German Yearbook of International Law / Jahrbuch für Internationales Recht: Vol. 61 (2018) [1 ed.] 9783428558018, 9783428158010

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VOLUME 61 · 2018

DUNCK ER & H U MBLOT · BERLIN

G E R MAN YEAR B O O K O F I NTE R NATI O NAL LAW Volume 61 · 2018

LIST OF PEER REVIEWERS BJÖRN AHL • Universität zu Köln PAUL SCHIFF BERMAN • The George Washington University MICHAEL BOTHE • Goethe-Universität Frankfurt am Main JAMES FRY • University of Hong Kong GLEIDER HERNÁNDEZ • Katholieke Universiteit Leuven MAMADOU HÉBIÉ • International Court of Justice TORE HENRIKSEN • University of Tromsø SARAH JOSEPH • Monash University JÖRG KAMMERHOFER • University of Freiburg TIMO KOIVUROVA • University of Lapland DAVID LANGLET • University of Gothenburg LIESBETH LIJNZAAD • International Tribunal for the Law of the Sea BING LING • University of Sydney

CHRISTIAN MARXSEN • Max Planck Institute for Comparative Public Law and International Law SAMUEL MOYN • Yale University RAY MURPHY • National University of Ireland, Galway HENRIK RINGBOM • University of Oslo STEPHAN SCHILL • University of Amsterdam SABINE VON SCHORLEMER • Technische Universität Dresden THOMAS SKOUTERIS • The American University in Cairo OISIN SUTTLE • Queen’s University Belfast NICHOLAS TSAGOURIAS • University of Sheffield ANA FILIPA VRDOLJAK • University of Technology Sydney ERIKA DE WET • University of Pretoria KEYUAN ZOU • University of Central Lancashire

GERMAN YEARBOOK OF INTERNATIONAL LAW JAHRBUCH FÜR INTERNATIONALES RECHT

Volume 61 · 2018

DUNCKER & HUMBLOT / BERLIN

Founders: RUDOLF LAUN / HERMANN VON MANGOLDT Editors: ANDREAS VON ARNAULD / KERSTIN VON DER DECKEN / NELE MATZ-LÜCK Honorary Editor: JOST DELBRÜCK Assistant Editor: DALEY BIRKETT Editorial Assistants: MAREIKE NÜRNBERG / LILO B. RÖSCH / DAVID SCHENK Layout and Production: ANDREA NEISIUS / SYLVIA WEIDENHÖFER

ADVISORY BOARD OF THE WALTHER SCHÜCKING INSTITUTE CHRISTINE CHINKIN London School of Economics JAMES CRAWFORD International Court of Justice, The Hague LORI F. DAMROSCH Columbia University RAINER HOFMANN University of Frankfurt FRED L. MORRISON University of Minnesota EIBE H. RIEDEL University of Mannheim

ALLAN ROSAS Court of Justice of the European Union, Luxemburg BRUNO SIMMA Iran-United States Claims Tribunal, The Hague DANIEL THÜRER University of Zürich CHRISTIAN TOMUSCHAT Humboldt University of Berlin RÜDIGER WOLFRUM Max Planck Foundation for International Peace and the Rule of Law, Heidelberg

The views presented in the German Yearbook of International Law are those of the contributors and do not reflect or represent the views of the Walther Schücking Institute or the editors, assistant editors, members of the advisory board, or the peer reviewers. Walther Schücking Institute for International Law, University of Kiel Westring 400, D-24098 Kiel, Germany Internet: www.gyil.org

All rights reserved. No part of this book may be reproduced, translated, or utilised in any form or by any means, electronic or mechanical, without the expressed written consent of the publisher. © 2019 Duncker & Humblot GmbH, Berlin Printed by Druckteam, Berlin Printed in Germany ISSN 0344-3094 ISBN 978-3-428-15801-0 (Print) ISBN 978-3-428-55801-8 (E-Book) ISBN 978-3-428-85801-9 (Print & E-Book)

○

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

TABLE OF CONTENTS FORUM The Trump Administration and International Law JACK GOLDSMITH AND SHANNON TOGAWA MERCER: International Law and Institutions in the Trump Era . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

11

FOCUS International Health Law NELE MATZ-LÜCK: Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

43

PEDRO A. VILLARREAL: Public International Law and Human Health: Bridging Conceptual Gaps Through Governance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

45

ANIKA KLAFKI: International Health Regulations and Transmissible Diseases . . . . . . .

73

VALENTIN AICHELE: ‘Taking out the Magnifier’: Groups in Vulnerable Situations Under Global Health Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103 SILJA VÖNEKY: International Standard Setting in Biomedicine – Foundations and New Challenges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

131

PHILIPPE CULLET AND HU YUANQUIONG: Medical Patents and the Right to Health – From Monopoly Control to Open Access Innovation and Provision of Medicines

153

Walther Schücking Lecture CHRISTINE CHINKIN: Women, Peace, and Security: Tackling Violence Against Women in the Contemporary World? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185

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TABLE OF CONTENTS

GENERAL ARTICLES RICCARDO PISILLO MAZZESCHI: Coordination of Different Principles and Values in International Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209 ANNALISA CIAMPI: The Divide Between Human Rights, International Trade, Investment and Development Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 251 PATRIZIA VIGNI: State Responsibility for the Destruction of Cultural Property . . . . . .

295

VILJAM ENGSTRÖM: Regulating the Baltic Sea – A Showcase of Normative Pluralism

347

KATAYOUN HOSSEINNEJAD: Interpretation in Light of Which ‘Object and Purpose’? 377 SOPHIE PAPADILERIS: Protection of Peacekeepers Resorting to Armed Force – A Current Dilemma . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 403

GERMAN PRACTICE GUIDO HILDNER: The Activation of the International Criminal Court’s Jurisdiction over the Crime of Aggression: The Edifice is Completed . . . . . . . . . . . . . . . . . . . . . . . . 439 HELMUT PHILIPP AUST AND MEHRDAD PAYANDEH: German Practice With Regard to the Use of Force in Syria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 451 SARA JÖTTEN AND FELIX MACHTS: Ban on Strike Action for Civil Servants is Constitutional: The Judgment of the Federal Constitutional Court of 12 June 2018 . . . . . 465 LIV CHRISTIANSEN: Turkish Politicians’ Political Campaigns in Germany – The Legality of Public Appearances Under German Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 475 HENNING BÜTTNER: Much Ado About Nothing vs. the Opening of Pandora’s Box? – Some (Normative) Aspects of the Migration Compact Regarding its Impact on Germany . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 491 MAXIMILIAN JACOB AND CLEMENS J. DORSEL:The Case of the Lifeline – A German Perspective on the Dilemma of Private Sea Rescuing in the Mediterranean. . . . . . . . 523

TABLE OF CONTENTS

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THESIS SUMMARIES ANDREAS VON ARNAULD, KERSTIN VON DER DECKEN, AND NELE MATZ-LÜCK: Editors’ Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 543 STEFAN MARTINI: Comparative Constitutional Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . .

545

ANDREAS ORATOR: Prospects for and Limits to Establishing Union Agencies . . . . . . .

549

JOCHEN RAUBER: The Changing Structure of International Law as a Change of International Law’s Foundational Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 553 HUBERTUS REINBACH: The Monopoly of Trade Unions in German Strike Law: The Strike Between Constitution and International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . 557 PHILIPP TAMME: The Enforcement of EU Law by the European Court of Human Rights: Vicarious Constitutional Jurisdiction for Improving the Protection of Individual Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 561 JOHANN JUSTUS VASEL: The Emancipation of Regional Human Rights Protection Mechanisms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 565 FERDINAND WEBER: Nationality and Status: Static and Dynamic in Political Community-Building . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 569

Book Reviews Edward Chukwuemeke Okeke: Jurisdictional Immunities of States and International Organizations (BRÖHMER) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 575 Benoit Mayer: The International Law on Climate Change (KULOVESI) . . . . . . . . . . . . . .

579

Henri Decœur: Confronting the Shadow State: An International Law Perspective on State Organized Crime (SCHLOENHARDT) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 582 Leonardo Borlini: Il Consiglio di sicurezza e gli individui (The Security Council and Individuals) (KOLB). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 585

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Birgit Spiesshofer: Responsible Enterprise: The Emergence of a Global Economic Order (HOBE) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 591 Astrid Kjeldgaard-Pedersen: The International Legal Personality of the Individual (SPARKS) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 594 James Harrison: Saving the Oceans Through Law: The International Legal Framework for the Protection of Marine Environment (GUILLOUX) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 597 Paolo Lobba and Triestino Mariniello (eds.): Judicial Dialogue on Human Rights: The Practice of International Criminal Tribunals (IMANI) . . . . . . . . . . . . . . . . . . . . . . . . . . . 599 Stefanie Schmahl and Marten Breuer (eds.): The Council of Europe – Its Law and Policies (HOPPE) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 602

FORUM

The Trump Administration and International Law

International Law and Institutions in the Trump Era JACK GOLDSMITH AND SHANNON TOGAWA MERCER(

ABSTRACT: This paper has two goals. First, it documents President Donald Trump’s primary influences on international law and institutions in his first two years in office. Second, it seeks to assess the medium- and long-term impact of those influences. The vast majority of international law and institutions remains untouched by Trump’s actions. He has brought significant change to high-profile international treaties and institutions such as the Paris Agreement, the Iran deal, and the global trade system. His verbal attacks on U.S. allies and international institutions that traditionally garnered U.S. support (such as NATO) promote disharmony among these allies, diminish trust in the institutions, and make it easier for leaders in other nations to adopt a similarly disdainful attitude. Trump’s influence has been significant. But other U.S. presidents have assaulted international institutions only to be followed by a president who embraces those institutions and dims the impact of the assaults. Trump’s ultimate impact will depend on who succeeds him in office. It will also depend on larger trends in international affairs, such as the rise of China and the re-ascendancy of Russia as global powers, the many failures of liberal internationalism, and the general disenchantment in liberal democracies with distant, elite, global institutions. These factors were operating before and independent of Trump, many of them were pushing in the same general direction as Trump, and they will make it challenging to return to anything like the pre-Trump international status quo. KEYWORDS: Donald Trump, Liberal Internationalism, International Order, Paris Agreement, International Trade, WTO, Iran Deal, INF Treaty, United Nations, NATO, Syria, Al Qaeda, Islamic State, Laws of War

This paper examines the widespread belief that the Trump administration’s attacks on international law and institutions are significantly harming the international legal order. Part I describes the actions Trump has taken. That is the relatively easy part. It is much harder to figure out the medium- and long-term impact of Trump’s actions. For the reasons offered in Part II, we think that in most respects it is still too early to Henry Shattuck Professor, Harvard Law School, and Contributor, Lawfare and former National Security and Law Associate, the Hoover Institution. For comments we thank Rishabh Bhandari, Elena Chachko, and Eric Posner. For research assistance, we thank Clare Duncan, Benjamin Fleshman, Gavan Duffy Gideon, and Michelle Melton. (

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tell. But we speculate that Trump’s biggest impact is likely to come as much from his verbal attacks on international law and institutions as from the material changes he has brought to them.

I. The Trump Onslaught President Trump treats international laws and institutions with disdain, and frequently issues threats with respect to them. He did this during the presidential campaign, in his Inaugural speech in January 2017, and persistently ever since. ‘America will always choose independence and cooperation over global governance, control, and domination,’ he told the General Assembly in September 2018, in a recent, typical formulation.1 ‘We will never surrender America’s sovereignty to an unelected, unaccountable, global bureaucracy,’ he added, in the course of excoriating the World Trade Organization (WTO), the International Criminal Court (ICC), and the United Nations (UN) Human Rights Council.2 President Trump’s anti-internationalist bark has been very loud, and must be included in any assessment of his impact, which we do in Part II. But first, in this Part I, we assess his bite.

A. Trade

Trump has disrupted the international trade regime along many dimensions. During the presidential campaign, Trump said that he would renegotiate the North American Free Trade Agreement with Canada and Mexico ‘to get a better deal for our workers,’ and that if he could not get a better deal, he would withdraw from it.3 The renegotiations began in January 2018. In late September 2018, the United States, Canada, and Mexico announced that they had reached a deal on a new treaty,

Donald J. Trump, Remarks by President Trump to the 73rd Session of the United Nations General Assembly in New York, New York, 25 September 2018, available at https://www.whitehouse.gov/briefingsstatements/remarks-president-trump-73rd-session-united-nations-general-assembly-new-york-ny/. 1

2

Ibid.

Donald J. Trump, ‘Full transcript: Donald Trump's jobs plan speech’, Politico, 28 July 2016, available at https://www.politico.com/story/2016/06/full-transcript-trump-job-plan-speech-224891. 3

INTERNATIONAL LAW AND INSTITUTIONS IN THE TRUMP ERA

13

called the United States-Mexico-Canada Agreement.4 It remains unclear whether this new agreement will receive the necessary ratifications. Trump has been similarly disdainful of the WTO, which he views as biased against the United States.5 But his attacks on it have taken a different form. He has significantly ramped up the Obama-era practice of vetoing appointments to the WTO’s Appellate Body (AB).6 The AB consists of seven ‘judges’ appointed for four-year terms who resolve appeals from WTO panel decisions.7 AB appointments are made by consensus. In declining to approve candidates, the United States is thus exercising a veto.8 This veto impacts the AB because it requires three members to decide a case.9 On 30 September 2018, the AB was reduced to three members; and by December 10, 2019, when two of those three reach their term limits, there will be only one.10 That will leave the AB inquorate and the WTO functionally unable to resolve appellate disputes.11 The Trump administration has also sparked a global trade war by engaging in an exchange of tariffs with China, Turkey, the European Union (EU), and Canada based on a number of justifications.12 The extent to which these actions violate the WTO 4 United States-Mexico-Canada Agreement, 2018, available via https://ustr.gov/trade-agreements/ free-trade-agreements/united-states-mexico-canada-agreement/agreement-between.

See Edward Helmore, ‘Trump: US will quit World Trade Organization unless it “shapes up”’, The Guardian, 30 August 2018, available at https://www.theguardian.com/us-news/2018/aug/30/trumpworld-trade-organization-tariffs-stock-market. 5

See Bryce Baschuk, ‘U.S. Blocks Korean Judge from WTO Appellate Body’, Bloomberg, 24 May 2016, available at https://www.bna.com/us-blocks-korean-n57982072872/; Tetyana Payasova, Gary Clyde Hufbauer, and Jeffrey J. Schott, The Dispute Settlement Crisis in the World Trade Organization, March 2018, available at https://piie.com/publications/policy-briefs/dispute-settlement-crisis-world-tradeorganization-causes-and-cures. 6

7

Ibid.

Art. 2.4 Understanding on Rules and Procedures Governing the Settlement of Disputes, Marrakesh Agreement Establishing the World Trade Organization, Annex 2 (DSU) 1994,1869 UNTS 401; see also Tom Miles, ‘Diplomats Search for Way to Save Trade System After U.S. Vetoes Judges’, Reuters, 27 November 2017, available at https://www.reuters.com/article/us-usa-trade-wto/diplomats-searchfor-way-to-save-trade-system-after-u-s-vetoes-judges-idUSKBN1DR2PR. 8

9 10

Art. 17.1 DSU. See Payasova et al., supra note 6.

See Tom Miles, ‘U.S. Blocks WTO Judge Reappointment As Dispute Settlement Crisis Looms’, Reuters, 27 August 2018, available at https://www.reuters.com/article/us-usa-trade-wto/us-blocks-wtojudge-reappointment-as-his-term-nears-an-end-idUSKCN1LC19O. 11

China and the United States have engaged in a tit-for-tat exchange of tariffs and threats since January 2018. As of 19 September 2018, 85 to 95 percent of United States exports to China are under 12

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agreements has yet to be determined.13 Some of these United States trade actions are based on pure economic concerns, such as Trump’s actions regarding Chinese intellectual property practices and Chinese and South Korean imports of certain goods.14 In the several cases brought against the United States for these trade barriers, the United States government maintains that its actions are WTO-compliant where they concern issues covered by the WTO agreements.15 But many trade scholars maintain that these actions violate the United States’ WTO obligations.16 (The outcome of the 90-day trade truce that the United States and China announced on 1 December 2018 was unclear as this article went to print.)17

the shadow of existing or impending tariffs. See Bob Bryan, ‘The BIG ONE: Trump Slams China with tariffs on $200 billion worth of goods, taking the trade war to the next level’, Business Insider, 17 September 2018, available at https://www.businessinsider.com/trump-china-trade-war-tariff-chinesegoods-2018-9 citing United States Census Bureau, 2018: Trade in Goods with China (2018), available at https://www.census.gov/foreign-trade/balance/c5700.html. Also in March 2018, the President ordered the imposition of tariffs on aluminium and steel imports in the interest of national security. To date, China, Turkey, the European Union (EU), and Canada have retaliated. See Chad P. Bown and Melina Kolb, Trump’s Trade War Timeline: An Up-to-Date Guide, 24 September 2018, available at piie.com/blogs/trade-investment-policy-watch/trump-trade-war-china-date-guide. The administration has relied on Section 232 United States Trade Expansion Act 1962 as well as Sections 301 and 201 United States Trade Act 1974. Section 232 allows the executive to investigate – and act in response to – the impact of imports of any item on United States national security. See 19 U.S.C. § 1862, available at https://www.law.cornell.edu/uscode/text/19/1862. 13

See Ana Swanson and Brad Plumer, ‘Trump Slaps Steep Tariffs on Foreign Washing Machines and Solar Products’, New York Times, 22 January 2018, available at https://www.nytimes.com/2018/ 01/22/business/trump-tariffs-washing-machines-solar-panels.html. 14

See Jennifer Hillman, Testimony of Jennifer Hillman Before the U.S. China Economic and Review Security Commission, 8 June 2018, available at https://www.uscc.gov/sites/default/files/Hillman%20 Testimony%20US%20China%20Comm%20w%20Appendix%20A.pdf; Tom Miles, ‘U.S. and China tussle at WTO over legality of Trump tarrifs’, Reuters, 27 March 2018, available at https://uk.reuters. com/article/uk-usa-trade-china-wto/u-s-and-china-tussle-at-wto-over-legality-of-trump-tariffs-idUKK BN1H32KE. 15

See Hillman, supra note 15, at 13, 17; see also Simon Lester, ‘Justifications in the U.S.-China National Security/Safeguards/Section 301 Tariff Fight’, International Economic Law and Policy Blog, 4 April 2018, available at http://worldtradelaw.typepad.com/ielpblog/2018/04/the-us-china-nationalsecuritysafeguardstariff-fight.html. 16

17 See Mark Landler, ‘U.S. and China Call Truce in Trade War’, New York Times, 1 December 2018, available at https://www.nytimes.com/2018/12/01/world/trump-xi-g20-merkel.html. New negotiations between the two countries on an accord are expected to begin in January. See ‘China Heads Into Trade Talks Bracing for More U.S. Demands’, Bloomberg, 26 December 2018, available at https:// www.bloomberg.com/news/articles/2018-12-27/china-heads-into-trade-talks-bracing-for-more-u-sdemands.

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The national security tariffs present a more difficult and novel legal question for the WTO. Article XXI General Agreement on Tariffs and Trade (GATT) – one of the fundamental agreements in the WTO acquis – allows a member state to ‘tak[e] any action which it considers necessary for the protection of its essential security interests, relating to fissionable materials, arms trafficking, and trafficking of the “implements of war” or goods meant to supply a military establishment and actions taken in time of war or other emergency in international relations.’18 The provision is widely viewed as ‘self-judging,’ meaning that States may decide when they will invoke it.19 But GATT’s Article XXI has rarely been invoked, and the WTO has never decided to what extent its dispute settlement body has the authority to evaluate the propriety of State judgment. There are a few cases pending that may give us more of an idea of how the WTO will handle the existing challenges to the United States.20 Trump has also had an impact on international trade issues that fall outside of the WTO. For example, in October 2018 the Trump administration announced that it would withdraw from the Universal Postal Union (UPU), the organisation that sets rates for and governs global package shipments.21 The main reason for the termination announcement was the longstanding (pre-Trump administration) complaint by the United States that the outdated UPU system forces United States postal services to lose money on international package deliveries.22 The underlying treaty has a one-year

18

Art. XXI General Agreement on Tariffs and Trade (GATT) 1947, 55 UNTS 194.

See Roger P. Alford, ‘The Self-Judging WTO Security Exception’, 2011 Utah Law Review (2011) 697, at 698; see also WTO, Russia – Measures Concerning Traffic in Transit on Ukrainian Products, Third-Party Oral Statement of the United States, 25 January 2018, WT/DS512, at paras. 11-18. 19

See Kathleen Claussen, ‘Trade War Battles: The International Front’, Lawfare, 27 July 2018, available at https://www.lawfareblog.com/trade-war-battles-international-front. The United States has argued that once a member state invokes Art. XXI GATT, the WTO panel cannot review that decision or make findings on the claims in the dispute. The EU has taken the opposite stance. We have yet to see which approach the WTO will adopt, although the pending decision in a WTO case – Russia-Measures Concerning Traffic in Transit on Ukrainian Products (DS512) – may provide guidance. 20

See The White House, Statement from the Press Secretary, 17 October 2018, available at https:// www.whitehouse.gov/briefings-statements/statement-press-secretary-38/. 21

22 See Office of the Inspector General for the United States Postal Service, Terminal Dues in the Age of Ecommerce, 14 December 2015, available at https://www.uspsoig.gov/sites/default/files/documentlibrary-files/2015/RARC-WP-16-003.pdf; United States Government Accountability Office, International Mail: Information on Changes and Alternatives to the Terminal Dues System (2017), available at https://www.gao.gov/assets/690/687725.pdf.

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termination provision, and Trump administration officials have suggested that they hope to renegotiate a more equitable rate system during that period.23 Moving from extant to potential legal obligations, in February 2016, the Obama administration signed the Trans-Pacific Partnership (TPP), a trade agreement between the United States and 11 other Asian and South American countries that aimed to lower trade barriers between the signatories and undercut China’s regional dominance.24 Congress did not consent to the TPP, and the United States thus did not assume obligations under it. Early in his presidency, Trump directed the United States trade representative to withdraw the United States as a signatory to the TPP and from its negotiations.25 The remaining TPP parties then negotiated and, in March 2018, signed a similar agreement known as the Comprehensive and Progressive Agreement for Trans-Pacific Partnership.26 In April 2018, Trump implied that he would consider rejoining the TPP, but then quickly criticised the deal.27 The United States has taken no official steps to rejoin the TPP or its successor. But it has entered into a new bilateral trade agreement in the region with South Korea.28 The administration is also expected to begin bilateral talks with Japan in early 2019.29

23 See Matthew Choi, ‘Trump withdraws from postal treaty in new front against China’, Politico, 17 October 2018, available at https://www.politico.com/story/2018/10/17/trump-withdraws-frompostal-treaty-910675. 24 President Obama said in 2015: ‘we can’t let countries like China write the rules of the global economy. We should write those rules [...].’, The White House Office of the Press Secretary, Statement by the President on the Trans-Pacific Partnership, 5 October 2015, available at https://obamawhitehouse. archives.gov/the-press-office/2015/10/05/statement-president-trans-pacific-partnership.

The White House, Presidential Memorandum Regarding Withdrawal of the United States from the Trans-Pacific Partnership Negotiations and Agreement, 23 January 2017, available at https://www. whitehouse.gov/presidential-actions/presidential-memorandum-regarding-withdrawal-united-statestrans-pacific-partnership-negotiations-agreement/. 25

26 See Government of Canada, Timeline of CPTPP (2018), available at http://international.gc.ca/ trade-commerce/trade-agreements-accords-commerciaux/agr-acc/cptpp-ptpgp/timeline_negotiationschronologie_negociations.aspx?lang=eng. 27 Donald J. Trump, Twitter, 12 April 2018, 8:15 PM, available at https://twitter.com/realDonald Trump/status/984631073865953280 (indicating some willingness to rejoin TPP); Donald J. Trump, Twitter, 17 April 2018, 7:49 PM, available at https://twitter.com/realDonaldTrump/status/98643652 0444866560 (criticising TPP and WTO). 28 Jim Tankersley, ‘Trump Signs Revised Korean Trade Deal’, New York Times, 24 September 2018, available at https://www.nytimes.com/2018/09/24/us/politics/south-korea-trump-trade-deal.html.

‘White House Unveils Goals for Japan Trade Talks’, Reuters, 21 December 2018, available at https://www.nytimes.com/reuters/2018/12/21/business/21reuters-usa-japan-trade.html. 29

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Early in his term, the President also halted negotiations between the United States and the EU on the Transatlantic Trade and Investment Partnership. In the recent spate of tariffs, the Trump administration has alternated between antagonising the EU and engaging in renewed talks with it.30

B. Investment

International investment law is a disaggregated and decentralised web of domestic laws and mostly bilateral treaties that lacks the legal coherence of international trade law. The Trump administration has posed many challenges to this body of law but has not violated international law along the way. The main United States challenge has come from the Committee on Foreign Investment in the United States (CFIUS), an inter-agency committee that reviews foreign investments or transactions to determine their impact on United States national security, specifically when those transactions may result in the control of United States businesses by foreign entities.31 The Trump administration, again following a trend from prior administrations, has invoked CFIUS aggressively to kill many investment deals involving United States-owned firms, especially when China-connected parties are also involved.32 In August 2018, Congress expanded both the scope of CFIUS’s jurisdiction and the impact of CFIUS’s decisions with the Foreign InvestSee Steven Erlanger, ‘Europe Averts a Trade War With Trump. But Can it Trust Him?’, New York Times, 26 July 2018, available at https://www.nytimes.com/2018/07/26/world/europe/donaldtrump-us-eu-trade.html; James Politi and Jim Brundsen, ‘US trade talks with EU on course for partial deal in November’, Financial Times, 10 September 2018, available at https://www.ft.com/content/c0b 6bb52-b508-11e8-bbc3-ccd7de085ffe. 30

The U.S. Department of Treasury, Committee on Foreign Investment in U.S.: Process Overview, last updated 3 August 2018, available at https://www.treasury.gov/resource-center/international/foreigninvestment/Pages/cfius-overview.aspx. 31

32 In recent years, the Committee on Foreign Investment in the United States (CFIUS) has vetoed Broadcom’s attempted takeover of Qualcomm, Ant Financial’s attempted takeover of MoneyGram, Fujian Grand Chip Investment Fund’s attempted takeover of the U.S. business of German semiconductor company Aixtron SE, and the attempted takeover of Lattice Semiconductor by a United States private equity firm funded by the Chinese government. See, e.g., The Economist, CFIUS Intervenes in Broadcom’s Attempt to Buy Qualcomm, 8 March 2018, available at https://www.economist.com/news/ business/21738398-powerful-committee-top-american-officials-becomes-more-intrusive-cfius-intervenes; Martin Giles, ‘CFIUS: The Powerful Sheriff Policing US Tech’s Megadeal’, MIT Technology Review, 9 March 2018, available at https://www.technologyreview.com/s/610455/cfius-the-powerfulsheriff-policing-us-techs-megadeal.

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ment Risk Review Modernization Act.33 CFIUS is having a growing impact on investment in the United States, and has been accompanied by prominent countries like China, Germany, and the United Kingdom proposing more stringent merger review regimes of their own. But it does not violate international law. The Trump administration is also challenging investor-state dispute settlement (ISDS). United States Trade Representative Robert Lighthizer has criticised ISDS as an inappropriate mechanism for bypassing national law and national courts.34 It has been reported that the draft deal between the United States, Canada, and Mexico excludes ISDS between the United States and Canada and limits ISDS between the United States and Mexico.35 The revision of the Korean-US free trade agreement made relatively minor changes to the ISDS provision that slightly limit an investor’s recourse to ISDS panels.36 The elimination or limitation of ISDS clauses in trade agreements will not violate international law, but it might change the conditions for investment

33 The Foreign Investment Risk Review Modernization Act emphasises that national security should remain the primary concern of CFIUS review; expands CFIUS’ scope; and allows for the review of foreign investment into United States companies that operate with critical technology, critical infrastructure, or sensitive personal data of United States citizens. See generally The Foreign Investment Risk Review Modernization Act of 2018 (FIRRMA), Pub. L. 115-232, §§ 1701–1750, 132 Stat. 2174 (2018). See also Stephanie Zable, ‘The Foreign Investment Risk Review Modernization Act of 2018’, Lawfare, 2 August 2018, available at https://www.lawfareblog.com/foreign-investment-risk-review-modernization-act-2018; Scott R. Anderson, Sarah Tate Chambers, and Molly E. Reynolds, ‘What’s in the New NDAA’, Lawfare, 14 August 2018, available at https://www.lawfareblog.com/whats-new-ndaa. 34 United States Trade Representative Robert Lighthizer commented on the fate of investor-state dispute settlement provision in the North American Free Trade Agreement by saying, ‘I am always troubled by the fact that nonelected, non-Americans can make a decision that a United States law is invalid. This, as a matter of principle, I find offensive. And [...] that’s what can happen very often in this area [...] [T]he most troubling part of all this is that it attacks our sovereignty.’ President’s Trade Policy Agenda and Fiscal Year 2018 Budget: Hearing Before the Senate Committee on Finance, 115th Congress 21-22 (statement of Robert Lighthizer, United States Trade Representative), available at https://www. finance.senate.gov/hearings/the-presidents-trade-policy-agenda-and-fiscal-year-2018-budget. 35 See Jordan Weissmann, ‘Is Donald Trump About to Become NAFTA’s Savior?’, Slate, 31 August 2018, available at https://slate.com/business/2018/08/donald-trump-may-be-about-to-save-nafta.html. 36 The United States and Korea signed the revised agreement on 24 September 2018. Now the agreement is pending legislative approval. See The White House, Office of the Press Secretary, Fact Sheet: President Donald J. Trump is Fulfilling His Promise on the United States-Korea Free Trade Agreement and on National Security, 24 September 2018, available at https://www.whitehouse.gov/briefingsstatements/president-donald-j-trump-fulfilling-promise-united-states-korea-free-trade-agreementnational-security/; Office of the United States Trade Representative, New U.S. Trade Policy and National Security Outcomes with the Republic of Korea (2018), available at https://ustr.gov/about-us/policyoffices/press-office/fact-sheets/2018/march/new-us-trade-policy-and-national.

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between the relevant countries by potentially altering the reliability of decisions in international investment cases.

C. Climate

In December 2015, the parties to the United Nations Framework Convention on Climate Change (UNFCCC)37, including the United States, signed the landmark Paris Agreement on Climate Change, which aims to lower greenhouse gas emissions.38 The Paris Agreement is a binding international agreement with key elements – most notably, the nationally determined contributions to emissions reduction – that are non-binding.39 Under United States constitutional law, it is an executive agreement pursuant to the previously ratified UNFCC that the President could make and ratify on his own without the consent of the Senate or Congress.40 In August 2017 the Trump administration notified the UN that the United States would withdraw from the Paris Agreement ‘as soon as it is eligible to do so, consistent with the terms of the Agreement,’ which under the terms of the agreement is on November 4, 2020.41

37

United Nations Framework Convention on Climate Change (UNFCC) 1992, 1771 UNTS 107.

See UNFCC Conference of the Parties, Twenty-First Session, Adoption of the Paris Agreement, UN Doc. FCCC/CP/2015/L.9/Rev.1, 12 December 2015; Pamela Falk, ‘Climate negotiators strike deal to slow global warming’, CBS News, 12 December 2015, available at https://www.cbsnews.com/ news/cop21-climate-change-conference-final-draft-historic-plan/. 38

See Curtis A. Bradley and Jack L. Goldsmith, ‘Presidential Control Over International Law’, 131 Harvard Law Review (2018) 1203, at 1248-1252. 39

40 See ibid., at 1249; Daniel Bodansky and Peter Spiro, ‘Executive Agreements+’, 49 Vanderbilt Journal of Transnational Law (2016) 885, at 914-916; Noah Feldman, ‘The Paris Accord and the Reality of Presidential Power’, Bloomberg, 2 June 2017, available at https://www.bloomberg.com/view/articles/ 2017-06-02/trump-paris-climate-change-and-constitutional-realities. President Obama deposited the instrument of ratification for the United States in September 2016. See Tanya Somanader, ‘President Obama: The United States Formally Enters the Paris Agreement’, The White House Blog, 3 September 2016, available at https://obamawhitehouse.archives.gov/blog/2016/09/03/president-obama-unitedstates-formally-enters-paris-agreement. 41 United States Department of State, Communication Regarding Intent to Withdraw from Paris Agreement, 4 August 2017, available at https://www.state.gov/r/pa/prs/ps/2017/08/273050.htm.

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GERMAN YEARBOOK OF INTERNATIONAL LAW 61 @ 2018 D. Arms Control

By far the largest disruption the Trump administration has made to date in the international law of arms control was its withdrawal from the Iran nuclear deal, known as the Joint Comprehensive Plan of Action (JCPOA). In the JCPOA, the United States, the EU, and five other nations agreed to lift international and domestic sanctions against Iran in exchange for Iran’s agreement to significant restrictions on its nuclear program, including capping its uranium enrichment activity, exporting a large portion of its accumulated nuclear material, and repurposing a reactor that could produce military-grade plutonium.42 The JCPOA was crafted as a legally non-binding political commitment,43 and the related UN Security Council resolution ending sanctions on Iran did not impose binding legal obligations on the United States to end sanctions.44 In May 2018, President Trump announced that he was withdrawing from the Iran Deal.45 He ordered Secretary of State Pompeo to cease United States participation in the JCPOA, and the administration subsequently re-imposed the sanctions against Iran lifted or waived by the Obama administration.46 The United States believes its withdrawal is lawful because the JCPOA was a political commitment and because the Security Council resolution created no relevant

42 See Yishai Schwartz, Quinta Jurecic, and Staley Smith, ‘So What the Heck is in the Iran Deal, Anyway? We Read it so You Don’t Have To.’, Lawfare, 15 July 2015, available at https://www. lawfareblog.com/so-what-heck-iran-deal-anyway-we-read-it-so-you-dont-have. 43 See Jack Goldsmith, ‘Why Congress is Effectively Powerless to Stop the Iran Deal (and Why the Answer is not the Iran Review Act)’, Lawfare, 20 July 2018, available at https://www.lawfareblog.com/ why-congress-effectively-powerless-stop-iran-deal-and-why-answer-not-iran-review-act. 44 UN Security Council Res. 2231, 20 July 2015; see also John Bellinger, ‘The New UNSCR on Iran: Does It Bind the United States (and Future Presidents)?’, Lawfare, 18 July 2015, available at https://www.lawfareblog.com/new-unscr-iran-does-it-bind-united-states-and-future-presidents; Somini Sengupta, ‘U.N. Moves to Lift Iran Sanctions After Nuclear Deal, Setting Up a Clash in Congress’, New York Times, 20 July 2015, available at https://nyti.ms/2qtA8iy.

The White House, Office of the Press Secretary, Fact Sheet: President Donald J. Trump is Ending United States Participation in an Unacceptable Iran Deal, 8 May 2018, available at https://www. whitehouse.gov/briefings-statements/president-donald-j-trump-ending-united-states-participationunacceptable-iran-deal/. 45

46 See Ishaan Tharoor, ‘Trump reimposes sanctions on Iran. Now What?’, Washington Post, 6 August 2018, available at https://www.washingtonpost.com/news/worldviews/wp/2018/08/06/trumpreimposes-sanctions-on-iran-now-what/?utm_term=.9679f16cec7a.

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binding legal obligations.47 However, Iran sued the United States in the International Court of Justice (ICJ), alleging that its actions violated the 1955 Treaty of Amity with Iran.48 On 3 October 2018, the ICJ issued a unanimous order indicating limited provisional measures against the United States.49 The provisional measures that the ICJ ordered fell ‘significantly short of the relief that Iran sought’, and ‘the court strongly implied that one of the United States’s key arguments, while insufficient to deny the court jurisdiction, would be favorable to the U.S. position in the merits stage of the case.’50 In addition, the United States announced after the decision that it was withdrawing from the Treaty of Amity with Iran.51 Another very significant move in the international law of arms control is the Trump administration’s announcement that it intends to suspend and begin the sixmonth process of withdrawing from the 1987 Intermediate-Range Nuclear Forces (INF) Treaty, effective 2 February 2019, unless Russia comes back into compliance with its terms.52 Its reasons are Russia’s alleged multiple violations of the treaty in recent years, and the rise of China’s military prowess, including China’s growing missile

See Stephen P. Mulligan, Withdrawal from the Iran Nuclear Deal: Legal Authorities and Implications, Congressional Research Service, 17 May 2018, available at https://fas.org/sgp/crs/nuke/LSB 10134.pdf. 47

See Rick Gladstone, ‘Iran Takes U.S. to Court Over Nuclear Deal and Reimposed Sanctions’, New York Times, 17 July 2018, available at https://www.nytimes.com/2018/07/17/world/middleeast/ iran-sues-us-over-sanctions.html; Erik Slobe, ‘Iran Urges ICJ to block US Sanctions’, Jurist, 27 August 2018, available at https://www.jurist.org/news/2018/08/iran-urges-icj-to-block-us-sanctions/. 48

International Court of Justice (ICJ), Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic Republic of Iran v. United States of America), Order, 3 October 2018, available at https://www.icj-cij.org/files/case-related/175/175-20181003-ORD-01-00-EN.pdf. 49

See Elena Chachko, ‘What to Make of the ICJ's Provisional Measures in Iran v. U.S. (Nuclear Sanctions Case)’, Lawfare, 4 October 2018, available at https://www.lawfareblog.com/what-make-icjsprovisional-measures-iran-v-us-nuclear-sanctions-case. 50

Edward Wong and David E. Sanger, ‘U.S. Withdraws from 1955 Treaty Normalizing Relations with Iran’, New York Times, 3 October 2018, available at https://www.nytimes.com/2018/10/03/ world/middleeast/us-withdraws-treaty-iran.html. 51

52 Treaty Between The United States Of America And The Union Of Soviet Socialist Republics On The Elimination Of Their Intermediate-Range And Shorter-Range Missiles (INF) 1987, 27 ILM 90. For a good overview of the U.S. approach, see Scott R. Anderson, ‘What’s Happening with the INF Treaty?,’ Lawfare, 13 December 2018, available at https://www.lawfareblog.com/whats-happening-inftreaty.

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arsenal, which some U.S. officials believe the United States should respond to in ways now prohibited by the INF Treaty.53

E. Diplomacy and Recognition

On 6 December 2017, President Trump announced that the United States would recognise Jerusalem as the capital of Israel and open an embassy there.54 On 14 May 2018, the United States officially opened its embassy in Jerusalem.55 President Trump moved the embassy in accordance with longstanding United States congressional policy. However, he made certain that these actions did not entail any United States commitment on the specific boundaries of Israeli sovereignty in Jerusalem, which, he says, ‘are subject to final status negotiations between the parties’.56 On 28 September 2018, Palestine brought suit against the United States in the ICJ, claiming that the embassy move violated the Vienna Convention on Diplomatic Relations.57 Commentators take a variety of views on the validity of the Palestine case.58 In response to the

David E. Sanger and William J. Broad, ‘U.S. to Tell Russia it is Leaving Landmark I.N.F. Treaty’, New York Times, 19 October 2018, available at https://www.nytimes.com/2018/10/19/us/politics/ russia-nuclear-arms-treaty-trump-administration.html. 53

The White House, Office of the Press Secretary, President Donald J. Trump Keeps His Promise to Open U.S. Embassy in Jersualem, Israel, 14 May 2018, available at https://www.whitehouse.gov/ briefings-statements/president-donald-j-trump-keeps-promise-open-u-s-embassy-jerusalem-israel/. 54

55

Ibid.

Donald J. Trump, Presidential Proclamation Recognizing Jerusalem as the Capital of the State of Israel and Relocating the United States Embassy to Israel to Jerusalem, 6 December 2017, available at https://www.whitehouse.gov/presidential-actions/presidential-proclamation-recognizing-jerusalemcapital-state-israel-relocating-united-states-embassy-israel-jerusalem/. 56

57 ICJ, Application Instituting Proceedings in the International Court of Justice, Relocation of the United States Embassy to Jerusalem (Palestine v. United States of America), 28 September 2018, available at https://www.icj-cij.org/files/case-related/176/176-20180928-APP-01-00-EN.pdf; Vienna Convention on Diplomatic Relations 1961, 500 UNTS 95.

See e.g., Marko Milanovic, ‘Palestine Sues the United States in the ICJ re Jerusalem Embassy’, EJIL: Talk!, 30 September 2018, available at https://www.ejiltalk.org/palestine-sues-the-united-statesin-the-icj-re-jerusalem-embassy/#more-16519; David Hughes, ‘Did the Trump Administration’s Jerusalem Declaration Violate International Law?’, OpinioJuris, 3 May 2018, available at http:// opiniojuris.org/2018/03/05/did-the-trump-administrations-jerusalem-declaration-violate-internationallaw/; Alina Maron, ‘Palestine’s Application the ICJ, neither Groundless nor Hopeless. A Reply to Marko Milanovic,’ EJIL: Talk!, 8 October 2018, available at https://www.ejiltalk.org/palestines-application-theicj-neither-groundless-nor-hopeless-a-reply-to-marko-milanovic/#more-16541. 58

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case, the United States withdrew from the Optional Protocol to the Vienna Convention on Consular Relations.59

F. War

To understand the Trump administration’s impact on the international laws of war, one needs to understand the Obama administration’s approach to the ‘global war on terrorism’. Its basic approach was to end heavy-footprint war (in Afghanistan and Iraq) and replace it with light-footprint warfare involving airpower (especially by drones), Special Forces, and cyber operations.60 Although the matter is contested, many critics think the Obama administration conducted this war in ways that violated international law.61 With respect to jus ad bellum, the Obama administration invoked an aggressive conception of self-defence, especially in its development of the unwilling/unable principle, and in its broad conception of ‘imminence’ as a basis for anticipatory self-defence.62 And with respect to jus in bello, it argued that ‘non-international armed conflict can cross national borders; that targeting and related principles in such conflicts are governed by the jus in bello rather than international human rights law; and that a fairly expansive notion of “direct participation in hostilities” is appropriate’.63 59 Roberta Ramption, ‘U.S. withdraws from international accords, says U.N. world court 'politicized’'’, Reuters, 3 October 2018, available at https://www.reuters.com/article/us-usa-diplomacy-treaty/ u-s-withdrawing-from-vienna-protocol-on-dispute-resolution-bolton-idUSKCN1MD2CP; Optional Protocol to the Vienna Convention on Consular Relations, Concerning the Compulsory Settlement of Disputes 1963, 596 UNTS 487.

See Jack Goldsmith and Matthew Waxman, ‘The Legal Legacy of Light-Footprint Warfare,’ 39 The Washington Quarterly (2016) 7, at 7-11. Elements of light-footprint warfare began under the Bush administration, but ‘Obama deployed these light-footprint tools with much greater frequency and intensity, and in many more countries’. Jack Goldsmith, ‘The Contributions of the Obama Administration to the Practice and Theory of International Law’, 57 Harvard International Law Journal (2016) 455, at 458. 60

For an overview of the Obama administration on war and international law, see Goldsmith, supra note 60 and Curtis A. Bradley and Jack L. Goldsmith, ‘Obama’s AUMF Legacy’, 110 American Journal of International Law (2016) 628. 61

For citations and criticism, see Goldsmith, supra note 60, at 460-463, and Bradley and Goldsmith, supra note 61, at 643-44. 62

63 Goldsmith, supra note 60, at 463. For further citations and criticisms, see Bradley and Goldsmith, supra note 61, at 641-643.

