See under international economic relations corruption. See international economic relations

676

Index of Subject Terms

Coudenhove-Kalergi, Richard. See European Union: evolution of Council of Europe (1949), 402 Court of First Instance, European, 383 Court of Justice of the European Union (CJEU) data privacy and, 285 WTO banana controversy and, 611 Court, Constitutional of Spain universal jurisdiction and, 282 Court, International Criminal (ICC). See International Criminal Court Court, Special for Sierra Leone, 432 Court, UNCLOS Permanent of Arbitration (PCA), 246 Courts of Cambodia, Extraordinary Chambers in the, 432 courts, gacaca (Rwanda), 427 COVID-19 pandemic (2020). See also under United Nations: World Health Organization Hong Kong protests and, 53 human security and, 535 legal questions and, 365 role of MNCs and, 647 UNPKO and, 513 vaccine distribution and, 622 crashes, airplane. See individuals: status in international law crime of aggression, 438 crime, computer-assisted (cybercrime). See international economic relations: combating cybercrime and Crimea. See states: changes in status: secession crimes against humanity. See under human rights Crisis, Suez Canal (1956), 507 Cuba. See also relations: diplomatic membership in OAS and, 356 nationalization of MNCs and, 132 Paquete Habana case and, 39 plane shootdown and, 247 stateless refugees and, 118 US Guantánamo Base and, 122 US intervention in (1898), 527 customary international law, 37, 40. See also international law, sources of airspace zones and, 242 assassination and, 492 CITES sanctions and, 567 diplomatic practice and, 169 economic relations and, 639, 667

environmental law and, 578 evidence of, 46 extraterritorial jurisdiction and, 267 human rights and, 373 maritime law and, 218, 222, 562 necessity and, 459 overlapping sea zones and, 230 treaties and, 41 treaties versus, 41, 51 use of force and, 449 customs union definition of, 627 cybercrimes, 92 Cyprus, 222 problems of non-recognition, 73 Czechoslovakia German cession and, 209 split of, 84 Darfur. See also African Union genocide in, 361 genocide label and, 526 ICC case and, 439 NGO genocide and, 426 peacekeeping operations in, 519 UNSC and, 264 de Vitoria, Francisco, 24–25 death penalty, 180 extradition and, 291 ICCPR limitations on, 379 declaration of intent. See also treaty: classification of definition of, 139 Just War and, 520 declaratory theory. See states: recognition of decolonization. See United Nations: Trusteeship Council deep seabed. See also sovereignty: maritime; UN Convention on the Law of the Sea UNCLOS provisions and, 563 defense, anticipatory. See use of force: anticipatory defense and defense, collective self-. See use of force: collective self-defense, and Deferred Action for Childhood Arrivals (DACA). See treaty: classification of: self-executing vs. declaration of intent Democratic Republic of the Congo. See Congo denial of justice. See under states: responsibility of Denmark Arctic dispute and, 236 Copenhagen Accord (2009) and, 556

Index of Subject Terms Greenland territorial dispute and, 202 oral treaty and, 136 territorial dispute and, 235 deprivation of livelihood. See under states: responsibility of detainees access to consular officials and, 139 Geneva Convention protections of, 470, 490 rendition and, 299 diplomacy asylum under, 184 consular, 180 evolution of, 168–170 extraterritoriality and, 183 functions of, 175 international organizations and, 177 multilateral and summits, 176–178 new, 168 preventative, 169 use of pouch, 188 diplomatic accreditation. See relations: diplomatic diplomatic asylum. See diplomacy: asylum under diplomatic immunity. See diplomats: immunity of diplomatic insurance. See diplomats: immunity of diplomatic pouch. See diplomacy: use of pouch diplomats duties of, 167 immunity of, 168, 185–187 waiving, 188 disabled persons, rights of El Salvador and, 511 discovery, 300 dispute, US–China tariff, 600–601 Doctors Without Borders, 531 doctrine of Just War. See Just War doctrine of reinforced obligations of protection, 538 doctrine of Responsibility to Protect. See Responsibility to Protect Doctrine, Calvo, 644 doctrine, effects, 269 Doctrine, Estrada. See under states: recognition of Dominican Republic nationality ruling, 109 donor fatigue, 526 drones. See under laws of war: arms control

677

dual or multiple nationality. See under individuals: status in international law dualism. See monism vs. dualism East Timor peacekeeping operations in, 335 self-determination and, 88 Ebola outbreaks. See United Nations: WHO Economic and Social Council (ECOSOC). See also under United Nations Agenda 21 and, 553 human rights treaties and, 375 Economic Community of West African States (ECOWAS), 381 peacekeeping and, 514 economic union, 627 Ecuador Assange case and, 297 IEL and, 570 same-sex marriage and, 414 territorial sea and, 221 Egypt, 23, 650 Camp David Accords and, 177 state responsibility to an international organization and, 309 Suez Canal Crisis and, 507 torture and, 491 embassy location. See relations: diplomatic emissions, greenhouse gas. See greenhouse gases enemy combatants, 437, 486, 490 US legal standards and, 490 England, 640. See also United Kingdom entry into force. See treaty: entry into force of epistemic community Montreal Protocol (1987) and, 563 equidistance principle, 37 Eritrea dual citizenship and, 116 Estrada Doctrine. See under states: recognition of Ethiopia, 59, 326 dual nationality and, 116 human rights and, 368 League of Nations and, 451 non-Western international law and, 28 ethnic cleansing, 40, 379, 435 in Bosnia-Herzegovina, 501 in Myanmar, 367 R2P and, 524 EU. See European Union EUFOR (Bosnia), 514

678

Index of Subject Terms

European Commission. See European Union European Community, 71. See also European Union European Convention on Human Rights (ECHR). See human rights: ECHR European Court of Human Rights (ECtHR). See also human rights: ECtHR no right to a healthy environment and, 588 rulings on environment and, 546 European Parliament. See European Union: Parliament European Social Charter, 403 European Union (EU), 305, 611 anti-corruption convention (1997), 655 assessment of, 351–352 autocratic states in, 352 banana trade dispute and, 611 Brexit and, 351 candidate countries, 347 Closer Economic Relations (CEU) under, 629–630 conferred competence of, 350 Council of the, 347 Court of Justice (CJEU), 347 description of, 348 democratic deficit in, 351 enlargement of, 347 European Commission, 43, 324, 347–349 duties, 347 evolution of, 344–347 “The Six,” 346 institutions of, 347 Kosovo and, 502 Kyoto Protocol and, 555 legal personality of, 308, 350–351 Maastricht Treaty and, 346 MNC regulation and, 611 Parliament, 348 precautionary principle (IEL) and, 555 privacy regulation of MNCs and, 611 role in recognizing states, 82 Yugoslav crisis and, 354 Exclusive Economic Zone (EEZ). See sovereignty: maritime; UN Convention on the Law of the Sea extradition, 137, 183, 189, 289, 297. See also jurisdiction, extraterritorial extraterritorial jurisdiction. See jurisdiction, extraterritorial

Facebook/Meta, 646 financial crimes. See international economic relations Finland EU membership and, 347 flag state, 218 airspace law and, 250 law of the sea and, 215 rescues at sea and, 241 responsibility in maritime law and, 562 vs. port state, 218 Food and Agriculture Organization, UN (FAO), 547 Force, African Standby (ASF), 467 force, use of. See use of force Foreign Corrupt Practices Act (FCPA) bribery under, 652 prosecutions under, 652 US President Trump’s pushback against, 653 foreign relations. See statehood: elements of foreign-service officers. See diplomacy: functions of Forest Principles Rio Conference (1992) and, 552 Foundation, Urgenda, 583 Fourteen Points, speech (1918), 325 fragile states. See states, fragile France creation of EU and, 346 Google and, 286 ICC ratification and, 434 League of Nations and, 451 Libya and, 494 Lotus case and, 269 nationality and, 106 NGO humanitarian intervention and, 531 non-UN peacekeeping and, 519 Paris Agreement (2015) and, 544 Rainbow Warrior case and, 89 Renunciation of War treaty and, 451 Suez Canal Crisis and, 507 temple border dispute and, 211 functions of consular officials. See diplomacy: consular Fund, Contingency for Emergencies (CFE), WHO, 536 Gaddafi, Muammar, 174 Gambia. See relations: diplomatic General Assembly. See under United Nations

Index of Subject Terms Geneva Conventions and international environmental law, 592 genocide. See human rights: genocide German Democratic Republic recognition of, 71 Germany, 239 cession and, 209 Continental Shelf case and, 235 creation of EU and, 346 extradition and, 291 League of Nations and, 326 Nazi genocide and, 423 sovereign immunity and, 93 superior-orders defense and, 474 Syrian war crimes trial (2019) and, 261 UNSC enlargement and, 334 Global South resource security and, 541 globalization populist pushback to, 663 Goals, Millennium Development. See Millennium Development Goals Goals, Sustainable Development. See Sustainable Development Goals good offices. See relations: diplomatic: making and breaking; United Nations: Secretariat Google/Alphabet regulation of, 646 governance, global, 307 Great Britain. See United Kingdom greenhouse gases (GHGs), 542, 554, 557, 559, 579–580, 583, 596 Grotius, Hugo, 25–26 The Law of War and Peace, 26 Guaidó, Juan. See Venezuela: dual government recognition; Organization of American States: Venezuela and Guatemala, 111 guerrilla conflicts, 486 Guterres, Antonio (UN Secretary-General), 325 Haiti refugees, 122 United Nations and, 320 Hamas use of force and, 461 Hammarskjöld, Dag (UN Secretary-General), 504 High Authority. See European Union: evolution of