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The Trump administration loosened Obama-era rules of engagement, targeting criteria, and related approval mechanisms for U.S. counterterrorism operations, and has ramped up air strikes compared to the Obama administration.64 But at least in public, it has not adopted any new theories of international law related to war, and appears to be operating under the umbrella of Obama-era legal interpretations.65 This is true even of the Trump administration’s two airstrikes against the Assad regime in Syria in response to alleged uses of chemical weapons – unilaterally on 7 April 2017, and as part of a North Atlantic Treaty Organization (NATO) operation on 14 April 2018. Those airstrikes were legally controversial under international law. Many argued that they were unlawful,66 but others argued that they were permitted, or at least not illegal, under the principle of humanitarian intervention or responsibility to protect.67 But whatever their status under international law, the Trump administration relied on legal theories developed by the Obama administration.68 64 Sarah Grant and Jack Goldsmith, ‘The Scope of the Endless War After One Year Under Trump’, Lawfare, 19 January 2018, available at https://www.lawfareblog.com/scope-endless-war-after-one-yearunder-trump. 65 It is hard to know whether this is true of the Trump administration’s more aggressive approach to cyber. See Eric Geller, ‘Trump scraps Obama rules on cyberattacks, giving military freer hand’, Politico, 16 August 2018, available at https://www.politico.com/story/2018/08/16/trump-cybersecurity-cyber attack-hacking-military-742095.

See, e.g., Marko Milanovic, ‘The Clearly Illegal US Missile Strike in Syria’, EJIL: Talk!, 7 April 2017, available at https://www.ejiltalk.org/the-clearly-illegal-us-missile-strike-in-syria/; Nancy Simons, ‘The Legality Surrounding the US Strikes in Syria’, OpinioJuris, 25 April 2017, available at http:// opiniojuris.org/2017/04/25/the-legality-surrounding-the-us-strikes-in-syria/; Marty Lederman, ‘Why the strikes against Syria probably violate the U.N. Charter and (therefore) the U.S. Constitution’, Just Security, 6 April 2017, available at https://www.justsecurity.org/39674/syrian-strikes-violate-u-ncharter-constitution/. 66

67 See Harold Hongju Koh, ‘Not Illegal: But Now the Hard Part Begins’, Just Security, 7 April 2017, available at https://www.justsecurity.org/39695/illegal-hard-part-begins/; cf. Harold Hongju Koh, ‘The War Powers and Humanitarian Intervention’, 53 Houston Law Review (2016) 972, at 1004-1015. 68 On the Obama approach, see Jack Goldsmith, ‘The Obama Administration’s Views on the Legality of Intervention in Syria Without Congressional or U.N. Security Council Support’, Lawfare, 21 June 2016, available at https://www.lawfareblog.com/obama-administrations-views-legality-interventionsyria-without-congressional-or-un-security-council; Charlie Savage, Power Wars: The Relentless Rise of Presidential Power and Secrecy (2015); Koh, The War Powers, supra note 67, at 998-1003. On how the Trump administration has relied on these legal theories, see Jack Goldsmith, ‘The New OLC Opinion on Syria Brings Obama Legal Rationales Out of the Shadows’, Lawfare, 1 June 2018, available at https://www.lawfareblog.com/new-olc-opinion-syria-brings-obama-legal-rationales-out-shadows; see also Memorandum Opinion for the Counsel to the President, from Steven Engel, Assistant Attorney General, Office of Legal Counsel, Re April 2018 Airstrikes Against Syrian Chemical-Weapons Facilities (31 May 2018), available at https://www.justice.gov/olc/opinion/file/1067551/download (relying on Memorandum Opinion for the Counsel to the President, from Karl R. Thompson, Principal Deputy

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Trump brought larger changes, at least rhetorically, to the issue of NATO. He had long criticised NATO and as president has threatened to pull out of the security organisation. These threats continued right up to, and apparently during, the July 2018 NATO meeting in Brussels.69 By the end of the summit Trump proclaimed that pulling out of NATO was ‘unnecessary’ because European countries had agreed to ramp up their military spending.70 A few days after the NATO summit, Trump appeared to question whether the United States would comply with its Article 571 obligations in the defence of a small country such as Montenegro.72

G. Human Rights

President Trump has threatened but not followed through on many human rights violations ranging from torture to loosening the prohibition on killing of civilians. His administration’s immigration travel-ban executive orders, however, have been widely decried as violating international law. The main (but not only) instrument they allegedly violate is the International Covenant on Civil and Political Rights (ICCPR).73 The central claim is that they discriminated against Muslims on the basis Assistant Attorney General, Office of Legal Counsel, Re: Authority to Use Military Force in Iraq at 20–24 (Dec. 30, 2014)). See, e.g., Gregory Hellman, ‘Trump threatens to pull out of NATO’, Politico, 12 July 2018, available at https://www.politico.com/newsletters/morning-defense/2018/07/12/trump-meets-with-afghanistanwar-partners-277146. 69

70 Jonathan Allen, Geoff Bennett, and Hallie Jackson, ‘Trump says leaving NATO is “unnecessary,” claims allies will boost funding’, NBC News, 12 July 2018, available at https://www.nbcnews.com/ politics/white-house/trump-says-leaving-nato-unnecessary-claims-allies-will-boost-funding-n890806. 71

North Atlantic Treaty 1949, 34 UNTS 243.

Eileen Sullivan, ‘Trump Questions the Core of NATO: Mutual Defense, Including Montenegro’, New York Times, 18 July 2018, available at https://www.nytimes.com/2018/07/18/world/europe/ trump-nato-self-defense-montenegro.html. 72

73 International Covenant on Civil and Political Rights 1966, 999 UNTS 171; see, e.g., United States Supreme Court, Trump v. Hawaii, 138 S. Ct. 2392 (2018), Brief for International Law Scholars and Nongovernmental Organizations in Support of Respondents, available at https://www.supremecourt. gov/DocketPDF/17/17-965/41737/20180330125852277_2018-03-30%20Amici%20Curiae%20 Brief%20of%20International%20Law%20Scholars.pdf; Harold Hongju Koh, ‘The Trump Administration and International Law’, 56 Washburn Law Journal (2017) 413, at 423-424; Marjorie Cohn, ‘Evaluate New Travel Ban in Light of International Law’, Jurist, 16 March 2017, available at https://www. jurist.org/commentary/2017/03/marjorie-cohn-international-law/; Marjorie Cohn, ‘Supreme Court Ignored International Law in Upholding Muslim Ban’, Consortium News, 6 July 2018, available at https://consortiumnews.com/2018/07/06/supreme-court-ignored-international-law-in-upholding-

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of religion because, although they do not facially target Muslims, they were motivated by animus toward Muslims and had a disparate impact upon their exercise of the rights enumerated in the ICCPR. Whether the Trump administration’s immigration Executive Orders actually violated the ICCPR is a tricky question. The first two and most problematic Executive Orders were the most likely to violate international law but never really went into effect. The third one – the one upheld by the Supreme Court74 – placed entry restrictions on the nationals of eight foreign States, two of which were not Muslim-majority countries.75 It was also (unlike the prior two orders) supported by a robust national security analysis by several agencies that was credited by the Supreme Court.76 It thus did not discriminate against Muslims on its face, since it contained non-Muslimmajority countries and excluded many Muslim-majority countries.77 A full analysis under the ICCPR would require an assessment of the relevance of presidential motive to the international law validity of the order and whether the order was proportionate to its national security aim. A similar analysis would inform whether the third Executive Order ‘contravenes the 1951 Refugee Convention and the 1967 protocol by discriminating among refugees based on religion and country of origin’.78

muslim-ban/; Jonathan Hafetz, ‘The Important Role of International Law in Legal Challenges to Trump’s Anti-Refugee Order’, OpinioJuris, 3 February 2017, available at http://opiniojuris.org/2017/ 02/03/the-important-role-of-international-law-in-legal-challenges-to-trumps-anti-refugee-order/. Some of the aforementioned articles refer to the first two versions of the travel ban. However, the main argument that the travel ban violates international human rights law has remained the same with each progressive executive order. 74

United States Supreme Court, supra note 73.

Executive Order 13769, Protecting the Nation from Foreign Terrorist Entry into the United States, 82 Fed. Reg. 8977, available at https://www.whitehouse.gov/presidential-actions/executiveorder-protecting-nation-foreign-terrorist-entry-united-states-2/. 75

76

See United States Supreme Court, supra note 73, at 2404-2405, 2418-2420.

Indeed, as Justice Samuel Alito noted at oral argument in Trump v. Hawaii, ‘there are 50 predominantly Muslim countries in the world. Five – five countries – five predominantly Muslim countries are on this list. The population of the – of the predominantly Muslim countries on this list make up about eight percent of the world’s Muslim population. If you looked at the 10 countries with the most Muslims, exactly one, Iran, would be on that list of the top 10.’ United States Supreme Court, supra note 73, Transcript of Oral Argument at 64, available at https://www.supremecourt.gov/oral_arguments/argument_ transcripts/2017/17-965_3314.pdf. 77

Hafetz, supra note 73. The United States might also have violated its customary international law duty to consider claims for asylum and the non-refoulement principle. 78

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Whether or not the third Trump Executive Order on immigration technically violates international law, it was widely seen as an attack on international human rights norms and institutions. Several other prominent Trump-era events fall in this category. First, the Trump State Department has made human rights advocacy and rhetoric even less of a foreign policy priority than the Obama administration.79 Second, the Trump administration withdrew from the UN Human Rights Council.80 Third, it withdrew from the United Nations Education, Scientific, and Cultural Organization (UNESCO), a prominent UN peace-promoting organisation.81 Fourth, National Security Advisor John Bolton declared the ICC was ‘ineffective, unaccountable, and indeed, outright dangerous,’ and threatened to use ‘any means necessary,’ including individual sanctions against prosecutors and judges, ‘to protect our citizens and those of our allies from unjust prosecution by this illegitimate court’.82 Fifth, it has ceased to cooperate with or even respond to UN rapporteurs about potential human rights violations inside the United States.83

79 On the Obama administration’s treatment of human rights ‘as a secondary interest – nice to support when the cost was not too high, but nothing like a top priority,’ see Kenneth Roth, ‘Barack Obama’s Shaky Legacy on Human Rights’, Foreign Policy, 4 January 2017, available at https://foreignpolicy.com/2017/01/ 04/barack-obamas-shaky-legacy-on-human-rights/. On the Trump administration’s behaviour, see Harold Hongju Koh, The Trump Administration and International Law (2018), at 33-37.

Gardiner Harris, ‘Trump Administration Withdraws U.S. From U.N. Human Rights Council’, New York Times, 19 June 2018, available at https://www.nytimes.com/2018/06/19/us/politics/trumpisrael-palestinians-human-rights.html. 80

81 Eli Rosenberg and Carol Morello, ‘U.S. withdraws from UNESCO, the U.N.’s cultural organization, citing anti-Israel bias’, Washington Post, 12 October 2017, available at https://www.washingtonpost. com/news/post-nation/wp/2017/10/12/u-s-withdraws-from-unesco-the-u-n-s-cultural-organizationciting-anti-israel-bias/?utm_term=.5ec4e3a47b19.

Mark Landler, ‘Bolton Expands on His Boss’s Views, Except on North Korea’, New York Times, 10 September 2018, available at https://www.nytimes.com/2018/09/10/us/politics/trump-plo-boltoninternational-criminal-court.html; see also Jordan Fabian, ‘Bolton threatens sanctions against International Criminal Court’, The Hill, 10 September 2018, available at https://thehill.com/homenews/ administration/405871-bolton-threatens-sanctions-against-international-criminal-court. 82

83 Ed Pilkington, ‘US halts cooperation with UN on potential human rights violations, The Guardian, 4 January 2019, available at https://www.theguardian.com/law/2019/jan/04/trump-administration-unhuman-rights-violations.

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GERMAN YEARBOOK OF INTERNATIONAL LAW 61 @ 2018 H. Performance at International Conferences

President Trump’s performances in conferences related to international organisations must also be included in any assessment of his actions related to international law and institutions. These performances are notable in part for Trump’s anti-internationalist rhetoric. But they go beyond mere rhetoric to signal United States priorities and goals toward the organisations and nations in question, and thus the extent to which the organisations can rely on United States support and leadership, at least during the Trump presidency. A few examples will suffice. At the G-7 summit in June 2018, Trump refused ‘to sign a joint statement’ with the United States’ closest allies, threatened ‘to escalate his trade war on the country’s neighbors,’ and derided Canada’s prime minister as ‘very dishonest and weak.’84 At the G-20 meeting in July 2017, Trump clashed sharply with other heads of state over a variety of issues related to multilateral cooperation, and refused to join the closing communique on climate change, and stoked significant tension about trade.85 Trump was similarly very critical of NATO at two summits,86 and at the UN in speeches there in September of 2017 and 2018.87 Michael D. Shear and Catherine Porter, ‘Trump Refuses to Sign G-7 Statement and Calls Trudeau “Weak”’, New York Times, 9 June 2018, available at https://www.nytimes.com/2018/06/09/world/ americas/donald-trump-g7-nafta.html; see also Jon Sopel, ‘G7 Summit: War of words erupts between US and key allies’, BBC News, 11 June 2018, available at https://www.bbc.com/news/world-us-canada44430000. 84

See, e.g., Nicola Slawson, ‘G20 Summit: “G19” leave Trump alone in joint statement on climate change-as it happened’, The Guardian, 8 July 2017, available at https://www.theguardian.com/world/ live/2017/jul/08/g20-summit-may-meets-world-leaders-in-bid-to-boost-brexit-trade-prospects; Michael Birnbaum and Damian Paletta, ‘Trump leaves leaders fearing the future as G-20 summit closes’, Washington Post, 8 July 2017, available at https://www.washingtonpost.com/politics/trump-leavesleaders-fearing-the-future-as-g-20-summit-breaks/2017/07/08/daed41be-634f-11e7-84a1-a26b75ad39 fe_story.html?utm_term=.6d3c04551cde. 85

86 See, e.g., Ewan MacAskill, ‘How Trump’s NATO summit meltdown unfolded’, The Guardian, 12 July 2018, available at https://www.theguardian.com/us-news/2018/jul/12/how-trumps-natosummit-meltdown-unfolded; Rosie Gray, ‘NATO, Meet Donald Trump’, The Atlantic, 25 May 2017, available at https://www.theatlantic.com/international/archive/2017/05/nato-trump/528087/.

See Donald J. Trump, Remarks by President Trump to the 73rd Session of the United Nations General Assembly in New York, New York, 25 September 2018, available at https://www.whitehouse. gov/briefings-statements/remarks-president-trump-73rd-session-united-nations-general-assembly-newyork-ny/; Donald J. Trump, Remarks by President Trump to the 72rd Session of the United Nations General Assembly, 19 September 2017, available at https://www.whitehouse.gov/briefings-statements/remarkspresident-trump-72nd-session-united-nations-general-assembly/. 87

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In sum, and compressing a bit, President Trump has altered the United States stance toward international law and institutions in the first two years of his presidency in the following ways: He has verbally assaulted or threatened many of the major international institutions to which the United States belongs (most notably, the UN and several of its agencies, NATO, the WTO, NAFTA, and the G7); he has withdrawn from, or begun the process of withdrawing from, at least six international treaty regimes, including the Paris Agreement, the Iran Deal, and the INF Treaty; he has ceased negotiations for, or announced an intention not to conclude, at least two important trade agreements; he has begun a global trade war in possible violation of WTO rules; he twice attacked the Assad regime in probable violation of the Charter of the UN (UN Charter);88 and he sharply redirected United States human rights law policy along several dimensions and might have violated United States treaty commitments with his immigration policies.

II. Trump’s Impact It is widely believed that the Trump administration’s actions outlined in Part I are ‘undermining’ or ‘disrupting’ or ‘damaging’ international law and institutions, or the ‘rules-based international order’, or, most broadly, ‘liberal internationalism’. One hurdle to analysis of these claims is that commentators posit that Trump has had many different types of impact (undermining, disrupting, damaging) on many different types of laws and regimes (treaties, the rules-based international order, liberal internationalism). This is more than a nit-picky definitional quibble. The Trump administration has obviously taken the United States in a very different direction than the Obama administration with respect to international law and institutions. But it is hard to measure the impact of Trump’s international law policies in a serious way, even qualitatively, without more precise specification of what we are talking about. With this caveat in mind, we proceed as follows. We first emphasise the extraordinary degree to which Trump has not affected international law and institutions. We then examine the impact of Trump’s highest profile interventions on particular treaty regimes. And finally, we speculate about how Trump’s actions might relate to some of the broader changes taking place in international law and institutions. 88

Charter of the United Nations 1945, 15 UNCIO 335.

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GERMAN YEARBOOK OF INTERNATIONAL LAW 61 @ 2018 A. Much Remains Unchanged

One of the remarkable but underappreciated aspects of the Trump administration’s efforts to change or manipulate international law and institutions is how often they have taken place through lawful means. Relatively few Trumpian innovations involve outright violations of international law. Every one of his treaty withdrawals, for example, has taken place in accordance with the terms of the treaties, most notably, by not insisting on renunciation of the treaty obligations until after the notification period expires.89 This is an oddly respectful attitude toward international law by an administration that in other respects seems to want to wreck it. So too is the Trump administration’s agreement to abide by the provisional measures order of the ICJ in the recent Iran case even as the administration was, lawfully, withdrawing from the treaty with Iran that gave the ICJ jurisdiction.90 Taken alone, the Trump administration’s respect for the niceties of international law, even as it tries to change international law, suggests that the administration is not trying to destroy or undermine international law. The same point might apply to many of the institutions that Trump has viciously attacked but has not yet materially changed. For example, he has been relentless in excoriating and threatening NATO. And yet the United States government continues to participate in NATO, which continues to operate largely as it did under the prior administration. In this and other contexts, President Trump’s bark has been much louder than his administration’s bite. (As we note below, his bark alone may be very consequential. The point for now is that his bark is not always followed by bite.) Indeed, while Trump has attacked several important international laws and institutions as no longer serving the United States national interest, the overwhelming majority of the tens of thousands of international laws to which the United States is a party have been completely unaffected by Trump’s actions. International travel and communication and other everyday conveniences that depend on international law continue to work well; Trump has sought to change the primary global trading re89 It is also possible that the Trump administration will leave some of the treaties in question (such as the INF treaty) by suspending performance during the notification period under the law of countermeasures in response to breaches. 90 Elena Chachko, ‘What to Make of the ICJ’s Provisional Measures on Iran v. U.S. (Nuclear Sanctions Case)’, Lawfare, 4 October 2018, available at https://www.lawfareblog.com/what-make-icjsprovisional-measures-iran-v-us-nuclear-sanctions-case.

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gimes, but the vast majority of bilateral and multilateral trade and commerce and regulatory rules continue to operate as they did before Trump; the thousands of U.S. agreements related to diplomacy, foreign aid, agriculture, defence, energy, finance, fisheries, labour, law enforcement, scientific cooperation, tax, and so much more continue to operate as under the Obama administration; with very few exceptions, the Trump administration’s security commitments continue as they did under prior administrations; and at least until Trump’s recent announcement of a U.S. pullback in Syria and Afghanistan, the Trump administration was fighting wars at about the same overall scale, and under the same basic conception of international law, as the Obama administration. The American Society of International Law’s 2018 edition of the representative ‘100 Ways’ that international law ‘shapes our lives’ remains almost entirely unaffected by Trump’s actions.91 In sum, Trump has attacked a handful of high-profile international laws and institutions, but on the whole, international laws and institutions remain intact and are operating as they did before Trump became president.

B. Particular International Law Regimes

When we turn to the handful of important international laws where Trump has brought significant change, the scale of Trump’s impact depends in part on what one thinks about the merits of Trump’s actions, and in part on who Trump’s successor is. The Trump administration’s withdrawal from the Iran deal has had a big impact on European commercial relations with Iran, on the Iranian economy, and on Middle East affairs.92 Whether this is good or bad for global affairs depends entirely on what one thinks of the Iran deal in the first place, a contested issue.93 Similar points can be 91 See American Society of International Law, International Law: 100 Ways it Shapes our Lives (2018), available at https://www.asil.org/sites/default/files/100Ways/100Ways.pdf.

See, e.g., Clifford Krauss, ‘Trump Hit Iran With Oil Sanctions. So Far, They’re Working’, New York Times, 19 September 2018, available at https://www.nytimes.com/2018/09/19/business/energyenvironment/iran-oil-sanctions.html; Rick Moran, ‘Trump’s withdrawal from Iran deal far more consequential than many realize’, American Thinker, 12 May 2018, available at https://www. americanthinker.com/blog/2018/05/trumps_withdrawal_from_iran_deal_far_more_consequential_ than_many_realize.html. 92

Compare, for example, Sean Illing, ‘Why Trump is right to pull out of the Iran nuclear deal’, Vox, 8 May 2018, available at https://www.vox.com/world/2018/5/8/17326650/iran-nuclear-deal-withdraw93

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made about Trump’s decision to pull out of the INF treaty and the UPU, and Trump’s bombings of the Assad regime.94 All three of these decisions have powerful defenders and powerful critics who hold very different views about whether Trump’s actions are good or bad for global governance. Trump’s attacks on the global trade regime has attracted more uniform opposition, especially for its impact on the global economy and especially non-U.S. economies. But a significant number of analysts see it in positive terms, especially from the perspective of the United States national interest, either because they think the WTO and NAFTA were stagnant and needed recalibrating, or because they agree with Trump that the trade wars are necessary to correct disadvantages to the United States.95 It is also unclear to what extent Trump’s global trade war is just a short-term bargaining stance in anticipation of a negotiation for a new deal, as happened with NAFTA. Trump’s Paris agreement withdrawal is clearly not good for the aims of the agreement, but its ultimate impact is hard to assess. The withdrawal is not yet legally effective, and United States officials continue to show up for Paris Agreement negotiations about framework rules, although some reports suggest that they have been counter-productive.96 At least in part because of the steps taken by the Trump administration to slow implementation of, or to reverse, Obama-era domestic emissions trump-speech-goldberg-interview (interview with Richard Goldberg), with Wendy Sherman, ‘How We Got the Iran Deal. And Why We’ll Miss It’, Foreign Affairs, September/October 2018, available at https://www.foreignaffairs.com/articles/2018-08-13/how-we-got-iran-deal. On the INF Treaty, compare, e.g, Eli Lake, ‘Trump is Right to Withdraw From That Nuclear Treaty’, Bloomberg, 22 October 2018, available at https://www.bloomberg.com/view/articles/2018-1022/russian-nuclear-deal-trump-right-to-withdraw-from-inf-treaty with Bloomberg Editorial Board, ‘It’s Wrong to Abandon the INF Treaty’, Bloomberg, 23 October 2018, available at https://www.bloomberg. com/view/articles/2018-10-23/trump-shouldn-t-walk-away-from-inf-treaty. On the Syria strikes, see supra text at notes 66-67. 94

95 See, e.g., Daniel McCarthy, ‘The Case for Trump’s Tariffs and “America First” Economics’, New York Times, 8 March 2018, available at https://www.nytimes.com/2018/03/08/opinion/trump-tariffseconomics.html. 96 See, e.g., David Nakamura and Darryl Fears, ‘Trump administration resists global climate efforts at home and overseas’, The Washington Post, 9 December 2018, available at https://www.washingtonpost. com/politics/trump-administration-resists-global-climate-efforts-at-home-overseas/2018/12/09/b94a 9ef0-fa41-11e8-863c-9e2f864d47e7_story.html?utm_term=.ece6b8104898; Associated Press, ‘“Limited” progress at Bangkok climate talks’, The Guardian, 10 September 2018, available at https://www. theguardian.com/environment/2018/sep/10/limited-progress-at-bangkok-climate-talks; Lisa Friedman and Brad Plumer, ‘Protestors Jeer as Trump Team Promotes Coal at U.N. Climate Talks’, New York Times, 13 November 2017, available at https://www.nytimes.com/2017/11/13/climate/climate-coalunited-nations-bonn.html.

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regulations, the United States under Trump will not reach its Paris goal. But even the Obama approach left an emissions gap that would have been hard to close even under a Hillary Clinton Presidency without new action from Congress.97 Still, the absence of U.S. leadership on global climate policy under Trump has been significant, especially at the dawn of the Paris Agreement when consensus was so important, and the United States’ failure to live up to its pledge appears to have ‘created moral and political cover for others to follow suit.’98 One reason it is hard to assess the impact of Trump’s actions on these international laws is that we don’t know if U.S. hostility to them will persist beyond 2020. Consider the transition from the George W. Bush administration to the Obama administration. The Bush presidency was in many respects like the Trump administration in its attitude toward international law.99 It imposed tariffs that violated international law.100 It acted in contravention of the Torture and Geneva Conventions101, which Trump has not done, and it invaded Iraq in a much more consequential violation of the UN Charter than anything Trump has done. It unsigned and (during its first term) actively

John Larsen et al., ‘Taking Stock 2016: Progress Toward Meeting US Climate Goals’, Rhodium Group, 28 January 2016, available at https://rhg.com/research/taking-stock-2016-us-greenhouse-gasemissions/. 97

Joseph Curtain, ‘The Paris Agreement Versus The Trump Effect’, Institute of International and European Affairs, 12 March 2018, at p. 1, available at https://www.iiea.com/publication/the-paris-climateagreement-versus-the-trump-effect-countervailing-forces-for-decarbonisation/. 98

See generally Curtis A Bradley, ‘The Bush Administration and International Law: Too Much Lawyering and Too Little Diplomacy’, 4 Duke Journal of Constitutional Law & Public Policy (2009) 57, at 57-75. The Reagan administration also did not have a great record on international law and institutions. It was accused of violating international law rules related to sovereignty in Central and South America and in Libya, it withdrew from the UN Educational, Scientific and Cultural Organization and from the compulsory jurisdiction of the ICJ, it withheld dues from the UN, and it declined to sign the UN Convention on the Law of the Sea 1982, 1833 UNTS 3. 99

See Elizabeth Becker, ‘U.S. Tariffs on Steel are Illegal, World Trade Organization Says’, New York Times, 11 November 2003, available at https://www.nytimes.com/2003/11/11/business/us-tariffs-onsteel-are-illegal-world-trade-organization-says.html. 100

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984, 1465 UNTS 85; Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field 1949, 75 UNTS 31; Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea 1949, 75 UNTS 85; Geneva Convention Relative to the Treatment of Prisoners of War 1949, 75 UNTS 135; Geneva Convention Relative to the Protection of Civilian Persons in Time of War 1949, 75 UNTS 287. 101

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opposed the ICC;102 it boycotted the Human Rights Council;103 and it withdrew from the ABM Treaty104 and the Protocol to the Vienna Convention on Consular Relations.105 The Bush administrations in its day was accused of hostility to international law and institutions and of threatening the international order. The global reputation of President Bush and the United States at the end of Bush’s second term was roughly the same as Trump administration at the end of its second year.106 Champions of the rules-based international order will find little comfort in the claim that the Trump administration was in many respects like the Bush administration in its treatment of and attitude toward international institutions. But the comparison is instructive, since the Bush administration was followed by the globally popular Obama administration, which was seen as a strong supporter (and restorer) of international law and institutions, and a global leader in crafting the momentous Iran deal and the Paris agreement. Obama did not wipe out Bush’s impact on international law and institutions any more than Trump is wiping out Obama’s – some of Bush’s policies (such as the detention facility at Guantanamo and the consequences of the invasion of Iraq) were hard to reverse. But Obama’s very different effects on international laws and institutions compared to Bush’s, and Trump’s sharply different effects compared to Obama’s, show how hard it is to predict one presidency’s impact based solely on its disposition and actions with respect to international institutions. The Bush-to-Obama example illustrates the degree to which there can be sharp changes in United States governmental attitudes toward international law and institutions, and that those institutions can survive United States disengagement, or worse, for long periods. One prominent former Obama official, professor Harold Koh, has See Edith M. Lederer, ‘US supports war crimes tribunal for first time’, Washington Post, 2 March 2011, available at http://www.washingtonpost.com/wp-dyn/content/article/2011/03/02/AR2011030200163.html. 102

103 See Warren Hoge, ‘U.S. Won’t Seek a Seat on the U.N. Rights Council’, New York Times, 7 April 2006, available at https://www.nytimes.com/2006/04/07/world/07nations.html. 104 Terrence Neilan, ‘Bush Pulls out of ABM Treaty; Putin Calls Move a Mistake’, New York Times, 13 December 2001, available at https://www.nytimes.com/2001/12/13/international/bush-pulls-outof-abm-treaty-putin-calls-move-a-mistake.html. 105 Charles Lane, ‘U.S. Quits Pact Used in Capital Cases’, Washington Post, 10 March 2005, available at http://www.washingtonpost.com/wp-dyn/articles/A21981-2005Mar9.html. 106 Richard Wike et al., ‘Trump’s International Ratings Remain Low, Especially Among Key Allies’, Pew Research Center, 1 October 2018, available at http://www.pewglobal.org/2018/10/01/trumpsinternational-ratings-remain-low-especially-among-key-allies/; see also Gallup News, Rating World Leaders: 2018 The U.S vs. Germany, China and Russia (2018), available at https://www.politico.com/f/ ?id=00000161-0647-da3c-a371-867f6acc0001.

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argued that Trump’s actions need not have a large effect on international law and institutions if Trump is opposed in the right ways and if his successor is more international-law-friendly.107

C. The Bigger Picture

The analysis in Parts A and B is incomplete because it abstracts away from the larger structural factors that are impacting global affairs in the Trump era. These larger structural factors all portend significant changes to the international legal system, but at the same time they make it challenging to discern Trump’s unique contribution to these changes. The first challenge comes in identifying the baseline against which Trump’s actions should be judged. As many have pointed out, the United States-led ‘rules-based international legal order’ that Trump is accused of harming was neither as rule-based, nor as orderly, nor as normatively attractive, as critics sometimes suggest.108 That legal order did not prevent the humanitarian debacles in Syria, Iraq, Libya, or Yemen, among other places; or the Russian operations in Crimea, Georgia, or Ukraine; or China’s ascendancy in the South China Sea and elsewhere, to take a few examples. The international trade regime, especially the WTO, was widely derided prior to the Trump presidency as ossified, distributionally unfair in many dimensions, and non-responsive to the rise of new global powers, especially China.109 Freedom House in 2018 reported 107

See Koh, The Trump Administration and International Law, supra note 79.

See, e.g., Andrew J. Bacevich, ‘ISSF Policy Series: The “Global Order” Myth’, ISS Forum, 13 July 2017, available at https://networks.h-net.org/node/28443/discussions/186275/issf-policy-series-%E2% 80%9Cglobal-order%E2%80%9D-myth; Graham Allison, ‘The Myth of the Liberal Order: From Historical Accident to Conventional Wisdom’, Foreign Affairs (2018), available at https://www.foreignaffairs. com/articles/2018-06-14/myth-liberal-order; Patrick Porter, ‘A World Imagined: Nostalgia and Liberal Order’, The Cato Institute, 5 June 2018, available at https://www.cato.org/publications/policy-analysis/ world-imagined-nostalgia-liberal-order; Paul Staniland, ‘Misreading the “Liberal Order”: Why We Need New Thinking in American Foreign Policy’, Lawfare, 29 July 2018, available at https://www.lawfareblog. com/misreading-liberal-order-why-we-need-new-thinking-american-foreign-policy; Stephen M. Walt, ‘Why I Didn’t Sign Up to Defend the International Order’, Foreign Policy, 1 August 2018, available at https://foreignpolicy.com/2018/08/01/why-i-didnt-sign-up-to-defend-the-international-order/; Samuel Moyn, ‘Beyond Liberal Internationalism’, Dissent Magazine (2017), available at https://www.dissent magazine.org/article/left-foreign-policy-beyond-liberal-internationalism. 108

See, e.g., Gabe Lipton, ‘The Elusive “Better Deal” with China’, The Atlantic, 14 August 2018, available at https://www.theatlantic.com/international/archive/2018/08/china-trump-trade-united109

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a decline in political rights and civil liberties – and in democracy more generally – for the twelfth consecutive year.110 The global populist revolt against international institutions as elite, out of touch, and unfair began before Trump entered the scene, and resulted in Brexit and the rise of relatively authoritarian governments prior to the 2016 election. Many commentators believe that the United States government’s disengagement from leadership in some international institutions began before Trump. President Obama was often criticised for what one of his advisors described as his commitment to ‘leading from behind.’111 As Robert Kagan noted, ‘“America First” is a pithier version of Barack Obama’s call to focus on “nation-building at home,” and the policies of the two administrations have more in common than either would like to admit.’112 Related to the baseline point is the difficulty of discerning the cause of the changes in the international system. Many structural considerations independent of Trump’s election have been impacting international law and institutions for a period longer than Trump’s presidency. These considerations include the rise of China and reascendancy of Russia as global powers; the failures of or downsides to the legalised international institutions that promote the global movements of goods and people, which have (among other causes) contributed to a global populist revolt; blowback and exhaustion from American military and financial overstretch in wars in Afghanistan and Iraq and related places; and a general disenchantment in liberal democracies with distant, elite, global institutions. Trump ran for President on many of these themes, which he is now using as a guide to implement policies as president. And he is no doubt contributing to these trends. But it is hard to untangle the extent to which Trump’s actions against international law and institutions are the effects or causes of

states/567526/; Auriele Walker, ‘The WTO has failed developing nations’, The Guardian, 14 November 2011, available at https://www.theguardian.com/global-development/poverty-matters/2011/nov/ 14/wto-fails-developing-countries; The Editorial Board, ‘Global Trade After the Failure of the Doha Round’, New York Times, 1 January 2016, available at https://www.nytimes.com/2016/01/01/opinion/ global-trade-after-the-failure-of-the-doha-round.html. 110 Freedom House, Freedom in the World 2018: Democracy in Crisis (2018), available at https:// freedomhouse.org/report/freedom-world/freedom-world-2018.

Charles Krauthammer, ‘The Obama doctrine: leading from behind’, Washington Post, 28 April 2011, available at https://www.washingtonpost.com/opinions/the-obama-doctrine-leading-from-behind/ 2011/04/28/AFBCy18E_story.html?utm_term=.6928249c22cd. 111

112 Robert Kagan, ‘The Cost of American Retreat’, Wall Street Journal, 7 September 2018, available at https://www.wsj.com/articles/thecost-of-american-retreat-1536330449.

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these larger factors. Trump might be mostly, or at least largely, epiphenomenal on other considerations. The pre-Trump changes in and shortcomings of international law and institutions, and the Trump-independent structural reasons for these changes and shortcomings, make it hard to identify Trump’s unique contributions. But they do provide reasons to believe that Professor Koh and others are wrong to think that a snap-back to the pre-2017 baseline is possible. The structural factors that are causing changes in the international legal order are different now than in 2009, and are likely to put more of a drag on any snap-back after Trump as compared to when Obama succeeded Bush in 2009. China’s ascendancy toward superpower status and the rise of anti-internationalist populist governments by themselves make such a return impossible. And reallocations of the balance of power during the Trump era will have path-dependent effects that make it hard to return to the ways that international laws and institutions operated at the end of 2016. In the face of the United States withdrawal from global leadership roles, China is assuming leadership on climate change and global trade in ways that it did not during the Bush administration, and other nations have begun to cooperate with Beijing in international institutions in novel ways. These change in the leadership and power structure of international institutions – which, again, began before Trump arrived on the scene113 – will be hard for the United States to reverse even if there is a sharp change in leadership in 2020. While it is difficult to identify Trump’s unique contributions to these larger trends, one such contribution is probably his harsh, disdainful rhetoric. Trump regularly accuses major international institutions – especially the UN, NATO, the EU, the WTO, human rights bodies, and the G-7 – of being corrupt, out of touch, elitist, self-serving, or harmful to United States interests. He regularly speaks in ways that imply that human rights laws and norms – about freedom of speech and press, immigration and refugees, discrimination on the basis of race, religion, and national origin, and more – are unimportant. He also persistently talks as if he does not take international law, For example, the Asian Infrastructure Investment Bank and the New Development Bank are now largely accepted but they happened under Obama and forced other internal reforms at the World Bank, IMF, and Asian Development Bank. See Enda Curran, ‘The AIIB: China’s World Bank’, Bloomberg, 6 August 2018, available at https://www.bloomberg.com/quicktake/chinas-world-bank; Sue-Lin Wong, ‘China launches new AIIB development bank as power balance shifts’, Reuters, 15 January 2016, available at https://www.reuters.com/article/us-asia-aiib-investment/china-launches-new-aiib-developmentbank-as-power-balance-shifts-idUSKCN0UU03Y. 113

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including United States commitments under it, seriously. And he persistently trashes the leaders of some of the United States’ closest allies, including Germany, the United Kingdom, and France. These verbal assaults by the President of the United States surely have a corrosive impact on international institutions and international relations akin to the impact on American institutions of Trump’s similar tactics in domestic affairs.114 The attacks cause some third-party observers to lose faith in the institutions, which in some instances translates into less domestic support for these institutions in other countries. Moreover, when the leader of the world’s most powerful nation and the former defender of these international institutions acts in norm-defiant ways toward them, it makes it easier for leaders in other nations to take a similarly disdainful attitude toward these institutions. These last two factors surely explain Trump’s contributions to the continued rise of populist nationalist governments after his election. Trump’s verbal attacks also invite retaliation by the leaders and institutions who are under attack by Trump, which has the effect of further weakening the bonds between the United States and these institutions. Trump’s attacks on international laws and institutions also have the effect of dislodging the consensus whiggish belief in a one-directional, ever-deepening, ever-moreprogressive international order.115 In his previously unimaginable norm-defying attacks on international law and institutions, Trump has signalled that he and his political party – and perhaps the United States – no longer value or support these institutions or these relationships. This is a novel stance for a United States president in the modern era. Some elements in the George W. Bush administration were sharply anti-internationalist, but President Bush was never overtly institution-destroying in word and deed, he took a traditional United States stance toward globalisation, and his second term administration adopted a more traditional United States internationalist stance on other issues. Trump’s words (and his deeds) undermine confidence in the institutions our closest allies continue to find valuable, and is causing them to rethink their relations with the United States and to form new relationships that might 114 See Jack Goldsmith, ‘Will Donald Trump Destroy the Presidency?’, The Atlantic, October 2017, available at https://www.theatlantic.com/magazine/archive/2017/10/will-donald-trump-destroy-thepresidency/537921/.

See Eric A. Posner, ‘Liberal Internationalism and the Populist Backlash’, University of Chicago Public Law & Legal Theory Paper Series, No. 606 (2017), available at https://chicagounbound.uchicago. edu/cgi/viewcontent.cgi?article=2071&context=public_law_and_legal_theory. 115

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have irreversible impacts on global affairs. This is especially so since it is happening in conjunction with a movement away from the post-Cold War unipolar moment with the rise of China, the re-ascendance of Russia, and the fragmentation of the traditional western alliance. While Trump’s unconventional words and deeds surely matter a lot, it remains hard to know how much since, as noted above, they are pushing in the same direction as a number of other larger structural factors. Perhaps Trump is speeding up the process. Perhaps he is giving it momentum. Perhaps he is leading it. Or perhaps he is simply a rude anti-elitist loudmouth with sometimes-unconventional views about what serves the U.S. interest in global affairs who happens to be President at a moment when the tectonic plates undergirding the global order appear to be shifting significantly. As Henry Kissinger put it: ‘Trump may be one of those figures in history who appears from time to time to mark the end of an era and to force it to give up its old pretences. It doesn’t necessarily mean that he knows this, or that he is considering any great alternative. It could just be an accident.’116

Henry Kissinger, ‘We are in a very, very grave period’, Financial Times, 20 July 2018, available at https://www.ft.com/content/926a66b0-8b49-11e8-bf9e-8771d5404543. 116

FOCUS INTERNATIONAL HEALTH LAW

Introduction NELE MATZ-LÜCK(

Global protection of human health is one of the main challenges of our times. Health as an individual asset is not evenly distributed around the world. Likewise, approaches by State and non-State institutions to provide for healthy living conditions and the necessary infrastructure vary considerably depending upon the region and country. It has been estimated that about half of the world’s population has no access to basic health care.1 The estimated growth of the global population will put even more pressure on already weak health infrastructure in many regions. At the same time, transmissible diseases can spread more easily, rapidly, and widely due to regional and globalised traffic and migration. The outbreaks of Ebola in Western Africa in 2014 and of the so called ‘New Influenza’ in Mexico in 2009 demonstrate the risks of epidemic and pandemic transmissions that are almost impossible to control. Currently there is no ‘international human health law’ as a separate field of law that is following a structured and coherent approach. Different aspects of human health and international law are addressed from different perspectives in a fragmented manner by, inter alia, human rights law, considerations of international development assistance, international economic law, institutional frameworks, and national implementation. In addition to parallel regulatory systems of different origins and scope, actors and institutions on the domestic and international levels coexist. An analysis and evaluation of current public international law from different perspectives enables discussions concerning the feasibility of the normative and ( Professor of Law and Co-Director of the Walther Schücking Institute for International Law at Kiel University.

World Health Organization, Tracking Universal Health Coverage: 2017 Global Monitoring Report (2017), at 14. 1

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institutional framework with regard to the identified challenges, potential shortcomings and future developments. On 26 and 27 September 2018, Professor Sebastian von Kielmansegg (Chair for Public Law and Medical Law, Kiel University) and Professor Nele Matz-Lück (Walther Schücking Institute for International Law, Kiel University) organised an international conference on International Law and Human Health which was supported by the Thyssen Foundation. Presentations by renowned experts from academia and practice were followed by plenary discussions. Presentations centred around five thematic areas, each of which addressed different perspectives on international law and human health: 1. Theoretical Foundations, 2. Issues of Implementation, 3. Global Health Security, 4. Global Health Law in Specific Contexts, and 5. Health and Commerce: The Role of International Economic Law. This Focus section assembles a choice of papers based upon presentations which were discussed at the conference.

Public International Law and Human Health: Bridging Conceptual Gaps Through Governance PEDRO A. VILLARREAL( ABSTRACT: The lack of a consolidated set of norms, principles, and procedures in international health law reflect the haphazard manner in which the protection of human health has been addressed at the international level. But this does not mean that public international law does not play a role in promoting the improvement of human health. Rather, international health law can also contribute to shaping claims in other legal regimes. This can be ascertained by looking into developments in fields, such as international economic law, where human health has been directly at stake. On that account, this contribution lists some of the legal instruments that constitute norms of public international law with the core objective of the protection of human health. Then, a brief review of recent rulings from adjudicators in international investment and trade law is undertaken for assessing the way in which this crosscutting interpretation has taken place. Furthermore, the proliferation of non-binding documents dealing with issues of human health requires a broader approach than source-based legal positivism. Thus, the usefulness of the concept of governance for tackling the limited and fragmented array of binding instruments of international health law, as well as the challenges the concept poses for legal doctrine, are discussed. KEYWORDS: International Health Law, International Investment Law, International Trade Law, Fragmentation of International Law, Tobacco Regulation

I. Introduction: The Birth of a Specialised Field? The goal of protecting human health has undergone a non-linear path in public international law. While there are legally binding instruments with health at the core, ( Senior Research Fellow, Max Planck Institute for Comparative Public Law and International Law. The author would like to thank the organisers of the September 2018 conference entitled ‘International Law and Human Health’ at the University of Kiel, Nele Matz-Lück and Sebastian Graf von Kielmansegg, as well as Brigit Toebes, Gian Luca Burci, Frederick Abbott, and Stéphanie Dagron for their valuable input. Special gratitude is also extended towards Peter Pázmány for research support, as well as to the German Yearbook of International Law team for editorial work All mistakes are the sole responsibility of the author.

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the evolution of social phenomena has outpaced the State-centred consensus required for creating international norms. As is the case with other subject matters, the goal of protecting human health is riddled with complex social facts that move much faster than the law’s ability to keep up.1 Hence, the emergence of ‘international health law’ as a specialised field in its own right is still debatable. Discussions on the fragmentation of international law have shown how the proliferation of specialised fields is not without its problems. Disparate interpretations of the same facts, or similar ones, by different authoritative entities can undermine legal certainty at the international level. Furthermore, as the areas of international law do not operate in clinical isolation from general international law, the frequent overlaps between human health and other fields indicate a patchwork of regimes that may end up regulating the same facts in diverging ways. Given how these facts are cross-cutting in nature, the problems for framing a stand-alone field begin with the uncertainties surrounding the appraisal of facts themselves. With this in mind, questions of the role of legal doctrine have arisen in the context of a growing body of literature dealing with health and international law.2 Additionally, given the oft stated fact that there is no centralised authority at the international level, it is no surprise that the development of legal sources in this field occurs in a haphazard manner.3 Even with an exercise of harmonious interpretation, any attempt at providing a glimpse at the current status of the subject matter requires undertaking an initial conceptual exercise for better framing the contours. Therefore, this contribution aims at mapping some of the existing sources within international law which touch upon the protection of human health. The second section of this article will highlight some of these instruments and the aspects of human health they address. The goal is not to exhaust all possible provisions that may intersect with health in one way or another, whether explicitly or implicitly. As argued therein, to frame everything that somehow affects human health as ‘international 1 Andreas Fischer-Lescano and Gunther Teubner, ‘Regime-Collisions: The Vain Search for Legal Unity in the Fragmentation of Global Law’, 25 Michigan Jounal of International Law (1999) 999; on the absence of coherence at the international level,, see Paolo G. Carozza, ‘The Problematic Application of Subsidiarity to International Law and Institutions’, 61 American Journal of Jurisprudence (2016) 56. 2 For an overview, see Brigit Toebes, ‘Global health law: defining the field’, in Gian Luca Burci and Brigit Toebes (eds.), Research Handbook on Global Health Law (2018), 2 et seq. 3 This key conundrum for the status of international law in legal theory had already been notably highlighted by Thomas Franck, The Power of Legitimacy Among Nations (1990), at 13.

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health law’ would be to overstate and, consequently, to overexpand its reach. The question, then, is under which criteria and to what extent can multiple legal sources be considered to be a part of the field. For dealing with this task, the cross-cutting dimension of the right to health also needs to be part of the equation. Within the survey of possible overlaps between legal regimes, the third section deals with some examples in which the settlement of disputes by adjudicative bodies in other legal regimes, such as international investment law and international trade law, tackle human health as a normative goal. Several cases related to the contestation of domestic regulation of tobacco in line with the World Health Organization (WHO) Framework Convention on Tobacco Control 2003 (FCTC),4 deal with how human health carries weight in the settlement of disputes. However, as seen in this section, this interplay does not occur without problems. The fourth section addresses the role that legally non-binding sources play in developing the aforementioned normative yardstick. As the particular example of the right to health showcases, the inclusion of non-binding sources can contribute to further clarifying the application of broad provisions. For instance, there are multiple guidelines surrounding the International Health Regulations 2005 (IHR) developed within the WHO bodies themselves, or from the FCTC’s Conference of the Parties (COP). For this purpose, as argued herein, the inclusion of legally non-binding instruments can complement the already existing binding sources, which are relatively constrained in scope, taking into consideration the plethora of issues touching upon human health. Therefore, the notion of ‘governance’ can provide a broader conceptual framework, even if this also carries methodological risks for legal approaches. As mentioned above, the field of international health law still lacks a consistent set of legal sources, and those currently in force – notably, but not exclusively, the FCTC and the IHR – have a limited reach for addressing challenges related to human health requiring an international response.5 Yet, beyond the fact that these instruments are taken as the main sources, a set of non-binding documents are included regardless of their exact legal status. Taking into consideration the unresolved debates on how to properly assess these non-binding documents from a legal perspective, some conclu4 World Health Organization (WHO) Framework Convention on Tobacco Control (FCTC) 2003, 2302 UNTS 166. 5

Also argued in Toebes, supra note 2.

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sions with regards to the ongoing themes of the linkage between human health and international law are posited.

II. International Health Law: An Autonomous or a Subsidiary Field? The question of whether and when an autonomous field of law exists is not clearcut. With this in mind, a stand-alone field could be acknowledged as autonomous only in direct comparison to other established fields. In general public international law, there is no requirement for a specialised field to be considered as self-contained, meaning it can stand on its own without contact with other fields.6 As a result of the fragmentation of international law, the emergence and proliferation of parallel principles and institutions can eventually lead to conflicts or collision between different legal regimes.7 As already posited elsewhere, the lack of a robust body of case law within existing instruments of health law results in an undeveloped autonomous field.8 But even amidst a general scarcity of sources, this contribution argues that taking human health as a normative reference can lead to the interpretation of provisions by adjudicative bodies which take place in other fields of law. The overarching goal of framing international health law as a specialised field is to place human health at the centre of legal interpretation, and not just as part of exception clauses in multiple legal regimes.9 The challenge, then, is how to develop specific criteria for achieving 6 Georges Abi-Saab, ‘Fragmentation or Unification: Some Concluding Remarks’, 31 The New York University Journal of International Law and Policy (1999) 926; Bruno Simma, ‘Self-Contained Regimes’, 16 Netherlands Yearbook of International Law (1985) 111. 7 International Law Commission, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission, Finalized by Martti Koskenniemi, UN Doc. A/CN.4/L.682, 13 April 2006, at para. 8; see also Carozza, supra note 1, at 56-57. 8 Armin von Bogdandy and Ingo Venzke, In Whose Name? A Public Law Theory of International Adjudication (2014); see also particularly on the case of the International Health Regulations (IHR) 2005, 2509 UNTS 79; Leonie Vierck, ‘The Case Law of International Public Health and Why its Scarcity is a Problem’, in Leonie Vierck, Pedro Villarreal and Katarina Weilert (eds.), The Governance of Disease Outbreaks - International Health Law: Lessons from the Ebola Crisis and Beyond (2017) 113, at 113-114.

Special thanks to Frederick Abbott for guidance on this particular point. Framing human health as an exception to general obligations is especially salient in international trade law, namely Article XX(b) General Agreement on Tariffs and Trade (GATT) 1994, 1867 UNTS 190, as well as throughout multiple Bilateral Investment Treaties (BITs). See also Benn McGrady, ‘Health and international trade law’, 9

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this central goal, and afterwards ascertaining whether it can make a difference in particular cases. Case law is a central piece for this undertaking. Specialised fields of international law may range from more overarching ones, to the highly specific. The proliferation of fields may, at times, lead to conflicts of norms. When different treaties simultaneously mandate opposing actions, one of them will have to take precedence, particularly if there is a dispute amongst States.10 In a similar fashion to the less-expansive reading of health developed by the International Court of Justice (ICJ), this section will not include every possible instrument of international law that touches upon human health. That does not mean they are wholly irrelevant for the normative goals of ‘international health law’,11 but rather obeys a methodological reasoning.

A. Health Law: Global or International

There is ongoing work aimed at defining both international and global health law.12 While this distinction does not derive from law, it is a reflection of contemporaneous debates in the subject matter, namely in public health research.13 The term ‘global’ is used to denote the shift from a classic understanding of multilateral responses to health problems (mainly the spread of infectious disease) towards multi-level decisionmaking in collective matters through different channels and with varying degrees of normativity.14

in Burci and Toebes (eds.), supra note 2, 104, at 113; Tania Voon and Andrew Mitchell, ‘Community Interest and the Right to Health in Trade and Investment Law’, in Eyal Benvenisti and Georg Nolte (eds.), Community Interests Across International Law (2018) 249, at 255-257. 10

Fischer-Lescano and Teubner, supra note 1, at 1021.

11

For a more developed account of this point, see Toebes, supra note 2.

Notably, Lawrence O. Gostin, Global Health Law (2014); on the distinction global vs international, see Jennifer Prah Ruger, ‘Normative Foundations of Global Health Law’, 96 The Georgetown Law Journal (2008) 423, at 423; also, Toebes, supra note 2, at 5-6. 12

13 Ilona Kickbusch and K.S. Reddy, ‘Global Health Governance - The next political revolution’, 129 Public Health (2015) 839. 14 A methodological decision also present in Leonie Vierck, Pedro Villarreal, and Katarina Weilert, ‘The Concept of the Book’, in Vierck, Villarreal, and Weilert (eds.), supra note 8, 34.

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On one hand, Brigit Toebes defines international health law as an ‘emerging field’ encompassing a series of standard-setting instruments, but which is not as developed as other areas such as international trade law, international humanitarian law, or international environmental law.15 On the other hand, Lawrence O. Gostin has defined global health law as [t]he study and practice of international law – both hard law (e.g. treaties that bind States) and soft instruments (e.g. codes of practice negotiated by States) that shapes norms, processes, and institutions to attain the highest attainable standard of physical and mental health for the world’s population.16

A comparison of these definitions shows how the term ‘global’ denotes a wider focus in the selection of source material for analysis. For this contribution, the term ‘international’ has been selected over ‘global’ not because one is more accurate than the other. Rather, the scope chosen for this article remains, strictly speaking, within public international law. Given how global health also encompasses issues related to domestic law, this methodological decision also avoids the risk of conflating the international and the national.17

B. Main Legal Instruments of International Health Law

It is now a commonplace to argue that there is no central authority in the international arena. Even though there are innovative developments taking place beyond States,18 international legal norms are, to this date, mostly centred on State consent.19 As a result, there is an encroached fragmentation of international law which leaves Brigit Toebes, ‘International health law: an emerging field of public international law’, 55 Indian Journal of International Law (2015) 299, at 300-301. 15

16

Gostin, supra note 12, at 59.

Armin von Bogdandy, Matthias Goldmann, and Philipp Dann, ‘Developing the Publicness of Public International Law: Towards a Legal Framework for Global Governance Activities’, in Armin von Bogdandy et al. (eds.), The Exercise of Public Authority by International Institutions. Advancing International Institutional Law (2010) 24. Conversely, in the literature on global governance from the perspective of political theory, the point is precisely to include both the international and national levels for achieving more elaborate insights. Jim Whitman, The Fundamentals of Global Governance (2009), at 5-6, 18-27. 17

Seminal on this phenomenon: James Rosenau and Ernst-Otto Czempiel (eds.), Governance without Government: Order and Change in World Politics (1992). 18

19

Bogdandy, Dann, and Goldmann, supra note 17.

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multiple social phenomena wholly outside of any explicit regulation. The field of human health is a case in point.20 Even though there is still no overarching treaty exhausting all possible issues of human health at the international level,21 there are instruments in force which do provide general normative foundations. Amongst them, the Constitution of the WHO22 stands out. It is the first universal treaty23 positing the right to health at the centre, as seen in its Preamble. The WHO’s wide membership, standing at 194 member States, constitutes it as the most representative international organisation in issues related to human health.24 Given how the wording of Article 2 of the Constitution of the WHO includes among the organisation’s functions, ‘to act as the directing and co-ordinating authority on international health work’, it remains the only universal intergovernmental organisation with such a mandate.25 Although the Constitution of the WHO grants norm-producing powers to the organisation, this necessarily has to be undertaken through procedures requiring explicit approval by States.26 To this date, there are only three legally binding instruments arising from these powers: 1) the IHR, dealing with the spread of communicable diseases;27 2) the FCTC, enshrining obligations for States Parties to regulate tobacco consumption; and 3) the Nomenclature Regulations,28 which provide a unified 20

Wolfgang Hein and Suerie Moon, Informal Norms in Global Governance (2013), at 188-190.

A specific proposal in this sense, which has not led to actual reform, is made by Lawrence Gostin et al., ‘Towards a Framework Convention on Global Health’, 91 Bulletin of the World Health Organization (2013) 790, at 790-793. 21

22

Constitution of the World Health Organization (WHO Constitution) 1946, 14 UNTS 185.

The doctrinal distinction is made between universal organisations, with membership open for all States, and regional organisations, corresponding to groupings of States mainly, though not exclusively, through geographical criteria. On the universal character of the WHO, see the textbook by Malcolm N. Shaw, International Law (8th ed, 2017), at 984. 23

24

Voon and Mitchell, supra note 9, at 249.

Michel Bélanger, ‘Réflexions sur la mondialisation du droit de la santé’, in Michel Bélanger (ed.), La mondialisation du droit de la santé (2011), at 17. 25

26

See Arts. 19 and 21 WHO Constitution.

For a more detailed discussion of the role of the IHR in the protection of human health at the international level, see in this volume Anika Klafki, ‘International Health Regulations and Transmissible Diseases’, 61 German Yearbook of International Law (2019) 73. 27

World Health Organization Regulations regarding nomenclature (including the compilation and publication of statistics) with respect to diseases and causes of death 1967, 1172 UNTS 345. 28

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list of names of disease for the purposes of official reports.29 There are some who offer possible explanations on why this has been the case.30 Others explicitly criticise the ‘selflimited’ role the WHO has exercised so far.31 As argued in the following subsection, this translates into a constrained number of instruments available in the framing of this field. Still another notable fact is that none of these instruments has led to an international dispute amongst States. However, as will be seen below, this does not prevent dispute-settlement bodies with mandates in other legal fields from addressing them in various ways.

C. Limits of the Legal Instruments of International Health Law

The limits of the aforementioned instruments are underscored when addressing cross-cutting issues that touch upon other fields of law. Here, the ample wording in the Constitution of the WHO’s definition of health may lead to overexpansive interpretations. If everything that directly or indirectly impacts health were to fall under the purview of the WHO, this would considerably widen its functional competences. And yet, as discussions focused on the right to health show, this lack of definitional clarity leads to an absence of international standards for compliance with its contents.32 Hence, although the normative goal of fostering human health as a matter of international law is directly related to a human rights perspective, its scope is not limited to this circumscribed legal field.33 29

Gostin, supra note 12, at 60.

Possible explanations include a prevalence of medical personnel in the organisation itself, with a rather sceptical view towards the role of law. Obijiofor Aginam, ‘Mission (Im)possible? The WHO as a ‘Norm Entrepreneur’ in Global Health Governance’, in Michael Freeman, Sarah Hawkes, and Belinda Bennett (eds.), Law and Global Health. Current Legal Issues (2014) 559, at 559-562; also, Benedict Kingsbury and Lorenzo Casini, ‘Global Administrative Law Dimensions of International Organizations Law’, 6 International Organizations Law Review (2009) 352. 30

Expressly referring to it as ‘disappointing’, Toebes, supra note 2, at 11; deeming this situation a ‘missed opportunity’, Lawrence Gostin, Devi Sridhar, and Daniel Hougendobler, ‘The normative authority of the World Health Organization’, 129 Public Health (2015) 854, at 855 and 858. 31

Though put in different terms, see George P. Smith, II, ‘Global Health Law: Aspirational, Paradoxical, or Oxymoronic?’, in Freeman, Hawkes, and Bennett (eds.), supra note 30, at 455-457. 32

There are warnings against this rights-based view of health law also in Thérèse Murphy, ‘Hardwired human rights: a health and human rights perspective on global health law’, in Burci and Toebes (eds.), supra note 2, 82, at 93-98. 33

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Alternatively, taking the Constitution of the WHO’s definition of health to its ultimate consequences would lead to problematic conclusions.34 First, it would imply that the WHO would have an ever-growing field of competence under international law. The wording of Article 2 Constitution of the WHO provides it with a mandate on general matters related to international health. Yet, an expansive reading of the definition of health for the purposes of demarcating the WHO’s functions has been explicitly rejected by the ICJ in its Advisory Opinion on Legality of the Use by a State of Nuclear Weapons in Armed Conflict.35 Here, the World Court considered that the subject matter did not fall under the Organization’s competence for the purpose of Article 76 Constitution of the WHO, jointly with Article 96(2) Charter of the United Nations.36 As a result, the ICJ declined to issue an Advisory Opinion by adopting a restrained interpretation of what constitutes ‘sufficient connection’ between the use of nuclear weapons and human health in order to ‘activate’ the WHO’s competence.37 Any functionalist reading of the WHO’s authority stumbles upon these and other roadblocks.38 The international regulation of health concerns, e.g. the cross-border spread of disease or even the unification of disease nomenclature, are the direct result of the necessity of coordinated action involving more than one State.39 The lack of binding law in other health-related matters, such as alcohol control,40 can also be under34 After all, as others have put it, according to the definition of health of the Constitution of the WHO, ‘we are all ill’. Charles Foster and Jonathan Herring, ‘What is Health?’ in Freeman, Hawkes, and Bennett (eds.), supra note 30, ,at 27. 35 International Court of Justice (ICJ), Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, 8 July 1996, ICJ Reports 1996, 66.

Charter of the United Nations 1945, 15 UNCIO 335; ICJ, Legality of the Use by a State of Nuclear Weapons in Armed Conflict, at paras. 11 and 18. 36

37

ICJ, Legality of the Use by a State of Nuclear Weapons in Armed Conflict, at paras. 22 and 26.

On the idea of functionalism in international organisations, see Michel Virally, ‘La Notion de Fonction dans la Théorie de l’Organisation Internationale’, in Charles E Rousseau, Mélanges offerts à Charles Rousseau (1974), at 281-283; also Jan Klabbers, ‘The EJIL Foreword: The Transformation of International Organizations Law’, 26 European Journal of International Law (EJIL) (2015) 9, at 40-41, 49, and 69. 38

Already envisaged by Neville M. Goodman, International Health Organizations and their Work (1971), at 3. 39

40 For hypotheses on why there are diverging approaches between alcohol and tobacco at the international level, see Uwe Gneiting and Hans Peter Schmitz, ‘Comparing global alcohol and tobacco control efforts: network formation and evolution in international health governance’, 31 Health Policy and Planning (2016) i98, at i106-i107.

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stood as a purposeful refusal by the WHO’s Member States to resort to international law to deal with the problem at hand.41

III. Human Health and Other Fields of Public International Law: Conflict, Parallelism, and Harmony The normative step of promoting a more robust development of international health law as an autonomous field merits further discussion. As a descriptive matter, the emergence of this field is yet to be consolidated.42 Nevertheless, this is not an obstacle for normatively assessing ongoing developments in public international law, depending on the way in which they do – or do not – foster the goal of promoting and protecting human health. Given how the improvement of human health has been put forward as the normative yardstick of international health law, this criterion can be used to assess decisions, rulings or even treaty-making in other fields. For this reason, a survey of some of the fields of international law which are closely interconnected to health43 can help clarify the contours of how its normative goals are pursued. This is by no means a new endeavour, as previous and current policy-making by the WHO has already emphasised the relevance of other fields of international law for promoting health.44 But even after the entry into force of both the WHO’s first treaty, the FCTC, in 2005, and of the current version of the IHR in 2007, this has not led to a more comprehensive set of norms and principles capable of constituting a stand-alone field. Consequently, the objective of promoting human health through international law has also taken place in other fields. In the following subsections, some issues of the protection of human health within the fields of international

41 On the lingering role of State consent for international lawmaking by international organisations, see José E. Alvarez, International Organizations as Law-Makers (2005), at 272; see also Gian Luca Burci, ‘Global health law: present and future’, in Burci and Toebes (eds.), supra note 2, 486, at 512-516. 42 Bearing in mind, there is no definitive criterion for identifying the ‘emergence’ of a new field of law. See supra, section II.

This term is inspired in a similar section on ‘interconnected fields of public international law’ developed within Gian Luca Burci and Brigit Toebes (eds.), supra note 2. 43

Such is the case of the Health for All programme, as well as the ongoing One Health approach, both developed for institutional purposes within the WHO. See David P. Fidler, ‘International Law and Global Public Health’, 48 The University of Kansas Law Review (1999) 1, at 4. 44

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economic law, international environmental law, and international human rights law are explored.

A. Human Health and International Economic Law

In so far as fostering human health entails dealing with transactions between economic agents (i.e. producers and consumers), the existence of overlaps between human health and economic law are inevitable. In fact, some would argue that in order to enhance the normative goals of health law, tackling economic determinants is necessary.45 In fact, as argued below, disputes rising out of the domestic implementation of public health policies are addressed mostly through international economic law,46 where adjudicative bodies have become much more sophisticated. Introducing domestic regulations aimed at e.g. deterring the consumption of certain products entails altering existing exchanges between consumers and producers/retailers, both of them understood as economic agents. These acts fall under the purview of different legal fields, namely international investment law and international trade law.47 International trade law and international investment law have a set of binding treaties as their basis, be it the General Agreement on Tariffs and Trade (GATT)48/World Trade Organization (WTO) for the former,49 or the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Con-

45 An argument underscored by the findings in WHO, Commission on the Social Determinants of Health, Closing the gap in a generation: Health equity through action on the social determinants of health (2008), at 110.

On domestic tobacco regulations and their (then-possible) clash with international economic law, see Julien Chaisse, ‘Exploring the Confines of International Investment and Domestic Health Protections - Is a General Exceptions Clause a Forced Perspective?’, 39 American Journal of Law & Medicine (2013) 332, at 333. 46

47 For this contribution, international economic law will be limited to these two regimes. Another major branch therein is international financial law. Ernst-Ulrich Petersmann, International Economic Law in the 21st Century: Constitutional Pluralism and Multilevel Governance of Interdependent Public Goods (2012). 48

General Agreement on Tariffs and Trade (GATT) 1994, 1867 UNTS 190.

With 164 member States, this regime developed in a quite staggering fashion since the creation of the World Trade Organization through the entry into force of the Marrakech Accords in 1995. See World Trade Organization (WTO), Members and Observers, available at https://www.wto.org/english/ thewto_e/whatis_e/tif_e/org6_e.htm. 49

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vention)50 alongside literally thousands of Bilateral Investment Treaties (BITs) for the latter.51 Both of these fields emcompass hundreds of disputes each.52 Therefore, it is difficult to contest the fact that international economic law has developed more robust mechanisms for ensuring compliance than international health law. For this reason, some authors have even considered international health treaties such as the FCTC as ‘softer’ compared to, e.g., GATT/WTO law, despite the fact that both are legally binding instruments.53 The assessment seems to be based on the degree of complexity of each regime’s dispute settlement mechanisms. In order to highlight the role that the FCTC plays in the interpretation of States’ obligations in other legal fields, the following analysis deals with the way in which recent rulings by Arbitral Tribunals and the WTO’s DSB have assessed the conformity of national regulations with international investment and trade law.54

1. Tobacco Control and International Investment Law By now, the threat posed by tobacco products to global health is amply documented.55 In fact, the FCTC, which was subscribed to in 2003 by WHO member 50 Convention on the Settlement of Investment Disputes Between States and Nationals of Other States 1965, 575 UNTS 159. 51 The current (unofficial) count of known treaty-based investor-State disputes by the end of 2017 ranged at more than 850. See United Nations Commission on Trade and Development, World Investment Report 2018: Investment and New Industrial Policies (2018), at 92. As a caveat, unlike international trade law, international investment law is much more disperse, due to the lack of an overarching legal framework. See Chiara Giorgetti, ‘Health and International Investment Law’, in Burci and Toebes (eds.), supra note 2, 164, at 165. 52 Robert Howse, ‘The World Trade Organization 20 Years On: Global Governance by Judiciary’, 27 EJIL (2016) 9, at 11; on the explosion of investor-State dispute settlement in the last couple of decades, Bogdandy and Venzke, supra note 8, at 92. 53 In fact, in case of a norms conflict, it has even been argued that the FCTC’s contents should not prevail over GATT/WTO provisions, given the ‘harder’ nature of the latter. However, this argument can only work under the approach of relative normativity. Simon Lester, ‘Domestic Tobacco Regulation and International Law: The Interaction of Trade Agreements and the Framework Convention on Tobacco Control’, 49 Journal of World Trade (2015) 19, at 39-40 and 47.

An analysis of this sort, focused on the right to health, is also made by Voon and Mitchell, supra note 9, 268-276. 54

For recent figures on tobacco consumption throughout the world, see WHO, WHO Global Report on Trends in Prevalence of Tobacco Smoking 2000-2025 (2nd. ed., 2018), at 7 and 29, available at https://bit.ly/2MVHuqA. 55

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States at the 56th World Health Assembly,56 is a reflection of the anti-tobacco consensus throughout States.57 The Convention’s obligations include, among others, the insertion of health warnings in tobacco packaging (Article 11 FCTC), as well as the removal of false or misleading advertisement related to tobacco products (Article 13 FCTC). Changes in legislation and regulation for the implementation of more stringent tobacco control measures can have an economic impact on foreign investors commercialising tobacco products. If these investors happen to be protected by a BIT ratified by the country, they may have a right to resort to investor-State dispute settlement as ‘claimants’, with the host State at hand being the ‘respondent’. This is the underlying legal context which gave way to the cases of Philip Morris v. Australia58 and Philip Morris v. Uruguay.59 Both of these cases concerned legal challenges against tobacco control measures, albeit of a slightly different kind. A brief description of each dispute follows.

a) Philip Morris v. Australia In Philip Morris v. Australia, the claimant sought relief in light of what it considered to be ‘a breach of [the Respondent’s] obligations under the [Hong Kong-Australia BIT] and for causing it significant financial loss’.60 The contested measures were the enactment of plain packaging legislation (Tobacco Plain Packaging Act 2011)61 and corresponding regulations (Tobacco Plain Packaging Regulations 2011)62 at the national level. These measures were enacted in tune with the recommendations in56

See supra note 4.

This consensus is not yet universal in the strong sense, given the non-ratification of countries such as the United States of America, Indonesia, Cuba, Switzerland, among others. 57

Permanent Court of Arbitration (PCA) (UNCITRAL), Philip Morris Asia Limited v. The Commonwealth of Australia, PCA Case No. 2012-12 (Philip Morris v. Australia). 58

59 International Centre for Settlement of Investment Disputes (ICSID), Philip Morris Brands Sàrl, Philip Morris Products S.A. and Abal Hermanos S.A. v. Oriental Republic of Uruguay, Award, 8 July 2016, ICSID Case No. ARB/10/7 (Philip Morris v. Uruguay).

PCA, Philip Morris v. Australia, Award on Jurisdiction and Admissibility, 17 December 2015, at para. 8. 60

61

Tobacco Plain Packaging Act 2011, Legislative Act No. 148, 2001.

62

Tobacco Plain Packaging Regulations 2011, Select Legislative Instrument No. 263, 2011.

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cluded in the COP’s Guidelines on the implementation of Article 11 FCTC.63 As will be explained below, the very same measures were the subject of a trade dispute between Australia and other WTO member States. Given how the Arbitral Tribunal in Philip Morris v. Australia declined jurisdiction by invoking the doctrine of ‘abuse of rights’,64 it did not address the substantial issues related to the possible clash between Australia’s measures and the BIT. Thus, the question on how obligations towards foreign investors may clash with the State’s right to regulate in order to protect human health was not addressed. Yet, when issuing the Award on costs, the Tribunal took into consideration the relevance of Australia’s efforts to develop the Plain Packaging framework as a part of its ‘policies in matters of public health’.65 The extent to which this circumstance led to an impact in the estimation of the costs incurred by the prevailing party (i.e. the Respondent) is unknown.66 However, the sole fact that the protection of public health is considered to be a relevant matter for the purposes of calculating arbitration costs displays an intent to grant it additional legal weight within the Tribunal’s reasoning.

b) Philip Morris v. Uruguay In turn, the claimants in Philip Morris v. Uruguay contested a different set of measures enacted by Uruguay. Broadly speaking, these consisted of:67 1) barring tobacco manufacturers from selling more than one variant of tobacco product per brand family (‘single presentation requirement’); and, 2) increasing the proportional size of health See COP to the FCTC, Guidelines for Implementation of Article 11 FCTC, decision FCTC/ COP/3(10), Doc. FCTC/COP/3/REC/1, 17-22 November 2008, at 16. Para. 46 of the Guidelines defines plain packaging generally as ‘[the restriction or prohibition of] the use of logos, colours, brand images or promotional information on packaging other than brand names and product names displayed in a standard colour and font style’. 63

64 According to the Tribunal’s framing of this doctrine, treaty based arbitration constitutes an abuse of right, among other instances, when an investor engages in corporate restructuring after the existence of a dispute has been ‘foreseeable’. PCA, Philip Morris v. Australia, Award on Jurisdiction and Admissibility, supra note 60, at paras. 585-588. 65

PCA, Philip Morris v Australia, Final Award Regarding Costs, 8 July 2017, at para. 101.

It should be noted that the public version of this award is redacted, and does not indicate the quantity to be covered by the Claimant to the Respondent. 66

67

Summary taken from ICSID, Philip Morris v. Uruguay, Award, supra note 59, at para. 9.

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warnings in all cigarette packages from the FCTC’s mandatory 30%,68 to a statutory 80% (‘80/80 regulation’). Given how these legal requirements directly constrained intellectual property rights of foreign investors commercialising tobacco products, namely Philip Morris and its national subsidiary ‘Abal Hermanos’, these reforms were contested through investor-State dispute settlement. The legal basis for the dispute was, at its core, the interpretation of Article 2(1) Switzerland-Uruguay BIT.69 Unlike in Philip Morris v. Australia, the contested measures in Philip Morris v. Uruguay went beyond what is established both within the FCTC and its COP guidelines. Nevertheless, according to Article 11(1)(a) FCTC, the contracting parties are required to take ‘effective measures to ensure that [...] packaging and labelling do not promote a tobacco product by any means that are false, misleading, deceptive, or likely to create an erroneous impression’. Such broad wording requires further interpretation when applying its contents to specific measures, since the precise threshold for determining what is ‘false, misleading, deceptive or likely erroneous’ leaves considerable elbow room. Similarly, Article 13(5) FCTC ‘encourages’ parties to ‘implement measures beyond’ the mandatory ones. But this provision’s hortatory wording means Uruguay could not rely only upon the contents of the FCTC for justifying its domestic regulation. By contrast, the enactment of even more stringent tobacco-control measures by Uruguay put a distinct hypothesis to the test: The possibility of enacting public health measures ranging beyond the binding text of the FCTC which directly clash with (foreign) investors’ intellectual property rights. The investment tribunal issued an Award on 8 July 2016. Herein, the Tribunal dismissed all of Philip Morris’ claims and ordered it to cover the litigation costs of the respondent State.70 In light of Uruguay’s single presentation requirement falling outside of the purview of the FCTC, a dissenting opinion emphasising this fact was issued in the Philip Morris v. Uruguay Award.71 Still, the Tribunal’s majority appraised 68

See Art. 11(1)(b)(iv) FCTC.

In the relevant part, this Art. literally reads: ‘The Contracting Parties recognize each other´s right not to allow economic activities for reasons of public security and order, public health or morality’ (emphasis added). 69

70

ICSID, Philip Morris v. Uruguay, Award, supra note 59, at para. 590.

The dissenting arbitrator was Gary Born. See ICSID, Philip Morris v. Uruguay, Concurring and Dissenting Opinion of 8 July 2016. 71

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the single presentation requirement as ‘in line with Uruguay’s express obligations under Article 11 of the FCTC’.72 When underscoring the obligatory nature of the FCTC, the Arbitral Tribunal acknowledged the status of an instrument which, strictly speaking, falls outside of its terms of reference. By doing so, the Tribunal reaffirmed the value of concurring obligations under international law favoring stronger tobacco-control measures.

2. Tobacco Control and International Trade Law Restrictions on trade may consist of milder measures, such as the enactment of technical barriers to trade aimed at deterring consumers from acquiring a determinate product;73 or, they may include stronger measures, e.g. a downright ban of products that used to be in the market.74 As a sign of the close relationship between international economic law and human health,75 one and the very same measure of tobacco control may simultaneously be challenged in international trade and investment disputes. Consequently, Australia’s aforementioned plain packaging measures also led to complaints at the WTO filed by several countries, namely Honduras, Dominican Republic, Cuba, and Indonesia.76 This led to the formation of four-Panels-in-one in 2012. It was only until six years later that the Panel issued a report gathering all four complaints. The mammoth 882-page report addressed all of the complainants’ arguments 72

ICSID, Philip Morris v. Uruguay, Award, supra note 59, at para. 360.

Examples include labelling requirements, undergoing safety certification or even mandatory elements in production. Simon Lester, Bryan Mercurio, Arwel Davies, World Trade Law. Text, Materials and Commentary, (3rd. ed., 2018), 648; McGrady, supra note 9, at 125-129. 73

74 The decision by countries to either completely or partially ban the import of harmful products mainly due to health concerns had previously led to trade disputes. See notably WTO, European Communities - Measures Affecting Asbestos and Products Containing Asbestos, Report of the Appellate Body, 12 March 2001, WT/DS135/AB/R, at para. 64.

A relationship already explored in Ernst-Ulrich Petersmann, ‘How to Reconcile Health Law and Economic Law with Human Rights? Looking for Hercules in the WTO Appellate Body’, in Julien Chaisse and Tsai-Yu Lin (eds.), International Economic Law and Governance: Essays in Honor of Mitsuo Matsuhita (2016) 39, at 39 et seq. 75

WTO, Australia - Certain Measures Concerning Trademarks, Geographical Indications and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging, WT/DS435, WT/DS441, WT/DS458, and WT/DS467, respectively (Australia - Plain Packaging). 76

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against the measures implemented by the government of Australia to curb tobacco consumption. In doing so, the Panel had to deal with, inter alia, Australia’s obligations under the FCTC.77 At the core of the Panel’s analysis were: 1) Article 2.5 Technical Barriers to Trade Agreement (TBT);78 in light of the packaging obligations being ‘technical regulations’ as defined therein; and, 2) Article 20 Agreement on Trade Related Intellectual Property Rights (TRIPS),79 given how the contested measures restricted the use of trademarks by imposing an encumbrance.80 Unlike the investment arbitration in Philip Morris v. Uruguay, the WTO Panel Report dealt with intellectual property rights as a matter of trade amongst nations and not on a rights-holder basis.81 Thus, new requirements in the labelling of tobacco and tobacco-like products were assessed in light of their ‘trade impact’, and to what extent these were based on ‘sound science’.82 To make these (very) long Panel Reports short, Australia’s measures were deemed to be in conformity with the TBT Agreement and the TRIPS Agreement. In reaching this conclusion, the Panel resorted to a series of scientific data consisting of scholarly publications and expert reports.83 The level of detail with which this was undertaken is noteworthy. However, in contrast to the Philip Morris v. Uruguay arbitration, the WTO’s Panel Report considered that the FCTC did not constitute an ‘international standard’ for the purpose of the second sentence of Article 2.5 TBT.84 Had it been so, Australia’s Plain Packaging measures would have been ‘rebuttably presumed not to create an unnecessary obstacle to international trade’.85 Rather, the FCTC was deemed 77

Ibid., at paras. 2.96-2.110.

78

Agreement on Technical Barriers to Trade (TBT Agreement) 1979, 1186 UNTS 276.

79

Agreement on Trade Related Intellectual Property Rights 1990, 1869 UNTS 299.

80

WTO, Australia - Plain Packaging, supra note 76, at para. 7.2164.

See this contrast between ICSID, Philip Morris v. Uruguay, Award, supra note 59, at para. 457, and WTO, Australia - Plain Packaging, supra note 78, Panel Report, at para. 1.44. 81

82

WTO, Australia - Plain Packaging, supra note 76, at para. 7.986.

83

The Panel even analysed the scientific literature’s ‘methodological rigor’. Ibid., at paras. 7.565-7.639.

This sentence literally states: ‘Whenever a technical regulation is prepared, adopted or applied for one of the legitimate objectives explicitly mentioned in paragraph 2, and is in accordance with relevant international standards, it shall be rebuttably presumed not to create an unnecessary obstacle to international trade.’ (Emphasis added) 84

85 WTO, Australia - Plain Packaging, supra note 76, Panel Report, at para. 7.402. The same question, but related to Art. 2.4 TBT Agreement, was discussed in WTO, United States - Measures Concern-

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to provide ‘scientific evidence’ in the dispute at hand.86 Given how the burden of proof still rested upon the complainants, the evidentiary weight given to the FCTC favoured Australia’s case.87 Hence, it cannot be affirmed that the FCTC was devoid of any role in the dispute. Yet, strikingly, there were contrasting approaches towards the legal status of the FCTC between the Arbitral Tribunal in Philip Morris v. Uruguay and the WTO’s Dispute Settlement Body (DSB) in Australia - Plain Packaging. At the moment of writing, two appeals against the Panel Reports are pending.88 Therefore, there is still no settled interpretation of the legal status of the FCTC by the WTO’s DSB. Considering the Appellate Body’s stagnation as a result of delayed appointments, the timing of the outcome of these appeals is increasingly uncertain.89 However, as addressed in the following lines, the Panel’s interpretation already sheds light upon the problems that may rise out of a fragmented view of international treaties.

3. Problems With the Multiplicity of Fora: The FCTC’s Divergent Legal Status The question of how one legal instrument can lead to different interpretations of its legal status comes to the fore when comparing international investment law and international trade law. It can be understood that the WTO’s DSB, while not espousing a ‘self-contained regime’,90 has expressed in previous cases its reluctance to engage with legal norms falling outside of the covered treaties under the GATT/WTO.91 ing the Importation, Marketing and Sale of Tuna and Tuna Products, Report of the Appellate Body, WT/DS381/AB/R, 18 December 2018, at para. 399. 86

WTO, Australia - Plain Packaging, supra note 76, Panel Report, at para. 7.798.

87

Ibid., at para. 7.727.

These appeals were filed by Honduras and Dominican Republic. See WTO, The Dominican Republic files appeal against WTO panel ruling on tobacco plain packaging requirements, 23 August 2018, available at https://www.wto.org/english/news_e/news18_e/ds441apl_23aug18_e.htm. 88

Tom Miles, U.S. blocks WTO judge reappointment as dispute settlement crisis looms, Reuters, 27 August 2018, available at https://reut.rs/2AqIWLV. 89

On this matter, see WTO, United States - Standard for Reformulated and Conventional Gasoline, Report of the Appellate Body, WT/DS2/9, 20 May 1996, at para. 17. 90

91 With regards to the interpretation of obligations under the North American Free Trade Agreement, see WTO, Mexico - Tax Measures on Soft Drinks and Other Beverages, Report of the Appellate Body, WT/DS308/AB/R, 6 March 2006, at para. 56. This reluctance is not an absolute one, given how

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The contrasting legal weight given to the FCTC both in investment arbitration and in WTO dispute settlement showcases the possible consequences of the inevitable inclusion by adjudicators of extraneous legal instruments which fall outside of their terms of reference. The lack of uniform interpretations of one single instrument leads to incoherence problems deriving from fragmentation. The binding force of treaties such as the FCTC could be seen as compliance-inducing.92 If its binding force is side-lined, it also begs the question whether undertaking the long process of drafting, signing, and ratifying it actually makes sense.93 Furthermore, putting legal obligations stemming from an international treaty into question may also hinder countries’ leeway for issuing domestic legislation or regulations. If they lack the support of legal norms, it may make them liable to responsibility for wrongdoing, which in turn may lead to compensation (ISDS) or retaliation (WTO). According to the logic of regulatory chill, since Australia and Uruguay were the first States to implement more stringent tobacco-control measures, they exposed themselves to ensuing litigation in multiple fora. Once there is settled case law, though, it is in principle easier for other States to follow suit.94 Alternatively, providing the FCTC with evidentiary weight could lead to its being employed in a different manner. If its contents are seen as ‘evidence’, it can actually be used in cases involving States which have not ratified it.95 The scientific value of a legal instrument’s contents are not dependent on its ratification by any given State. To the contrary, it could have an authoritative claim towards the international community WTO Panels and the Appellate Body have resorted to treaties not covered by the GATT/WTO for interpreting provisions under Articles 31 and 32 of the VCLT. Voon and Mitchell, supra note 9, 259260. General compliance with international treaties, such as the FCTC, are empirically unverifiable for the most part due to factual and subjective obstacles. Abram Chayes and Antonia Handler Chayes, ‘On Compliance’, 47 International Organization (1993) 175, at 176. 92

These and other burdens of subscribing binding instruments are posited in Kenneth Abbott and Duncan Snidal, ‘Hard and Soft Law in International Governance’, 54 International Organization (2000) 421, at 434-435. 93

The Arbitral Tribunal documented this situation with regards to Paraguay, New Zealand, and Costa Rica in ICSID, Philip Morris v. Uruguay, Award, supra note 61, at para. 367. The argument is also made in Tania Voon, ‘Philip Morris v Uruguay: Implications for Public Health’, 18 Journal of World Investment & Trade (2017) 320, at 331. 94

Particularly in WTO, US - Clove Cigarettes, Report of the Panel, WT/DS406/R, 2 September 2011, at paras. 7.413-7.416. 95

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as a whole. But this will depend on which adjudicative body is tasked with solving a dispute.

B. Health and International Environmental Law: Mirror Fields?

Current research on international environmental law has a similar take as international health law: a heavy reliance upon principles of law, as well as non-binding sources that also shape the regime.96 Although international disputes dealing with environmental issues are on the rise, they are so far not submitted to specialised adjudicative bodies. Rather, they are settled in courts with a mandate which is not limited to environmental law. These include courts with competence in general international law, whether the ICJ97 or the Permanent Court of Arbitration. Alternatively, there are also adjudicative bodies in international economic law such as the WTO DSB or Arbitral Tribunals within ICSID/United Nations Commission on International Trade Law, which have dealt with environmental matters also as an exception to general obligations.98 Furthermore, issues of human health and the environment are also addressed by regional human rights bodies, be it the European Court of Human Rights, the Inter-American Court of Human Rights, or the African Commission on Human and Peoples’ Rights.99

96 Similarly, to human health and international law, there are multiple governance challenges in this field. Philippe Sands et al., Principles of International Environmental Law (4th ed., 2018), at 933. 97 In a similar, yet more detailed fashion than human health concerns, the ICJ already addressed the intersection between the use of nuclear weapons and environmental harm, yet in this case in the merits. See ICJ, Nuclear Weapons Advisory Opinion, at para. 30. 98 On trade disputes at the multilateral level related to environmental issues, mostly dealing with national treatment obligations under Article III(4) GATT, see Joel P. Trachtman, ‘WTO Trade and Environment Jurisprudence: Avoiding Environmental Catastrophe’ 58 Harvard International Law Journal (2017), 273, at 276; on the environment as an exception to the obligations of national treatment in international investment arbitration, Andrea K. Bjorklund, ‘The National Treatment Obligation’, in Yannaca-Small, Catherine (ed.), Arbitration under International Investment Agreements: A Guide to the Key Issues (2018), at 559.