679

Holocaust. See human rights: Holocaust and Holy Roman Empire, 23 Hong Kong status of, 53–54 Hotel Rwanda (film), 300, 432 Huawei, 277 Human Development Report (1994), 534 human rights AfCtHPR influence of other courts on, 417 jurisdiction of, 415 legitimacy challenges and, 419 withdrawals from, 419 African system of, 415 aggression narrow definition of, 438 Convention Against Torture (CAT) Article 3 of, 391 behavior of signatory states and, 390 Committee Against Torture, 390 definition of torture, 389 refouler and, 391 refugees and, 391–394 reporting under, 390 Somali Bantu and, 391 universal jurisdication and, 389 Convention on the Elimination of Discrimination Against Women (CEDAW) Committee on the Elimination of Discrimination Against Women and, 382 compliance with, 387 follow-up procedures and, 388 goals of, 382 Optional Protocol to, 382 societal change and, 388 crimes against humanity sub-categories of, 436 criticisms of UDHR, 374 development of, 369–375 due process of law and, 370 ECHR goals and structure of, 403–404 ECtHR about, 402 caseload of, 404 Committee of Ministers and, 404 controversial decisions of, 405 influence on other courts, 407

680

Index of Subject Terms

human rights (cont.) margin of appreciation and, 406 scope of, 404 French Declaration of Rights and, 370 genocide, 372 difficulty of conviction, 423 dolus specialis component of, 422 in whole or in part doctrine, 422 international military tribunals Nuremberg, 428–429 Lemkin, Raphael, and, 420 misuse of term, 424 Nazi pattern of, 420 non-state actors and, 426 of Herero and Nama tribes (Namibia), 372 prosecution of, 426 R2P doctrine and, 425 rape as, 423 Roosevelt, Eleanor, and, 373 terrorism and, 426 UN definition of, 421 UNSC vetoes and, 424 hybrid national–international courts, 432 individual rights and, 370 Inter-American Convention on Human Rights (IACHR) American Commission on Human Rights and, 408 individual rights and, 407 responsibilities of, 408 role of, 407 Inter-American Court of Human Rights (IACtHR) high-profile rulings, 409 jura novit curia, 409 progressive rulings of, 414 responsibilities of, 408 same-sex marriage and, 410 inter-American system, 407 backlog in, 408 International Bill of Rights and, 376 International Covenant on Civil and Political Rights (ICCPR) as self-executing treaty, 377 goals of, 376 Human Rights Committee and, 377 optional protocols to, 377 Second Optional Protocol and, 379 International Covenant on Economic, Social, and Cultural Rights (ICESCR) General Comments and, 380

Optional Protocol to, 379 principle of progressive realization, 380 UN Committee on Economic Social and Cultural Rights (CESCR) and, 380 International Criminal Court (ICC), 434 challenges to, 439 constraints on, 434 convictions under, 438 establishment of, 433 jurisdiction and responsibilities of, 433 national responses to, 434 Rome Statute of, 433 threats to withdraw from, 439 US Biden Administration and, 440 International Criminal Tribunal for Rwanda (ICTR) establishment of (1993), 431 evaluation of, 431 International Criminal Tribunal for the former Yugoslavia (ICTY) application of humanitarian law and, 430 establishment of, 429 innovations in prosecuting rape, 430 IRMCT and, 431 international military tribunals Tokyo, 428 jus cogens and, 372 natural law and, 370 Nuremberg principle, 429 regional approaches, 402 Torture Victim Protection Act (TVPA) Alien Tort Statute (ATS) and, 394 Enlightenment and, 370 extraterritoriality and, 399 goals of, 395 Holocaust and, 371 MNCs and, 395–400 Saro-Wiwa, Ken, and, 395 UN UDHR and, 373 UN Charter and, 371 UN Human Rights Council (HRC) evolution of, 401 membership of, 401 universal periodic review and, 401 US Constitution and, 371 US Declaration of Independence and, 370 war crimes categories of, 437 human security Commission on (UN, 2001), 534 components of, 496 definition of, 533

Index of Subject Terms environmental and resource, 539 evolution of concept, 533–535 health and, 535 personal data protection and, 538 personal security and, 536 regional courts and, 535 humanitarian intervention Article 56 of UN Charter and, 520 definitions of, 523 in Bosnia-Herzegovina, 500 in Kosovo, 502 multilateral vs. unilateral, 528 NGOs and, 531–533 regional approaches to, 529 rescues, 529–531 state self-interest and, 527 immunity for heads of state. See states: sovereign immunity of: heads of state individuals status in international law, 103–105 birth, 107 dual nationality, 115–117 nationality, 105–107 naturalization, 110 parentage, 107 refugees, 121 statelessness, 118–120 Initiative, Stolen Asset Recovery (StAR), 656 innocent passage. See sovereignty: maritime intellectual property rights, 621–626 Inter-American Commission on Human Rights, 407. See also under human rights Inter-American Court of Human Rights. See also under Organization of American States; human rights community right to healthy environment and, 590 indigenous groups and, 589 right to healthy environment and, 588 Intergovernmental Panel on Climate Change (IPCC), 66, 548, 560 Assessment Reports of, 559 careful guidance of, 560 structure of, 548 Summary for Policymakers (SPM), 559 working groups under, 559 internally displaced people (IDPs), 121 International Court of Justice (ICJ). See under United Nations

681

International Covenant on Civil and Political Rights (ICCPR). See under human rights International Covenant on Economic Social and Cultural Rights (ICESCR). See under human rights International Criminal Court (ICC), 97. See also under human rights International Criminal Tribunal for Rwanda (ICTR). See under human rights International Criminal Tribunal for the Former Yugoslavia (ICTY), 97. See also under human rights international economic relations (IER) bilateral investment treaties (BITs), 645 Brexit and, 663 CISG and, 648–650 combating cybercrime and, 660–661 confidence and, 607 corrupt international transactions and, 651 cryptocurrency and, 608 currency adjustments under, 607 definition of, 600 evolution of, 604–605 global proletariat and, 662 Letters of Credit and, 650 liquidity and, 607 minimum corporate tax and, 647 MNCs and, 631 NAFTA and, 628 price-fixing and, 659 private international trade law and, 647 recovery of stolen assets and, 656 regional organizations and, 627 sanctions and, 603 tariffs and, 603 Uniform Customs and Practices for Documentary Credits (UCP) and, 651 US-Mexico-Canada Agreement (USMCA) and, 628 views on future of, 666–667 weakening of anti-corruption measures and, 665 international environmental law balance. See balance, principles of; prevention, principles of CITES, 565 functioning of, 566 sanctions under, 566 erga omnes obligations and, 596 human rights law and, 585 Kyoto Protocol and. See Kyoto Protocol MNCs and, 596–598

682

Index of Subject Terms

international environmental law (cont.) Montreal Protocol and. See Montreal Protocol no harm principle and, 568–574 reparations under, 573 Rio Conference and. See Rio Conference Stockholm Conference (1972) and, 548 Stockholm Declaration key principles of, 549–550 sustainable development, 550–553, 557, 562, 580 definition of, 551 transboundary harm, 574–575, 596 UNCLOS and, 561–563 international law Chinese view of, 29–30 definition of, 18 development of, 22 enforcement of, 20–21 non-Western approaches to, 28 other actors, 22 International Law Commission (ILC), 90 Draft Articles on the Protection of the Environment Related to Armed Conflict (PERAC), 593 international law, sources of, 35 custom, 36–40 general principles, 42–43 hierarchy of sources, 49–51 judicial decisions, 43–46 scholarly writings, 46–47 treaties, 40–42 UN resolutions, 47–49 international minimum standard (IMS), 129–130 international organizations. See organizations, international International Seabed Authority. See sovereignty: maritime: deep seabed International Tribunal for the Law of the Sea (ITLOS), 562 international waters. See sovereignty: maritime: high seas intervention, humanitarian. See humanitarian intervention Iran storming of US embassy, 131 Iraq intervention in, 498–499 Islamic State, 91 Israel, 172 delayed recognition of, 71 use of force and, 461

Italy and violation of refugee policy, 124 joinder. See states: changes in status jura novit curia. See under human rights: InterAmerican Court of Human Rights jurisdiction, extraterritorial compared with sovereignty, 193, 263–267 definition of, 262 extradition, 289 refusal, 297 Internet and, 283–289 MNCs and, 598 principles of nationality, 275 passive personality, 275–278 protective, 278 territorial, 267–274 universality, 279–282 rendition, 298–301 jus ad bellum. See under Just War jus gentium, 24 jus in bello. See under Just War jus sanguinis. See individuals: status in international law: birth jus soli. See individuals: status in international law: birth Just War, 23, 459 jus ad bellum, 520 jus in bello, 520 Kellogg–Briand Pact (1928), 451 Khashoggi, Jamal, 182 Kosovo. See states: recognition of: by other states Kyoto Protocol (1997), 555 Doha Amendment to, 556 targets for greenhouse gas reduction and, 555 US withdrawal from, 555 lack of due diligence. See under states: responsibility of Law, Nazi Collaborators Punishment (Israel), 280 law, private international trade. See under international economic relations Law, Universal Jurisdiction (Belgium), 282 laws of war (LOW), 467 air missiles and, 478 arms control, 480