For an overlook of criteria developed by regional human rights bodies on States’ obligations in terms of human health and the environment, see International Law Association, Committee on Global Health Law, 2018 Sydney Conference Report, available at https://bit.ly/2Bmp395, at paras. 47-51. 99

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In a quite similar fashion to human health issues,100 possible clashes between the protection of the environment and international trade law have already been at stake in the WTO’s DSB.101 Within this forum, both the protection of human health and of the environment have been seen as ‘non-trade concerns’ for the purposes of Article XX(g) GATT.102 The way in which States have formulated exceptions to the concession of trade benefits in order to fulfil these non-trade objectives has determined the success or failure of complaints filed at the WTO’s DSB.103 Besides the similarities between international health law and international environmental law, there is the issue of to what extent these two intersect at a factual level. A growing body of public health research shows how environmental problems translate into a negative impact on human health. Problems of pollution and climate change are amongst the most critical points. The obstacle for further making this linkage at the legal level lies in the threshold of evidence for proving causality:104 While the relationship between, e.g., tobacco consumption and health has been proven through extensive scientific evidence, the links between environmental damage and human health is not always immediate enough for adjudicative purposes. Furthermore, the cross-cutting dimensions of environmental law also lead to overlaps with other fields. One of the clearest examples is the existential threat posed by climate change, where human health happens to be one among many other con100 Namely, in WTO, European Communities - Measures Concerning Meat and Meat Products (Hormones), Report of the Appellate Body, 16 January 1998, WT/DS26/AB/R and WT/DS48/AB/R, at para. 183. As also highlighted in the Report of the International Law Commission on the Work of its Fifty-eight Session, Chapter XII: Fragmentation of International Law: Difficulties Arising From the Diversification and Expansion of International Law, Chaired by Martti Koskenniemi, UN Doc. A/61/ 10, 21 September 2006, UN Doc. A/CN.4/L.682, 13 April 2006.

Particularly in WTO, United States - Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, supra note 85. 101

102 Albeit some argue that the WTO’s Appellate Body has not only addressed non-trade concerns such as health and the environment as an exception, but rather has developed other routes of addressing them. Henrik Andersen, ‘Protection of Non-Trade Values in WTO Appellate Body Jurisprudence: Exceptions, Economic Arguments, and Eluding Questions’, 18 Journal of International Economic Law (2015) 383, at 384 and 404-405. 103 Trade and environmental concerns also led to what has been considered to be another ‘watershed’ moment in WTO, United States - Import Prohibition of Certain Shrimp and Shrimp Products, Report of the Appellate Body, 12 October 1998, WT/DS58, at paras. 129-131 and 185. On this point, Howse, supra note 52, at 36-39.

A different discussion altogether, albeit a major one, consists of what exactly is the threshold for this causality. 104

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cerns.105 And, given how its regulation cannot be limited only to one area, the analysis of environmental measures also requires including other fields. While it is undeniably an environmental law problem at the core, specific measures inevitably take place throughout multiple areas. It is believed that only a multidimensional response (‘all hands on deck’) can have any chance at succeeding in this task.

C. International Health Law and Human Rights Law

A distinct avenue for international health law is provided by looking at the right to health as a guiding axis. Here, a ‘rights-based approach to health’ has been posited as a conceptual tool for integrating a human rights vision in health policies at the intersection between the international and the national levels.106 The right to health is seen generally as a component of the broader category of economic, social, and cultural rights,107 as enshrined in Article 12 International Covenant on Economic, Social and Cultural Rights (ICESCR).108 The main normative aims of health law in general can be traced to this provision, which provides a more specific definition of health than the one in the Constitution of the WHO. For the purposes of sketching a field, the shortcoming of framing health law as a parcel of the human rights field is the still precarious state of individual mechanisms of redress. At the regional level, judicial and quasi-judicial bodies have advanced the right to health as applied to individual cases.109 Yet, the contents of Article 12 ICESCR See a thorough explanation of this link between climate change and human health in Nick Watts et al., ‘The 2018 report of the Lancet Countdown on health and climate change: shaping the health of nations for centuries to come’, 392 The Lancet (2018) 2479, at 2479 et seq. 105

106 Lawrence O. Gostin and Benjamin Mason Meier, ‘The Origins of Human Rights in Global Health’, in Benjamin Mason Meier and Lawrence O. Gostin (eds.), Human Rights in Global Health. Righs-Based Governance for a Globalizing World (2018) 21, at 25. 107

Brigit Toebes, The Right to Health as a Human Right in International Law (1999), at 5-6.

International Covenant on Economic, Social, and Cultural Rights (ICESCR) 1966, 993 UNTS 3; bearing in mind that, in comparison to the Constitution of the WHO, there are even more countries which have yet to ratify the ICESCR. See Office of the United Nations High Commissioner for Human Rights (OHCHR), Status of Ratification Interactive Dashboard, available at http://indicators.ohchr.org. 108

109 Statute of the International Court of Justice 1945, 15 UNCIO 355. The most recent development in this field has taken place within the Inter-American Court of Human Rights, Poblete Vilches y otros v. Chile, Merits, Reparations and Costs, Ruling, 8 March 2018, Series C No. 349 (ruling is currently only available in Spanish). Here, the court declared, for the first time, a direct violation of the

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represent the most comprehensive framework at the international level. By contrast, its individual complaints mechanism is still in its infancy, with only four recommendations issued at the moment of writing, none of which deals with the right to health.110 There are also conceptual pitfalls of limiting health law to a human rights-based perspective. This choice would deprive health law of the rest of its substantive contents. Even though the vision of health law promoted in this contribution is humancentred, meaning a human rights perspective needs to be incorporated at all times, there are problems which cannot be addressed exclusively through this approach. Otherwise, if health law is considered to be merely a subset of human rights law, the claims to its status as a specialised field lose ground.111

IV. Bridging the Gaps in Health Law Through Governance Criticisms against the positivist focus on the sources established within Article 38 Statute of the ICJ (ICJ Statute) abound.112 A fixation on these sources would entail disregarding developments that contribute to shape international law in various ways. In other words, law is a necessary, but not sufficient element for the goal of protecting and promoting human health through the coordinated action of States at the international level. What the Philip Morris v. Uruguay and Plain Packaging cases illustrate is how a uniform assessment of the legal status of either a parallel legal obligation (in the case of investment arbitration) and a non-covered instrument (in the case of the GATT) cannot be taken for granted. Firstly, the interpretation of a legally binding instrument as scientific evidence risks depriving it of its normative value. The conundrum of the actual legal nature of non-binding instruments also comes to the fore. As the long-

right to health as part of the unspecified catalogue of economic, social and cultural rights enshrined in Art. 26 American Convention on Human Rights 1969, 1144 UNTS 123. 110 Three complaints pertain to housing rights in Spain, whereas one was issued against Ecuador due to social security concerns, see OHCHR, Case Search, available at http://juris.ohchr.org/en/search/ results?Bodies=9&sortOrder=Date. 111

Murphy, supra note 33.

Recently, see José E. Alvarez, ‘Reviewing the Use of “Soft Law” in Investment Arbitration’, 7.2 European International Arbitration Review, forthcoming. 112

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standing controversy over the exact status of ‘soft law’ highlights,113 there is no general agreement across legal scholarship on whether and how legally non-binding instruments should be appraised.114 The overarching role of non-binding sources in international health law means that limiting the scope of the field to what is, strictly speaking, binding law would be to disregard the plethora of non-binding instruments, such as guidelines, codes, resolutions, etc.115 And, in fact, certain subject matters related to human health at the international level consist mostly of non-binding sources. To mention but a few, these include influenza pandemic preparedness and response,116 marketing of breastmilk substitutes,117 and the international recruitment of health personnel,118 all of them major healthrelated topics. The reasons for this lack of internationally binding sources in these subjects lie in the realm of politics.119

Notably Prosper Weil, ‘Towards Relative Normativity in International Law?’, 77 American Journal of International Law (1983) 413, 413 et seq; on this challenge in the field of (global) health law, Gian Luca Burci, ‘Global health law: present and future’, in Burci and Toebes (eds.), supra note 2, 486, at 491. 113

114 For a more comprehensive overview of the soft law vs hard law debate, see Matthias Goldmann, ‘We Need to Cut Off the Head of the King: Past, Present and Future Approaches to International Soft Law’, 25 Leiden Journal of International Law (2012) 335. A more in-depth discussion on the role of soft law within investment arbitration, including references to the Philip Morris v. Uruguay Award, see Stephan W. Schill, ‘Sources of International Investment Law: Multilateralization, Arbitral Precedent, Comparativism, Soft Law’, in Samantha Besson and Jean D’Aspremont (eds.), The Oxford Handbook on the Sources of International Law (2017) 1095, at 1110-1113; also, Alvarez, supra note 112. 115

Gian Luca Burci and Claude-Henri Vignes, World Health Organization (2004), at 141.

On 2011, a non-binding instrument, the Pandemic Influenza Preparedness Framework for the Sharing of Influenza Viruses and Access to Vaccines and other Benefits, was approved as a companion to the 2005 IHR. It is aimed at strengthening the capacities required for fulfilling both the IHR, as well as additional steps, mostly aimed at sharing new strains of the Influenza virus for scientific purposes. For a recent analysis of the Framework’s contribution to pandemic preparedness and response, see WHO, Pandemic Influenza Preparedness Framework. Partnership Contribution High Level Implementation Plan I, Final Report 2014-2017, available at https://www.who.int/influenza/pip/partnership_contribution/ hlipi_final_report_introduction.pdf, at 9. 116

Sami Shubber, The International Code of Marketing of Breast-Milk Substitutes. An International Measure to Protect and Promote Breast-Feeding (1998); Burci and Vignes, supra note 115, at 142. 117

118 For an in-depth analysis of this non-binding instrument of international health, see Julia Richter, Soft law in international health law: The case of the WHO’s global code of practice on the international recruitment of health personnel (2018). 119 Joost Pauwelyn, Ramses A. Wessel, and Jan Wouters, ‘When Structures Become Shackels: Stagnation and Dynamics in International Lawmaking’, 25 EJIL (2014) 733, at 739-741.

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Conversely, relying heavily upon soft law risks diminishing the weight of international health law within legal doctrine, at least in comparison to other, more developed fields. As a consequence, legal tools of interpretation need to give way to input from other disciplines. The literature on global governance is one case in point. Rising out of political science, the sociological claims on the impact of legally non-binding sources represents a major challenge for positivist accounts.120 As mentioned in the introduction, the lack of an overarching global health framework is the result, among other things, of contingent political issues such as the lack of consensus amongst States on how to regulate certain subject matters, or varying momentum in light of fluctuating developments.121 Yet the limited scope of legally binding international norms in the field of health is not an insurmountable obstacle for fulfilling the normative goals of this field. Rather, it requires a more flexible conceptual framework for examining the interaction between legal regimes, on one hand, and non-binding sources, on the other hand. Research undertaken within the literature on governance has shown how the legal approach is one amongst different available choices for contextualising human health issues and policy-making.122 Hence, the existing limitations of a scarcity of norms in international health can be overcome, even if only to a certain extent. Conversely, resorting to governance from a legal perspective has several conceptual perils. Firstly, these can be seen as an extension of the debates of the fragmentation of international law. Given how legal theory still has not developed a definitive response to the status of non-binding instruments, it is no surprise this lack of clarity is also prevalent in matters of human health and international law.123 Secondly, given how governance is a concept emerging from political theory, its reception in legal theory is not straightforward. By espousing relative normativity, research on governance tends to blur the binding/non-binding distinction. From a legal standpoint, the distinction between binding and non-binding law cannot lose its relevance altogether. This leads to 120

Goldmann, supra note 114, at 355.

Benjamin Mason Meier and Lawrence O. Gostin, Framing Human Rights in Global Health Governance (2018), at 71; Burci, supra note 41, at 512-517. 121

This approach is developed in Colin McInnes and Ann Roemer Mahler, ‘Competition and Cooperation in Global Health Governance: The Impact of Multiple Framings’, in Freeman, Hawkes, and Bennett (eds.), supra note 30, 513, at 513-515. 122

123 This lack of clarity is also criticised with regards to the role of human rights in the promotion of health by Murphy, supra note 33, 98-103.

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the question of how to deal with issues in which the contents of legally non-binding instruments clash with those of legally binding ones.124 In legal theory, conflicts of norms have only been framed as occurring between binding norms. If a conflict exists between binding and non-binding norms, then, it is assumed, the former should prevail, otherwise its status as law would be contested.125 A State invoking non-binding texts to evade treaty obligations would be subjected to international responsibility for wrongful acts.126 Additionally, given the mandate of international organisations, adjudicative bodies, and other institutions, it can be assumed that binding norms will prevail in rulings, decisions or resolutions. Else, the member States conforming them might accuse them of ultra vires acts.127 However, at the social level, a certain strand of research on governance entails that bindingness is but one form of obligations.128 In the field of health, this is reflected, e.g., in the clash between intellectual property rights enshrined in treaties and access to medicines as a human right.129

V. Conclusions: Coupling Human Health and Public International Law Through Governance The overview provided in this contribution underscores some of the challenges for the protection and promotion of human health through international law. On one hand, the limited scope of the legal instruments of international health law necessarily lead to an interaction with other fields of public international law, such as economic law, environmental law, and human rights law. On the other hand, the growing amount of non-binding sources and their relevance in the promotion of human health at the international level require a conceptual framework that allows going beyond the binding/non-binding distinction. Positivist legal approaches do not suffice for this task. 124

Taken into consideration by Fischer-Lescano and Teubner, supra note 1, at 1003-1004.

125

A conflict also identified by Franck, supra note 3, 28-29.

See Art. 12 International Law Commission Articles on Responsibility of States for Internationally Wrongful Acts, United Nations General Assembly Res. 56/83, 12 December 2001. 126

127

Klabbers, supra note 38, at 40-41.

128

Weil, supra note 113, at 415.

On the clash between (informal) norms of access to medicines and (formal) norms of intellectual property, see Hein and Moon, supra note 20, at 107-113. 129

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For this purpose, the literature on governance provides an opportunity to encompass arguments stemming from non-binding sources. Some of the promises and perils posed by this methodological choice have been put forward in this piece. Specifically, difficulties arising from the underestimation of the possibilities of legal bindingness, as well as the still relevant role of the sources of Article 38 ICJ Statute, warrant a minimum degree of caution. Yet, as illustrated by the multi-million dollar disputes mentioned herein, the role of public international law in substantive matters related to human health warrants particular attention. Ultimately, only through a joint theoretical venture of governance and law can sense be made out of the amorphous, everfluctuating developments in the international arena. Grasping the limits of both governance and law is necessary for any coherent mapping of international health law, understood not only as a set of instruments, rather also as a normative yardstick.

International Health Regulations and Transmissible Diseases ANIKA KLAFKI(

ABSTRACT: The world is increasingly vulnerable to infectious diseases. Although the fundamental reform of the International Health Regulations (IHR) in 2005 was heralded as the beginning of a new era of international health law, the Ebola outbreak 2014 shattered all hopes that the world would now be adequately equipped for epidemic outbreaks of transmissible diseases. The Ebola crisis is perceived as an epic failure on the part of the World Health Organization (WHO). The many dead are a sad testimony to the world's inability to adequately respond to the threat posed by contagions. In reaction to this defeat, policymakers now focus on hands-on initiatives to foster global health instead of reformulating international health law. So far, extensive investments and innovations within the WHO, the United Nations system, and in the private sector have multiplied rapidly. The mushrooming of various health initiatives, however, increases the complexity and reduces the consistency of the current global health landscape. The leadership role of the WHO needs to be restored to provide a coherent response for the next global scale public health emergency. To this end, a fundamental reform of the presently widely neglected international regulatory framework in the field of public law, the IHR, is of vital importance. KEYWORDS: World Health Organization, International Health Regulations, Infectious Diseases, Ebola, Influenza, Public Health, Public Health Emergency

I. The Underestimated Threat of Infectious Diseases Pandemics are a permanent threat to humanity.1 Past severe epidemics are, however, often repressed in the collective consciousness, with the effect that the threat of infectious diseases takes a back seat in the general social risk awareness. The Spanish ( Postdoctoral Research Fellow at the Chair of Public Law, Administrative Sciences and Comparative Law of Prof. Dr. Hermann Pünder, LL.M. (Iowa), Bucerius Law School, Hamburg, Germany. 1 During the 14th century, the plague, referred to as the Black Death, killed nearly a third of the European continent’s population. See for further examples of historic pandemics Lawrence O. Gostin and Katharina E. Ó Cathaoir, ‘Lurching from complacency to panic in the fight against dangerous microbes: a blueprint for a common secure future’, 67 Emory Law Journal (2018) 337, at 342 et seq.

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Flu of 1918/1919, for example, killed far more people than the whole First World War.2 Nevertheless, it receives scant reference in the history books.3 We, hence, lull ourselves into a false sense of security, even though the globalised world is more vulnerable to infectious diseases than ever before.4 Although hygiene standards, water purification and the ever-advancing progress of medical sciences have contributed to considerable improvements in life-expectancy, increasing human interaction through globalisation and urbanisation, large-scale livestock farming, and climate change, as well as the excessive use of antibiotics and antivirals promoting multi-resistant germs provide excellent conditions for the (re-)emergence of infectious diseases.5 The frequency and diversity of disease outbreaks has increased steadily since the 1980s.6 In the past two decades alone, a variety of new global health threats have arisen, ranging from Severe Acute Respiratory Syndrome (SARS), Middle East Respiratory Syndrome (MERS-CoV), Zika Virus, various influenza subtypes (A/H5N1, A/H7N9, A/H5N6 called Avian Influenza, A/H1N1, called Swine Flu) through to Ebola.7 Bill Gates, at the 2017 Munich Security Conference, correctly stated that a fast-moving airborne pathogen could kill more than 30 million people in less than a year.8 Moreover, pandemics are not only a tragedy of human suffering. Infectious diseases are The exact death toll is controversial, as it lacks reliable documentation of the disease. Recent scholarship estimates from 50 to 100 million dead. See for details John M. Barry, ‘The site of origin of the 1918 influenza pandemic and its public health implications’, 2 Journal of Translational Medicine (2004) 1. The World Health Organization (WHO) estimates that a third of the world population was infected, see WHO, Pandemic influenza: an evolving challenge, 2018, available at http://www.who.int/influenza/ pandemic-influenza-an-evolving-challenge/en/. 2

3 See Hillary R. Ahle, ‘Anticipating Pandemic Avian Influenza: Why the Federal and State Preparedness Plans are for the Birds’, 10 DePaul Journal of Health Care Law (2006-2007) 213 (‘As soon as the dying stopped, the forgetting began’). 4 Kate E. Jones et al., ‘Global trends in emerging infectious diseases’, 451 Nature (2008) 990; Gostin and Ó Cathaoir, supra note 1, at 339.

David M. Morens, Gregory K. Folkers, and Anthony S. Fauci, ‘The challenge of emerging and reemerging infectious diseases’, 430 Nature (2004) 242; Commission on a Global Health Risk Framework for the Future (ed.), The Neglected Dimension of Global Security. A Framework to Counter Infectious Disease Crises (2016), at V; Lawrence O. Gostin and Ana S. Ayala, ‘Global Health Security in an Era of Explosive Pandemic Potential’, 9 Journal of National Security Law & Policy (2017) 53; Gostin and Ó Cathaoir, supra note 1, at 345 et seq. 5

6 International Working Group on Financing Preparedness, From Panic and Neglect to Investing in Health Security (2017), at 15. 7

See also Gostin and Ayala, supra note 5, at 53.

See Bruce Y. Lee, ‘Bill Gates Warns of Epidemic That Could Kill Over 30 Million People’, Forbes, 19 February 2017. 8

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estimated to cost the global economy $60 billion per year9 and have the potential to plunge the world’s economy into a severe recession. Transmissible disease outbreaks, thus, can have even worse consequences than natural disasters, conventional terrorist attacks or wars.10 Global health governance should, consequently, be a top priority of international law. Yet, the Ebola crisis revealed the insufficiency of the current international regulatory regime on global health.11 During this recent pandemic, over 28,000 infections were recorded, more than 11,000 people died12 and the overall economic impact of the crisis on Guinea, Liberia, and Sierra Leone reached $2.8 billion, according to the World Bank’s analysis.13 It is undisputed that many of these lives could have been saved by a quick and efficient crisis response.14 Infectious diseases are particularly susceptible to human influence.15 Unlike other natural disasters, their spread can be substantially influenced by hygiene measures, vaccination, and medical treatment. A coherent regulatory framework that allows for effective risk management is therefore crucial to protect many future lives.16 In this article, I will, first, present the structure of the International Health Regulations (IHR), second, point out the weaknesses of the current regulatory regime, third, outline the recent developments in the global public health landscape and finally explain why a fundamental revision of the IHR is of utmost importance to effectively manage future crises. 9 See Anas El Turabi and Philip Saynisch, ‘Modeling the Economic Threat of Pandemics’, in Commission on a Global Health Risk Framework for the Future (ed.), The Neglected Dimension of Global Security. A Framework to Counter Infectious Disease Crises (2016) 109, at 111. 10

Gostin and Ayala, supra note 5, at 57.

See e.g. Suerie Moon et al., ‘Will Ebola change the game? Ten essential reforms before the next pandemic. The report of the Harvard-LSHTM Independent Panel on the Global Response to Ebola’, 386 Lancet (2015) 2204, at 2206 et seq.; David P. Fidler, ‘Epic Failure of Ebola and Global Health Security’, 21 The Brown Journal of World Affairs (2015) 179; Gostin and Ayala, supra note 5, at 54. 11

12

WHO, Situation Report: Ebola Virus Disease, 10 June 2016.

13

Word Bank Group, 2014-2015 West Africa Ebola Crisis: Impact Update (2016), at 2.

The Lancet, ‘Ebola: a failure of international collective action’, 384 The Lancet (2014) 837; Fidler, Epic Failure of Ebola, supra note 11. 14

15 See Robyn Martin, ‘Pandemic influenza control in Europe and the constraints resulting from incoherent public health laws’, 10 BMC Public Health (2010) 532.

Anika Klafki, Risiko und Recht. Risiken und Katastrophen im Spannungsfeld von Effektivität, demokratische Legitimation und rechtsstaatlichen Grundsätzen am Beispiel von Pandemien (2017), at 161 et seq. 16

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II. International Health Regulations 2005 – A First Step Towards the Establishment of a Global Health Regime International cooperation in the field of public health started comparatively early. In the second half of the 19th century, multilateral international sanitary conventions were agreed upon to fight transmissible diseases, such as cholera, the plague or yellow fewer.17 Also, at the creation of the World Health Organization (WHO) in 1948, the importance of international cooperation was globally recognised and the WHO was equipped with a highly innovative law-making tool: According to Articles 21 and 22 WHO Constitution,18 the legislative organ of the WHO, the World Health Assembly, may adopt regulations binding all State Parties unless they actively claim for rejection or reservations within a set period. In view of the regulation’s immediate legal effect on the Member States, the WHO’s regulatory power has rightfully been described as a ‘fairly unique lawmaking device in the international system’.19 Yet, the old IHR 196920 have had only little impact on the spread of pandemics – i.e. transnational infectious diseases.21 The old rules merely obliged the State Parties to notify each other about outbreaks of specifically listed diseases within their territories and regulated disease-prevention measures in a way that international trade was affected as little as possible.22 In essence, two major flaws led to the IHR’s insignificance in practice: First, by setting a conclusive list of diseases, to which the interna17 For a brief description of the history of the International Health Regulations (IHR), see David P. Fidler, ‘From International Sanitary Conventions to Global Health Security’, 4 Chinese Journal of International Law (2005) 325, at 327 et seq.; Yves Beigbeder, ‘World Health Organization (WHO)’, in Max Planck Encyclopedia of Public International Law (2006) 575; Hans-Heinrich Trute, ‘How to Deal with Pandemics’, in Thomas Eger, Stefan Oeter, and Stefan Voigt (eds.), International Law and the Rule of Law under Extreme Conditions (2017) 113 et seq. 18

Constitution of the World Health Organization (WHO Constitution) 1946, 14 UNTS 185.

Allyn Taylor, ‘International Law, and Public Health Policy’, in Harald Kristian Heggenhougen (ed.), International Encyclopedia of Public Health (Vol. 3, 2008) 667, at 675. David P. Fidler, ‘The Future of the World Health Organization: What Role for International Law?’, 5 Vanderbilt Journal of Transnational Law (1998) 1079, at 1088 describes the creation of this ‘quasi-legislative power’ as a ‘radical approach in international law’. See also Gostin and Ó Cathaoir, supra note 1, at 366. 19

The IHR were adopted by the resolution WHA22.46 and Annex 1. They were amended in 1973 (resolution WHA26.55) and 1981 (resolutions WHA34.13, WHA27.45). 20

See, for a brief description of the term pandemic, Hans-Heinrich Trute, Pandemics, supra note 17, at 117. 21

22

David P. Fidler, International Sanitary Conventions, supra note 17, at 328.

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tional rules applied, new infectious diseases – such as HIV/AIDS – weren’t covered. This substantially weakened the WHO’s scope of action. Second, the old rules relied entirely on the compliance of the States with the international rules without providing for any control mechanisms. As a result, the IHR were widely ignored. Only the SARS outbreak in 2003 created the necessary political pressure to push ahead with the urgently needed reform process. The revision of the IHR was completed 2005 and came into force 2007.23 This new international legal framework has been described as a major step towards an effective global health regime and brought the WHO back to the global stage as a key-player in the protection of human health.24

A. Covering All Future Health Threats With the Notion ‘Public Health Emergency of International Concern’

An important improvement, curing the first flaw of the old regulations, is that the IHR (2005) no longer restrict their applicability to a predefined list of diseases but rather include all sorts of health threats by introducing the legal notion of a ‘public health emergency of international concern’. Thereby, also new diseases, which were unknown at the time of codification, are covered. This of great practical relevance.25 During the past decades, many previously unknown human infectious diseases have caused serious international health threats, such as Ebola, West Nile Fever, MERS, Zika Fever, or various Influenza Subtypes.26 As soon as events which may, in the near future, constitute a Public Health Emergency of International Concern occur in a Member State’s territory, according to Articles 6 and 7 IHR (2005), the WHO must be notified. In Artcile 1 IHR (2005) 23

See resolution WHA58.3.

See e.g. David P. Fidler and Lawrence O. Gostin, ‘The New International Health Regulations: An Historic Development for International Law and Public Health’, 34 Journal of Law, Medicine & Ethics (2006) 85, at 93 (‘The revised Regulations promise to become a centerpiece for global health governance in the 21st century.’). 24

25

See also Gostin and Ayala, supra note 5, at 64.

They are mostly caused by zoonotic pathogens originating from animals which develop the ability to infect humans over time. See WHO, Food and Agriculture Organization (FAO), and World Organisation for Animal Health (OIE), Report of the WHO/FAO/OIE joint consultation on emerging zoonotic diseases (2004), at 5. See also Corrie Brown, ‘Emerging zoonoses and pathogens of public health significance – an overview’, 23 OIE Scientific and Technical Review (2004) 435; Lifang Wang and Gary Crameri, ‘Emerging zoonotic viral diseases’, 33 OIE Scientific and Technical Review (2014) 569. 26

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the notion Public Health Emergency of International Concern is defined as ‘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.’ The decision to notify a health incident to the WHO, thus, depends on the seriousness and unexpectedness of the event, on the risk of international spread and of international traffic restrictions, as well as on the likeliness of the need for an internationally coordinated response.27 In Annex 2 IHR (2005) a detailed decision scheme is provided to facilitate the assessment of whether notification is necessary. According to this algorithm, some unusual and unexpected disease outbreaks such as smallpox, human influenza by a new subtype, or SARS always require a notification of the WHO.28 For other diseases, such as Cholera, Ebola, or Yellow Fever, which have the potential to cause a serious international public health impact, a special risk evaluation scheme applies. All other health events – even those with unknown causes – have to be judged according to the above mentioned criteria with regard to whether they have the potential to cause an international public health concern. In 2017 alone, 418 public health events were registered in the WHO’s event management system, which concerned, inter alia, cholera, influenza, and dengue fever outbreaks.29 After such notification, the Director-General of the WHO has to determine, on the basis of information received with the help of an Emergency Committee consisting of experts in the relevant field, whether an event qualifies as a Public Health Emergency of International Concern.30 If that is the case, the Director-General will officially declare the Public Health Emergency of International Concern, thereby raising global awareness. This may already foster the mobilisation of resources and help from other countries, NGOs or international organisations.31 What is more, the 27 WHO, Implementation of the International Health Regulations (2005). Report of the Review Committee on the Role of the International Health Regulations (2005) in the Ebola Outbreak and Response, WHA69/21, 13 May 2016, at 40. 28

Art. 6 IHR (2005).

See WHO Director-General, Annual report on the implementation of the International Health Regulations (2005), WHA71/7, 5 April 2018. 29

30 Arts. 12 and 49 IHR (2005). See for a more detailed analysis of the collaboration of the DirectorGeneral and the Emergency Committee Hans-Heinrich Trute, Pandemics, supra note 17, at 128. 31 Tikki Pang, ‘Is the Global Community Prepared for Future Pandemics? A Need for Solidarity, Resources and Stronger Governance’, 8 EMBO Molecular Medicine (2016) 587, at 588.

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Director-General may issue temporary or – with regard to ongoing public health risks – standing recommendations. These recommendations may include specific pharmaceutical or non-pharmaceutical health measures as well as travel and trade restrictions to reduce the international spread of disease and avoid unnecessary interference with international traffic.32 These recommendations are also prepared with the help of the Emergency Committee.33 The recommendations can be defined as nonbinding, risk-specific advice and constitute the WHO’s main instrument to coordinate international emergency response within the regulatory framework of the IHR (2005).34 Apart from the IHR (2005) provisions, there are also various soft law guidance documents which relate to specific health threats. For instance, there is a special WHO Global Influenza Programme which has issued an international preparedness framework. The precise handling instructions, outlined in this guidance document, depend on specifically defined pandemic phases, namely the interpandemic phase, the alert phase, the pandemic phase, and the transition phase.35 The pandemic phases are determined on the basis of three indicators: the transmissibility, the clinical seriousness of the influenza outbreak and its impact on the health care sector or other critical sectors.36 The formal declaration of the pandemic phase, is therefore another instrument to raise global awareness and to activate certain predetermined operating procedures.37

Art. 15 et seq. IHR (2005). See for the effectiveness of different classical measures Hans-Heinrich Trute, Pandemics, supra note 17, at 139. 32

33 Art. 48 et seq. IHR (2005). See for the possible effects of such recommendation J. Benton Heath, ‘Global Emergency Power in the Age of Ebola’, 57 Harvard International Law Journal (2016) 1, at 23 et seq. 34

WHO, Report of the Review Committee, supra note 27, at 32.

The WHO has drafted preparedness guidance from 1999 on. The first guidance document has been published in 1999, revised in 2005, again in 2009 and 2017, see WHO Global Influenza Programme, Pandemic Influenza Risk Management. A WHO guide to inform & harmonize national & international pandemic preparedness and response (2017). 35

36

Ibid., at 30.

37

Ibid., at 13.

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GERMAN YEARBOOK OF INTERNATIONAL LAW 61 @ 2018 B. New Investigation Rights of the WHO

The second noteworthy innovation of the IHR (2005) is the authorisation of the WHO to consider reports from sources other than notifications from the Member States and to share such information with other State Parties after the affected Member State has been heard.38 So the WHO now has the legal capacity to assess disease outbreaks on nation-state level and actually declare a public health emergency of international concern even if the competent State authorities refuse to cooperate.39 This innovation greatly improves WHO’s global health governance capacities. In the last year, for instance, only one third of the recorded public health events were reported by the State Parties. The rest were detected by NGOs, the WHO regional offices, and news media.40 In order to monitor public health threats, the WHO has set up a Global Outbreak Alert and Response Network with more than 200 partner institutions differing in structure, role, and geographical location. These include national or supranational institutions such as the United States Center for Disease Control and the European Centre for Disease Prevention and Control, as well as NGOs such as Médecins Sans Frontières, universities, institutes, laboratories, and hospitals.41 Furthermore, there are specified surveillance networks in place for monitoring particularly dangerous infectious diseases. For instance, the WHO Global Influenza Surveillance and Response System serves as a global alert mechanism for the emergence of influenza viruses with pandemic potential.42

38

Arts. 9 and 10 IHR (2005).

39

Gostin and Ayala, supra note 5, at 65; Trute, Pandemics, supra note 17, at 130.

40

WHO, Annual report, supra note 29.

For details see Chris Ansell, Edbert Sondorp, and Robert Hartley Stevens, ‘The Promise and Challenge of Global Network Governance: The Global Outbreak Alert and Response Network’, 18 Global Governance (2012) 317, at 323 et seq. 41

See WHO, Global Influenza Surveillance and Response System (GISRS), available at http://www. who.int/influenza/gisrs_laboratory/en/. 42

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C. Obligation to Build and Maintain Core Capacities

The third essential aspect of the IHR (2005) is the obligation of the State Parties to strengthen and maintain core capacities for surveillance, risk assessment, reporting, and response.43 Swift detection of potential public health emergencies and an immediate response to them require resilient national health systems.44 In order to quickly develop the required core capacities, Article 13(1) IHR (2005) set a deadline of December 2012 (which was extended for some countries to 2014). However, by 2016, only 42 of 193 State Parties have confirmed that they had met their minimum core capacity requirements.45

III. Continuing Weaknesses of the International Health Regulations in Fighting Transmissible Diseases and Reactions to the Ebola Outbreak Even though the IHR (2005) are no mere ‘paper tiger’ anymore, the regulatory framework still is rather toothless.46 First, as seen above, the notification obligations, which are crucial to prevent the spread of diseases at an early stage, are still not respected. Second, there is a lack of effective enforcement mechanisms for building core capacities in the Member States. Third, particularly in the Ebola crisis, WHO’s nonbinding recommendations have turned out to be insufficient to guarantee an effective response to health emergencies.

A. Pandemic Prevention: Ineffectiveness of Notification Obligations

The lack of adherence to the reporting obligations is a primordial problem of international disease protection which has still not been solved within the WHO.47 43

Arts. 5 and 13 IHR (2005) in conjunction. with Annex 1 IHR (2005).

44

Moon et al., Harvard-LSHTM Independent Panel, supra note 11, at 2207.

45

WHO, Report of the Review Committee, supra note 27, at 18.

Tsung-Ling Lee, ‘Making International Health Regulations Work: Lessons from the 2014 Ebola Outbreak’, 49 Vanderbilt Journal of Transnational Law (2016) 931, at 934. 46

47 Allyn L. Taylor, ‘Controlling the Global Spread of Infectious Diseases: Toward a Reinforced Role for the International Health Regulations’, 33 Houston Law Review (1997) 1327, at 1330 et seq.

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Early detection of public health events and the sharing of accurate information is crucial to prevent an epidemic from developing into a cross-border pandemic.48 Despite WHO’s newly acquired right to collect information on health threats in Member States independently, the Ebola crisis has shown that the flow of information concerning infectious disease outbreaks still is insufficient to ensure a swift, effective pandemic response.49 Even though Médecins Sans Frontières informed the WHO about the exceptional scale of the Ebola outbreak at an early stage, its declaration as a Public Health Emergency of International Concern by the WHO headquarters came far too late. As many Ebola cases went unreported in the affected countries, and the regional WHO office was manned by local, politically influenced personnel, the WHO underestimated the true dimensions of the emergency for half a year and thereby considerably delayed the declaration of the Public Health Emergency of International Concern.50 The Member States’ commitment to fulfilling their notification obligations is, thus, still an important issue in the fight against transmissible diseases. To that end, a key criticism is that the IHR (2005) provide no sanctions for State Parties who illicitly refrain from notifying the WHO of relevant health events occurring on their territory.51 Imposing sanctions on countries suffering from a severe disease outbreak, however, does not sound very promising in terms of the overall goal of quickly halting epidemics before they spread over the globe. Instead, the motives of the Member States, who refrain from notifying the WHO, should be analysed in order to find an appropriate solution to the problem. In fact, notifying the WHO of an infectious disease outbreak has, for the most part, negative consequences for the countries concerned. First of all, State Parties that report an infectious disease outbreak to the WHO are regularly subject to far reaching traffic and trade restrictions. During the Ebola crisis, for instance, one third of the States Parties disregarded the recommendations of the WHO and issued excessive travel 48

WHO, Report of the Review Committee, supra note 27, at 28.

49

For details, see ibid., at 28 et seq.

See High-level Panel on the Global Response to Health Crises, Protecting Humanity from Future Health Crises (2016), at 46; Fidler, Epic Failure of Ebola, supra note 11, at 187. 50

See e.g. David P. Fidler, ‘Return of the Fourth Horseman: Emerging Infectious Diseases and International Law’, 81 Minnesota Law Review (1997) 771, at 848; Mark J. Volansky, ‘Achieving Global Health: A Review of the World Health Organization’s Response’, 10 Tulsa Journal of Comparative and International Law (2002) 223, at 237. 51

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restrictions.52 The resulting substantial negative economic and political consequences render the population of the affected countries even more vulnerable to the disease. The IHR (2005), of course, oppose such measures. Article 2 clearly states that unnecessary interference with international traffic and trade is to be avoided. Also, Article 43(1) restricts unreasonable additional health measures which affect international traffic and trade. The regulatory regime of the WHO, however, lacks mechanisms to actively frustrate excessive trade restrictions.53 At best, the affected States can defend themselves against such stigmatisation through the dispute settlement procedure of the World Trade Organization (WTO). Yet, the WTO dispute resolution is timeconsuming and is therefore a blunt instrument in combatting the economic damage inflicted by excessive trade and travel bans.54 To make things worse, especially with regard to health events which also threaten industrialised nations (such as outbreaks of new influenza subtypes), notification also negatively affects the availability of drugs such as antivirals which are already scarce on the market. Newly developed vaccines for such diseases are often so rare and expensive that less developed countries, where infectious diseases are more likely to occur, have no chance to supply their population.55 Meanwhile, under the emergency provision of the TRIPS-Agreement, affected State Parties and the local pharmaceutical companies have the right to produce generics but, given the difficulties of vaccine production, in the case of a severe pandemic the quantity of producible vaccines is limited.56 Even though, with regard to pandemic influenza vaccines, there is an unbinding recommendation of the WHO, which urges pharmaceutical companies to share newly developed medication with the country which provided the necessary

52 Wendy Rhymer and Rick Speare, ‘Countries’ response to WHO’s travel recommendations during the 2013-2016 Ebola outbreak’, 95 Bulletin of the World Health Organization (2017) 10, at 14. See also, WHO, Report of the Review Committee, supra note 27, at 33 et seq.

Art. 56 IHR (2005) even provides for a dispute settlement mechanism, but this has never been used in practice due to the lack of punitive measures. 53

54

Gostin and Ó Cathaoir, supra note 1, at 369.

55

Trute, Pandemics, supra note 17, at 132.

For details, see the article of Philippe Cullet and Hu Yuanquiong in this Volume of the German Yearbook of International Law. 56

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sample of the causal pathogen,57 this does not outweigh the negative effects of a notification. Furthermore, the willingness of pharmaceutical enterprises to invest in the development of medicines for pandemic infectious diseases, which presumably don’t pose a threat to industrialised countries, is rather low. There is no economic incentive to engage in the costly process of discovering and licencing a new drug for ‘episodic infections’, if it is foreseeable that it will soon be copied by local pharmaceutical companies.58 Also, Ebola was one of these ‘neglected diseases’, resulting in the existing experimental Ebola drug ‘ZMapp’, developed in 2003 for biodefence purposes, never being officially licenced or produced on a large scale.59 In all, State Parties, who suffer from an infectious disease outbreak, in various respects have little incentive to obey the notification rules.60

B. Pandemic Preparedness: Sluggish Development of Medical Core Capacities

Globalisation is continuously expanding the interdependence of world health conditions.61 A seamless global coverage of basic health care capacities on the nation statelevel is therefore crucial for any transnational pandemic prevention, preparation and response efforts.62 Nonetheless, as seen above, not even a quarter of WHO Member States has – according to self-assessment – fulfilled its medical core capacities devel-

WHO, Pandemic Influenza Preparedness Framework for sharing of influenza viruses and access to vaccines and other benefits, WHA64.5 (2011). See for details Trute, Pandemics, supra note 17, at 132 et seq. 57

58 Robert B. Craven, ‘Redirecting Biological Warfare Capacity to International Health Biotechnology’ in Erhard Geissler, Lajos Gazsó, and Ernst Buder (eds.), Conversion of Former BTW Facilities (1998) 45, at 46; Gostin and Ayala, supra note 5, at 78.

Cf. Jason Millman, ‘Why the drug industry hasn’t come up with an Ebola cure’, The Washington Post,13 August 2014. 59

60

Moon et al., Harvard-LSHTM Independent Panel, supra note 11, at 2204.

Allyn L. Taylor, ‘Controlling the Global Spread of Infectious Diseases: Toward a Reinforced Role for the International Health Regulations’, 33 Houston Law Review (1997) 1327, at 1337; Fidler, Future WHO, supra note 19, at 1106. 61

62

Gostin and Ayala, supra note 5, at 62 et seq.

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opment commitments up until today.63 There is also no independent evaluation foreseen in the IHR (2005), to monitor whether the self-reported core-capacities exist and work efficiently. So, the number of countries that actually have the required capacities is presumably even lower.64 This non-compliance with the IHR (2005) cannot be interpreted as a simple lack of political will. Especially in developing countries, who bear a particularly high risk of infectious disease outbreaks, there is often a severe scarcity of financial, human, logistical, and infrastructural resources.65 Indeed, the WHO regional offices are providing assessment tools, analytic and advisory assistance to the affected Member States, but it is extremely doubtful whether such merely persuasive measures will turn the tide.

C. Pandemic Response: Lack of Emergency Competencies

As seen above, the main instrument under the regulatory framework of the IHR to respond to a Public Health Emergency of International Concern is the issuing of nonbinding recommendations from the Director-General.66 The recommendations may include health measures to be implemented by the affected Member State, or by other States Parties, regarding persons, baggage, cargo, containers, conveyances, goods, and/ or postal parcels to prevent or reduce the international spread of disease.67 Apart from that, the IHR (2005) lack actual intervention and relief measures in the case of a public health emergency. At the time the IHR (2005) were drafted, State Parties were clearly not willing to grant the agency the power of intervention in health missions in affected countries. The WHO’s constant lack of funding has also rendered it incapable of offering adequate on-site assistance to countries in need on a voluntary basis under Article 13 IHR.68 The legal and financial capacity of the WHO have thus turned the international health agency more into a normative organisation, mandated to set in-

63

WHO, Report of the Review Committee, supra note 27, at 18.

64

Gostin and Ayala, supra note 5, at 65.

65

WHO, Report of the Review Committee, supra note 27, at 20.

66

See Art. 15 et seq. IHR (2005).

67

Art. 15(II) IHR (2005).

68

Pang, supra note 31, at 588.

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ternational standards and give public health advice than into an operational actor in the field.69 Unsurprisingly, during the Ebola crisis, it was therefore not the WHO but the United Nations (UN) Secretary General in conjunction with the UN Security Council and the UN General Assembly that set the stage for the UN Mission for Ebola Emergency Response that took action on-the-spot.70 As for any other peacekeeping mission, the UN Mission for Ebola Emergency Response was conceived as a temporary intervention to ensure rapid, effective, efficient, and coherent response to the Ebola pandemic.71 With this step, the UN de facto took over the competence and responsibility for Ebola crisis management. Although the mission was urgently needed to save many lives, it also publicly devalued the work of the WHO and, in consequence, led to a severe legitimacy crisis for the WHO and diminished its leadership role in health emergencies.72 Another factor for the highly deficient management of the Ebola crises, apart from the lack of legal competencies, might have been the loss of credibility the WHO suffered during the Swine Flu pandemic (H1N1) in 2009.73 The agency was fiercely criticised for labelling Swine Flu as a Public Health Emergency of International Concern and thereby urging the Member States to invest millions in the purchase of scarce vaccines and antivirals, even though – in terms of clinical severity – the disease was comparatively mild. The WHO was accused of scaremongering and it was even speculated that the experts employed by the WHO had close contacts with the pharmaceutical companies, which had made great profits through the sale of influenza vaccines and 69 See Report of the High-level Panel on the Global Response to Health Crises, Protecting Humanity form Future Health Crises (2016), at 46, 49; Pang, supra note 31, at 588.

On 17 September 2014 the United Nations (UN) Secretary-General sent two identical letters to the UN General Assembly (UNGA) and the UN Security Council (UNSC) proposing the establishment of a UN Mission for Ebola Emergency (UNMEER) to take over effective ground-level leadership in the fight of the disease (A/69/389 – S/2014/679) as the WHO proved to be unable to effectively respond to the crisis in a timely manner. The UNSC, on the next day, issued the resolution UNSC Res. 2177, 18 September 2014, stating that the Ebola outbreak constituted a threat to international peace and urged member states to provide assistance. A few days later, the UNGA issued a resolution ‘Measures to contain and combat the recent Ebola outbreak in West Africa’ (UNGA Res. 69/1, 23 September 2014) which officially welcomed the establishment of the UNMEER. 70

71

Gostin and Ayala, supra note 5, at 77.

72

Cf. Gostin and Ayala, supra note 5, at 70 et seq.

73

See also Lee, supra note 46, at 957.

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antiviral drugs.74 From then on, the WHO was much more cautious in its crisis communication, increasingly stressing the role of national risk assessment.

IV. Current Approaches to Advance Global Health Security In reaction to the Ebola crisis, four global commissions have assessed the deficiencies of WHO’s performance: the WHO Interim Assessment Panel,75 the Harvard University’s and London School of Hygiene & Tropical Medicine’s Independent Panel,76 the Commission on a Global Health Risk Framework for the Future of the National Academy of Medicine,77 and the UN High-Level Panel on the Global Response to Health Crises.78 All these commissions recommended three key priorities: strengthening preparedness at the national level, creating a new operational emergency preparedness and response facility, and accelerating research and development with regard to infectious diseases. The Ebola crisis has not only triggered an important renewal process within the WHO, it also sparked global interest in the neglected threat of pandemics and fostered numerous attempts across the globe to promote global health security. The landscape of global health governance is, thus, ever increasingly complex.

A. Preparedness at the National Level

1. WHO Joint External Evaluation Tool In order to foster increased implementation of the required core capacities of the IHR (2005), the WHO has developed a ‘Joint External Evaluation Tool’. Even though the first stage of the evaluation is still a country survey, in contrast to the previous Deborah Cohen & Philip Carter, ‘WHO and the Pandemic Flu Conspiracies’, 340 British Medical Journal (2010) 7759. 74

75

WHO, Repot of the Ebola Interim Assessment Panel, July 2015.

76

Moon et al., Harvard-LSHTM Independent Panel, supra note 11, at 2204.

Commission on a Global Health Risk Framework for the Future, The Neglected Dimension of Global Security. A Framework to Counter Infectious Disease Crises (2016). 77

78 High-level Panel on the Global Response to Health Crises, Protecting Humanity from Future Health Crises (2016).

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process, a joint external evaluation team comprised of national and international experts now reviews the self-assessed data, conducts an evaluation visit, and scores the capacities against a detailed evaluation scheme. This new evaluation method, on the one hand, gives the WHO a deeper insight in the actual existing national health capacities and, on the other hand, helps to engage with current and prospective donors and partners to target resources effectively. So far, 67 of the 196 State Parties have conducted the voluntary joint external evaluation.79 Furthermore, the WHO increasingly endeavours to act as a broker bringing together donors and low-resource countries.80 Arguably, in view of the mobility of germs, investing in the health systems of weaker countries is always an investment in the safety of one’s own country.81 However, willingness to donate to general infrastructural measures is low. National egoisms have so far impeded the necessary investments. While donors can easily be found in reaction to sudden health disasters or certain types of illness, such as HIV/AIDS, promoting general medical care is generally less attractive as it requires sustained financial support. Further obstacles to the development of medical core capacities include political instability, armed conflicts, corruption, and the resulting uncertainties regarding the use of donated resources. An independent evaluation tool could at least tackle the latter issue and thereby also facilitate fundraising for core capacity building in developing countries.82

2. Further Public and Private Initiatives The efforts of the WHO to enhance core capacity building at the nation-State level have been supplemented by President Obama’s public-private initiative, the Global Health Security Agenda.83 The programme was launched in February 2014 to advance global health security, by bringing together nations, international organisa79

See WHO, Annual report, supra note 29.

WHO, Report of the Review Committee, supra note 27, at 27; WHO, Report by the DirectorGeneral: Public health preparedness and response. Implementation of the International Health Regulations (2005), WHA71/8, 11 April 2018. 80

81 This is already laid down in the Preamble of the WHO Constitution: ‘The achievement of any State in the promotion and protection of health is of value to all.’ 82

Cf. Gostin and Ayala, supra note 5, at 66.

83

See also Gostin and Ó Cathaoir, supra note 1, at 385 et seq.

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tions, and NGOs from all over the world to make new, concrete commitments, and to elevate global health security as a national leaders-level priority.84 Above all, the initiative fosters core capacity building and also provides funding and technical assistance for participating countries in need.85 The Global Health Security Agenda helped develop the Joint External Evaluation and provided much needed financial support. However, under President Trump and his legacy, financial support from the US will presumably be considerably reduced.86 Apart from that, there are also cross-cutting health initiatives which are more loosely bound to the IHR prevention and preparedness measures. A noteworthy programme in this regard is the One Health Initiative. It seeks to promote health of all species by enhancing cooperation and collaboration between physicians, veterinarians, other scientific health and environmental professionals.87 As many emerging diseases have animal origins, the initiative also helps to prevent and prepare for future transmissible diseases.88

B. Emergency Response

1. WHO Health Emergencies Programme In reaction to the broad criticism of the lacklustre emergency response in the Ebola crises, the WHO has created the Health Emergencies Programme.89 It comprises concrete measures for emergency operations. To this end, a Global Health Emergency

84

See for details https://www.ghsagenda.org/.

In 2017, the US Centers for Disease Control and Prevention pledged $453.8 million, and the United States Agency for International Development $245.5 million to help 31 countries to achieve their Global Health Security Agenda (GHSA) targets. See GHSA, Progress and Impact from U.S. Government Investments (2018), at 3. 85

Lawrence O. Gostin, ‘How Will President Trump’s Policies Affect Domestic and Global Health and Development?’, 317 JAMA (2017) 685. 86

87

php.

One Health Initiative, Mission Statement, available at http://onehealthinitiative.com/mission.

88

See also Pang, supra note 31, at 588.

89

See Resolutions WHA69/30, WHA69/61, WHA 70/11.

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Workforce90 as well as a Contingency Fund for Emergencies91 was created. The Global Emergency Workforce enables the WHO to directly deploy international Emergency Medical Teams to countries in need. The Emergency Response Framework regulates under which conditions the Health Emergencies Programme is to be activated. To this end, it introduces a new grading process, which is independent from the qualification as a Public Health Emergency of International Concern under the IHR (2005).92 The Emergency Response Framework defines four grades which are predominantly to be assessed by the regional offices of the WHO, namely ‘ungraded’, ‘grade 1’ for emergencies requiring limited response by the WHO, ‘grade 2’ for emergencies that require moderate response by the WHO, and ‘grade 3’ for emergencies that require a major WHO response.93 Furthermore, the WHO developed an Incident Management System that is supposed to ensure leadership, partner coordination, information and planning, health operations and technical expertise, operations support and logistics as well as finance and administration. In grade 1 emergencies, these tasks shall be managed through the existing Regional Office and a headquarters focal point. In grade 2 or grade 3 emergencies an Incident Management Team will be established in-country by repurposing country office staff in order to coordinate field operations of various partners in the affected region, to maintain operational oversight, and to provide technical and operational support.94 Furthermore, the WHO has prepared detailed emergency response procedures, performance standards, and indicators to facilitate monitoring of future emergency responses conducted by the WHO Health Emergencies Programme.95 Additionally, the Contingency Fund for Emergencies is designed to provide prompt funding of health actions until other financing mechanisms begin to flow.96 Initial amounts of up to $500,000 can be re90

See Resolution WHA68/27.

See Resolution WHA68/26. The idea of such an emergency fund is not new. Art. 58 WHO Constitution already provided for the possibility of launching a fund for unforeseen events. Due to the deep financial crisis, which the WHO has faced for decades however, until recently, no money was left to invest in an emergency fund. 91

92

WHO, Emergency Response Framework (2017), at 7, 26.

93

See for details WHO, Emergency Response Framework (2017), at 7, 28 et seq.

94

Ibid., at 35 et seq.

95

Ibid., at 52 et seq.

See for details WHO, Contingency Fund for Emergencies. Report of the WHO Health Emergencies Programme (2017). 96

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leased within 24 hours of approval. The financing of the fund, which is targeted at a capitalization of $100 million, is to be achieved through flexible, voluntary contributions.97 From 2015 to date, Member States contributed $61 million of which already $57 million haven been spent in various health emergencies in the past years.98 This data reveals how urgently a more stable financing mechanism is required. Also, the entire Health Emergencies Programme remains heavily underfunded.99

2. Emergency Response Systems Within the UN Apart from the WHO, the UN also plays a vivid role in addressing infectious disease emergencies.100 Within the UN system, organizations with significant involvement in the health sector include, apart from the WHO, the World Organisation for Animal Health, the UN Children’s Fund, the Food and Agriculture Organization, the UN Environment Organization, the UN Development Programme, as well as the UN Population Fund.101 The management of transmissible diseases is, hence, a multisectoral task.102 Generally, in humanitarian crises, the UN emergency response system should be activated. According to General Assembly Resolutions 46/182 and 48/57, the leadership role for the international emergency response then lies with the Secretary-General who works closely with the Emergency Relief Coordinator of the UN Office for 97 See WHA Decision 68(10), 2014 Ebola virus disease outbreak and follow-up to the Special Session of the Execution Board on Ebola, A68/DIV./3, 5 June 2015, at 7.

See Contingency Fund For Emergencies (CFE) contributions and allocations, 13 August 2018, available at http://www.who.int/emergencies/funding/contingency-fund/allocations/en/. 98

In 2016-2017 only 73% (= $354 million) of the approved programme budget were raised for the WHO Health Emergencies Programme. See WHO, Results Report Programme Budget 2016-2017, WHA71/28, at 26. Critically also Gostin and Ó Cathaoir, supra note 1, at 361 et seq. 99

The promotion of global health is a general mandate of the UN. Already in 2012, the UNGA called ‘for strengthening collaboration among Member States […], to promote effective implementation of universal health coverage on the basis of solidarity at national and international levels’ (UNGA Res. A/RES/67/81, Global health and foreign policy, 14 March 2013, at para. 22). Also ‘good health and wellbeing’ has been and still is one of the top three Sustainable Development Goals. See UNGA Res. 70/1, Transforming our World: The 2030 Agenda for Sustainable Development, 21 October 2015. 100

101

See Taylor, supra note 19, at 673.

See for current collaborations WHO Director-General, Report: Collaboration within the United Nations system and with other intergovernmental organizations, WHA71/43, 10 April 2018. 102

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Coordination of Humanitarian Affairs.103 In order to ensure a coherent response within the UN system, an Inter-Agency Standing Committee serviced by the Office of the UN Disaster Relief Coordinator coordinates the action of the various UN agencies through a cluster system that allows for collaboration across the agencies. In order to activate the system, the Emergency Relief Coordinator together with the heads of all UN agencies, must qualify an event as a level 3 emergency on the basis of five criteria: scale, complexity, urgency, capacity, and reputational risk.104 As soon as the Emergency Relief Coordinator has declared a level 3 emergency he may disburse a $50 million Central Emergency Revolving Fund which should enable ‘bridge funding’ to meet the necessary relief requirements when other sources of funding are not readily available.105 However, so far, coordination between the WHO and the UN disaster response actors has been deficient with regard to infectious disease outbreaks in the past. Particularly, during the Ebola crisis, inter-agency coordination was too weak to ensure a timely and coherent disaster response.106 The High-level Panel on the Global Response to Health Crises has therefore emphasised that it is crucial to ensure an overall response to future health crises by establishing a clear line of command within the whole UN system.107 Beyond that, the concept of primary responsibility for the affected State under international disaster law may also have discouraged the UN actors and the WHO to provide timely assistance in the field.108

UNGA Res. 46/182, Strengthening of the coordination of humanitarian emergency assistance of the United Nations, 19 December 1991; UNGA Res. 48/57, Strengthening of the coordination of humanitarian emergency assistance of the United Nations, 14 December 1993. 103

104 See Inter-Agency Standing Committee Transformative Agenda Reference Document, Humanitarian System-Wide Emergency Activation: definition and procedures, 13 April 2012, PR/1204/ 4078/7. 105 UN Secretariat, Secretary-General’s Bulletin: Establishment and Operation of the Central Emergency Revolving Fund, ST/SGB/251, 22 July 1992. 106

Gostin and Ayala, supra note 5, at 74.

High-level Panel on the Global Response to Health Crises, Protecting Humanity from Future Health Crises (2016), at 53. 107

108 See for the challenges the sovereignty concept poses to international disaster law Hans-Joachim Heintze,‘Sovereignty and the “Protection of Persons in the Event of Disasters”’, in Thomas Eger, Stefan Oeter, and Stefan Voigt (eds.), International Law and the Rule of Law under Extreme Conditions (2017) 49, at 53 et seq.

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3. Pandemic Emergency Financing Facility of the World Bank Apart from the UN agencies, meanwhile, another international actor has emerged to tackle the dilemma of fighting pandemics.109 The World Bank, with the support of Japan, Germany, and the WHO, has set up a $500 million Pandemic Emergency Financing Facility.110 It is designed as a fast-disbursing financial mechanism to make significant funds available to resource-constrained countries early enough to help them fight an escalating epidemic outbreak, to enable a timely response and contain the spread of the disease. The Pandemic Emergency Financing Facility seeks to create a new market to insure global epidemic and pandemic risks and attract new donors. Other than the WHO Health Emergency Programme, the Pandemic Emergency Financing Facility only covers disease outbreaks of six viruses that are most likely to cause a pandemic.111 The Facility is governed by a steering body, whose voting members include Japan and Germany. The WHO and the World Bank merely serve as non-voting members.

C. Research and Development

1. WHO Research and Development Blueprint for Action to Prevent Epidemics The Ebola crisis has alerted the world to the old problem of pharmaceutical companies’ lack of investment in neglected infectious diseases. The WHO has, thus, issued a Research and Development Blueprint for Action to Prevent Epidemics to mitigate the effects of this market failure and to enhance pharmaceutical research. The

109 Pandemic Emergency Financing Facility (PEF) Framework, adopted by the Steering Body on 27 June 2017.

World Bank, World Bank Launches First-Ever Pandemic Bonds to Support $500 Million Pandemic Emergency Financing Facility, 28 June 2017, available at http://www.worldbank.org/en/news/ press-release/2017/06/28/world-bank-launches-first-ever-pandemic-bonds-to-support-500-millionpandemic-emergency-financing-facility. 110

111 Art. 1(j) PEF Framework. These include the new Influenza Pandemic A Virus, Coronavirus (SARS, MERS), Filovirus (Ebola, Marburg), Crimean Congo Hemorrhagic Fever Virus, Rift Valley Fever Virus, and Lassa Fever Virus.

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blueprint includes a list of priority diseases, which is constantly updated,112 as well as a concept for the coordination of stakeholders and the development of innovative funding options.113 However, the WHO itself refrains from actively participating in the development of new drugs for neglected diseases and remains in a normative position offering advice and guidance.114

2. Further Public and Private Initiatives Meanwhile, a multitude of public-private alliances have arisen to foster the research and development of new pharmaceuticals for neglected diseases. One of the more State driven initiatives is called the Coalition for Epidemic Preparedness Innovations (CEPI). It promotes the collaboration of public, private, philanthropic, and civil organisations to share the risks, costs, and benefits of the development of pharmaceuticals for the neglected diseases listed in the WHO Research and Development Blueprint. The initiative was launched at the World Economic Forum’s 2017 meeting to finance and coordinate the development of new vaccines for the listed priority diseases.115 Instead of allocating financial means to the WHO, the World Economic Forum decided to build up an independent initiative as it deemed the funding of research and development for epidemic diseases was not among WHO’s core functions.116 The approach is intended to allow large scale manufacturing of the newly developed drugs to make them available to those in need. In 2017, CEPI had already raised $460 million, aiming to raise $1 billion by 2022.117 The organisation has thus overtaken leadership in the field of mobilising resources for medical research.118 112 See for the current list WHO, List of Blueprint priority diseases (2012), available at http://www. who.int/blueprint/priority-diseases/en/. 113

WHO, An R&D Blueprint for Action to Prevent Epidemics. Plan of Action (2016).

Gostin and Ayala, supra note 5, at 78. support a more active role of the WHO in the field of research and development and promote a WHO Pandemic Product Development Committee. 114

See Coalition for Epidemic Preparedness Innovations (CEPI), We want to stop future epidemics by developing new vaccines for a safer world, available at http://cepi.net/. 115

See CEPI, ‘CEPI—a new global R&D organization for epidemic preparedness and response’, 389 The Lancet (2017) 233. 116

117

Ibid., at 234.

118

Gostin and Ó Cathaoir, supra note 1, at 360.

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An even bigger public-private initiative, the Global Alliance on Vaccines and Immunization, which was founded in 2000 by a $750 million five-year pledge from the Bill and Melinda Gates Foundation,119 concentrates on the development of vaccines as well as on the vaccination of children in the world’s poorest countries.120 In 2015, pledges in the amount of $7.5 billion were announced from philanthropies as well as from State actors.121 Considering that the WHO’s entire annual budget 2016-2017 amounts only $4.5 billion, the Global Alliance on Vaccines and Immunization’s fundraising ability is remarkable.122 Other initiatives tend to concentrate on specific disease types. The PREDICT project, a venture of the United States Agency for International Development’s Emerging Pandemic Threats program, for instance, seeks to detect zoonotic diseases at the wildlife–human interface.123 Likewise, a new 10-year partnership, the Global Virome Project, was launched in 2018 to detect unknown viral threats. It was conceived by various national agencies, institutes and universities under the participation of a WHO representative and also actively engages in fundraising.124 Furthermore, a variety of initiatives exist supporting research and development focusing on one specific disease: for HIV/AIDS, various public and private initiatives – such as the UN Joint Programme on HIV/AIDS, the Bill and Melinda Gates Foundation or the Global Fund to fight HIV/AIDS, Tuberculosis and Malaria – are working in the field.

V. Need of a Revised Legal Framework for the New Global Health Regime Although the multitude of initiatives inside and outside the WHO is undoubtedly likely to have a highly positive effect on the global health situation, there is a distinct 119

Yves Beigbeder, The Wolrd Health Organization. Achievements and Failures (2017), at 15.

120

Gavi, About Gavi, the Vaccine Alliance (2018), available at https://www.gavi.org/about/.

121

Beigbeder, supra note 119, at 15.

122

WHO, Results Report Programme Budget 2016-2017, supra note 99, at 4.

See UC Davis Veterinary Medicine, What We Do, available at https://www2.vetmed.ucdavis. edu/ohi/predict/predict-activities/index.cfm. 123

Global Virome Project, The Global Virome Project is a global cooperative scientific initiative to massively lower risk of harm from future viral outbreaks over 10 years, available at http://www.globalvirome project.org/. 124

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lack of a coherent legal framework to ensure consistency of the overall public health governance.125 The failure of the IHR (2005) to mitigate the Ebola crisis has obviously aroused mistrust in international health law as such. As a result, also the Review Committee on the Role of the International Health Regulations (2005) in the Ebola Outbreak and Response concluded ‘that the IHR text is robust and needs to be implemented rather than amended’.126 Key intergovernmental organisations consequently prefer to develop quickly available tools for the next crisis at hand, instead of spending a lot of time in tedious negotiations about the amendment of the IHR. The world, hence, is focussing on medical-technical soft law mechanisms rather than on binding international rule-making.127 Yet, this disorderly development of various public health mechanisms comes at a price. It raises transactions costs, poses legitimacy questions, provokes regulatory conflicts, and leads to a permanent lack of coherent governance for the overall public health system.128

A. Transaction Costs and Lack of Leadership

Firstly, the spread of various public health initiatives leads to avoidable costs in terms of organisational structure, staff, and public relations efforts. Furthermore, it increases the necessity for communication between all actors in the field to ensure coherent efforts. Numerous international health institutions, public-private partnerships, and philanthropies are working in the field of global health governance, which hinders global leadership, coordination, and accountability. Instead of working together to jointly foster global health security, the various actors are increasingly competing to attract financially strong donors. Secondly, the ongoing fragmentation and pluralisation of global health stakeholders causes deadly delays in emergency situations. Even the UN system lacks sufficient coordination of the actors involved. During the Ebola crisis, the UN Mission for Ebola Emergency Response was supposed to complement the WHO’s work accord125

Lee, supra note 46, at 934.

126

WHO, Report of the Review Committee, supra note 27, at 6.

For a critical analysis of this pattern of international legal behavior in international health law, see Fidler, Future WHO, supra note 19, at 1099 et seq. 127

128

Cf. Lee, supra note 46, at 935.

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ing to the Secretary-Generals plan. In practice, however, poor communication among the participating international agencies considerably delayed the emergency response.129 There was, for instance, a misunderstanding concerning the medical goods needed in the field, resulting in 512 deaths of health-care workers, which were exposed to the disease because of the lack of protective gear.130 Thirdly, the new emergency response tools are not fully streamlined to provide clear guidance in future health emergencies. In particular, the pluralisation of risk assessment tools within and outside the WHO could prove to be a pitfall for coordinated disaster response in the future. While the classification as Public Health Emergency of International Concern by the Director General of the WHO was originally intended to determine whether an internationally coordinated response should take place according to the IHR (2005), now the severity of an infectious disease outbreak is also indicated by the pandemic phases of the WHO Global Influenza Programme, the emergency grades of the WHO Health Emergencies Programme, the risk assessment of the UN Emergency Relief Coordinator, and the activation criteria of the Pandemic Emergency Financing Facility of the World Bank. This dilution of emergency alert levels would be unproblematic if it were to be assumed that public health emergencies will surely be assessed equally by all parties involved. However, the handling of the 2009 Swine Flu pandemic, where the risk was overestimated, on the one hand, as well as the response to the Ebola outbreak, where the risk was for a long time underestimated, on the other hand, demonstrate how difficult pandemic risk assessment is. Decision-making in a public-health emergency is generally a very difficult task as it is often based on incomplete information and uncertainty about the scale of the threat.131 Thus, pluralising risk assessment seems rather imprudent. Deviating assessments of the severity of future health emergencies could provoke confusion and thereby weaken the crisis response. Also, the UN High Panel emphasises ‘the need to rely on existing or pre-agreed coordination mechanisms’132 and strongly recommends 129

Gostin and Ayala, supra note 5, at 74 et seq.

Lee, supra note 46, at 947. Also, UNMEER struggled to deploy sufficient specialist personnel in a timely manner. See High-level Panel on the Global Response to Health Crises, Protecting Humanity from Future Health Crises (2016), at 52. 130

131

Trute, Pandemics, supra note 17, at 121.

High-level Panel on the Global Response to Health Crises, Protecting Humanity from Future Health Crises, 2016, at 52. 132

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ensuring a robust and well-coordinated system-wide response to future health crises with clear reporting-lines and protocols put in place to govern collaboration among UN agencies.133 In order to warrant that all actors involved act in concert, rather than new medical initiatives, a governing international legal framework with cross-references between the respective soft law documents is necessary to clarify how the different mechanisms relate to each other and, which risk assessment is prioritised.134 Yet, there is no coherent set of rules that connects all existing emergency policies within the UN system. The IHR, which are – in contrast to UN or WHO resolutions – directly binding for the Member States thus provide an ideal legal means to implement overarching policies for public health emergencies of global scale.

B. Legitimacy Issues

Finally, the public-private partnership initiatives, which have recently evolved, also raise legitimacy issues. Core capacity building is a particularly politically sensitive topic that touches upon the sovereignty of States in allocating scarce resources. External evaluation mechanisms, thus, require a solid international mandate. It is therefore important to legally legitimise the Joint Evaluation Program. Furthermore, in terms of legitimacy, it is also questionable why the World Bank’s Pandemic Emergency Financing Facility, which is only applicable to outbreaks of six viruses, is better equipped than the whole WHO Health Emergencies Programme, which is not only supposed to cover all sorts of health emergencies but also requires a decent staffing level in order to accomplish the manifold tasks attributed to it.135 According to the UN’s institutional order, the WHO should take leadership in global response to infectious disease threats.136 Only the WHO, ultimately led by the World Health 133

Ibid., at 52.

For a more general discussion of the importance of solid international law-making in the field of global public health, see Fidler, Future WHO, supra note 19, at 1103. 134

135 As seen above, in 2016-2017 only $354 million were raised for the entire WHO Health Emergencies Programme. In comparison, the Pandemic Emergency Financing Facility of the World Bank aims to provide more than $500 million. 136 Art. 57 Charter of the United Nations 1945, 15 UNCIO 335, Preamble of the WHO Constitution. See also Allyn L. Taylor, ‘Controlling the Global Spread of Infectious Diseases: Toward a Reinforced Role for the International Health Regulations’, 33 Houston Law Review (1997) 1327, at 1328, 1338; Gostin and Ó Cathaoir, supra note 1, at 360.

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Assembly, provides for a global health forum in which all states have a say.137 The essential financial resources of the Member States should therefore be allocated to the WHO instead of public-private partnerships. In a world of limited resources, any Member State investment in a public-private health initiative constitutes a decision against the much-needed expansion of WHO funding.138

C. Outline of a Reform of the IHR

The IHR is the governing legal authority for tackling large-scale health emergencies.139 A core function of the IHR is, thus, to provide the WHO with a clear mandate to fight transmissible diseases. Yet, the IHR (2005) do not meet this requirement. The current IHR conceptualise the WHO as a mere normative agency, designed to promote global health through technical advice and medical expertise. Today, however, the world demands that the agency provides active leadership in public health crises of international scale.140 In order to re-establish the WHO as the international guardian of global health, a new coherent legal foundation is necessary.141 The comprehensive revision of the IHR, with a clear outline of the new mandate of the WHO, could also provide the necessary impetus to regain the trust of both State Parties and private donors and to finally reach the goal of stable funding. The new operational tasks of the WHO, which are currently set out in numerous resolutions, frameworks, and other documents, must, hence, be outlined in the future IHR.142 The reform firstly needs to explicitly authorise the WHO to monitor the core capacity building of the State Parties by appointing external experts and by country visits. Secondly, the revised IHR should explicitly mandate the WHO to foster re137

Art. 9 WHO Constitution.

138

Critically also Gostin and Ó Cathaoir, supra note 1, at 361 et seq.

139

Ibid., at 366.

140

Benton Heath, supra note 33.

See from a human rights perspective William Onzivu, ‘(Re)Invigorating the World Health Organization’s Governance of Health Rights: Repositing an Evolving Legal Mandate, Challenges and Prospects’, 4 African Journal of Legal Studies (2011) 225, at 236 et seq. 141

142 One might argue that the IHR merely form a regulatory framework for the range of tasks of the WHO and, thus, leave no room for detailed action plans. However, the rules in the IHR – such as on travel documents – are already very detailed.

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search and development for neglected diseases. Thereby, fundraising, which is currently conducted by the Coalition for Epidemic Preparedness Innovations, could also be restored under the WHO’s mandate. Finally, and most importantly, the functioning of the newly established Health Emergencies Program should be integrated in the revised IHR and set up a clear structure of responsibilities to provide global leadership.143 To this end, the IHR should provide guidance on when, to what extent, and how the WHO will cooperate with other UN organs or independent international actors as, for instance, the World Bank. The existing Article 14 IHR, which merely stipulates the general need to cooperate with other intergovernmental organisations, should be amended in this regard. The IHR should clarify, to what extent the declaration of a Public Health Emergency of International Concern pre-empts other risk evaluations within the WHO and how it relates to the UN emergency response system. Furthermore, the IHR should indicate at what point the UN Inter-Agency Standing Committee should be informed in case of a public health emergency. Of course, it is hardly possible to anticipate and spell out all necessary prevention, preparedness and response measures for future health emergencies in the IHR. Any regulatory framework dealing with risk and emergency management must leave enough room for flexible adaptation of the overall strategy to new unforeseen situations. The IHR should, however, at least provide for a solid governance structure. In order to retain the necessary flexibility and at the same time create a coherent regulatory system, the IHR could mandate the World Health Assembly to formulate concrete handling instructions or refer to existing resolutions and framework documents. Also, core resolutions of the rather confusing UN emergency relief system could be included in the new emergency rules of the IHR by way of reference. Constructing the IHR as an all-compassing and at the same time flexible framework regulation for health emergency management, could ensure a more effective emergency response throughout the complex global health landscape. Moreover, a revision process of the IHR, should give some thought to the detrimental economic consequences State Parties suffer after notification of transmissible disease outbreaks. To this end, a closer cooperation with the WTO to impede unrea-

143

For a more general analysis of global emergency powers, see Benton Heath, supra note 33, at 18.

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sonable traffic or trade restrictions could be fruitful.144 The establishment of a joint WHO-WTO committee to adjudicate such conflicts in the event of a Public Health Emergency of International Concern would be an efficient measure in this regard.145 A less intrusive means could be to authorise the WHO to act as an amicus curiae in the existing WTO dispute resolution system on behalf of affected Member States who suffer from excessive travel and trade restrictions imposed by other countries.146 Finally, the establishment of a global storage facility for drugs for frequently reemerging infectious diseases could be outlined in the revised IHR, to enable the WHO Health Emergencies Programme to provide immediate help after a Member State has notified an outbreak in its territory.147 Such a long-term project could be streamlined with current approaches pointing at research and development for neglected infectious diseases. Also, a duty to share specimen of newly discovered communicable diseases could then easily be justified in such new IHR, if affected countries could in turn benefit from a global stockpile of newly developed medicines.148 The IHR could mandate the WHO to foster the establishment of such a global storage facility and delegate the exact regulation thereof to future World Health Assembly resolutions.

VI. Conclusion Without a coherent regulatory framework in international health law, the world lacks the leadership to overcome future health crises. While the support of the WHO’s 144 See for the relevance of the World Trade Organization (WTO) for the global health regime also Taylor, supra note 19, at 676.

Tim K. Mackey and Bryan A. Liang, ‘Lessons from SARS and H1N1/a: Employing a WHOWTO forum to promote optimal economic-public health pandemic response’, 33 Journal of Public Health Policy (2012) 119. 145

During the H1N1 pandemic 2009 WTO, OIE, and the WHO already issued joined statement discouraging trade restrictions. See Joint FAO/WHO/OIE/WTO, Statement on Influenza A(H1N1) and the safety of pork, 2 May 2009, available at http://www.who.int/mediacentre/news/statements/ 2009/h1n1_20090502/en/. 146

With regard to pandemic influenza the WHO has already concluded material transfer agreements to provide the WHO with access to vaccines and antivirals. See WHO Director-General, Report: Pandemic Influenza Preparedness Framework for the sharing of influenza viruses and access to vaccines and other benefits, WHA71/42, 5 April 2018. 147

148

Cf. WHO, Pandemic Influenza Preparedness Framework, supra note 57.

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work through public and private health initiatives is generally beneficial, guaranteeing an effective emergency response in a highly fragmented public health landscape requires a coherent regulation of the responsibilities and competencies of those involved. In consequence, instead of issuing more and more programs and initiatives on the basis of rather unsolid, fragmented soft law documents, the international community should equip the WHO with an up-to-date mandate by entering into the lengthy but promising process of reforming the IHR.

‘Taking out the Magnifier’: Groups in Vulnerable Situations Under Global Health Law VALENTIN AICHELE(

ABSTRACT: In due course of international practice, numerous groups in societies worldwide potentially have been identified to be in a vulnerable situation. Particularly in healthrelated policies and programmes as well as universal strategies such as the Sustainable Development Goals (2030 Agenda), the framing ‘groups in vulnerable situations’ or similar phrasings receive special attention. However, looking at the diverse use of the term, it is not exactly clear what vulnerability might mean in legal terms. While some mix vulnerability with norms, the author promotes an understanding of vulnerability that refers to the facts and whose nature is descriptive. Thus, one major function of the term is to urge States and those responsible for global health policy to look closely at social realities – vulnerability serves a magnifier. This contribution further elaborates an understanding of vulnerability that exists within the context of the human right to health, as this area of law provides a meaningful setting for further addressing foundational issues such as its two-fold nature, the language used, its purpose, and the discussion concerning threshold criteria. Accordingly, the author argues that vulnerability can be used as a key tool for addressing the prevailing worsening of health inequalities and disparities among distinct social groups in a given society on the basis of external factual circumstances such as time and place. KEYWORDS: Global Health Law, Groups in Vulnerable Situations, Health Inequality, Higher Risk, Human Right to Health, Sustainable Development Goals, Vulnerability, World Health Organization

I. Introduction In terms of practice, the identification of ‘groups in vulnerable situations’ or other similar phrasings, such as ‘vulnerable groups’ or simply ‘the vulnerable’, seems subject ( The author has, since 2009, headed the German Monitoring Mechanism to the United Nations (UN) Convention on the Rights of Persons with Disabilities, which is part of the German Institute for Human Rights, in Berlin. He is also visiting lecturer at number of German universities. As this contribution was written by the author in a private capacity, it does not necessarily reflect the views of the Institute.

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to an inflationary trend in the international sphere. For instance, a simple search of the term ‘vulnerable’ in the United Nations (UN) World Health Organization’s (WHO) main web-search engine in September 2018 revealed 19,800 occurrences.1 However, to date it is not exactly clear what ‘vulnerability’ actually means, particularly in legal terms, which is something it has in common with other research such as the discourse surrounding ethics,2 which has also explored the issue.3 There are still more than a few issues relating to the foundational understanding of vulnerability which seek to identify its root cause – the condition humaine or environmental factors, for example – or attempt to define the objective of the concept as well as the expected benefits in view of its application, or if and to what extent there are legal consequences once vulnerability is determined. Another challenge is the conceptual determination of a threshold criterion. Such a criterion is necessary in order to make the concept work and endow it with added-value beyond the claim of a general need to protect dignity and rights of every human being equally4 and in addition to existing specific protection regimes5 such as those aimed at women, children, and persons with disabilities. What is the additional self-evident significance of vulnerability beyond the existing specialised instruments? If there is none, then the concept of ‘vulnerability’ is not needed, for it amounts to pure rhetoric, e.g. in policies, strategies, and programmes and consequently should be ignored if it has no inherent value.6

1 World Health Organization (WHO), Search Result ‘vulnerable’ (September 2018), available at http://www.who.int/.

Martha Albertson Fineman and Anna Grear (eds.), Vulnerability: Reflections on a New Ethical Foundation for Law and Politics (2013). See also Alexander H.E. Morawa, ‘Vulnerability as a Concept of International Human Rights Law’, 6 Journal of International Relations and Development (2003) 139. 2

Anthony Wrigley and Angus Dawson, ‘Vulnerability and marginalized populations: Chapter 7’, in Drue H. Barrett et al. (eds.), Public Health Ethics: Cases Spanning the Globe (2016) 203, at 203. See also Erinn C. Gilson, The Ethics of Vulnerability: A Feminist Analysis of Social Life and Practice (2014), at 15. 3

4 See the International Covenant on Economic, Social and Cultural Rights (ICESCR) 1966, 993 UNTS 3 and the International Covenant on Civil and Political Rights 1966, 999 UNTS 171. 5 See United Nations Convention on the Elimination of all Forms of Discrimination against Women 1979, 1249 UNTS 13; the United Nations Convention on the Rights of the Child 1989, 1577 UNTS 3; and the United Nations Convention on the Rights of Persons with Disabilities (CRPD) 2006, 2515 UNTS 3.

Ingrid Nifosi-Sutton, The Protection of Vulnerable Groups under International Human Rights Law (2017). 6

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Put into practice, vulnerability could be effective for targeting existing health inequalities at national and global levels both in the short and longer terms. Such inequalities are indeed numerous, of which many are not acceptable from a human rights point of view and specific efforts are needed to overcome them; this would by no means target to make everyone the same but to narrow the gap to the bearable degree. For example, the global death rate of women arising from complications surrounding pregnancy and giving birth (‘maternal mortality’): in 2015, 303,000 women around the world died as a result of such complications.7 Persons with disabilities may also find themselves in a vulnerable situation, for worldwide averages indicate they are more than three times as likely to have no access to necessary health care due to existing barriers.8 For these and any other at a global, national, or regional level, the concept of vulnerability also could assist in setting priorities. The urgency of coming to terms with priorities can be seen in the number of appeals to States and the international community at large to provide aid and assistance to specific sections of the population and social groups in desperate need of assistance. Existing limitations on resources at both the international and the national levels underline the need for criteria that can help determine how they are distributed and justified. At stake is whether the concept of vulnerability is capable of helping national and international health policies determine priorities and, in practice, mitigating the problematic dynamics of extreme inequalities associated with social marginalisation, political neglect, and group discrimination within societies.

II. Proposition and Working Definitions Applied Here ‘Groups in vulnerable situations’ constitutes a conceptual approach towards identifying groups on the basis of the facts in a situation, in which an extreme health inequality on a regional, national, or global scale is observable or in which, indeed, a dramatic worsening of health inequalities is at stake. It thus signifies a situation in which 7

United Nations (UN), The Sustainable Development Goals Report 2018 (2018), at 5.

UN, Department of Economic and Social Affairs, United Nations Flagship Report on Disability and Development 2018: Realization of the Sustainable Development Goals by, for and with persons with disabilities, 16 August 2018, available at https://www.un.org/disabilities/documents/2019/UN-flagshipreportdisability.pdf, at 14. 8

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a social group can be identified as being at high risk – in the short or long term – of suffering under discrimination or likely to experience a violation of their individual right to health. My proposal ends in an understanding of vulnerability as something that is neither rooted solely in a person or a group nor stems from the situation to which a person or a group is subjected, for it is actually located in its entirety in the interplay of both. Generally speaking, there is no fixed relationship between the person or group and the situation, but the degree of their interplay differs depending upon the group and situation. Furthermore, this interplay should be seen as a process subject to multifactorial dynamics, putting an emphasis on external factors that make people vulnerable. Applying vulnerability in this sense, the concept first serves a ‘magnifier’ that allows us to come closer to social realities and to identify those groups at specific risk of being unable to overcome the situation of disadvantage. Second, it functions as an ‘alarm bell’ that can show responsible persons and organisations that urgent action is needed. Third, once determined, vulnerability in the respective normative setting triggers international law obligations to prevent or take measures to overcome these health inequalities with the utmost priority – the ‘leverage’ function of the concept.

III. Vulnerability in Global Health Law: Taking Stock Global health law9 offers a number of starting points for exploring the concept of vulnerability in terms of global health. In most cases, vulnerability is not found in any part of the language relating to binding legal norms, but overall it is a mix of binding and non-binding norms that have been framed as ‘standards of public international law’.10 Instead, vulnerability can mostly be identified in non-binding settings. Often it appears as an underlying feature of global health law that legitimises giving special attention to these groups when it is determined they are in vulnerable situations.

Lawrence O. Gostin, Global Health Law (2014), at 59-85; Brigit Toebes, ‘International Health Law: an Emerging Field of Public International Law’, 55(3) Indian Journal of International Law (2015) 299. 9

10 Eibe Riedel, ‘Standards and Sources: Farwell to the Exclusivity of the Source Triad in International Law?’,58(2) European Journal of International Law (1991) 58, at 58.

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A. Human Rights Law Related to Health

Instances of this concept are found in the language of the binding body of human rights law, such as the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (as of 25 May 2000), are rare.11 For the Protocol’s 175 Parties, Article 8 of the document states that ‘States Parties shall adopt appropriate measures to protect the rights and interests of child victims of the practices prohibited under the present Protocol at all stages of the criminal justice process, in particular by: (a) Recognizing the vulnerability of child victims and adapting procedures to recognize their special needs, including their special needs as witness.’ Article 9 further states that ‘Particular attention shall be given to protect children who are especially vulnerable to these practices’, meaning practices related to the offences referred to in the current version of the protocol. Another treaty is linked to the International Convention on the Rights of the Child (CRC) (as of 20 November 1989). The Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict12 (as of 25 May 2000), adopted slightly earlier than the other protocol, only mentions vulnerability in its preamble when it demands States Parties recognise ‘the special needs of those children who are particularly vulnerable to recruitment or use in hostilities contrary to the present Protocol owing to their economic or social status or gender’. Moreover, in 2006 the General Assembly adopted the International Convention for the Protection of All Persons from Enforced Disappearance (CPED) (as of 20 December 2006).13 In addition to the core human rights instruments of the UN, the CPED takes up the language of vulnerability in Article 7, in which it obliges each State Party to ‘make the offence of enforced disappearance punishable by appropriate penalties which take into account its extreme seriousness.’ It furthermore adds: ‘Each State Party shall make the offence of enforced disappearance punishable by appropriate penalties which take into account its extreme seriousness […] Each State Party may establish […] (b) Without prejudice to other criminal procedures, aggravating Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography 2000, 2171 UNTS 227. 11

Optional Protocol to the Convention on the Rights of the Child on theinvolvement of children in armed conflict 2000, 2173 UNTS 222. 12

International Convention for the Protection of All Persons from Enforced Disappearance 2006, 2716 UNTS 3 . 13

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circumstances, in particular in the event of the death of the disappeared person or the commission of an enforced disappearance in respect of pregnant women, minors, persons with disabilities or other particularly vulnerable persons.’ When compared to these few binding provisions in human rights law, the findings within the context jurisprudence relating to health are rather comparatively rich. For example, an analysis of the existing General Comments made by UN treaty bodies which explicitly describe the right to health make extensive use of terminology relating to the concept of vulnerability (regarding the International Covenant on Economic, Social and Cultural Rights (ICESCR);14 the UN Convention on the Elimination of all Forms of Discrimination against Women (CEDAW);15 and CRC).16 Vulnerability as a concept also is used by treaty bodies focusing on other issues in their reporting guidelines,17 often in their Concluding Observations which these bodies adopt to summarise their findings after completing State review procedures,18 in the views they adopt when finalising individual complaint procedures,19 and, last but not least, in statements such as, e.g., the Committee on Economic, Social and Cultural Rights (CESCR) statement on poverty.20 In fact, the ICESCR, which strongly contributed to the emergence of the concept of vulnerability, also established language describing ‘the marginalized’ or a ‘marginalized group’. In the past the respective human rights body overseeing the ICESCR, the 14 UN, Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 14: The right to the highest attainable standard of health, UN Doc E/C.12/2000/4, 11 August 2000.