Index of Subject Terms drones and automated weapons systems (AWS), 481 nuclear weapons, 482 clarification of terminology, 468 Geneva Conventions and, 469–473 lawful and unlawful orders under, 473 low-intensity conflict (LIC) and, 485–486 definition of, 485 My Lai massacre and, 474 naval minelaying and, 476 visit and search, 476 NGO responsibility under, 516 superior-orders defense, 474 terrorism and US-led changes to combat and, 490 UN accountability under, 515 League of Nations, 326 assessment of, 326 US and, 350 Wilson, Woodrow, and, 325 Lebanon massacres in, 282 Lemkin, Raphael, 372, 421–422. See also human rights: genocide Letters of Credit (LOC). See under international economic relations Lex Mercatoria (Law of Merchants), 604 Liberal International Economic Order (LIEO), 601 academic defense of, 663 development needs and, 665 pushback against, 601 Libya, 174 humanitarian intervention in, 494–495 refugees from, 124 Libyan National Transitional Council, 81 Liechtenstein, 111 Lima Group, 77 Lopez Obrador, Manuel. See states: recognition of: Estrada Doctrine Mechanism, International Residual for Criminal Tribunals (IRMCT), 431 Médecins Sans Frontières (MSF). See Doctors Without Borders Meetings of the Parties (MOPs) Montreal Protocol and, 564 mercantile law. See international law: development of merger. See states: changes in status: succession

683

Microsoft Corporation and EU, 349 Mill, John Stuart humanitarian intervention and, 523 Millennium Development Goals (MDGs), 496, 551 Milosevic, Slobodan trial of, 97 Mindszenty, Cardinal Jozsef. See diplomacy: asylum under minelaying. See under laws of war: naval missiles. See laws of war: air; sovereignty: airspace missiles, hyper-sonic (Russian), 485 monism vs. dualism, 31–34 Montreal Protocol (1987), 563–565 chlorofluorocarbons (CFCs) and, 563 functioning of, 564 Kigali Amendment to, 564 Morgenthau, Hans, 169 multinational corporations (MNCs), 631. See also under international environmental law Barcelona Traction bright-line rule and, 639 codes of conduct and, 642–643 environmental law and, 548 human rights abuses and, 396 international law and, 22 legal personality of, 631 nationalization of, 645 representation of in international law, 632 shareholder rights and, 637 space exploration and, 258 state immunity and, 100 state responsibility for damages to, 127 state responsibility for environmental harm from, 570 stolen assets and, 657 UNCLOS and, 237 UNCTAD and, 642 universal bankruptcy laws and, 641 Myanmar. See also Burma Rohingya and, 367 nationally determined contributions (NDCs), 581 naturalization. See under individuals: status of international law Nauru international environmental law and, 570 necessity, doctrine of. See use of force: necessity

684

Index of Subject Terms

New International Economic Order (NIEO), 332, 601, 641 development of Global South and, 665 non-refoulement. See individuals, status in international law: refugees non-tariff barrier (NTB), 615 non-wealth injuries. See under states: responsibilitiy of North Atlantic Treaty Organization (NATO), 305, 353–356 9/11 and, 355 collective security principle of, 353 peacekeeping operations and, 495 peacekeeping, non-UN and, 519 Russia and, 355 US Trump Administration and, 355 Yugoslav conflict and, 305 North Korea problem of non-recognition, 75 nuclear weapons. See weapons, nuclear Office, UN on Drugs and Crime Prevention (UNODCP), 657 Operation Restore Hope in Somalia (UN, 1991), 505 operations, peacekeeping, non-UN. See peacekeeping operations, non-UN Operations, UN Peacekeeping (UNPKO). See UN Peacekeeping Operations opinio juris and consent, 19–20 Order, New International Economic (NIEO). See New International Economic Order Organization for Economic Cooperation and Development (OECD) anti-bribery convention and, 657–659 Organization of African Unity. See African Union Organization of American States (OAS), 356–360 as regional agency, 357 collective security in, 357 Guatemala–Belize dispute and, 357 Inter-American Court of Human Rights (IACtHR), 360 Pan American Union, 356 Venezuela and, 358 Organization, World Health (WHO). See United Nations: World Health Organization Organization, World Trade (WTO). See World Trade Organization organizations, international administrative vs. political, 323

classification of, 322–324 definition of, 305 functional model of, 322 global vs. regional, 324 governmental vs. non-governmental, 306 growth of, 306 immunity of, 322 legal capacity of, 308–314 legal personality of, 306 private and NGO, 323 responsibilities of, 318 supranational, 324 organs of United Nations. See under United Nations outcasting, 21 Pact, Kellogg–Briand (1928) Treaty for the Renunciation of War. See Kellogg–Briand Pact Palestine, 60–64, 172 Pan Am Flight 103, 291 Pan American Union. See Organization of American States Paris Agreement goals of, 544, 557 nationally determined contributions (NDCs) and, 581 preliminary negotiations on, 556 US Obama Administration and, 557 participation principle. See balance, principles of peacekeeping operations, non-UN, 519 permanent members of UN Security Council. See United Nations: Security Council Persian Gulf War environmental impact of, 594 persona non grata, 172, 188 piracy, 240, 280 port tranquility law of the sea and, 218 Powell Doctrine, 480 precautionary principle ECtHR and, 546 US rejection of, 578 use of scientific evidence and, 577 preemption, doctrine of. See use of force: preemption premise immunity. See diplomacy: extraterritoriality and prevention, principles of, 568 no harm, 568 precaution, 577 prevention, 574

Index of Subject Terms preventive diplomacy. See United Nations: Secretariat principle of non-intervention, 522 principle, no harm. See under international environmental law Principles of International Law Recognized in the Charter of the Nuremberg Tribunal (ILC, 1950), 429 private aircraft. See sovereignty: airspace privilege, state secrets, 299 Prompt Global Strike capability (US, 2010), 482 property and debts, obligations of a successor state. See states: changes in status: succession proportionality, doctrine of. See use of force: proportionality public aerial vehicles. See sovereignty: airspace: military aircraft and Public Health Emergency of International Concern (PHEIC). See United Nations: WHO Pufendorf, Samuel, 26–27 Radio Machete case. See human rights: ICTR raison d’état (reasons of state), 497. See also use of force: reasons of state and recall of ambassador. See relations: diplomatic: making and breaking recognition of belligerency. See states: recognition of: belligerency refugees. See individuals: status in international law: refugees relations, diplomatic, 170–174 making and breaking, 172–174 relations, international economic. See international economic relations rendition. See also jurisdiction, extraterritorial definition of, 298 renditions, extraordinary, 491 Report, International Law Commission (2006). See jurisdiction, extraterritorial rescues. See humanitarian intervention Responsibility to Protect (R2P) humanitarian intervention and, 524 limitations on, 526 principles of, 524–526 restrictive immunity. See under states: sovereignty immunity of Richelieu, Cardinal, 169 right to be forgotten, 284

685

rights Lesbian, Gay, Bisexual, Transgender, Queer (LGBTQ), 410 rights, human. See human rights Rio Conference (1992) Agenda 21 and, 552 Biological Diversity Convention (CBD) and, 553 Rio Declaration and, 553 Rio Declaration Principle 24 and, 593 Rohingya, 367 Roosevelt, Theodore, 176 Rossi, Ernesto. See European Union: evolution of Rusesabagina, Paul, 300 Russia admission to WTO and, 606 Arctic claim and, 236 change of nuclear doctrine and, 479 responsibility for crash of flight MH17 (2014), 104 responsibility for cybercrimes. See states: responsibility of use of force in Ukraine and, 442–443 Rwanda. See also relations: diplomatic and R2P, 526 rendition and, 301 sanctions, economic, 326, 334, 358. See also international economic relations against Russia over Ukraine, 442 by US against ICC, 440 punitive nationalist use of, 664 Saro-Wiwa, Ken. See under human rights: Torture Victims Protection Act Saudi Arabia, 102 Schuman, Robert. See European Union: evolution of Scott, J. new diplomacy and, 169 Security Council. See under United Nations security, collective. See collective security security, human, 444. See also human security security, national, 447. See also use of force security, positive, 534 Severe Acute Respiratory Syndrome (SARS). See United Nations: WHO Somalia intervention in, 505 South Sudan, recognition of. See states: recognition of: by other states

686

Index of Subject Terms

sovereign immunity. See states: sovereign immunity of sovereignty accretion and, 212 airspace, 241 commercial aircraft and, 243–245 domestic, 246 excessive force and, 248 external airspace, 249–251 military aircraft and, 247 missiles and, 248 private aircraft and, 243 boundary resolution and, 213 cession and, 209 definition of, 192 estoppel and, 210 exclusive, 194 internal vs. external, 193 Joint Decision and, 210 maritime baseline, 223 bays, 219–220 brief history of, 214–216 contiguous zone (CZ), 228–229 Continental Shelf (CS), 234–236 deep seabed, 237–239 Exclusive Economic Zone (EEZ), 229–232 high seas, 227 innocent passage, 226 internal waters, 216 ports, 217–218 strait passage, 226 territorial seas, 220–222 occupation and, 208 outer space, 251–259 as res communis, 251 commercialization of, 258 liability and, 254 militarization and, 256–257 prescription and, 210 res communis, 198–199 terra nullius, 195–198 through military conquest, 200–201 trust territories, 199 uti possidetis juris and, 214 space law. See sovereignty: outer space Space Station, International (ISS), 258 space, commercialization of. See sovereignty: outer space space, militarization of. See sovereignty: outer space: militarization and

SpaceX. See sovereignty: outer space: liability and Spinelli, Altiero. See European Union: evolution of state legal personality in international law, 56 state secrets privilege. See rendition statehood elements of, 58–59 foreign relations, 68–69 government, 67 population, 59 territory, 60 statelessness. See under individuals: status in international law states changes in status, 83 secession, 86–88 succession, 83–86 disappearing, 66 fragile, 65–66 immunity of absolute immunity, 94 recognition of, 69 belligerency, 79–81 by international organizations, 81–83 by other states, 69–72 constitutive theory, 72 declarative theory, 72 Estrada Doctrine, 77 premature, 71 Tobar Doctrine, 76 responsibility of, 88–90 confiscation of property, 131 denial of justice, 128–129 deprivation of livelihood, 132 IMS. See international minimum standard lack of due diligence, 131 non-wealth injuries, 127–128 to foreign nationals, 126–127 sovereign immunity of, 93–94 heads of state, 96–97 other officials, 97 restrictive immunity, 98 states, Global North and Global South definition of, 662 Stockholm Declaration. See under international environmental law strait passage. See sovereignty: maritime Straits of Hormuz, 476 succession. See states: changes in status: succession of