UN, Committee on the Elimination of Discrimination Against Women (CmEDAW), General Recommendation No. 24: Article 12 of the Convention (Women and Health) (1999), available at http:// www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm#recom24. 15

16 UN Committee on the Rights of the Child (CmRC), General Comment No. 15 (2013) on the right of the child to the enjoyment of the highest attainable standard of health (Art. 24), UN Doc. CRC/ C/GC/15, 13 April 2013. 17 UN, Compilation of guidelines on the form and content of reports submitted by states parties to the international human rights treaties, UN Doc HRI/GEN/2/Rev.6, 3 June 2009, at 54. 18 CESCR, Concluding observations on the initial report of Bangladesh, UN Doc. E/C.12/BGD/ CO/1, 18 April 2018, at 49. 19 CmEDAW, Communication No. 4/2004, UN Doc. CEDAW/C/36/D/4/2004, 29 August 2006, at 9.4; CESCR, Views adopted by the Committee under the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights with regard to communication No. 5/2015, UN Doc. E/C.12/61/D/5/2015, 21 July 2017, at 17.5 and 21. 20 CESCR, Report on the Twenty-fifth, Twenty-sixth and Twenty-seventh Sessions (23 April11 May 2001, 13-31 August 2001, 12-30 November 2001), UN Doc. E/2002/22; E/C.12/2001/176, June 2002, Annex, at 7.

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CESCR, took vulnerability mostly as a fact, and instead concentrated on ‘marginalized and disadvantaged’ groups of society as a normative setting for vulnerable situations, while others use vulnerability as a normative heading with ‘marginalisation’ and ‘disadvantages’ as sub-headings. However, the treaty bodies such as the CESCR have not spend a lot of time on the doctrinal ramification involved, sometimes using all three terms almost synonymously. Indeed, Chapman and Carbonetti examined the actions of the CESCR between 1991 and 2009, in particular by examining the 21 General Comments drafted between 1989 and 2009 and analysing the 135 Concluding Observations adopted between 1997 and 2009 ‘related to vulnerable, disadvantaged or marginalized groups’.21 They found 863 occurrences of these terms and concluded: ‘Despite the importance the CESCR accords to the subject of vulnerability, it does not offer a clear-cut conception or definition of vulnerability or related terminology. Nor does the Committee provide criteria for identifying which individuals or groups qualify as vulnerable or disadvantaged in general or specific contexts.’22 In their summary the authors state: ‘Neither does the Committee offer a coherent rationale for why the human rights community should be especially concerned with the economic, social, and cultural rights of these groups, possibly because it thinks this is self-evident.’23 According to the present article, albeit much less profound than the one cited above, the overall assessment of the CESCR’s practice as lacking conceptual clarity still seems to be valid.

B. Vulnerability in WHO Law and Policy Standards

As recently 2018, the concept of vulnerability has attained a rather prominent status within the WHO. Outstanding and in line with the concurrent vision statement24 by WHO Director-General Tedros Adhanom Ghebreyesus, who was appointed in 2018, the WHO first began using the concept of vulnerability in 2018 in 21 Audrey R. Chapman and Benjamin Carbonetti, ‘Human Rights Protections for Vulnerable and Disadvantaged Groups: The Contributions of the UN Committee on Economic, Social and Cultural Rights’, 33(3) Human Rights Quarterly (2011) 682, at 723. 22

Ibid., at 723.

23

Ibid.

Tedros Adhanom Ghebreyesus, Vision statement by WHO Director-General (2018), available at http://www.who.int/dg/vision/en/. 24

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the Thirteenth General Programme of Work, 2019–202325 – ‘Promote health, keep the world safe, serve the vulnerable’ – which was approved on 25 May 2018 by the World Health Assembly.26 Under the heading ‘strategic shifts’, the WHO seeks to apply a ‘differentiated approach based on capacity and vulnerability’.27 In the same document the organisation also proclaims: ‘In response to the challenge to leave noone behind’ it would focus ‘the impact on the most vulnerable people at the heart of its work’.28 References in the WHO laws and regulations remain relatively scarce. The WHO’s Constitution makes absolutely no mention of vulnerability.29 In the World Health Regulations (2005),30 the term ‘vulnerability’ appears only in the annex under the heading ‘Examples for the application of the decision instrument for the assessment and notification of events that may constitute a public health emergency of international concern’ in which under ‘examples of circumstances that contribute to high public health’, a serious impact may arise if the ‘population at risk is especially vulnerable (refugees, low level of immunisation, children, elderly, low immunity undernourished, etc.)’.31 In the WHO’s Code of Ethical and Professional Conduct,32 which sets forth internal rules for the staff, the term ‘vulnerability’ comes up in the context of staff members and associates working with beneficiary countries: ‘The issues of sexual exploitation and abuse will systematically be integrated into information campaigns, trainings and meetings with beneficiary populations vulnerable to sexual exploitation and abuse.’33

WHO, Draft thirteenth general programme of work 2019–2023, UN Doc. A71/4, 5 April 2018, at Annex. 25

WHO, Thirteenth General Programme of Work, 2019–2023, 25 May 2018, available at https:// www.who.int/about/what-we-do/gpw-thirteen-consultation/en/, at 1. 26

27

WHO, Draft thirteenth general programme of work 2019–2023, supra note 25, Annex at 7.

28

Ibid.

WHO, Constitution of the World Health Organization, Basic Documents (48th ed. including amendments adopted up to 31 December 2014), 22 July 1946. 29

30

WHO, International Health Regulations (2005) (3rd ed., 2016)

31

Ibid., at 44.

32

WHO, Code of Ethics and Professional Conduct (2017).

33

Ibid., at 23.

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One of the few binding instruments arising from the WHO is the Framework Convention on Tobacco Control (FCTC).34 This treaty, with 183 parties at the time of writing, does not provide a single explicit reference to ‘vulnerability’. The closest mention appears in the preamble, where it names children and adolescents as groups which, in the author’s opinion, require special attention. The respective protocol to the FCTC – the Protocol to Eliminate Illicit Trade in Tobacco Products (as of 12 November 2012), with 48 parties – mentions the concept once in the preamble: ‘Seriously concerned by the adverse effects that the increase in accessibility and affordability of illicitly traded tobacco products has on public health and the wellbeing, in particular of young people, the poor and other vulnerable groups.’35 Although it is not explicit, the idea that groups should be addressed according to the situations in which they find themselves also brings to mind the legendary AlmaAta Declaration of 1978.36 The WHO members present recognised the health inequalities existing at that time among different groups of people within individual nations – one of the essential factors for understanding vulnerability. By focusing on mothers and children but without using the term ‘vulnerability’, they promoted an understanding of primary health care that must also address the needs of social groups. The ‘Rio Political Declaration on Social Determinants of Health’ offers another significant example that assigns the concept of vulnerability an essential status.37 The Declaration states that: ‘[h]ealth inequities arise from the societal conditions in which people are born, grow, live, work and age, referred to as social determinants of health […] We are convinced that action on these determinants, both for vulnerable groups and the entire population, is essential to create inclusive, equitable, economically productive and healthy societies.’38

34

WHO Framework Convention on Tobacco Control 2005, 2302 UNTS 166.

WHO, Protocol to Eliminate Illicit Trade in Tobacco Products (2012), available at https://www. who.int/fctc/protocol/illicit_trade/protocol-publication/en/. 35

WHO, Declaration of Alma-Ata (1978), available at https://www.who.int/publications/almaata_ declaration_en.pdf, at VII, 3. 36

37 WHO, Rio Political Declaration on Social Determinants of Health: Declaration of the World Conference on the World Determinants of Health (October 2011), available at https://www.who.int/ sdhconference/declaration/Rio_political_declaration.pdf. 38

Ibid., at 6.

112 GERMAN YEARBOOK OF INTERNATIONAL LAW 61 @ 2018 C. Vulnerability in International Standards Focusing on Ethics

In 2005 the UN Educational Scientific Cultural Organization (UNESCO) adopted the Universal Declaration on Bioethics and Human Rights, which also provides a fundamental acknowledgement of ‘vulnerability’.39 Under the heading ‘Respect for human vulnerability and personal integrity’, Article 8 reads: ‘In applying and advancing scientific knowledge, medical practice and associated technologies, human vulnerability should be taken into account. Individuals and groups of special vulnerability should be protected and the personal integrity of such individuals respected.’ In the European context, however, the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine (Biomedicine Convention) does not take up the concept.40

D. Vulnerability in Multilateral Development

In the field of multilateral development, the most prominent current example is the 2030 Agenda focusing on the Sustainable Development Goals (SDGs).41 The Agenda does not adopt a human rights approach and the health related SDGs in particular fall way short of human rights standards – something which cannot be repeated often enough and must serve as a basis for ongoing criticism.42 However, the SDGs are intrinsically linked to the commitment to ‘Leave No One Behind’. Achieving the SDGs is hardly feasible if social groups experiencing greater hardship than others – ‘the vulnerable’ in the Agenda’s terminology – are not identified. Hence, the accompanying Declaration adopted by the UN General Assembly offers examples of numerous groups whose needs the Agenda seeks to address, such as ‘children, youth, persons with disabilities (of whom more than 80 per cent live in poverty), 39 United Nations Educational, Scientific and Cultural Organization (UNESCO), Universal Declaration on Bioethics and Human Rights (2005), UNESDOC. SHS/EST/BIO/06/1, SHS.2006/WS/14. 40

Ibid., Preamble and Art. 8.

UN General Assembly (UNGA) Res. 70/1, Transforming our world: the 2030 Agenda for Sustainable Development, 21 October 2015. 41

42 Thomas Pogge and Mitu Sengupta, ‘Assessing the sustainable development goals from a human rights perspective’, 32(2) Journal of International and Comparative Social Policy (2016) 83, at 84.

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people living with HIV/AIDS, older persons, indigenous peoples, refugees and internally displaced persons and migrants.’43 More importantly, however, the Declaration positions the needs of groups in vulnerable situations as one of its greatest foundational features – if not the singular overarching objective of the entire programme – when it led the UN member States to proclaim in 2015: ‘The new Agenda builds on the Millennium Development Goals and seeks to complete what they did not achieve, particularly in reaching the most vulnerable.’44 Goal 3 of the SDGs, ‘Ensure healthy lives and promote well-being for all at all ages’, relates to health and provides a number of targets, although none of the healthrelated targets takes up the language of vulnerability. The section under Goal 3 nevertheless focuses on the situation of distinct social groups such as new-borns, children under five years of age, pregnant women, young mothers, and women of reproductive age.45 Furthermore, the international community has committed itself to ‘reduce the global maternal mortality ratio to less than 70 per 100,000 live births’ by 2030 (Goal 3.1) and to ‘end preventable deaths of new-borns and children under 5 years of age, with all countries aiming to reduce neonatal mortality to at least as low as 12 per 1,000 live births and under 5 mortality to at least as low as 25 per 1,000 live births’ (Goal 3.2). None of the other targets under Goal 3 identify specific groups of greater concern. Instead, they formulate goals in an abstract and objective manner.

E. Human Rights Principles and Guidelines

The UN and its various bodies increasingly seek to alert others to the need to protect ‘groups in vulnerable situations’. A significant example includes the ‘Principles and Guidelines, supported by practical guidance, on the human rights of migrants in vulnerable situations’.46 These Principles and Guidelines, elaborated by the members 43

UNGA Res. 70/1, Transforming our world, supra note 41, at 23.

44

Ibid., at 16.

Audrey R. Chapman, ‘Evaluating the health-related targets in the Sustainable Development Goals from a human rights perspective’, 21(8) The International Journal of Human Rights (2017) 1098, at 1101-1110. 45

UN Office of the United Nations High Commissioner for Human Rights (OHCHR), Principles and Guidelines, supported by practical guidance, on the human rights protection of migrants in vulnerable situations (2018), available at https://www.ohchr.org/Documents/Issues/Migration/PrinciplesAndGuidelines.pdf. 46

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of the Global Migration Group, which includes international organisations such as the International Labour Organization, the UN International Children’s Emergency Fund, UN Office on Drugs and Crime, UN Women, WHO, UNESCO, and other groups, were published in 2018. The UN Office of the High Commissioner for Human Rights (OHCHR), the publication’s author, underlines the concept of vulnerability as a ‘foundational’ element in the human rights framework by justifying the special attention the international community and its members must give to migrants.47 The explanatory text further highlights the link between vulnerability and human rights obligations by stating: ‘Together with the requirement to uphold human dignity, the need to recognise and address vulnerability underpins the legal obligations of States to respect, protect and fulfil human rights.’48 Under principle 12, these standards formulate guidelines for ensuring that all migrants enjoy the highest attainable standard of physical and mental health.49

F. United Nations Special Mechanisms

The Special Rapporteurs of the UN frequently apply the concept of vulnerability in their reports; of particular interest is its usage in the context of global health law by the ‘Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health’. In his 2016 report on health and on forms of deprivation of liberty and confinement, the Special Rapporteur for example pointed out that ‘centres of detention and confinement often concentrate people from the most vulnerable situations, including those who are medically vulnerable’.50

G. Other Sources of Global Health Law

In the huge body of international labour law, we find a number of conventions which, although they do not explicitly take up the concept of vulnerability, do appear 47

Ibid., at 5.

48

Ibid.

49

Ibid., at 47.

UN Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, UN Doc. A/HRC/38/36, 10 April 2018, at 35. 50

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to be aimed at addressing potential disadvantages in the context of working life of distinct societal groups.51 The presumption that the vulnerability of societal groups might be reflected in the law administered by the World Trade Organization cannot be confirmed. Time will tell if the exception clauses of the General Agreement on Tariffs and Trade (Article XX(b)),52 the General Agreement on Trade in Services (Article XVI(b)),53 and the Agreement of Trade-Related Aspects of Intellectual Property Rights (Article 27(2))54 will provide space for its further application.55 A looser connection to health law is provided the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women, Children, supplementing the UN Convention against Transnational Organized Crime (as of 15 December 2000).56 The Protocol’s objective links with the UN Convention against Transnational Organized Crime57 (of 15 November 2000) and is primarily aimed at combatting – as the title suggests – transnational organised crime. The convention has 189 Parties, whereas the Protocol has 173 Parties. In defining the ‘Use of terms’, Article 3 of the Protocol reads: ‘For the purposes of this Protocol: (a) ‘Trafficking in persons’ shall mean the recruitment, transportation, transfer, harbouring of receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieved the consent of a person having control over another person, for the purpose of exploitation.’ Article 9, section 4 of the Protocol further estab51 International Labour Organisation (ILO), Convention C161 on Occupational Health Services (1985); ILO, Convention C169 on Indigenous and Tribal Peoples (1989); ILO, Convention C183 on Maternity Protection (2000). 52 General Agreement on Tariffs and Trade 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, 1867 UNTS 187. 53 General Agreement on Trade in Services 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1B, 1869 UNTS 183. 54 Agreement on Trade-Related Aspects of Intellectual Property Rights 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 UNTS 299. 55

See Gabriel A. Baumstark, The human right to health and its relation to the WTO (2016).

Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women, Children, supplementing the United Nations Convention against Transnational Organized Crime 2003, 2237 UNTS 319. 56

UNGA Res. 55/25, United Nations Convention against Transnational Organized Crime, 15 November 2000. 57

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lishes obligations regarding the prevention of trafficking in persons when it states: ‘States Parties shall take or strengthen measures, including bilateral or multilateral cooperation, to alleviate the factors that make persons, especially women and children, vulnerable to trafficking, such as poverty, underdevelopment and lack of equal opportunity.’ Furthermore, whereas the terminology relating to vulnerability or variations thereof has not been used in international humanitarian law, ‘the wounded and the sick’ described in Article 12 Geneva Convention (I) can be associated with the notion of a need special protection.58 In summary, whereas the above overview is by no means exhaustive, this limited list of references regarding the concept of vulnerability in public international law indicates the limited extent to which the concept has been established and, furthermore, the various ways in which it is used, in particular within different legal categories and various normative settings thereof. Vulnerability is much more broadly established in international policy, strategies, and treaty bodies’ jurisprudence than in any other field.

IV. Groups in Vulnerable Situations and Situations in Which Groups Must be Viewed as Potentially Vulnerable A. Groups

In the context of global health law and the related practice, a vast number of social groups have been identified as vulnerable or as existing in a vulnerable situation: These include children,59 young girls,60 infants (also ‘new-borns’ and ‘children under Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field 1949, 75 UNTS 31. 58

For instance, UNGA Res. 70/1, Transforming our world, supra note 41, at 23; CESCR, General Comment No. 14, supra note 14, at 12; CmRC, supra note 16; UNGA Res. S-26/2, Declaration of Commitment on HIV/AIDS, 2 August 2001, at 4; UNGA Res. 65/229, United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules), 16 March 2011, at Rule 2; CESCR, General Comment No. 7: The right to adequate housing (Art. 11.1): forced evictions, UN Doc E/1998/22, 20 May 1997, at 10; UN, Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, UN Doc. A/HRC/20/15, 10 April 2012, at 48. 59

CmEDAW, General Recommendation No. 24, supra note 15, at 6; UNGA Res. S-26/2, supra note 59, at 4; United Nations Office on Drugs and Crime (UNODC), Guidelines on drug prevention and 60

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five years of age’),61 orphaned children,62 street children,63 youth (including ‘juveniles’ and ‘adolescents’),64 children of African descent,65 older persons,66 women,67 older women,68 pregnant women, women in prostitution,69 female victims of human trafficking,70 women in rural areas,71 persons with disabilities,72 women with disabilities, women with intellectual disabilities,73 persons with mental health issues, in particular women with psychosocial disabilities,74 persons whose ability to free and informed consent has been challenged, persons living in poverty, persons with albinism,75

treatment for girls and women (2016), available at https://www.unodc.org/documents/drug-preventionand-treatment/unodc_2016_drug_prevention_and_treatment_for_girls_and_women_E.pdf, at 11. 61

UNGA Res. 70/1, Transforming our world, supra note 41, at 23.

62

UNGA Res. S-26/2, supra note 59, at 65.

63

UN, Compilation of Guidelines, supra note 17, Chapter IX, at 14.

64

UNGA Res. S-26/2, supra note 59.

UN Committee on the Elimination of Racial Discrimination, General recommendation No. 34: Racial discrimination against people of African descent, UN Doc. CERD/C/GC/34, 3 October 2011, at 26. 65

UNGA Res. 70/1, Transforming our world, supra note 41, at 23; CESCR, General Comment No. 14, supra note 14; CESCR, CESCR, General Comment No. 7, supra note 59, at 12 b). 66

67 CmEDAW, General Recommendation No. 24, supra note 15; UNGA Res. S-26/2, supra note 59, at 4; UN, Report of the Special Rapporteur, supra note 50; UNODC, Guidelines on drug prevention, supra note 60, at 11; CESCR, General Comment No. 7, supra note 59, at 10; UN, Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health: Conflict situations, UN Doc. A/68/297, 9 August 2013, at 37. 68

CmEDAW, General Recommendation No. 24, supra note 15, at 6.

69

Ibid., at 18

70

Ibid.

OHCHR, Discrimination against women on nationality related matters, including the impact on children, UN Doc. A/HRC/23/23, 15 March 2013, at 70. 71

72 UNGA Res. 70/1, Transforming our world, supra note 41, at 23; CESCR, General Comment No. 14, supra note 14, at 12.

CmEDAW, General Recommendation No. 24, supra note 15, at 25; UN, Report of the Special Rapporteur on the rights of persons with disabilities: Sexual and reproductive health and rights of girls and young women with disabilities, UN Doc. A/72/133, 14 July 2017, at 41. 73

Ibid., at 29; UN, Human Rights Council, Mental Health and Human Rights, UN Doc. A/HRC/ 36/L.25, 26 September 2017, at preamble. 74

UN, Report of the Independent Expert on the enjoyment of human rights by persons with albinism, UN Doc. A/73/181, 18 July 2018, at 9. 75

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persons with non-communicable diseases, persons with HIV/AIDS,76 persons with leprosy,77 persons with tuberculosis,78 persons with cancer,79 persons addicted to drugs and persons exhibiting drug abusing behaviour, in particular women and girls,80 non-nationals,81 persons without a birth certificate,82 internally displaced persons83 or communities,84 migrants,85 migrant women,86 migrant workers,87 irregular migrants and their families,88 irregular children,89 refugees,90 female refugees,91 persons in areas affected by humanitarian emergencies,92 persons belonging to ethnic minorities, indigenous persons (including ‘indigenous peoples’),93 indigenous women,94 prisoners (including

UNGA Res. 70/1, Transforming our world, supra note 41 at 23; CESCR, General Comment No. 14, supra note 14; UNGA Res. S-26/2, supra note 59, at 4. 76

77 UN Human Rights Council Advisory Committee, Draft set of principles and guidelines for the elimination of discrimination against persons affected by leprosy and their family members, UN Doc. A/HRC/15/30, 12 August 2010, at 3.1.

UN, Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health: Conflict situations, supra note 67, at 25. 78

79

Ibid.

80

UNODC, Guidelines on drug prevention, supra note 60, at 11.

81

OHCHR, supra note 71.

82

Ibid.

83

UNGA Res. 70/1, Transforming our world, supra note 41, at 23.

UN, Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, supra note 50, at 37. 84

85

UNGA Res. 70/1, Transforming our world, supra note 41, at 23.

86

CmEDAW, General Recommendation No. 24, supra note 15, at 6.

UN Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families, General comment No. 2 on the rights of migrant workers in an irregular situation and members of their families, UN Doc. CMW/C/GC/2, 28 August 2013, at 16. 87

88

Ibid., at 11.

89

Ibid.

90

UNGA Res. 70/1, Transforming our world, supra note 41, at 23.

91

CmEDAW, General Recommendation No. 24, supra note 15, at 6.

UN, Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health: Conflict situations, supra note 67, at 11. 92

93

UNGA Res. 70/1, Transforming our world, supra note 41, at 23.

94

CmEDAW, General Recommendation No. 24, supra note 15, at 6.

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persons in custody or persons deprived of liberty),95 female prisoners,96 the sick,97 and the ‘wounded and the sick’.98

B. Situations

If we were to take into account the situations in which the abovementioned groups find themselves, the following situations appear to apply: poverty,99 homelessness, specific social dependencies (e.g. parent-child-relationship, guardianship for adults), situations in which various forms of severe inequality and discrimination exist,100 institutional settings leading to high dependency (e.g. prisons), while on the move (e.g. migrations), in foreign countries, under foreign occupation, severely underdeveloped health systems, situations with no or insufficient individualised support and assistance, a social environment intolerant of homosexuality,101 a social environment that challenges a person’s legal capacity to act, a potentially discriminatory social environment, a social environment lacking accessible structures and the provision of reasonable accommodation, a social environment lacking access to health facilities and services, a minority status in a society, structurally weak areas (e.g. rural areas), prisons (and other places of detention), areas experiencing epidemics, areas undergoing natural emergencies, outbreaks of war and civil war, developing countries and countries under an adjustment program,102 and beneficiary countries of WHO services.103

UNODC United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), 8 January 2016, available at https://www.unodc.org/documents/justice-and-prisonreform/GA-RESOLUTION/E_ebook.pdf, at rule 2. 95

96

UNGA Res. 65/229, supra note 59, at rule 2.

97

UNESCO, supra note 39.

98

Geneva Convention, supra note 58.

99

CESCR, supra note 20, at 1.

The International Commission of Jurists and the International Service for Human Rights, The Yogyakarta Principles: Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity (2007), available at https://www.icj.org/yogyakarta-principles/. 100

101

Ibid.

Richard Jolly, ‘Adjustment with a Human Face: A UNICEF Record and Perspective on the 1980s’, 19 World Development (1991) 1807, at 1819. 102

103

WHO, Code of Ethics and Professional Conduct, supra note 32.

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V. A Meaningful Setting: The Human Rights Framework Human rights law provides, as the stock-taking under Chapter III. A. suggests, an ‘advanced’ normative framework in which the concept of vulnerability features prominently, yet several issues do indeed remain. The existing literature, which is intended to provide a deeper level of analysis on the prevalence and understanding of the concept of vulnerability beyond health issues, is illustrative of the degree of the concept’s proliferation in human rights law at present.104 These critical findings resulting from earlier, more rigorous explorations into the field of human rights are – to a mitigated extent – still valid and can be confirmed. First proclaimed in the WHO Constitution of 1946, over the years the concept of a ‘human right to the highest attainable standard of health’ has served as key point of reference – not only because it appears at the beginning of the WHO Constitution – for all of global health law.105 Entrenched in a number of human rights instruments, of which Article 12 ICESCR plays a fundamental role.106 The CEDAW, CRC, and the Convention on the Rights of Persons with Disabilities (CRPD),107 and other conventions additionally support and further elaborate upon it. For many years this short provision was basically ignored until the CESCR adopted General Comment No. 14 in the year 2000, which included a more appropriate conceptual understanding of this right and the correlating legal obligations.108 Formally and correctly viewed as an authoritative interpretation of the ICESCR only, the extended significance of these normative elaborations of the various dimensions of rights, which are also valid outside of the ICESCR context, is widely acknowledged.109 104 See Ingrid Nifosi-Sutton, The Protection of Vulnerable Groups under International Human Rights Law (2017); Chapman and Carbonetti, supra note 21, at 20.

Eibe Riedel, ‘The Human Right to Health: Conceptual Foundations’, in Andrew Clapham and Mary Robinson (eds.), Realizing the Right to Health: Swiss Human Rights Book Vol. 3 (1st ed., 2009) 21, at 21; Brigit Toebes, The right to health as a human right in international law (1999), at 21. 105

106

at 251.

Clapham and Robinson (eds.), supra note 105; Toebes, supra note 9, at 89; Gostin, supra note 9,

107

CRPD and Optional Protocol 2006, 2518 UNTS 283.

108

CESCR, General Comment No. 14, supra note 14, at 30.

109

Clapham and Robinson (eds.), supra note 105; Toebes, supra note 9, at 89; Gostin, supra note 9,

at 251.

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Accordingly, the ‘right to health’ is not the same as a ‘right to be healthy’, for the former is instead aimed at guaranteeing the individual the freedom to make health related decisions and embraces rights, including the right to freedom from interference (non-consensual medical treatment, for example).110 States Parties to the ICESCR are obliged to respect, protect and fulfil (facilitate, provide, and to promote) these individual rights.111 Self-determination in all individual health related matters leads to a number of delicate issues such as, for example, the notion of legal capacity under public international law, in particular if persons with intellectual or psychosocial impairments in their social and institutional environment question their capacity to free and informed consent. In contrast, Article 12 CRPD confirms that everyone, regardless the form and degree of individual impairment, should enjoy not only the right but also the legal capacity to act equally, and this should be respected by States, which must ensure that private parties do not make decisions for these individuals. If social and institutional bodies question the legal capacity of such adult individuals, for example, then these individuals are highly vulnerable to infringements of their human right to health.112 Beyond these freedoms, the right to health described in the ICESCR stipulates the progressive development of national health systems that can provide an infrastructure which allows individuals the opportunity to realise individually the highest attainable standard of physical and mental health. Non-discrimination, a cross-cutting principle of the ICESCR, manifested in Article 2 ICESCR, stipulates that States in particular must ensure equal access to health facilities and services, for these are at the core of the legal understanding of the ICESCR’s obligations concerning the right to health.113 In legal terms, ‘discrimination constitutes any distinction, exclusion, restriction or preference or other differential treatment that is directly or indirectly based on the prohibited grounds of discrimina-

110

CESCR, General Comment No. 14, supra note 14, at 8.

111

Ibid.

UN Committee on the Rights of Persons with Disabilities, General comment No. 1 (2014): Article 12: Equal recognition before the law, UN Doc. CRPD/C/GC/1, 19 May 2014, at 24-30. 112

113

CESCR, General Comment No. 14, supra note 14, at 43.

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tion and which has the intention or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of Covenant rights.’114 At the core of the Article 12 ICESCR we find the obligation to ‘ensure the right of access to health facilities, goods and services on a non-discriminatory basis, especially for vulnerable and marginalized groups’.115 Further, in line with General Comment No. 3,116 States Parties to the ICESCR are to ‘adopt and implement a public health strategy and plan of action […] the process by which the strategy and plan of action are devised, as well as their content, shall give particular attention to all vulnerable or marginalized groups’.117 The CESCR has also stated that ‘even in times of severe resource constraints, the most disadvantaged and marginalized individuals and groups can and indeed must be protected by the adoption of relatively low-cost targeted programmes’.118 In this context, this roughly-sketched understanding of the right to health framework already provides some essential features for defining vulnerability and further exploring related foundational issues: Equality in terms of rights and dignity ensure vulnerability is related to equality and, in particular, equal access to health facilities and services. Furthermore, it underscores the dependency of individual health on the relevant social and institutional environment, which at its core is indeed a health system but which by nature comprises all determinants of health by which States may seek to positively influence public health while at the same time respecting the individual freedom not to lead a healthy life.119

CESCR, General Comment No. 20: Non-discrimination in economic, social and cultural rights (Art. 2, para. 2, of the International Covenant on Economic, Social and Cultural Rights), UN Doc. E/ C.12/GC/20, 2 July 2009, at 7. 114

115

CESCR, General Comment No. 14, supra note 14, at 43.

CESCR, General comment No. 3: The nature of States parties obligations (Art. 2, para. 1, of the Covenant), UN Doc. E/1991/23, 14 December 1990, at 12. 116

117

CESCR, General Comment No. 14, supra note 14, at 43.

118

CESCR, General comment No. 3, supra note 116, at 12.

WHO Regional Office for Europe, Closing the Gap in a Generation: Health Equity through Action on the Social Determinants of Health (2008), available at https://www.who.int/social_determinants/ thecommission/finalreport/en/. 119

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VI. Foundational Issues Although the concept of vulnerability has been applied in numerous instances within the context of global health law, in the analysis above a number of issues remain unclear. Four of these will be addressed in the following:

A. The Two-Fold Concept of ‘Groups in Vulnerable Situations’

Is vulnerability a part of group condition or a collective feature or identity? Does it stem from external factors? Or both? To provide some concrete examples: Is a child vulnerable simply because of his or her age, or are all children in every situation vulnerable at any time and in any place? Or does vulnerability only exist if additional specific external factors apply such as poverty? Are people with HIV/AIDS a vulnerable group, or does this represent a vulnerable situation only if, for example, they lack access to appropriate medication and health services in a specific health system? Or to put it differently, are all people in a particular region that might be affected by an epidemic such as Ebola, cholera, or yellow fever considered to be vulnerable as all of them might be infected, or does the danger lie in simply being in the region when, for example, rebel groups force international helpers to stay away? Vulnerability is difficult to determine if we only look at the analyses, for the legal sources consulted often dovetail. I would suggest viewing vulnerability as it is defined by international law, including global health law, as a two-fold concept. One should focus strongly on the external factors of health and value them without completely neglecting the human and physical conditions of the person as a member of a social group. Accordingly, vulnerability neither is rooted solely in a person or a group nor does it stem from the situation in which a person or a group finds itself, for it is located in its entirety in the interplay of both. And generally speaking, there is no fixed relationship between the group and the situation, but the degree of their interplay differs depending upon the group and situation, in particular in terms of time and place. Furthermore, this interplay should be seen as a process subject to multifactorial dynamics.

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For example, if persons with disabilities happen to be present in an area affected by a disaster such as a flood or hurricane, there is likelihood that they – or at least distinct sub-groups such as the blind or visually impaired, the deaf, or the mobility impaired – do not have the same possibilities of leaving the area at risk. Furthermore, they do not have the equal access to rescue services. In general terms it is difficult to argue why persons with disabilities as such should always be seen as vulnerable solely because of their impairment. This is true particularly when one remembers that millions of such people all over the globe are perfectly capable of managing their own lives to their own satisfaction. Only if a disaster strikes and they cannot rely on regular help, support, or assistance are the circumstances more likely to lead to detrimental impacts. This proposal deviates to some extent from Martha Fineman’s theory aimed at completely reconstructing an ‘ethical foundation for law and politics’ by substituting the fictional ‘liberal subject’ with the ‘vulnerable subject’ in order to encourage the State to become more responsive.120 Although Fineman’s approach is in line with current human rights discourse in that she frames vulnerability within the context of equality (see below),121 her view challenges established perceptions of human rights according to which the concept of human rights is fixed to a particular understanding of the human being – even though the notion of the liberal subject unduly narrows the understanding of human rights and our notion of human rights might be too dominated by this way of thinking.

B. Language Used

In order not to forget the social circumstances forming the root cause of vulnerability in global health law, my suggestion extends to the usage of the phrase ‘in a vulnerable situation’ while at the same time avoiding widely used terms such as ‘vulnerable groups’ or ‘the vulnerable’. Interestingly, in addition to these widespread standards one finds wording such as that appearing in the Vienna Declaration that dismisses such ambivalence by under120

Fineman and Grear, supra note 2.

Martha Albertson Fineman, ‘Beyond identities: the limits of an antidiscrimination approach to equality’, 92 Boston University Law Review (2012) 1713, at 1720. 121

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lining how ‘[g]reat importance must be given to the promotion and protection of the human rights of persons belonging to groups which have been rendered vulnerable.’122 Furthermore, UN documents speak of ‘leaving groups vulnerable’. In fact, human rights machinery, especially the international instruments of the human rights treaty bodies, the Special Rapporteurs, and the OHCHR, which is tasked with overseeing the implementation of UN human rights treaties at the national and international levels, displays a slight trend towards usage of the wording ‘groups in vulnerable situations’ instead of ‘vulnerable groups’ or ‘the vulnerable’. The most recent example is the Principles and Guidelines on the human rights protection of migrants in vulnerable situations.123 This document stresses that ‘migrants in vulnerable situations are thus persons who are unable effectively to enjoy their human rights, are at increased risk of violations and abuse.’124 Furthermore, vulnerability ‘in this context should therefore be understood as both situational and personal. In either case, however, migrants are not inherently vulnerable nor do they lack resilience and agency.125 In most UN documents, however, such language does not appear at all when discussing the issue of vulnerability. One has to speculate why. Some Rapporteurs, such as the UN Special Rapporteur on the Right of Persons with Disabilities, seem to consciously avoid any references to vulnerability and persons with disabilities. Her 2018 report on the challenges of persons with disabilities concerning the right to health mentions vulnerability only once when it states: ‘Persons with disabilities experience significant health and health-care inequalities […] Although some of these outcomes are impairment-related, inequities in access to health care, health literacy and economic resources are at the root of the vulnerability to many of these conditions and/or contribute to aggravating them.’126 Scholars have convincingly pointed out that any such wording defining social groups and the persons belonging to such groups as existing in a constant state of vul122 UN, World Conference on Human Rights, Vienna Declaration and Programme of Action, UN Doc. A/CONF.157/23, 12 July 1993, at 24. 123

OHCHR, supra note 46, at 5.

124

Ibid.

125

Ibid.

UN, Report of the Special Rapporteur on the rights of persons with disabilities, UN Doc. A/ HRC/37/56, 16 July 2018, at 22. 126

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nerability can be criticised as stereotypical thinking.127 Indeed, by simply attributing ‘vulnerability’ to the group and neglecting external factors and circumstances, one promotes the stigmatisation of groups. To define any social groups such as women, children, the elderly, persons with disabilities, etc. as vulnerable per se thus appears misplaced and misleading. Furthermore, if the external factors are not addressed, the solution to the problem remains out of sight.

C. Prevailing Discrimination and an Envisaged Violation of the Human Right to Health

The analysis above urgently raises the question of the concept’s purpose or the intentions of its usage within the framework of global health law. To date, it has simply been used as a very flexible concept relating to multiple objectives. For example, when it is used to indicate social diversity or simply to point out a predisposition to illness or is defined by exposure to a virus, it is taken to communicate special health needs or to legitimise health institutions’ special efforts and the accompanying use of resources. It also simply appears to serve to promote a general understanding of the vast number of social groups whose health predispositions vary immensely from the rather artificial social standard of ‘normality’. From a legal point of view, however, this is neither sufficient nor convincing. The analysis above underlines that discussions of human rights as they relate to global health law find vulnerability in normative settings, meaning it is firmly linked to the end of equality. In line with the existing body of global health law – and in particular the related human rights standards – I suggest further promoting an understanding of vulnerability which views this concept as an approach to understanding and targeting prevailing worsening of health inequalities of distinct social groups in a society on the basis of external factual circumstances, including time and place. One major challenge that goes beyond the use of social science instruments to explore social realities and the determination of a degree of disadvantage based on the evidence is certainly the standard of the comparators applied. Consequently, one needs to develop one or more criteria to determine when, on average, persons belong127

Fineman and Grear, supra note 2.

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ing to a group will experience disadvantages and can thus be determined to be subjected to a vulnerable situation. In line with a human rights approach, when identifying a prevailing worsening of health inequalities, one should reference the concept of non-discrimination or patterns of human rights violations involving one or more human rights.

D. Threshold

Beyond the normative objective of vulnerability in the context of global health law and in order to identify, prevent, and overcome the prevailing worsening of health inequalities in a society on the basis of external factual circumstances, one must first determine an additional threshold. This stems from the fact that simply stating we are all vulnerable because we are all human is too simplistic and the abstract nature of the human rights claim as such is too comprehensive. Thus, in order to proceed from the idea to addressing distinct social situations, criteria such as (i) higher risk, (ii) greater likelihood, or (iii) concrete danger would appear suitable for identifying prevailing health disparities, which in turn gives rise to an urgent obligation to rectify the situation. In recent decades, the notion of risk has been subjected to intense scrutiny in the social sciences. For example, in World Risk Society, Ulrich Beck points out that in modern societies, ‘risk is the modern approach to foresee and control the future consequences of human action, the various unintended consequences of radicalized modernization’.128 The criteria of ‘higher risks’ – applied to an existing situation of health inequality – might serve as a better alternative to terminology such as ‘greater likelihood’ or ‘concrete danger’, all of which are already embedded in public international law and require further elaboration. This essay does not seek to determine which of these can best serve for the purposes of differentiation. The spectrum of concepts that are referred to when defining vulnerability highlights the challenge of keeping the concept separate from the realm of general human rights law and corresponding schemes of protection.

128

Ulrich Beck, World Risk Society (1999), at 3.

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VII. Conclusions The concept of vulnerability has obtained an important status in international public law. In global health law, a much broader field comprising binding and nonbinding international standards related to health, vulnerability in most cases can be identified in non-binding settings such as jurisprudence, principles and guidelines, as well as health-related policies, strategies, and the programmes of international organisations. Furthermore, it can be identified as an underlying feature in many other documents. The concept is descriptive in nature. It obtains a specific legal relevance once it appears or is used in normative settings, regardless of whether they are binding or nonbinding. The human rights framework makes the most prominent use of the concept; however, it shares the inherent objective with other fields of global health law of targeting situations of extreme health inequality – situations, in which an existing inequality is close to discrimination or violations of the right to health. The use of vulnerability serves multiple functions: it is used as a ‘magnifier’ – a tool that allows the identification of those groups at specific risk, but at the same time additionally serves as an ‘alarm signal’ to alert responsible parties. Once it has been determined, vulnerability in the respective normative setting can trigger international framework obligations under human rights law obligating States to assign utmost priority to preventing or addressing these health inequalities, thus making it a form of leverage. Vulnerability, once determined, calls for and legitimises special attention on the part of international and national players. This includes the legitimacy of the targeted allocation resources, which, if limited, might otherwise be used for other purposes. In the framework of international human rights law, this leverage further implies legal consequences, inter alia, for State Parties to the ICESCR – beyond the requirement to prevent any situation in which groups becomes vulnerable by developing, in particular, national health systems in line with human rights standards – to remedy the negative factors underlying health inequalities, whether on a short- or long-term basis, adopt special measures (such as effective protections against these risks), and to empower members of the respective group and organise opportunities for them to participate in the development of policies, strategies, and programmes targeted at

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overcoming existing extreme health inequalities. Even in cases in which a State party has little or no resources, a group’s vulnerable situation requires it develop and adopt a national strategy of targeted programmes. An analysis of existing standards reveals a rather diverse and inconsistent usage of language ranging from ‘the vulnerable’ (or phrasings with similar meaning such as ‘the marginalised’) to ‘vulnerable groups’ and last but not least to ‘a groups in vulnerable situations’. Whereas the former finds the root of vulnerability within the group and suggests collective weakness as a common feature, the latter tends to define external factors as the reason for vulnerability. My proposal promotes the theoretical understanding of vulnerability as something that neither is rooted solely in an individual or group nor stems from the situation to which an individual or a group is subjected, for actually it is located in its entirety in the interplay of both. Generally speaking, there is no fixed relationship between the individual or group and the situation, but the degree of their interplay differs depending upon the group and situation. This interplay should be seen as a process subject to multifactorial dynamics. Leaving aside my strong preference for the language ‘in vulnerable situations’, one certainly needs to note that the language used can make a significant difference in terms of understanding and operationalisation, including seeking the role of the individual affected. Any practice that simply describes a societal group and its members as vulnerable and might be seen as an invitation to patronisation. This is challenged by the phrasing ‘in vulnerable situations’. Here the focus is on identifying, in addition to identifying external health impediments in the form facts and figures as to why special attention or special measures beyond the means of regular protection are needed and, in additionally, to ensure the persons of the group concerned have a role in the process. Whereas incidents such as natural disasters require quick decisions based on facts and imply short-term measures, more structurally-rooted extreme health inequalities require a different sort of information that includes data generated by the application of human rights indicators aimed at measuring health inequality as well as a set of facts illustrating the possible causes of the existing vulnerability. According to the ‘standards of proof’ set out here, the existing practice, which might not be wrong in terms of results in all cases in many cases has lacked a reasonable, fact-based degree of

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explanation and illustration – if it provides any facts at all. Some statements that simply seek to target a group as vulnerable are much too simple, even in obvious cases such as new-borns or pregnant women.

International Standard Setting in Biomedicine – Foundations and New Challenges SILJA VÖNEKY(

ABSTRACT: This article examines current challenges for a normative framework regulating biomedicine, including those arising from the use of big data and machine learning tools, and from the use of the CRISPR/Cas-9 technology, as for instance gene drives. The article focusses on the question of legitimate standard setting and takes into account both “hard” and “soft” law as well as private rule making. This includes international treaties and declarations in the area of human rights law and environmental law, such as the International Covenant on Civil and Political Rights, the Cartagena Protocol on Biosafety to the Convention on Biological Diversity, the Rio Declaration on Environment and Development, and, more specifically, the UNESCO Declaration on Bioethics and Human Rights. The author argues that, as instruments of biotechnology and biomedicine merge, international environmental law has to be interpreted in the light of human rights law. In order to adapt to new challenges, the article calls for a humanisation of international environmental law and, because of the ongoing disruptive technological development, argues that further legitimate standard setting is required. KEYWORDS: Biomedicine, Biotechnology, Gene Drives, Standard Setting, CRISPR/Cas-9, Artificial Intelligence

( (Co-)Director of the Institute for Public Law and the Professor of Public International Law, Comparative Law, and Ethics of Law and associated member of the Institute for Philosophy of Law at the University of Freiburg. This paper is based on ideas and results spelled out in previous articles by the author, esp. Silja Voeneky, ‘Human Rights and Legitimate Governance of Existential and Global Catastrophic Risks’, in Silja Voeneky and Gerald L. Neuman (eds.), Human Rights, Democracy, and Legitimacy in a World of Disorder (2018), at 139-162. I want to thank the scientist Guy Reeves and my former research assistant Felix Beck for in depth information about the CRISPR-Cas9 technology, gene drives, and the Burkina Faso mosquito experiment mentioned in this article; and I am grateful to my research assistants Carina Brendl, Fabian Borghoff, and Tobias Crone, Freiburg University, for their important work by editing the article.