Index of Subject Terms Summary for Policymakers (SPM). See Intergovernmental Panel on Climate Change summits. See diplomacy: multilateral and summits Sustainable Development Goals (SDGs), 534, 551 sustainable development, principle of. See international environmental law Syria human rights abuses in, 261 Taiwan, 64–65 Taylor, Charles, 432 termination of diplomatic relations. See relations: diplomatic: making and breaking terrorism. See under use of force test, Caroline, 459 theory/jurisprudence in international law, 10–11 Table 0.1, 12–15 Third World Approaches to International Law (TWAIL), 28 Tobar Doctrine. See under states: recognition of Torture Victim Protection Act (TVPA). See human rights: TVPA Trade-Related Aspects of Intellectual Property Rights (TRIPS), 623 global public health and, 623 Trail Smelter arbitration no harm principle and, 568 Trans-Pacific Partnership (TPP) intellectual property rights and, 625 treaties and UN documents how to read, 7–10 Treaties, Bilateral Investment (BITs). See international economic relations treaty classification of, 136 bilateral vs. multilateral, 137 lawmaking vs. contractual, 137–138 oral vs. written, 136–137 self-executing vs. declaration of intent, 138–142 definition of, 135 entry into force of, 9, 41, 154 formation and execution of, 142 good faith performance of, 156–159 negotiation of, 143–145 obligation of successor state(s). See states: changes in status of: succession observance of, 156

687

ratification of, 145–146 registration of, 155 reservations to, 146–148 signing of, 145 suspension and termination of, 159 changed circumstances, 159–161 conflict between parties, 166 conflict with peremptory norm, 165–166 consensual termination, 162 impossibility of performance, 164–165 material breach, 163–164 Tribunal, Tokyo Military (1948), 460 tribunals, international military. See human rights: international military tribunals Trump, Donald (US President) China and, 610 COVID-19 response and, 303 creation of Space Force under, 256 DACA program and, 141 FCPA prosecutions under, 653 ICC sanctions and, 440 immigration policy and, 393, 537 inconsistent policies of, 600 nationalist rhetoric of, 343 North Korea and, 75 pardon of US mercenaries and, 267 recognition of Jerusalem as Israeli capital and, 64 summits and, 176 trade war with China and, 600 use of sanctions against allies and, 664 Western Sahara and, 198 withdrawal from JCPOA and, 482 withdrawal from Paris Agreement and, 545 withdrawal from TPP and, 625 Ukraine, 201, 443, 445, 467, 493, 503 Flight MH17 downing and, 104 recognition of. See states: recognition of: by other states Russian annexation of Crimea and, 355 Russian invasion of (2022), 442 Russian occupation of Crimea and, 87, 207 sanctions and, 457 UN Charter. See Charter of the UN UN Committee on Economic, Social and Cultural Rights (CESCR). See human rights: International Covenant on Economic, Social and Cultural Rights

688

Index of Subject Terms

UN Conference on Environment and Development (UNCED). See Rio Conference UN Convention on the Law of the Sea (UNCLOS), 216 additional state sea zones and, 191 assessment of, 240 Continental Shelf and, 235 deep seabed and, 237 environmental protections under, 561 Exclusive Economic Zone (EEZ) under, 229 International Seabed Authority and, 237 ITLOS and, 231, 562 lack of air zones under, 246 piracy and, 240 sea rescues and, 241 sea zones under, 216 South China Sea dispute and, 233 straight passage under, 226 US refusal to ratify and, 239 weaknesses of, 246, 562 UN Convention on the Prevention and Punishment of Genocide. See human rights: genocide UN Environment Programme (UNEP). See United Nations Environment Program UN Human Rights Council (HRC). See under human rights UN Peacekeeping Operations (UNPKO), 504–513 Department of Peacekeeping Operations (DPO), 508 evolution of, 504 General Assembly and, 506 in Cambodia, 512 in El Salvador, 511 limitation on, 504 proposals for expansion of, 517 Report of the High-Level Panel (2004) and, 513 Standby High Readiness Brigade (SHiRBRIG) and, 513 UN Emergency Force (UNEF) and, 504 UN Security Council. See under United Nations United Kingdom (UK) Alabama Claims arbitration and, 80 Assange extradition and, 297 boundary resolution and, 214 Brexit and, 663 Caroline necessity claim and, 459 Corfu Channel case and, 90 diplomatic pouch claim and, 188