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I. Introduction If we think about global health law in specific contexts, there exists a need to shed some light on the problem of international standard setting in biomedicine. How much is at stake in the area of biomedicine became apparent again in November 2018, when a Chinese researcher informed the world of the birth of twins whose embryonic genomes had been edited. The researcher claimed that he edited two human embryos by using the CRISPR-Cas9 genome-editing technique and implanting them in a woman.1 The outcry not only of the scientific community about the irresponsibility of the procedure could not be missed.2 Besides, in the aftermath, the need for the development of international norms and standards on setting limits for this kind of germline research and for creating effective oversight of germline editing was acknowledged even by some State officials.3 This seems to be an obvious example of an area where we need international standard setting in biomedicine. Before I discuss those current and pressing problems (below V.), I will spell out in the first part (II.-IV.) aspects about international standards that are in place already, how they frame the area of biomedicine, how they relate to each other, and whether there is a way to overcome frictions and fragmentation in order to achieve legitimate standard setting in The researcher He Jainkui stated that the CCR5 gene in the embryos was modified; this gene encodes a protein that some common strains of HIV use to infect immune cells. See David Cyranoski, First CRISPR babies: six questions that remain, 30 November 2018, available at https://www.nature. com/articles/d41586-018-07607-3. 1

2 See for instance Organizing Committee of the Second International Summit on Human Genome Editing, Statement, On Human Genome Editing II, 29 November 2018: ‘[…] At this summit we heard an unexpected and deeply disturbing claim that human embryos had been edited and implanted, resulting in a pregnancy and the birth of twins. We recommend an independent assessment to verify this claim and to ascertain whether the claimed DNA modifications have occurred. Even if the modifications are verified, the procedure was irresponsible and failed to conform with international norms. Its flaws include an inadequate medical indication, a poorly designed study protocol, a failure to meet ethical standards for protecting the welfare of research subjects, and a lack of transparency in the development, review, and conduct of the clinical procedures. […]’, available at http://www8.nationalacademies.org/ onpinews/newsitem.aspx?RecordID=11282018b.

United States National Institutes of Health, Director Francis S. Collins, Statement on Claim of First Gene-Edited Babies by Chinese Researcher: ‘The need for development of binding international consensus on setting limits for this kind of research, now being debated in Hong Kong, has never been more apparent’, available at https://www.nih.gov/about-nih/who-we-are/nih-director/statements/ statement-claim-first-gene-edited-babies-chinese-researcher. Quoted by David Cyranoski, First CRISPR babies: six questions that remain, supra note 1. 3

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biomedicine. I will differentiate between international law, hard law and so-called soft law, and private rule making by non-State entities, such as non-governmental organisations (NGOs) and private companies. If we try to shed some light on the notion of biomedicine, it seems important not to define biomedicine too narrowly, as many of the chances, benefits, challenges, and risks that will come in the next years and decades will arise from the merger of biotechnology, computer sciences, even artificial intelligence, the use of big data tools,4 and medicine. Hence, in this paper I understand biomedicine as a broad term. It covers the whole area of so-called life sciences (including biotechnology,5 gene therapy, neuroscience, virology etc.) with respect to their application to medicine and includes the use of biotechnical tools.6 The notion of biomedicine covers as diverse and disputed topics as – for instance – cloning of human beings, gene editing of humans, using living organisms as vectors to spread drugs and even human braincomputer interfaces, if the latter are used for medical reasons, for instance to help people with disabilities. Nevertheless, the notion of biomedicine has reasonable limits and boundaries. It does not cover the area and products of consumer devices, even if they are health-related wearables and if there are overlapping areas of preventive medicine. Looking at these different fields of biomedicine, it already seems obvious that international standard setting in biomedicine will mean multilayer standard setting by various actors and in various fields of medicine. And it is obvious that in this science and technology-driven area of medicine, the legal rules and private norms face the challenge of adapting to a fast-moving field and even ‘disruptive’ new scientific and technical developments in order to not become outdated and irrelevant. I will elaborate on whether the international order is flexible enough to adapt but can

4

Cf. for instance Ivan Glenn Cohen et al. (eds.), Big Data, Health Law, and Bioethics (2018).

The Charter of Fundamental Rights of the European Union (CFREU) 2007, OJ 2007 C 303/01, differentiates in its Art. 3 para. 2 between the fields of medicine and biology, but states that the same rules have to be applied for both fields, especially the free and informed consent of the person concerned. 5

For a discussion of the notion cf. Jelena von Achenbach, Demokratische Gesetzgebung in der Europäischen Union (2014), at 73-77. For a use of the notion in an international legal (regional) framework cf. the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine (Convention of Human Rights and Biomedicine) 1997, ETS 164. 6

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nevertheless give guidance. For this I will give an overview of some of the most relevant rules and norms as well as of some actors.

II. Foundations and Current Questions of Legitimate Standard Setting Arguing from the sphere of public international law, a first level of rules that act as the bases of international standard setting in biomedicine are rules laid down in universal international law treaties and secondary7 international soft law rules that are drafted by the States parties of those treaties. However, there is no sector-specific comprehensive international treaty on biomedicine and new grey areas develop with the use of biotechnological tools to fight diseases.

A. Human Rights Treaties

Although the field of biomedicine is very fast-moving, the general human rights treaties bind State parties at the global and regional level, such as for instance, first and foremost, the 1966 International Covenant on Civil and Political Rights (ICCPR),8 the 1966 International Covenant on Social, Economic and Cultural Rights,9 and the 7 International soft law is defined as rules and principles that cannot be attributed to a formal legal source of public international law and that are, hence, not directly legally binding, but that have been agreed upon by subjects of international law (States, International Organisations) that could, in principle, establish international hard law; for a similar definition see Daniel Thürer, ‘Soft Law’, in Rüdiger Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, Vol. IX (2012) 269, at 271, para. 8. The discussion about international soft law rules, their impact and conditions of validity becomes clearer if we differentiate – inter alia – on the one hand, between soft law norms that are agreed upon by States parties of a treaty in order to spell out in more detail the content of the existing (hard law) international treaty law norms. As a general rule, those secondary international soft law norms must not be incoherent with the (primary and hard law) treaty rules. On the other hand, there are soft law norms that are agreed upon by States outside a specific hard law treaty framework; they can be called primary international soft law norms. As examples for the latter see below for instance the United Nations Educational, Scientific and Cultural Organization (UNESCO) Declarations in the area of biomedicine, infra notes 47-49, and the Rio Declaration, infra note 26. 8

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

International Covenant on Social, Economic and Cultural Rights (ICESCR) 1966, 993 UNTS 3. It is important to note that more than 20 member States of the United Nations have not ratified one of the Covenants; for this and an argument that even the ICCPR and the ICESCR as so-called core human rights treaties do not provide a standard of international legitimacy, see Gerald L. Neuman, 9

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1950 European Convention on Human Rights (ECHR).10 Especially the ECHR is an important element of international – not global, but regional – standard setting and the European Court of Human Rights has issued judgments on biomedical questions, such as for instance on reproductive rights and medically assisted procreation as well as prenatal medical tests.11 These universal human rights treaties and the regional human right treaty include several health-related norms, as the right to life12 and bodily integrity, the right to health,13 and the right to privacy.14 Any restriction of these rights must have a legitimate aim and must be proportionate. These human rights are cornerstones of a rights-based framework of international standard setting in biomedicine. The Covenants and the ECHR do not include a human dignity clause15 that is similar to Article 1 German Basic Law stating ‘Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority’, and only the preambles to the two human rights Covenants mention the inherent dignity of the human person.16 Nevertheless, there is a ‘red line’ for any medical research or treatment (biomedical or other) that is laid down in Article 7 ICCPR: ‘[…] In particular, no one shall be subjected without his free consent to medical or scientific experimentation.’

‘Human Rights, Treaties, and International Legitimacy’, in Silja Voeneky and Gerald L. Neuman (eds.), Human Rights, Democracy, and Legitimacy in a World of Disorder (2018) 51, at 54 et seq. 10

221.

Convention for the Protection of Human Rights and Fundamental Freedoms 1950, 213 UNTS

11 For an overview cf. European Court of Human Rights, Factsheet – Reproductive Rights (2018), available at https://www.echr.coe.int/Documents/FS_Reproductive_ENG.pdf.

For a current analysis cf. Human Rights Committee (HRC), General Comment No. 36 (2018) on article 6 of the International Covenant on Civil and Political Rights, on the right to life, UN Doc. CCPR/C/GC/36, 30 October 2018. 12

13 For an analysis of an enforceable right to health, see Alicia Ely Yamin, ‘Democracy, Health Systems, and the Right to Health: Narratives of Charity, Markets, and Citizenship’, in Silja Voeneky and Gerald Neuman (eds.), Human Rights, Democracy, and Legitimacy in a World of Disorder (2018) 185, at 198 et seq. 14 For a detailed analysis of these human rights with regard to biotechnology research that is dual use research of concern cf. Constantin Teetzmann, ‘Schutz vor Wissen? Forschung mit doppeltem Verwendungszweck zwischen Schutzpflichten und Wissenschaftsfreiheit‘ (forthcoming 2019) (PhD thesis on file at Freiburg University), Chapter 3, A, B. 15

Different, however, Art. 1 Convention of Human Rights and Biomedicine.

Niels Petersen, ‘Human Dignity, International Protection’, in Rüdiger Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, vol. IV (2012) 1013, at 1016. 16

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This prohibition could be seen as ius cogens17 and is a decisive basis of international standard setting in biomedicine not only for the 20th century but for current questions in biomedicine as well. We might think for instance about the proposal to use insects to spread vaccines.18 With regard to Article 7 ICCPR, one could argue that there exists a need for free (and informed)19 consent from every individual who could be vaccinated by these insects if we do not limit the content of this rule to cases of torture-like misuse of individuals.20 For this red line, there is no need for new international standard setting in biomedicine, because legally binding human rights based on the principles of human dignity and autonomy, as spelled out by the binding human right norms, already are an important limitation. Or to put it differently: new and – maybe – disruptive technologies in the area of biomedicine need non-disruptive standard setting, and there are core minimum human right standards in the area of biomedicine that must not be violated. However, I will argue that the international norms have to adapt to the new technologies, which means that the merging of technologies, especially biomedicine and biotechnology, needs the merging and convergence of standards and standard setting. More specifically, I will propose a kind of ‘humanisation’ of international

17 For a discussion which human rights norms are ius cogens, see Gerald L. Neuman, ‘Human Rights, Treaties, and International Legitimacy’, in Silja Voeneky and Gerald L. Neuman (eds.), Human Rights, Democracy, and Legitimacy in a World of Disorder (2018) 51, at 59 et seq. For the work of the International Law Commission (ILC) and its Special Rapporteur on the foundations of ius cogens without a list on rules or principles that can be considered ius cogens, cf. ILC, Third report on peremptory norms of general international law (jus cogens) by Dire Tladi, Special Rapporteur, UN Doc. A/CN.4/714, 12 February 2018. 18 For research with regard to this, see Daisuke S. Yamamoto, Hiroshi Nagumo, and Shigeto Yoshida, ‘Flying Vaccinator; A transgenic Mosquito Delivers a Leishmania Vaccine via Blood Feeding’, 19 Insect Mol Biol (2010) 391. 19

For the free and informed consent standard cf. Art. 3(2) CFREU.

It seems generally acknowledged that the notion medical experimentation has to interpreted in a narrower way than the notion medical treatment. However, even non-experimental medical treatment that reaches a certain level of severity – if there is no consent by the patient – can violate Art. 7 ICCPR, cf. Sarah Joseph, Jenny Schultz, and Melissa Castan (eds), The International Covenant on Civil and Political Rights – Cases, Materials, and Commentary (2nd ed., 2004) 254, at para. 9.101. This seems convincing, as the ICCPR has no rule in the operative part that includes human dignity per se; this is a reason not to interpret Art. 7 ICCPR in too narrow a way, as the purpose of this fundamental norm is to protect human dignity. 20

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environmental law, which means that international environmental law treaties must be interpreted in the light of human right norms and principles.21

B. International Environmental Law: Treaties, Soft Law Rules, and a Proposal for a ‘Humanisation’ of International Environmental Law

If the notion of biomedicine is understood in even broader terms such as including biotechnical tools, even treaties of public international environmental law may become relevant, as for instance the 1992 Convention on Biological Diversity (CBD),22 the 2000 Cartagena Protocol on Biosafety to the Convention on Biological Diversity (Cartagena Protocol),23 and the 2010 Kuala Lumpur Liability Protocol,24 which are applicable to important areas of biotechnology. They do not apply to the modification of human beings but they do govern questions of genetic modification of organisms that might be used to fight certain diseases which can affect human beings. At the universal level, the Cartagena Protocol on Biosafety is the decisive international treaty containing binding rules for living modified organisms that may have adverse effects on biological diversity and expressly includes risks to human health. Article 1 Cartagena Protocol reads: ‘[…] [T]he objective of this Protocol is to contribute to ensuring an adequate level of protection in the field of the safe transfer, handling and use of living modified organisms resulting from modern biotechnology that may have adverse effects on the conservation and sustainable use of biological diversity, taking also into account risks to human health, and specifically focusing on transboundary movements.’ This aim is expressly in line with the precautionary principle – as a legal or soft law principle – which states according to the version of the 1992 Rio Declaration on Environment and Development that where ‘there are threats of serious or 21 For this approach, with regard to the right to life, see as well HRC, General comment No. 36, supra note 12, para. 62: ‘[T]he obligation of States parties to respect and ensure the right to life should also inform their relevant obligations under international environmental law.’ This approach is similar to the ‘greening’ of human rights law, which means that the interpretation of human rights, especially the right to life, should be informed by the obligations under international environmental law. 22

Convention on Biological Diversity 1992, 1760 UNTS 79.

Cartagena Protocol on Biosafety to the Convention on Biological Diversity (Cartagena Protocol) 2000, 2226 UNTS 208. 23

Nagoya-Kuala Lumpur Supplementary Protocol on Liability and Redress to the Cartagena Protocol on Biosafety 2010, UN Doc. UNEP/CBD/BS/COP-MOP/5/17, 15 October 2010. 24

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irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.’25 Having more than 170 parties, States (including Germany) and the European Union,26 the Cartagena Protocol is an important international agreement for the regulation of living modified organisms, even though relevant State actors have not signed or ratified the treaty.27 If, for instance, a mosquito is modified to fight malaria (via a socalled gene drive)28 and foreign DNA is integrated into the target organism`s genome, the Cartagena Protocol is applicable. Nevertheless, there are lacunae: States that are not Parties to the Cartagena Protocol, such as the United States, are not governed by these specific international legal standards and these standards are not part of customary law.29 Hence, the Cartagena Protocol on Biosafety sets an international standard, but does not bind every State.30 And it is part of international environmental law, not sector-specific international biomedicine law. That the latter is of relevance is shown by the principle of informed consent, which is a key element of international biomedicine standard setting. The question is what exactly this principle means in regard to a certain biotechnology, such as gene drives,

25 See Principle 15 of The United Nations Conference on Environment and Development, Rio Declaration on Environment and Development, UN Doc. A/CONF.151/26 (Vol. I), 12 August 1992, adopted by the United Nations General Assembly (UNGA) Res. 48/190, 21 December 1993. There are, however, different definitions of the precautionary principle as a legal and an ethical principle, and it is discussed which scenarios should be governed, see for instance Daniel Steel, Philosophy and the Precautionary Principle – Science, Evidence, and Environmental Policy (2015), at 44 et seq., and for a critical approach Cass R. Sunstein, Laws of Fear – Beyond the Precautionary Principle (2005), at 109 et seq.

Accession of the European Community in 2002; cf. Council Decision 2002/628/EC of 25 June 2002, OJ 2002 L 201/48. 26

27

Cf. list of parties, available at http://bch.cbd.int/protocol/parties/.

Gene drives systems promote the spread of genetic elements through populations by ensuring that they are inherited more frequently than Mendelian inheritance would predict, cf. Nuffield Council on Bioethics, Genome editing: An Ethical Review (2016), available at http://nuffieldbioethics.org/wpcontent/uploads/Genome-editing-an-ethical-review.pdf, at 79. Natural populations of species with short intervals between generations, such as malaria-carrying types of mosquitoes, could be changed or wiped out through gene drives within short periods of time. Hence genetically modified mosquitoes have emerged for some as a promising new tool to combat vector-borne diseases like malaria and dengue, see World Health Organization (WHO), Guidance Framework for Testing Genetically Modified Mosquitoes (2014), available at http://www.who.int/tdr/publications/year/2014/guide-fmrk-gm-mosquit/en/. 28

Silja Vöneky and Felix Beck, ‘Umweltschutz und Menschenrechte’, in Alexander Proelß (ed.), Internationales Umweltrecht (2017) 133, at 141. 29

30

Ibid., at 178.

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that aims to fight a disease by killing31 or modifying insects. Whether the consent of the individuals who live in the area where the modified insects are released needs to be given for the use of this technology remains unclear. To answer this question is not only of theoretical relevance but has important practical implications, as in 2018 it was reported that researchers and an NGO will release genetically engineered mosquitoes in Africa for the first time.32 The legal basis for this experiment seems to be that the national biosafety authority of the African State where the tests take place, Burkina Faso, granted scientists permission to release up to 10,000 genetically engineered mosquitoes.33 The experiments were one reason for a debate at the Conference of the Parties to the CBD in 2018 about whether there should be a (legally non-binding, hence soft law) moratorium that should stop these experiments and that should bind at least those States that are party of the CBD. However, no consensus was reached by the States parties of this Convention for such a moratorium.34 The relevant Working Group35 made a decision that seems to spell out a leeway on how to proceed with gene drive experiments without violating international standards. This decision stressed

31 Kyros Kyrou et al., ‘A CRISPR-Cas9 gene drive targeting doublesex causes complete population suppression in caged Anopheles gambiae mosquitoes’, 36 Nature Biotechnology (2018) 1062, available at https://www.nature.com/articles/nbt.4245: ‘A CRISPR-Cas9 gene drive construct targeting this same sequence spread rapidly in caged mosquitoes, reaching 100% prevalence within 7-11 generations while progressively reducing egg production to the point of total population collapse.’ 32 Cf. Scientific American, Researchers to Release Genetically Engineered Mosquitoes in Africa for First Time (2018), available at https://www.scientificamerican.com/article/researchers-to-release-geneticallyengineered-mosquitoes-in-africa-for-first-time/. 33 Ibid., quoting the director of stakeholder engagement for the NGO Target Malaria Project, which runs the Burkina Faso test and coordinates the research across three African countries. It is important to note that these experiments do not yet include gene drive mosquitoes but are a first step to use even gene drives mosquitos in order to fight malaria at a later stage.

Cf. Jonathan Watts, The Guardian, GM mosquito trial sparks ‘Sorcerer’s Apprentice’ lab fears, 25 November 2018, available at https://www.theguardian.com/world/2018/nov/25/gm-mosquitoes-releasedburkina-faso-malaria-gene-drive. According to this, the International Union for Conservation of Nature has been asked by its members to refrain from supporting research into gene drives until it completes an ongoing assessment of the technology, ibid. Some non-governmental organisations (NGOs) are supporting the tests, as for instance Island Conservation, and others are opposed to it, as Terre a Vie and African Centre for Biodiversity, ibid. 34

35 Conference of the Parties to the Convention on Biological Diversity, Synthetic Biology, Draft decision submitted by the Chair of Working Group II, UN Doc. CBD/COP/14/L.31, 28 November 2018.

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that States should apply a precautionary approach with regard to gene drives. But more specifically, it states that it […] also calls upon Parties and other Governments to only consider introducing organisms containing engineered gene drives into the environment, including for experimental releases and research and development purposes, when: (a) Scientifically sound case-by-case risk assessments have been carried out; (b) Risk management measures are in place to avoid or minimize potential adverse effects, as appropriate; (c) Where appropriate, the “prior and informed consent”, the “free, prior and informed consent” or “approval and involvement”36 of potentially affected indigenous peoples and local communities is sought or obtained, where applicable in accordance with national circumstances and legislation […].37

The last paragraph spells out and proposes some criteria for a valid consent under the umbrella of the CBD, as it was interpreted by the Working Group. From a human rights point of view, however, could one argue that because ‘[…] (n)o one shall be subjected without his free consent to medical or scientific experimentation’ according to Article 7 ICCPR, free consent is necessary by every individual who lives in the region and who could be affected by the released insects? This interpretation certainly would stress the principle of autonomy and the value of human dignity of every human being. On the other hand, it seems reasonable to argue as well that the persons living in the area are not ‘subjected’ to medical or scientific experimentation as long as the mosquitos are modified not in order to transfer any drug38 to human beings, but only to suppress the population of certain mosquitoes, and as long as the insects cannot be the vector of a disease. Conference of the Parties to the Convention on Biological Diversity, Decision adopted by the Conference of the Parties to the Convention on Biological Diversity, UN Doc. CBD/COP/DEC/ XIII/18, 17 December 2016. 36

Conference of the Parties to the Convention on Biological Diversity, supra note 35, at para. 9. See also paras. 10 and 11, which state: ‘10. Recognizes that, as there could be potential adverse effects arising from organisms containing engineered gene drives, before these organisms are considered for release into the environment, research and analysis are needed, and specific guidance may be useful, to support caseby-case risk assessment; 11. Notes the conclusions of the Ad Hoc Technical Expert Group on Synthetic Biology that, given the current uncertainties regarding engineered gene drives, the free, prior and informed consent of indigenous peoples and local communities might be warranted when considering the possible release of organisms containing engineered gene drives that may impact their traditional knowledge, innovation, practices, livelihood and use of land and water; […]’. 37

38 This is different from the example that insects that are used in order to vaccinate individuals, see supra note 31.

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By this I am not arguing that a State should permit such experiments without the consent of the population or the people who could be affected. But I would like to discuss the question of whether the free consent of every single individual is necessary, or whether it is sufficient that the following conditions have to be met: – Firstly, a scientifically sound case-by-case risk assessment has to take place that leads to the conclusion that the health benefits for the population outweigh the health risks and other risks (as for instance risks to the environment) (1), and – secondly, a transparent consultation process has to take place taking into account the case-by-case risk assessment (2), and – thirdly, a general prior, free and informed consent given by a representative of a group of the part of the population that is potentially affected has to be given (3). I would argue that these conditions have to be fulfilled cumulatively for a valid general consent. This is the case because they combine bioethical (utilitarian) riskbenefit reasoning (precondition 1) with elements that are human rights-based (preconditions (2) and (3)) and elements for the protection of the environment (precondition 1) that reflect the aims of the CBD and public international environmental law. These preconditions seem to be necessary to enhance procedural and substantive legitimacy that must be given before an experiment (or trial) is permitted, if the experiment might affect human beings but does not constitute medical research involving human subjects strictu sensu. They are in line with human rights law, as a human rights-based approach requires procedural rights for individuals to participate in the making of decisions that affect them. According to this, a mere government approval is not sufficient to legitimise experiments that fall in the grey area of biomedicine and biotechnology; this is even more true if the experiments take place in a non-democratic State. This example may show that the more the tools of biomedicine and biotechnology merge, the more international law scholars have to think about how to merge the rules of human rights law, bioethical principles and environmental law. And this does not mean to argue in the formal way of lex specialis or lex posterior only. It means to think about the question of whether there are reasons that human rights treaties form the

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basis of any method or means that could affect human dignity and human rights that are so fundamental as the rights to life, bodily integrity, and health.

C. Key Elements of Legitimate Standard Setting in Biomedicine

It is beyond the scope of this article to spell this argument out in more detail, but my argument is that if we discuss problems of standard setting in biomedicine, we have to think about the criteria of legitimate standard setting in biomedicine. I argued above that with regard to areas of biomedicine, we have to interpret the relevant environmental law in the light of human rights law and that environmental law does not per se have priority only because a treaty or norm developed after a human rights treaty or norm did. Rather, the global order can and should be understood as an order with legally-enshrined values whereby the values enshrined in human rights have primacy. This is even more true in those contexts, as biomedicine, that have a close connection to fundamental human rights, human dignity, and the existence of humankind.39 This is part of the legal and ethical bases of what I called the ‘humanisation’ of international environmental law. These arguments rely on the reasoning – which I have spelled out in an earlier article40 – that legitimate standard setting means that the relevant standards have to be justifiable in a supra-legal way, in the sense that they possess rational acceptability.41 Hence, if we think about the current and future legitimate international standard setting in biomedicine, the guiding norms and standards of rulemaking in biomedicine have to be coherent with existing international law insofar as the international law reflects justified values. There are different ethical paradigms (or normative ethical theories) that are able to justify standards in a supra-legal way. Before, I men39 For arguments of a human rights-based approach with regard to the governance of global catastrophic risks that endanger humankind, cf. Silja Vöneky, ‘Human Rights and Legitimate Governance of Existential and Global Catastrophic Risks’, in Silja Voeneky and Gerald L. Neuman (eds.), Human Rights, Democracy, and Legitimacy in a World of Disorder (2018) 139, at 151-160. 40

For the criteria of legitimate standard governance, see ibid., at 149-151.

Convincing criteria of rational acceptability are coherence, consistency, and relevance. Here I follow the position of the philosopher Hilary Putnam; he shows and argues that the notions of fact and truth and rationality are interdependent, but nevertheless no neutral understanding of rationality exists as the criteria ‘rest on and presuppose our values’: the ‘theory of rationality (…) presupposes our theory of good’, see Hilary Putnam, Reason, Truth, and History (1981), at 198, 201, 215. 41

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tioned the human rights-based approach that can be considered a deontological concept, as the rightness or wrongness of conduct is derived from the character of the behavior itself.42 Another approach mentioned before is utilitarianism, which is a doctrine stating that among the acts with available evidence, one should perform the act that will most probably maximise benefits.43 I argue that a legitimate international standard setting in biomedicine should be based on human rights, more precisely on legally binding human rights. This does not mean that other ethical approaches to solve biomedical problems are ruled out as far as they are compatible with human rights. But I do not agree with those who argue that utilitarian arguments should be the primary standard to measure the legitimacy of a governance regime or standard setting in biomedicine. There are several arguments that could be brought forward to support this claim, even the pragmatic one that human rights are not only justified values, but part of the existing international legal order. An additional argument concerning standard setting in the area of biomedicine is that the problems that have to be solved in the area of biomedicine are so closely related to the dignity of human beings, and biomedical experiments might easily undermine this dignity – or at least have the potential to undermine it;44 hence the convincing standard seems to be the one that is based on the value of human dignity and aims to spell out and to preserve this dignity, as human rights do.45

D. UNESCO Soft Law

Apart from the international treaties, primary soft law rules are relevant for standard setting in the area of biomedicine. There are specific soft law norms and rules that cover areas of biomedicine, most importantly the 1997 United Nations Educa42 A deontological theory of ethics is one which holds that at least some acts are morally obligatory regardless of their consequences, see Robert G. Olson, The Encyclopedia of Philosophy, Vol. 1-2 (1997), at 343. 43

See Richard B. Brandt, Facts, Values, and Morality (1996), at 142.

For a philosphical argument speaking of the dignity of humankind, cf. Jürgen Habermas, Die Zukunft der menschlichen Natur – Auf dem Weg zu einer liberalen Eugenik (2001); for a discussion of the linkage between human dignity and human cloning, cf. Silja Vöneky and Rüdiger Wolfrum (eds.), Human Dignity and Human Cloning (2004). 44

The HRC in its General comment No. 36 Art. 6 ICCPR, on the right to life, states: ‘The right to life is a right which should not be interpreted narrowly. It concerns the entitlement of individuals […] to enjoy a life with dignity. […]’, supra note 12, at para. 3. 45

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tional, Scientific and Cultural Organization (UNESCO) Declaration on the Human Genome and Human Rights;46 the 2003 UNESCO Declaration on Human Genetic Data;47 and the 2005 Universal Declaration on Bioethics and Human Rights.48 They are part of international soft law, meaning that they are not binding as law in the strict sense but they nevertheless have a normative force since States parties to the UNESCO agreed on these principles and with this declared that they will not violate these principles.49 These soft law declarations are relevant if we discuss international standard setting today in two ways. They are relevant from a procedural and from a substantive point of view, even if they do not answer every pressing question of biomedicine law.

1. Procedural Aspects They are relevant from a procedural point of view since they can be seen as effective tools to bridge the bottom up/top down norm creation gap, i.e. the gap that might result from rule creating by private entities (bottom up) and by States (top down). This can be shown with regard to the drafting of the UNESCO Declaration on Bioethics and Human Rights.50 In 1993, UNESCO established the International Bioethics Committee (IBC), an expert body that consists of 36 members that are independent experts in the field of bioethics. The IBC can give advice and issue recommendations. Five years later, in 1998, the Intergovernmental Bioethics Committee (IGBC) was established as a counterbalance for the IBC as the IGBC members are State representatives. Nevertheless, it was the IBC – the expert body – that was decisive in drafting the UNESCO Declaration on Bioethics and Human Rights. The 46 UNESCO, Records of the General Conference, 29th session, Paris, 21 October to 12 November 1997, v. 1: Resolutions (1998), UNESDOC 29 C/Resolutions + CORR, at para. 16. 47 UNESCO, Records of the General Conference, 32nd session, Paris, 29 September to 17 October 2003, v. 1: Resolutions (2004), UNESDOC 32 C/Resolutions, para. 22. 48 UNESCO, Records of the General Conference, 33rd session, Paris, 3 to 21 October 2005, v. 1: Resolutions (2005), UNESDOC 33 C/Resolutions + CORR. + CORR.2 + CORR.3 + CORR.4 + CORR.5, at para. 36. 49

For a categorisation of primary and secondary international soft law rules, see supra note 7.

For this see Silja Vöneky, Recht, Moral und Ethik (2010), at 359-377; Fruzsina Molnár-Gábor, Die internationale Steuerung der Biotechnologie am Beispiel des Umgangs mit genetischen Analysen (2017), at 218 et seq. 50

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drafting process took less than two years (starting in January 2004) and State representatives negotiated from January 2005 to October 2005 after the working group of the IBC presented its draft.51 The Universal Declaration on Bioethics and Human Rights is still a model for future developments in international standards setting in biomedicine because it combines State-based regulation and norm creation by experts. The drafting of this Declaration shows that an international document can be created that comprises of an overlapping consensus of experts in the field and State representatives in a short period of time.

2. Substantive Rules The substance of the 28 Articles of the UNESCO Declaration on Bioethics and Human Rights entails key elements of biomedical and bioethical standards. It stresses human dignity and human rights, the principle of maximising benefits and minimising harm; the principle of prior, free, and informed consent; the respect for human vulnerability; the principles of personal integrity, privacy, equality, justice and equity, non-discrimination, respect for cultural diversity, and the principles of solidarity and cooperation, social responsibility, sharing of benefits, and protection of the environment (Articles 1-17).52 Looking at the drafting history, one has to remark that – although it is sometimes written this way – it would be incorrect to say that during the drafting process, a bioethical (and utilitarian) document was changed into a human rights document because of and by the State representatives. The key elements, which are human rights-based, were already part of the IBC draft version of the Declaration (human dignity, Article 3; autonomy, Article 5; informed consent, Article 6, integrity, Article 8; privacy, Article 9; non-discrimination; Articles 10, 11).53 State representatives did change the declaration, but in a different way than is sometimes stated. They softened the soft law by changing ‘shall’ into ‘should’; and they lowered the standards for privacy protection (Article 9). Besides, State representatives broadened the realm to 51

Silja Vöneky, Recht, Moral und Ethik, supra note 50, at 369 et seq.

Henk ten Have, ‘Bioethics and Human Rights – Wherever the Twain Shall Meet’, in Silja Vöneky et al. (eds.), Ethics and Law – The Ethicalization of Law (2013) 149, at 163-167. 52

53

Silja Vöneky, supra note 50, at 371 et seq.

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limit the principles of the declaration (Article 27): If the application of the principles of this declaration is to be limited, legitimate aims are: ‘interests of public safety’, ‘protection of public health’. In a narrower way, the IBC, as an expert body, argued that restrictions have to be necessary ‘in a democratic society’.54 As UNESCO consists of 193 member States, this Declaration could be seen as the basic law of bioethics and human rights, even if the United States (again) will no longer be a UNESCO member starting in January 2019.55 Therefore, any progress in the area of biomedicine should at least not violate this Declaration and human rights norms.

3. UNESCO as Future Actor One might ask whether the UNESCO will be able to be a main actor for international standard setting in biomedicine in the years to come. In 2015, the IBC stated that States should ‘[r]enounce the possibility of acting alone in relation to engineering the human genome and accept to cooperate on establishing a shared, global standard for this purpose, building on the principles set out in the Universal Declaration on the Human Genome and Human Rights and the Universal Declaration on Bioethics and Human Rights’.56 However, the Work Programme of the IBC for the years 20182019 states that: ‘The Committee will elaborate on the principle of individual responsibility for health as part of its reflection on Article 5 (Autonomy and Individual Responsibility) of the Universal Declaration on Bioethics and Human Rights.’ And even if there was an ‘opportunity to further reflect on some of the issues raised on its work concerning big data and health’, this does not seem to be a clear sign which shows that the IBC and UNESCO want to further develop rules for the challenges and chances of biomedicine. If UNESCO wants to be an important actor, the organisation and the IBC could think about drafting new declarations that cover pressing problems of international standard setting in biomedicine in the 21st century, such as for instance the merger of biomedicine and biotechnology and the merger of biomedicine and artificial intelligence (AI). 54

Ibid., at 372 et seq.

In 2017 the United States withdrew from UNESCO; cf. list of parties, available at http://www.unesco.org/eri/cp/ListeMS_Indicators.asp. 55

International Bioethics Committee, Report of the IBC on updating its reflection on the Human Genome and Human Rights, UNESDOC SHS/YES/IBC-22/15/2 REV.2, 2 October 2015. 56

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III. First Results and Open Questions As a first result, one can conclude that there are human rights treaties that are the relevant basis for legitimate standards in biomedicine. Even some international environmental treaties with regard to biotechnological aspects are decisive. I argue above that with regard to areas of biomedicine, we have to interpret the relevant environmental law in the light of human rights law – a ‘humanisation’ of international environmental law – and that environmental law does not per se have priority only because a treaty or norm developed after a human rights treaty or norm. Additionally, the UNESCO declarations with more specific rules merge bioethical principles and human rights. But there is no sector-specific comprehensive international treaty on biomedicine and new grey areas develop with the use of biotechnological tools to fight diseases. Problems like research with human beings, cloning of human beings, genome editing, etc. remain only partially covered by already-existing norms in a fragmented way or by rules that are only soft law or norms of codes of conducts. Standards that could be mentioned here as well are, for instance, the UN Commission on Human Rights Resolution 69 on Human Rights and Bioethics (2003)57 or the Resolution of the World Health Organization on ethical, scientific and social implications of cloning in human health of 1998;58 there is a UN General Assembly resolution of March 2008 on Human Cloning59 that prohibits ‘all forms of human cloning inasmuch as they are incompatible with human dignity’. The last example shows very clearly that in some areas, clear international standard setting is not possible because States could not reach consensus on the specific content of a prohibition or limitation.

57 UN Commission on Human Rights, Res. 2003/69: Human Rights and Bioethics, UN Doc. E/ CN.4/RES/2003/69, 25 April 2003. 58 WHO, Ethical, scientific and social implications of cloning in human health, UN Doc. EB101. R25, 27 January 1998. 59

UNGA Res. 59/280, 8 March 2005.

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IV. Private Rule-Making and Codes of Conduct As in other areas of international law, grey areas and lacunae might be governed by codes of conduct that are drafted by private entities. In the area of biomedicine, there are examples for important private rules and codes of conduct which have largely influenced specific fields of research in a sustainable and global way, first and foremost the Declaration of Helsinki of the World Medical Association on Ethical Principles for Medical Research Involving Human Subjects.60 This is an example of private rule making that still has a major impact on framing and limiting a specific area of biomedical research. It is another part of a complex multi-layer governance that consists of rules of international law, supranational and national law, private norm setting, and even hybrid forms that combine elements of international and national law as well as private norm setting. However, if we think about legitimate international standard setting in biomedicine, the Helsinki Declaration as well as other standards in biomedicine have to be coherent with existing international law, especially with binding human rights, as they reflect justified values.61

V. Pressing Problems in Biomedicine – the Need for New International Legitimate Standard Setting Two main challenges for biomedicine are developments – on the one hand – in the field of big data, machine learning, and AI and – on the other hand – the famous CRISPR-Cas9 gene editing and genome engineering technology.62 With this method, it is possible to ‘edit’ DNA more easily and precisely than before, as the CRISPR 60 See World Medical Association, Declaration of Helsinki: Ethical Principles for Medical Research Involving Human Subjects, 19 October 2013, available at http://www.wma.net/policies-post/wma-declarationof-helsinki-ethical-principles-for-medical-research-involving-human-subjects/; for a critical analysis of the Declaration see Mira Chang, Ungerechtfertigte Ethik (2017); Sigrid Mehring, First Do No Harm: Medical Ethics in International Humanitarian Law (2015), at 360-417. 61

See part II.C. of this paper.

CRISPR (clustered regularly-interspaced short palindromic repeats) are segments of bacterial DNA that, when paired with specific guide protein such as Cas9 (CRISPR-associated protein 9), can be used to make targeted cuts in an organism’s genome; Cas9 is an enzyme that can be programmed with RNA guides to target site-specifically any DNA sequence of interest, see National Academies of Sciences, Gene Drives on the Horizon: Advancing Science, Navigating Uncertainty, and Aligning Research with Public Values (2016), summary available at http://nas-sites.org/gene-drives/, at 1. 62

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molecule unzips the twisted DNA strands of a living organism (this can be a plant or an animal) or a human being and cuts the targeted DNA sequence with its molecular ‘scissors’. The organism can just repair itself on its own or scientists can include a corrected sequence.63 Obviously the genome editing holds great promise for future biotechnical and biomedical applications, but there are concerns that the discovery gives the power to rewrite the codes of life and that so-called off-target effects cannot be excluded.64 Usages of this tool that change the DNA of unborn human beings, as is the case with human germline editing (or: human germline therapy), are most controversial. Although it is prohibited inter alia in Germany65 by national laws, and according to Article 13 Convention on Human Rights and Biomedicine of the Council of Europe66 (binding only 35 States parties), i.e. a regional international treaty norm, there does not exist a universal international law-based prohibition of human germline editing; even the soft law UNESCO Declarations mentioned above do not prohibit this type of gene editing. The German Ethics Council, a law-based interdisciplinary national ethics committee that shall inform the German parliament, the German government and the public,67 issued an opinion in September 2017 on this topic and argued that there is a need for global political debate and international regulation as germline intervention on the human embryo ‘touches also on the interest on mankind’.68 However, until now there was no consensus at the UNESCO to do so: In 2015 the UNESCO IBC called on member States to agree on a joint moratorium, but there was no consensus by member States. Besides, there was no consensus at the 2015 International Summit on Human Gene Editing that was organised by national science academies of three States (United See Emmanuelle Charpentier and Jennifer A. Doudna, ‘Rewriting a Genome’, 495 Nature (2013) 50, at 50. 63

Silja Vöneky, ‘Human Rights and Legitimate Governance of Existential and Global Catastrophic Risks’, in Silja Voeneky and Gerald L. Neuman (eds.), Human Rights, Democracy, and Legitimacy in a World of Disorder (2018) 139, at 144. 64

65 Act for the Protection of Embryos (Embryonenschutzgesetz), 13 December 1990, Bundesgesetzblatt (BGBl.) I, 2746, as amended on 21 November 2011, BGBl. I, 2228. 66

See supra note 6.

67

Silja Vöneky, supra note 50, at 234-315.

German Ethics Council, Germline intervention in the human embryo: German Ethics Council calls for global political debate and international regulation, Ad Hoc Recommendation, 29 September 2017, available at https://www.ethikrat.org/fileadmin/Publikationen/Ad-hoc-Empfehlungen/englisch/recommen dation-germline-intervention-in-the-human-embryo.pdf, at 2. 68

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States of America, United Kingdom, and China).69 As the experiments with the Chinese twins in 201870 showed, we need more international discussion about the risks, benefits, and values, even the ‘dignity of humankind’,71 with regard to human germline intervention. However, it is quite unclear, and I am rather pessimistic on whether there will be a chance to agree on a meaningful international consensus. Another pressing topic is whether there can be agreement on a new declaration on AI and biomedicine. Until now, there is, on the one hand, standard setting by private actors on questions of AI. Google’s principles on AI were released in June 2018 as internal guidelines for Google’s own AI research and development.72 The so-called Asilomar AI Principles were drafted in 2017 as guidelines by scientists and stakeholders.73 They are now endorsed by the State of California.74 State representatives were not involved in the drafting, meaning that both documents are based on private ‘bottom up’ rule-making. On the other hand, there exists very powerful top-down regulation at the supranational level. If we think for instance about brain data protection, we have to focus on the European Union General Data Protection-Regulation.75 Since AI is always data-driven and will be data-driven in the area of biomedicine as

Cf. National Academies of Sciences, Engineering, and Medicine, On Human Gene Editing: International Summit Statement, 3 December 2015, available at http://www8.nationalacademies.org/on pinews/newsitem.aspx?RecordID=12032015a. In 2017 in the United States, a joint committee convened by the United States National Academy of Sciences and the National Academy of Medicine argued that germline intervention were ethically defensible if this constituted the last reasonable option for a couple to have a healthy biological child, cf. Jocelyn Kaiser, ‘U.S. panel gives yellow light to human embryo editing’, ScienceMag, 14 February 2017, available at http://www.sciencemag.org/news/2017/02/us-panelgives-yellow-light-human-embryo-editing; see study report by the National Academies of Sciences, Engineering, and Medicine, Human Genome Editing: Science, Ethics, and Governance (2017), available at https://www.nap.edu/catalog/24623/human-genome-editing-science-ethics-and-governance. 69

70

See supra note 2.

71

Cf. Habermas, supra note 44.

Google, CEO Sundar Pichai, AI at Google: our principles, 7 June 2018, available at https://www. blog.google/technology/ai/ai-principles/. 72

Future of Life Institute, Asilomar AI Principles (2017), available at https://futureoflife.org/aiprinciples/. 73

74 Assembly of the State of California, Assembly Concurrent Resolution No. 215, Chapter 206, Relative to the 23 Asilomar Principles, Legislative Counsel’s Digest, ACR-215, 7 September 2018, available at http://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180ACR215.

Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016, OJ 2016 L 119/1. 75

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well,76 the analysis of rules governing AI requires a look at international, regional, and national data protection norms. Here again there is the need to overcome the dichotomy between ‘top-down’ and ‘bottom-up’ rule making. Human rights as part of international law should form the normative basis for legitimate rule making, as all relevant States financing or permitting AI research and development are bound by these rights. A new declaration on ‘AI and Biomedicine’ should be based on human rights as well, but spell them out in a sector-specific way, as it was done in UNESCO Declarations before. Since 2005, when the last of the decisive UNESCO Declarations was agreed on, the field of biomedicine did change in major ways and it will change even more and even faster in the future. The discussion on rules governing AI and biomedicine should bring together major actors, private entities, and State representatives in order to develop coherent and legitimate rules for one of the most challenging technologies of the 21st century.

76

Cf. Ivan Glenn Cohen et al. (eds.), Big Data, Health Law, and Bioethics (2018).