fisheries case and, 223 Hong Kong and, 133 League of Nations creation and, 325 Pinochet case and, 96 sovereign immunity and, 95 Suez Canal Crisis and, 507 United Nations (UN), 324 anti-corruption efforts of, 655 assessment of, 344 Chapter VII and, 328 Charter of (1945), 327 Economic and Social Council (ECOSOC), 339 employees of, 340 evolution of, 325 General Assembly, 329–332 committees of, 329 Group of 77 and, 332 International Court of Justice (ICJ), 337–338 jurisdiction of, 337 membership of, 337 Special Agreement, 338 state consent and, 337 Military Staff Committee of, 506 peaceful resolution of disputes and, 328 populist pushback and, 342 principle of equality and, 328 principle of non-intervention and, 328 R2P and, 342 reparations case and, 308 right to self-defense by states and, 329 Secretariat, 339 good offices of, 340 Security Council, 333–336 activism and, 499 assessments of, 334 Cold War and, 334 environmental security and, 540 P-5, 333 reform of, 334 Trusteeship Council, 339 decolonization and, 339 US Trump Administration and, 342 use of armed force and, 506 World Health Organization (WHO), 362–365 COVID crisis and, 303–304 criticisms of, 364 US withdrawal from, 303 United Nations Environment Program (UNEP), 549 United States (US) 9/11 changes to use of force and, 485

Index of Subject Terms abrogation of ABM treaty and, 479 accreditation of diplomats and, 171 actions against ICC and, 439 anti-dumping case and, 619 citizenship rules and, 107 climate change skepticism in, 559 economic relations with China and, 601 embargo of Cuba and, 132 extradition and, 290, 293 extraordinary rendition and, 299 extraterritorial military jurisdiction and, 265 human rights and, 371 human rights treaties and, 377 immunity for IOs and, 322 innocent passage and, 224 intervention in Nicaragua and, 461 Israeli statehood and, 61 legal personality of IOs and, 314 Montreal Protocol and, 563 national vs. international law and, 30 Paris Agreement and, 545 preemption and, 462. See use of force pushback against international law and, 44 recognition of belligerency and, 79 refouler doctrine and, 122 relations with China and, 601 relationship with UNGA and, 331 restrictive immunity doctrine and, 98 role in NATO and, 353 self-executing treaties and, 140 Somali refugees and, 391 state secret doctrine of, 300 status of MNCs and, 633 Syria and, 67, 261 UN anti-corruption treaty and, 656 UNFCCC and, 554 universal bankruptcy laws and, 640 use of ATS in human rights cases and, 396 Venezuela and, 358 vetoes in UNSC and, 425 WHO and, 364 Universal Declaration of Human Rights (UDHR, 1948), 119 universality principle. See jurisdiction, extraterritorial: principles of use of force anticipatory defense and, 459 African Union (AU) and, 467 collective self-defense, 461

689

EU and, 467 Hague Conferences and, 449 ICRC and, 449 in Ukraine (2022), 442 Just War doctrine and, 447 League of Nations and, 450–451 NATO and, 466 necessity, 459–460 preemption, 462–464 proportionality, 459–460 reasons of state and, 444 regional international organization and, 466 sanctions and, 456 terrorism and, 487 Convention Against Torture and, 488–489, 491 to protect sovereignty and, 447 UN principles on, 452–456 Friendly Relations, 454 territorial integrity, 453 UN Security Council and, 456 Vattel, Emmerich (Emer) de, 27–28 The Law of Nations (1758), 27 Venezuela, 358 dual government recognition and, 75 Tobar vs. Estrada Doctrines and, 77 Treaty of Reciprocal Assistance (TIAR) and, 359 veto power. See United Nations: Security Council: P-5 Vietnam. See material breach visit and search, principle of. See laws of war: naval war crimes. See under human rights War on Terror (US), 490 international reaction to, 492 warfare air. See laws of war: air Alexander the Great and, 446 ancient vs. modern, 445 cruel examples of, 446 Muslim limitations on, 446 naval. See laws of war: naval weapons, automated systems (AWS). See laws of war: arms control weapons, nuclear, 482–485. See also under laws of war: arms control environmental protection and, 571 Wilson, Woodrow, 176

690

Index of Subject Terms

Women Against Violence and Exploitation in Society (WAVES), 381 World Health Organization (WHO). See United Nations: WHO World Trade Organization (WTO), 306 Appellate Body, 611 Article I Most Favored Nation, 612 Article II Concessions, 613 Article III non-tariff barriers, 615 Article VI anti-dumping, 616 compared with GATT, 609–611

countervailing duties under, 618 goals, 609 mandatory dispute resolution mechanism, 610 problems with development and, 666 Safeguard Measure under, 617 Trade Related Investment Measures (TRIMS) of, 645 unilateral tariffs and, 621 Yang Jiechi, 16, 52