Medical Patents and the Right to Health – From Monopoly Control to Open Access Innovation and Provision of Medicines PHILIPPE CULLET AND HU YUANQUIONG( ABSTRACT: The coming into force of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in the mid-1990s led to a massive strengthening of intellectual property rights in the global South. This was particularly controversial concerning restrictions on access to medicines and set the stage for spirited debates concerning the impacts of medical patents on the realisation of the right to health in the context of the HIV/AIDS crisis. Efforts to reconcile the right to health and medical patents led to a minor amendment of the TRIPS Agreement that has hardly had any impact on the ground while further strengthening of patent protection was obtained, for instance, through bilateral agreements. In the human rights field, attempts to strengthen the protection afforded by the right to health have been partly diluted by efforts to strengthen the claims of inventors under human rights law. At this juncture, two main elements need to be taken forward. The first is to revisit our understanding of the human right to health to ensure, for instance, that there is no compromise in the liberal promise of universality, in particular access to medicines for every person who needs them. The second element is the need to rethink the way in which legal incentives are given to innovate. In a context where patents are the only recognised legal incentive to innovate in the medical field, this discourages the development of medicines for diseases that may affect mostly poor patients, since companies need to recoup their investments. Further, it militates against giving attention to other systems of medicine whose innovations can usually not be protected under the patent system, even where treatments are effective. KEYWORDS: TRIPS Agreement, Access to Medicines, Right to Health, ICESCR

I. Introduction The relationship between medical patents and the right to health has been a fraught one over the past few decades. It was not always like that. Indeed, for many Philippe Cullet ([email protected]) is Professor of international and environmental law at SOAS, University of London. Hu Yuanquiong ([email protected]) is a researcher of law, a member of Law, Environment and Development Centre (LEDC) of SOAS, University of London, and a Teaching Fellow at Durham Law School, Durham University. (

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decades, even countries with significant pharmaceutical industries did not allow product patents over medicines, in recognition of the need to balance the advantages granted to the innovator and the need to foster the development of local capacity for producing medicines and support to medicines for all.1 The situation progressively changed from the 1970s onwards in the global North and the adoption of the Agreement on Trade-related Intellectual Property Rights (TRIPS Agreement) made this a North-South issue. All developing country World Trade Organization (WTO) member States that had either had no medical patent protection or specifically rejected it were now bound to introduce the same.2 Only the least developed countries (LDC) that were always deemed sufficiently insignificant in economic terms were given a ten-year extension that has since been extended till 2033 with respect to pharmaceutical products.3 This sudden complete change of legal regime significantly curtailed countries’ ability to frame intellectual property laws according to their needs, and limited the full freedom to manufacture and import generic medicines produced by other countries.4 Major producing countries for generic medicines, such as India, also had to amend their laws in order to meet their TRIPS Agreement obligations.5 This became an international political crisis in the late 1990s with the Acquired Immune Deficiency Syndrome (AIDS) epidemic that had started killing millions, particularly in the African continent. This was not because of an absence of suitable medicines but because most patients could not access them. This led to the only major compromise crafted within the WTO with the adoption of the Doha Health Declaration on the TRIPS Agreement and public health in 2001, which took a few steps to foster better access to medicines without changing the basic architec-

See e.g. Graham Dutfield, Intellectual Property Rights and the Life Science Industries: Past, Present and Future (2nd ed., 2009), at 83. 1

2 Art. 65(2) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 UNTS 299, providing for a five-year delay; for developing countries with restrictions on product patents, a ten-year transition period was provided under Art. 65(4). 3 Art. 66(1) TRIPS Agreement and Decision of the Council for TRIPS of 6 November 2015, Extension of the Transition Period Under Article 66.1 of the TRIPS Agreement for Least Developed Country Members for Certain Obligations with Respect to Pharmaceutical Products, WTO Doc. IP/C/73, 6 November 2015.

Carlos Correa, Intellectual Property Rights, the WTO and Developing Countries: The TRIPS Agreement and Policy Options (2000). 4

5

Philippe Cullet, Intellectual Property Protection and Sustainable Development (2005).

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ture of the TRIPS Agreement.6 Yet, in the intervening 17 years, the Doha regime within the WTO framework has remained largely unused.7 In addition, the few countries that have tried to use existing flexibilities in the TRIPS Agreement, such as India have faced a backlash from multinational pharmaceutical companies.8 Attempts have been made for the past two decades to use the human right to health as a counter-narrative that can be used not only to contest the scope of medical patenting from within the intellectual property rights regime but also from outside. This is an extremely powerful narrative that has the potential to derail the patent bandwagon. This is in particular the case as long as human rights remain the rights of individual human beings and communities. At the national level, fundamental rights take priority over other rights and can therefore be claims that trump economic interests. At the international level, there is in principle no hierarchy between treaties, apart from exceptions, such as ius cogens. Human rights are generally not considered to be peremptory norms but if a hierarchy was recognised, human rights should be hierarchically superior to patents.9 The potential of human rights has been partly challenged through the ‘discovery’ of Article 15(1) International Covenant on Economic, Social and Cultural Rights (ICESCR)10 that addresses rights related to knowledge and science. This provision was largely ignored from 1948 (when inserted in virtually the same terms in the Universal Declaration on Human Rights)11 until the adoption of the TRIPS Agreement. In the past two decades, it has become an additional element in the human rights

6 World Trade Organization (WTO), Declaration on the TRIPS Agreement and Public Health, Ministerial Conference-Fourth Session, WT/MIN(01)/DEC/2, 20 November 2001 (Doha Health Declaration). 7 Duncan Matthews, ‘WTO Decision on Implementation of Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health: A Solution to the Access to Essential Medicines Problem?’, 7 Journal of International Economic Law (2004) 73; Ellen ‘t Hoen, Private Patents and Public Health: Changing Intellectual Property Rules for Access to Medicines (2016), at 40-46.

E.g. Médecins Sans Frontières, US Puts Unwarranted Pressure on India for Taking Legal Steps to Increase Access to Affordable Medicines (2013), available at https://msfaccess.org/us-puts-unwarrantedpressure-india-taking-legal-steps-increase-access-affordable-medicines. 8

Philippe Cullet, ‘Patents and Medicines: the Relationship between TRIPS and the Human Right to Health’, 79 International Affairs (2003) 139. 9

10

International Covenant on Economic, Social and Cultural Rights (ICESCR) 1966, 993 UNTS 3.

Universal Declaration of Human Rights (UDHR) 1948, United Nations General Assembly Res. 217 A (III), 10 December 1948. 11

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versus patents debate.12 This has been helpful in clarifying the scope of Article 15(1) to an extent but has also contributed to making the distinction between intellectual property rights and human rights less clear. This is made more complex by the recognition of property as a human right, in particular where the right to property is extended to intellectual property as has been done in the European context.13 Where human rights are extended to legal entities beyond natural persons,14 the field is muddled, and human rights are at risk of losing their transformational potential. At this juncture, two main elements need to be taken forward. The first is to revisit our understanding of the human right to health to ensure, for instance, that there is no compromise in the liberal promise of universality, in particular access to medicines for every person who needs them. The second element is the need to rethink the way in which legal incentives are given to innovate. In a context where patents are the only recognised legal incentive to innovate in the medical field, this discourages the development of medicines for diseases that may affect mostly poor patients, since companies need to recoup their investments. Further, it militates against giving attention to other systems of medicine whose innovations can usually not be protected under the patent system, even where treatments are effective. This article starts by examining the existing legal frameworks governing access to medicines, focusing on the one hand on incentives for innovation given by the patents system and on the other hand on the human right to health. It also identifies the limited options for reconciling the distinct and potentially opposed frameworks that existed in the wake of the adoption of the TRIPS Agreement. The next section moves on to examine developments that have taken place since the beginning of the century in the field of human rights and intellectual property to resolve conflicts identified and harmonise different regulatory frameworks. The fourth section then considers alternatives to the existing frameworks and proposals. It does so by proposing a different framework for considering duties of States and private sector actors in the On the drafting of the similar UDHR provision, see Aurora Plomer, ‘The Human Rights Paradox: Rights of Access to Science and Intellectual Property Rights’, 35 Human Rights Quarterly (2013) 143. 12

13 E.g. Laurence R. Helfer, ‘The New Innovation Frontier-Intellectual Property and the European Court of Human Rights’ 49 Harvard International Law Journal (2008) 1.

European Court of Human Rights (ECtHR), Grand Chamber, Anheuser-Busch Inc. v. Portugal, Appl. No. 73049/01, Judgment, 11 January 2007. In this judgment, the ECtHR considered the trademark dispute between two corporations as falling within the right to property under the Convention for the Protection of Human Rights and Fundamental Freedoms 1950, 213 UNTS 222. 14

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realisation of the right to health, by proposing to move towards open access innovation and by integrating considerations of equity or differential treatment for the global South to foster provision of existing medicines in all places where they are needed.

II. Legal Frameworks to Ensure the Development, Manufacture and Access to Medicines The legal framework concerning access to medicines is made up of different elements. The first concerns the incentives given to human or corporate inventors to develop new medicines. At present, the main legal incentive is patents that provide a financially suitable incentive for the chemical-based pharmaceutical industry. Another dimension of the legal framework concerns the regulatory approval processes that need to be obtained before marketing a medicine protected under patent law. Regulatory approval is also applicable for generic medicines that are produced on an off-patent condition. There is no conditional link between the two insofar as the regulatory approval does not interfere with the research that can be directed in any field of medicine. The third concerns rules that focus on ways to ensure universal and equal access to medicines. The limited flexibility that exists in intellectual property frameworks, such as compulsory licensing is part of this set of measures even though these are framed as exceptions to the monopoly rights regime of patent law and not as rights of patients. The main rights-based framework is the human right to health that is structured around a completely different, and possibly opposed, philosophy that starts from the rights of patients to healthcare, including access to medicines, as a matter of a fundamental right and not as consumers of a patented good.

A. Patents and Regulatory Framework Governing Medicines

The TRIPS Agreement entered into force in 1995 under the auspices of the WTO. It is backed by a strong enforcement mechanism that contributed to shifting the forum of international governance of intellectual property from the World Intellectual Property Organization (WIPO) to the WTO.15 Christophe May, ‘Learning to Love Patents: Capacity Building, Intellectual Property and the (Re) production of Governance Norms in the “Developing World”’, in Edmund Amann (ed.), Regulating Development: Evidence from Africa and Latin America (2006) 65. 15

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There are a number of key features of the TRIPS Agreement that have had a significant impact in the field of medicines. Firstly, the TRIPS Agreement requires making patents available for all types of technologies.16 There is no distinction among technologies, even if they are related to medicines and food that may have strong humanitarian, public policy, and human rights implications. The TRIPS Agreement effectively ended countries’ option to exclude patenting on medical products. Secondly, the TRIPS Agreement require patents to be granted upon the fulfilment of the criteria of novelty, inventiveness, and industrial applicability.17 It neither specifies the meaning of each of the criteria, nor distinguishes the criteria according to different technological fields. WTO members, therefore, have the right to determine and interpret the specificities of each of the criteria for each field of technology. In practice, applying for multiple patents related to different aspects of the same medicine is a common strategy used by pharmaceutical companies, known as ‘patent evergreening’.18 Accordingly, if a country adopts a more relaxed approach to the interpretation of inventiveness, this may open up opportunities for companies to apply for patent on trivial changes of an old medicine. This can effectively secure longer monopoly position of a company even after the primary patent has expired. To the contrary, if a country adopts a stricter approach to interpretation, the same tactic of seeking patent on trivial changes of old medicines may be prevented. For instance, the patent examination guidelines of Argentina explicitly consider the patent claims concerning derivatives, such as combination of two compounds, or salt form of a known chemical compound, as lacking inventiveness and therefore do not merit protection.19 Although there is no formal adjudication on the compliance of diverse national approaches to patentability under WTO law, other forums have been used by patent holding pharmaceutical companies. For instance, after failing to secure patent protection on two derivative patents of two old medicines in Canada due to lack of merit 16

Art. 27 TRIPS Agreement.

17

Ibid.

Amy Kapczynski, Chan Park, and Bhaven Sampat, ‘Polymorphs and Prodrugs and Salts (Oh My!): An Empirical Analysis of “Secondary” Pharmaceutical Patents’, 7(12) PLOS ONE (2012) 1; Gaurav Dwivedi, Sharanabasava Hallihosur, and Latha Rangan, ‘Evergreening: A deceptive device in patent rights’, 32(4) Technology in Society (2010) 324. 18

International Association for the Protection of Intellectual Property, Argentina – New Guidelines for examining chemical-pharmaceutical patent applications, July 2012, available at https://www.aippi.org/ enews/2012/edition25/Ignacio.html. 19

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under Canadian patent law, pharmaceutical company Eli Lily brought an InvestorStates Dispute Settlement procedure against Canada by claiming investor protection.20

1. TRIPS Flexibilities and TRIPS-Plus Although the TRIPS Agreement has harmonised the minimum standards of protection on pharmaceutical patents, there are still areas where national law and policies can retain full authority. In the context of access to medicines, the key flexibilities enshrined under the TRIPS Agreement include the freedom for members to determine the specific meaning of patentability criteria; the freedom for members to determine the grounds and procedures for issuing compulsory licences; the adoption of the doctrine of exhaustion to facilitate trade in goods under intellectual property protection; the adoption of exceptions of the patentable subject matter and the limitation on the right; and the use of competition law to tackle abuse of intellectual property rights.21 Flexibilities allowed under the TRIPS Agreement have been used by various countries to balance public health needs and patent protection.22 However, the TRIPS Agreement provides a framework of minimum obligations but no ceiling. This opens the possibility to set out standards of protection that are beyond the minimum obligations, so-called TRIPS-plus provisions. Legally speaking, adopting provisions in national laws that contain higher or stricter standards of protection is permissible as long as the provisions are not discriminatory or against other principles of the TRIPS Agreement. Yet, the reasons for adopting such provisions, and the impact of some of these provisions on access to medicines remain sites of controversy.

Brook Baker and Katrina Geddes, Corporate Power Unbound: Investor-State Arbitration of IP Monopolies on Medicines – Eli Lilly v. Canada and the Trans-Pacific Partnership Agreement, 29 September 2015, Northeastern University School of Law Research Paper No. 242-2015, available at https://ssrn. com/abstract=2667062. 20

Ellen F.M. ‘t Hoen et al., ‘Medicine Procurement and the Use of Flexibilities in the Agreements on Trade-related Aspects of Intellectual Property Rights: 2001-2016’, 96 Bulletin of World Health Organization (2018) 185, available at http://www.who.int/bulletin/volumes/96/3/17-199364.pdf. 21

22

Ibid.

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TRIPS-plus provisions are often endorsed in bilateral or regional free trade and investment agreements.23 In the context of pharmaceutical patents, the typical TRIPS-plus provisions focus primarily on two aspects. On the one hand, the provisions pursue longer periods of protection beyond the twenty-year patent term. On the other hand, the provisions seek less stringent regulatory control on the types of patents that can be granted on the same medical product, as well as the manner of exploitation of the granted patents. The implementation and introduction of those provisions has been linked to a surge in prices of essential medicines in developing countries and hinders generic competition.24

2. Exclusivity Derived From Regulatory Laws on Medicines Besides TRIPS-plus provisions that are directly affecting the administration of patents, longer exclusivity beyond the term of the patent can also be generated through other types of provisions. One type of exclusivity concerns patent term extensions. The central claim for longer protection beyond the twenty-year patent term is that the effective protection time may be shortened to less than twenty years25 for pharmaceutical companies due to the delay in completing clinical trials and waiting for regulatory approval.26 Prolonging the term of exclusivity is pursued through either a direct extension of patent terms by the intellectual property office, such as those under the United States (US) Susan K. Sell, ‘TRIPS-Plus Free Trade Agreements and Access to Medicines’, 28(1) Liverpool Law Review (2007) 41. 23

Carlos M. Correa, Intellectual Property in the Trans-Pacific Partnership: Increasing the Barriers for the Access to Affordable Medicines (2017), South Centre Research Paper 62R, available at https://www. southcentre.int/wp-content/uploads/2017/07/RP62R_IP-in-TPP-Increasing-the-Barriers-for-theAccess-to-Affordable-Medicines_rev_EN.pdf. 24

25 See for instance the European Commission, Study on the economic impact of supplementary protection certificates, pharmaceutical incentives and rewards in Europe (2018), available at https://www.copen hageneconomics.com/dyn/resources/Publication/publicationPDF/5/445/1527517171/copenhageneconomics-2018-study-on-the-economic-impact-of-spcs-pharmaceutical-incentives-and-rewards-ineurope.pdf.

This line of argument has been used since the first patent term restoration mechanism was introduced in the United States (US). The US Food and Drug Administration introduced from 1962 the requirement and procedure to ensure the efficacy, safety and quality of medicines. E.g.: Alan D. Lourie, ‘Patent Term Restoration: History, Summary, and Appraisal’, 40 Food, Drug, Cosmetic Law Journal (1985) 351. 26

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Hatch-Waxman Act in 1984;27 or special protection to grant additional years of exclusivity rights based on the time frame for the regulatory approval of a medicine, such as the supplementary protection certificate in the European Union.28 Another type of exclusivity linked with regulatory laws concerns the protection of test data in the process of regulatory approval on medicines, which is often referred to as ‘data exclusivity’. The trigger of this type of exclusivity can be traced back to the controversy concerning the exact meaning of Article 39(3) TRIPS Agreement.29 On the one hand, pro-industry interpretation considers that the clause creates a positive obligation for WTO members to provide exclusive rights to the holder of the undisclosed data when used in the market approval process.30 On the other hand, research reviewing the negotiation history of this clause has revealed that due to the lack of consensus, the agreed final text entails the prime objective of protecting the undisclosed data against unfair competition.31 More importantly, it does not create an obligation for the public regulatory body to refrain from reviewing the market approval documents submitted by entities other than the first producer.32 Being one of the most controversial clauses under the TRIPS Agreement, Article 39.3 has unfortunately not been officially interpreted by the WTO. The ambiguity concerning its authoritative meaning leaves a critical gap in the WTO law in terms of balancing private interests with public health.

B. Human Right to Health and Access to Medicines

The right to health as a human right has been included in a number of international instruments but, like other economic and social rights, remains subject to criti27

Drug Price Competition and Patent Term Restoration Act, 35 U.S.C. § 156 (1984).

European Parliament and Council Regulation 469/2009 of 6 May 2009, OJ 2009 L 152/1 (concerning the supplementary protection certificate for medicinal products). 28

29

Art. 39.3 TRIPS Agreement.

G. Lee Skillington and Eric M Solovy, ‘The Protection of Test and Other Data Required by Article 39.3 of the TRIPS Agreement’, 24(1) Northwestern Journal of International Law & Business (2003) 1. 30

Carlos Maria Correa, ‘Unfair Competition and Under the TRIPS Agreement: Protection of Data Submitted for the Registration of Pharmaceuticals’, 3 Chicago Journal of International Law (2002) 69; Carlos Maria Correa, Protection of Data Submitted for the Registration of Pharmaceuticals: Implementing the Standards of TRIPS Agreement (2002), South Centre Research Report, available at http://www. who.int/medicines/areas/policy/protection_of_data.pdf. 31

32

Ibid.

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cism for being vague in content and intersecting with too many other rights.33 The ICESCR recognises everyone’s right to the ‘enjoyment of the highest attainable standard of physical and mental health’.34 In the context of the ICESCR, General Comment 14 adopted by the UN Committee on Economic, Social and Cultural Rights (ICESCR Committee) admonishes that States are to refrain from interfering directly or indirectly with the enjoyment of the right, should take measures to prevent third parties from interfering with the guarantees provided and should adopt appropriate legislative, administrative, and other measures towards the full realisation of the right.35 The ICESCR generally requires member States to take steps to the maximum of their available resources to progressively achieve the full realisation of the protected rights. It also indicates that these measures should be taken by each State separately as well as through international assistance and cooperation.36 The ICESCR thus recognises that the full realisation of the rights may require more than domestic measures. It is symptomatic that the ICESCR Committee has indicated in its authoritative interpretation of the right to health that States should facilitate access to essential health facilities, goods, and services in other countries and to provide the necessary aid when required.37 Further, States are to ensure that other international agreements they accede to do not adversely impact the right to health. These are indications that States must, for instance, cooperate in making medicines available free or at affordable prices. As expounded by the ICESCR Committee, the core obligations of the right to health include the necessity to ensure the right of access to health facilities, especially for vulnerable or marginalised groups.38 In the case of primary health care, this includes the promotion of a safe and adequate food supply and proper nutrition, an adequate supply of safe water and basic sanitation, immunisation against major infectious diseases, appro-

33

Cf. David P. Fidler, International Law and Infectious Diseases (1999).

34

Art. 12 ICESCR.

See United Nations (UN) Committee on Economic, Social and Cultural Rights (CESCR), General Comment No.14, The Right to the Highest Attainable Standard of Health, UN Doc. E/C.12/ 2000/4, 11 August 2000. 35

36

Art. 2(1) ICESCR.

37

General Comment 14, supra note 35, at para. 39.

38

General Comment 14, supra note 35, at para. 12.

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priate treatment of common diseases and injuries, and provision of essential medicines.39 In the case of Human Immunodeficiency Virus (HIV)/AIDS more specific elaborations of these obligations were given at the height of the crisis. The World Health Assembly called on its member States to increase access to treatment and prophylaxis of HIVrelated illnesses through measures such as ensuring provision and affordability of medicines.40 The United Nations (UN) Human Rights Commission went in the same direction with its resolution on HIV/AIDS stating that access to medication in this context is one fundamental element for achieving the full realisation of the right to the enjoyment of the highest attainable standard of physical and mental health.41 Apart from emphasising the importance of accessibility and affordability, the ICESCR Committee has also indicated some circumstances in which the right to health is said to be violated. This includes, for instance, the repeal of legislation which is necessary for the continued enjoyment of the right to health, or the adoption of legislation or policies manifestly incompatible with pre-existing domestic or international legal obligations in relation to the right to health.42 Similarly there is a violation of the obligation to respect the right to health if a State fails to take into account its legal obligations when entering into bilateral or multilateral agreements.43

C. Limited Options for Reconciling the Different Options

From the perspective of access to medicines, the two streams of law mentioned above have provided some, but limited, options for countries to take a holistic approach. There remain challenges when it comes to reconciling the two legal fields. 39 See Art. VII Declaration of Alma-Ata, WHO International Conference on Primary Health Care, 12 September 1978, available at https://www.who.int/publications/almaata_declaration_en.pdf. 40

2000.

World Health Assembly, HIV/AIDS: Confronting the Epidemic, WHO Doc. WHA53:14, 20 May

41 Commission on Human Rights, Access to Medication in the Context of Pandemics such as HIV/ AIDS, Commission on Human Rights resolution 2001/33, 23 April 2001, UN Doc. E/CN.4/RES/ 2001/33. 42

General Comment 14, supra note 35, at para. 48.

E.g. Statement by the CESCR on Human Rights and Intellectual Property, see CESCR, Report on the Twenty-Fifth, Twenty-Sixth and Twenty-Seventh Sessions, UN Doc. E/2002/22-E/C.12/2001/ 17, November 2001, Annex XIII, at para. 12, specifically stating that ‘any intellectual property regime that makes it more difficult for a State party to comply especially with its core obligations in relation to health, food, education or any other right set out in the Covenant, is inconsistent with the legally binding obligations of the State party’. 43

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Firstly, human rights law and intellectual property law lack theoretical common grounds.44 Although the conflict between the two fields has been widely acknowledged and illustrated by UN human rights institutions, it remains difficult to find a viable theoretical standpoint from which the two approaches can be reconciled because they operate with different logic and ideological intent.45 The current human rights instruments also provide unclear guidance in this regard. Secondly, although the UN human rights bodies have been explicitly discussing the impact of intellectual property law practices on the enjoyment of human rights, there is no explicit notion of human rights implications under WTO law nor laws administered by WIPO. On their part, the decisions of the WTO’s Dispute Settlement Body (DSB) have not provided clear guidance on the relationship between the two legal fields. In addition, the effective implementation of public health-oriented TRIPS flexibilities has been instrumental to ensure access to medicines, but such efforts centre on the TRIPS Agreement without necessarily challenging the fundamental legitimacy of the system. The individual case approach may be effective in solving specific problems but may not help with establishing a long-lasting solution. For instance, one of the best outcomes of rigorous implementation of TRIPS flexibilities came under the ruling by the Supreme Court of India in Novartis v. Union of India.46 The case discusses Section 3(d) of the Indian Patents Act, which provides that derivatives from known medical substances do not merit patent protection unless significantly improved therapeutic efficacy is established.47 The Novartis judgment remains a landmark but recent research suggests that its precedent setting effect has not stopped the expansive patenting on secondary patent applications on known medicines in India.48 With a granting rate as high as 72% on secondary pharmaceutical patents in India, researchers have suggested

44

Plomer, supra note 12.

45

Ibid.

Supreme Court of India, Novartis AG v. Union of India & Others, Judgment of 1 April 2013, (2013) 6 SCC 1. 46

Sec. 3(d) and Explanation of the Indian Patents Act, 1970 (as amended up to Patents (Amendment) Act, 2005). 47

48 Feroz Ali, Sudarsan Rajagopal, Venkata S. Raman, and Roshan John, ‘Pharmaceutical Patent Grants in India: How our Safeguards Against have Failed and Why the System Must be Reformed’, Accessibsa (2018), available at https://www.accessibsa.org/media/2018/04/Pharmaceutical-Patent-Grants-in-India.pdf.

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that a more stringent bar on secondary patents as a whole is necessary in order to achieve the objective of tackling patent evergreening on pharmaceuticals.49

III. Regulatory Developments Since the Beginning of the Century There have been various initiatives to take the debate forward from a patents and a human rights perspective since the beginning of the century. This has included attempts to further strengthen the intellectual property regime, for instance, through bilateral free trade agreements. There have also been initiatives trying to conceive of different incentives and ways to incentivise innovation outside of the patent system. In the human rights field, partly in reaction to the crisis over access to medicines, there have been several attempts to develop norms concerning the role, responsibilities, and duties of private sector actors in the realisation of human rights. This section examines some of the main initiatives in this context.

A. From the TRIPS Agreement to the Doha Health Declaration and Beyond: Limited Attempts to Tame the Patent Regime

In the context of finding a balance between intellectual property protection and access to medicines, three lines of normative issues are relevant, namely the implementation of the Doha Health Declaration, the reports adopted by the DSB, and issues related to the use of TRIPS flexibilities. Firstly, the adoption of the Doha Health Declaration by the WTO Ministerial Conference in Doha in 2001 has been considered a ‘turning point in political and legal relations at WTO’.50 Especially important in the Doha Health Declaration is the affirmation of the freedom for WTO members to determine the grounds for issuing compulsory licenses and to take measures to ensure access to medicines for all.51 49

Ibid., at 38.

Doha Health Declaration, supra note 6. Frederick M Abbott, ‘The Doha Declaration on the TRIPS Agreement and Public Health: Lighting a Dark Corner at the WTO’, 5 International Journal of Economic Law (2002) 469; Ellen t’ Hoen, ‘TRIPS, Pharmaceutical Patents and Access to Essential Medicines: A Long Way from Seattle to Doha’, 3 Chicago Journal of International Law (2002) 27. 50

51

Doha Health Declaration, supra note 6, at para. 4.

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The Doha Health Declaration led to the adoption of an amendment to the TRIPS Agreement that entered into force in 2017.52 The amendment grants a waiver under Article 31 TRIPS Agreement, allowing a country that lacks manufacturing capacity of the product to request another country to produce a specified patented product under a special compulsory license for exportation exclusively to the country in need.53 This mechanism has however remained essentially unused, apart from one single instance.54 Secondly, within WTO law the impacts and legitimacy of TRIPS-plus provisions have not been scrutinised carefully. In particular, there is neither authority nor mandate at the institutional level for the WTO to intervene in the substantive negotiation process and the resulting provisions of regional or bilateral trade or investment agreements. WTO members are only encouraged to register concluded trade agreements.55 There is in particular no obligation to stick to the minimum standards set forth in the TRIPS Agreement. Another possible place where TRIPS-plus provisions might be reviewed more substantially in WTO is the DSB. However, it may be used both as a mechanism to review TRIPS-plus provisions and to nullify provisions of TRIPS flexibilities. For instance, in EU-Canada pharmaceutical patents,56 the provision allowing stock-piling of generic medicines shortly before the expiry of a patent has been ruled out by the DSB. This mechanism could have facilitated quicker access and foster competition. In US-Brazil patent protection,57 the complaint by the US over the local working requirement as one ground for issuing compulsory licence under the patent law of Brazil ended with a settlement agreement signed by both parties. Accordingly, Brazil committed to consult the US before issuing compulsory licenses on the ground of

52 WTO General Council, Amendment of the TRIPS Agreement (Article 31.bis), WT/L/641, 6 December 2005. 53

Ibid.

54

The mechanism has only been used once between Canada and Rwanda.

The preferential trade agreements are registered under the WTO Preferential Trade Arrangements Database, available at http://ptadb.wto.org/, and the regional trade agreements are registered under WTO Regional Trade Agreements Database, available at rtais.wto.org. 55

56

WTO, EU-Canada pharmaceutical patents, WT/DS114, 2000.

57

WTO, US-Brazil patent protection, WT/DS199, 2001.

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local working requirement in the future.58 This significantly reduced the level of flexibilities Brazil enjoys under the TRIPS Agreement, though the concerned provision of Brazil’s patent law was untouched. In India, Brazil-EU seizure of generic drugs in transit,59 the complaint brought up by India and Brazil and joined by other members over the seizure of generic medicines in transit has triggered a consultation process started in 2010 that is still ongoing. The DSB has not yet ruled in this case and a clear jurisprudence over the issue of generic medicines in transit remains absent. In summary, the DSB has not provided a clear interpretation or guidance on a number of issues related to TRIPS flexibilities and TRIPS-plus. The DSB also makes no explicit reference to the human rights law framework in its interpretation of WTO law. The role of the DSB in reconciling the discrepancy between the two legal areas is therefore not promising. Thirdly, with notable limitation, TRIPS flexibilities, especially compulsory licenses, continue to play an important role in facilitating access to medicines. Research has observed that between 2001 and 2014, governments have been authorising the use of patented products or processes without the consent of the patent holders in different forms based on various national laws and regulations.60 Compulsory licences have been used also in high income countries.61 One recent example of using compulsory license on medicine is in Germany concerning raltegravir, a medicine treating HIV/AIDS.62 The compulsory license was requested by the pharmaceutical company Merck Sharp Dohme (Merck) upon a legal battle with its competitor Shionogi, after they failed to conclude a negotiation on licensing related to a patent held by Shionogi that would affect Merck’s generic version of raltegravir which had already been put on the market in Germany.63 Even though the trigger of this particular compulsory license was commercially driven, the ruling by the German Federal Court of Justice up-

WTO, Brazil - Measures Affecting Patent Protection, Notification of Mutually Agreed Solution, WT/DS199/4 G/L/454 IP/D/23/Add.1, 19 July 2001. 58

59

WTO, India, Brazil – EU seizure of generic drugs in transit, WT/DS408, WT/DS409, 2010.

60

t’ Hoen, supra note 7.

61

Ibid.

62

Federal Court of Justice (Bundesgerichtshof), X ZB 2/17 of 11 July 2017.

63

Ibid.

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holding this compulsory license noted clearly the public health consequences of removing the generic version of raltegravir from the market.64

B. Steps to Foster the Realisation of the Right to Health

International human rights law has attempted to keep pace with developments in other fields of law, in particular with the game-changing reforms of international trade law. This has included the adoption of general comments to give more structured content to rights that were particularly at risk of being undermined by developments in other areas of law, such as the right to health,65 and debates around new areas, such as the role and responsibilities of corporations in the realisation of human rights. With regard to the right to health, one of the steps taken by the ICESCR Committee was to make it clear that among core obligations related to the right to health is the provision of essential medicines.66 This is an important statement insofar as it makes it clear that there is a duty to provide and that the realisation of the right cannot be dissociated from access to medicines. This constitutes an important step in confirming the role of medicines in the broader context of the right to health but is also insufficient insofar as essential medicines do not cover all necessary drugs to tackle all diseases affecting a significant percentage of the population in the global South. One of the central issues concerning medical patents is that they significantly impact the price of medicines. As a result, affordability is one of the issues that requires particular attention. In this context, General Comment 14 follows the line of general comments adopted in the 2000s that see affordability as a core dimension of different human rights.67 The only qualifications brought to this are that poorer households should not be ‘disproportionately burdened’ compared to richer households.68 The problem is that in many countries, people bear their own health expenses and may thus not be able to afford medicines, or only at the expense of forsaking Ibid. See also EPLAW Patent Blog, ‘The First German Compulsory License Ever: Start of a New Era?’, 17 October 2017, available at http://eplaw.org/de-the-first-german-compulsory-patent-licenseever-start-of-a-new-era/. 64

65

General Comment 14, supra note 35.

66

Ibid., at para. 43.

67

Ibid., at para. 12(b).

68

Ibid.

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other unavoidable expenses, for instance, on food or drinking water. In this context, the availability of generic drugs whose supply worldwide was much restricted after the coming into force of the TRIPS Agreement is central. Where generics are not available or where even generics are too expensive, patients rely on so-called traditional medicines. This is positive to the extent that this confirms that there is more than one system of medicine that patients can rely on. At the same time, this cannot lead to the conclusion that the poor may rely on cheaper plant-based medicines and the rich on more expensive allopathic medicines. This confirms that the issue in the debate on patents and the right to health is not just one of affordability. Indeed, governments also have to take positive measures to ensure provision of medicines in general, beyond essential drugs. Other initiatives that have been taken since the beginning of the century centre around the place, role, and responsibilities of pharmaceutical industry. In the context of the backlash generated in particular by the campaign for access to HIV/AIDS drugs in the global South, companies started focusing on measures they could take to forestall the introduction of binding regulation. Significant attention was thus given to corporate social responsibility in the field of health, with companies adopting internal guidelines on the topic, such as in the case of Novartis.69 In terms of international law-making, different attempts have been made to strengthen the framework for linking the right to health and the activities of pharmaceutical companies. On the one hand, specific efforts have been made to bring human rights to bear on the activities of multinational companies. This has already included three different initiatives, starting with a set of norms on the responsibilities of transnational corporations and other business enterprises with regard to human rights.70 These were found to be too onerous for transnational corporations and were quickly side-lined in favour of a second process leading to the adoption of the ‘Protect, Respect and Remedy Framework’ (Ruggie Framework).71 This provides a limited first Novartis, Corporate Responsibility Guideline – Novartis Global Guideline, June 2017, available at https://www.novartis.com/sites/www.novartis.com/files/cr-guideline-2017.pdf, at para. 2, mentioning that ‘[w]e respect human rights in all of our global operations’. 69

UN Sub-Commission on Human Rights, Norms on the Responsibilities of Transnational Corporations and other Business Enterprises with Regard to Human Rights, UN Doc. E/CN.4/Sub.2/2003/ 12/Rev.2, 26 August 2003. 70

71 UN Human Rights Council, Report of the Special Representative, Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework, UN Doc. A/HRC/17/31, 21 March 2011.

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step in recognising that human rights cannot anymore be conceived only in terms of a relationship between individuals and the State. The need for further thinking and action in this field has been understood. On the one hand, the Human Rights Council agreed in 2014 to draft a binding legal instrument on the issue whose zero draft was put out in 2018.72 On the other hand, the ICESCR Committee has adopted a general comment on the subject that recognises in very general terms that ‘[t]he increased role and impact of private actors in traditionally public sectors, such as the health or education sector, pose new challenges’.73 More specifically, it calls on States to ‘ensure that intellectual property rights do not lead to denial or restriction of everyone’s access to essential medicines necessary for the enjoyment of the right to health’.74 This goes much further than an earlier initiative of the UN Special Rapporteur on the Human Right to Health whose guidelines for pharmaceutical companies did not go beyond enjoining companies to adopt a human rights policy statement, to respect the rights of countries to use TRIPS flexibility, and to refrain from lobbying LDCs to enforce medical patents.75

C. Authors’ Rights, Right to Benefit from Science and the Right to Health: New Battlegrounds in Human Rights

Over the past two decades, a series of distinct debates have taken place around the place of intellectual property rights in human rights, the human right to benefit from scientific progress and culture, the potential human rights of intellectual property rights holders and specifically the impacts of medical patents on access to medicines in the broader context of the right to health. UN Human Rights Council, Elaboration of an International Legally Binding Instrument on Transnational Corporations and other Business Enterprises with Respect to Human Rights, UN Doc. A/HRC/RES/26/9, 14 July 2014, and Fourth session of the open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights, Zero Draft – Legally Binding Instrument to Regulate, in International Human Rights Law, the Activities of Transnational Corporations and Other Business Enterprises, July 2018, available at https://www.ohchr. org/Documents/HRBodies/HRCouncil/WGTransCorp/Session3/DraftLBI.pdf. 72

CESCR, General Comment No. 24 (2017) on State obligations under the International Covenant on Economic, Social and Cultural Rights in the context of business activities, UN Doc. E/C.12/ GC/24, 10 August 2017, at para. 21. 73

74

Ibid., para. 24.

75

Ibid., paras. 1, 26, 29.

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Article 15(1) ICESCR recognises a series of rights related to contributions to human knowledge. The second right emphasises everyone’s right to enjoy the benefits of scientific progress and, most importantly, its applications.76 This is crucial in a context where the applications of scientific innovation end up being increasingly protected by patent rights. This part of Article 15(1) seems to strengthen the perspective arising from the right to health in terms of providing guarantees to rights holders that they have an entitlement to access the products of human innovation that contribute to realise their rights, in this case particularly the right to health. Article 15(1) also includes a third paragraph not found in the first draft of the ICESCR,77 which recognises the right of the ‘author’ to the protection of moral and material interests resulting from any scientific, literary, or artistic production. On the surface, this does not seem to have any relationship with (medical) patents since a patent holder is not usually defined as an author. The drafting history confirms that the Latin American countries proposing this addition wanted to protect authors against improper action on the part of publishers.78 This narrow understanding borne by the text adopted has been rejected in General Comment 17 that understands the scope of protection to include broadly scientific publications and innovations, including knowledge, innovations and practices of indigenous and local communities.79 General Comment 17 is helpful in confirming that a legal entity cannot be deemed to be an ‘author’.80 However, this fails to take into account the fact that it is very difficult to separate the natural person from the legal entity in patent applications since the individual inventor hardly exists today. Indeed, most patents are owned by large businesses.81 General Comment 17 also confirms that the human right contained at Article 15(1)(c) is meant to maintain a link between authors and their creations to allow them to enjoy an adequate standard of living and is separate from intellectual 76

Art. 15(1)(b) ICESCR.

Commission on Human Rights, Draft Covenant on Economic, Social and Cultural Rights, Report of the 10th Session, Economic and Social Council, 18th Session, Supp. 7, UN Doc. E/2573-E/CN. 4/705, 16 April 1954. 77

78 UN General Assembly, Third Committee, Draft International Covenant on Human Rights, Report of the 3rd Committee, UN Doc. A/3764, 5 December 1957.

CESCR, General Comment No. 17, The Right of Everyone to Benefit From the Protection of the Moral and Material Interests Resulting From any Scientific, Literary or Artistic Production of Which He or She is the Author, UN Doc. E/C.12/GC/17, 12 January 2006, at para. 9. 79

80

Ibid., at para 7.

81

E.g. Peter Drahos, Who Owns the Knowledge Economy? – Political Organising Behind TRIPS (2004).

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property rights which primarily protect business interests and investments.82 Thus, General Comment 17 states that it ‘is therefore important not to equate intellectual property rights with the human right recognized in article 15, paragraph 1 (c)’.83 Yet, it also indicates that the realisation of the rights protected at Article 15(1)(c) depend on the enjoyment of other rights among which the right to property is singled out.84 The distinction between human rights claims and property (material or intellectual) is thus less clear than it appears at first sight. The broader problem is that the ICESCR Committee decided to read Article15(1)(c) in isolation from the other two sub-paragraphs. This was made even worse in the meantime since another separate General Comment was adopted concerning cultural rights,85 but Article 15(1)(b) remains unaddressed. The framework therefore remains incomplete. General Comment 17 fails to provide the overall picture that a joint reading of sub-paragraphs b and c would offer. Sub-paragraph b imposes on governments to ensure that everyone has access to all technologies necessary for the realisation of human rights and this must be done on a non-discrimination basis. In addition, ICESCR member States have extra-territorial duties to foster realisation in other countries. Given the skewed distribution of scientific progress and its applications, they must foster technology transfer, something that is at the heart of intellectual property rights debates since the TRIPS Agreement package deal was sold to developing countries on the basis that stronger protection would ensure more effective technology transfer by private firms. The truncation of Article 15(1) by the ICESCR Committee has also meant that it has avoided addressing the inter-dependence of the different rights contained in the provision. Article 15(1) is concerned with the balance between individual and collective rights of all individuals to take part in culture and enjoy the fruits of scientific development and the rights of individuals and groups making specific contributions to the development of science or culture. In this sense, Article 15(1) focuses on society’s interest in culture and the development of science while also providing for the recognition of the rights of specific individual or collective contributions to the develop82

General Comment 17, supra note 79.

83

Ibid.

84

Ibid.

CESCR, General Comment No. 21, Right of everyone to take part in cultural life (Art. 15(1)(a) ICESCR), UN Doc. E/C.12/GC/21, 21 December 2009. 85

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ment of science, arts, or culture. It is unfortunate that the ICESCR Committee has failed to address this aspect since the balance between individual and collective interests is something that is central from a human rights perspective. The gaps left by the ICESCR Committee have left the field open for more extreme views. Thus, Article 15(1)(c) is sometimes read as referring to existing intellectual property rights.86 It is refreshing that this is found problematic even by supporters of this idea since this would, for instance, mean that a trademark may be accorded the same importance in human rights terms as a patent.87 Yet, this also shows that the debate has shifted in a direction where there is now a need to justify measures to foster the realisation of the right to health in view of the claims at Article 15(1)(c), something that can lead to a more restricted understanding of the scope of the right.

D. Shortcomings of Medical Innovation and Alternative Pathways

In parallel to the debate on patent and access to medicines, the discussion on the need to look for alternative means to ensure public health-driven innovation, rather than profit-driven innovation has been carried out and can be reviewed from two lines of development. The first and primary line of development concerns a series of policy processes within the remit of the World Health Organization (WHO). Initiated with the Report on Public Health, Innovation and Intellectual Property in 2006,88 the discussion on alternative approach to medical innovation has been carried out through the formulation of the Global Strategy and Plan of Action on Public Health, Innovation and Intellectual Property,89 the Consultative Expert Working 86 E.g. Sam Ricketson, ‘Intellectual Property and Human Rights’, in Stephen Bottomley and David Kinley (eds.), Commercial Law and Human Rights (2002) 187; and Robert L. Ostergard, ‘Intellectual Property: A Universal Human Right?’, 21 Human Rights Quarterly (1999) 156. See also the statement by a member of the CESCR that Art. 15(1)(c) is ‘clearly intended to protect the creators of objects such as patents and trademarks’. CESCR, Thirty-third Session, Summary Record of the 51st Meeting, UN Doc. E/C.12/2004/SR.51, 3 May 2004, at 10.

Ostergard, supra note 86, at 175, argues that under the UDHR intellectual property is designated as a universal human right, acknowledges that this is problematic, for instance, because the registered trademark for a multinational corporation is accorded the same importance and protection as a patent for medicinal purposes. 87

88 WHO, Report on Public Health, Innovation and Intellectual Property (2006), available at https:// www.who.int/intellectualproperty/documents/thereport/ENPublicHealthReport.pdf?ua=1.

WHO, Global Strategy and Plan of Action on Public Health, Innovation and Intellectual Property (2008), available at http://www.who.int/phi/implementation/phi_globstat_action/en/. 89

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Group on Research and Development,90 and the recent Comprehensive Roadmap for Access to Medicines and Vaccines.91 Among the processes, the focus on alternative model has been on the different approach to financing. The only normative proposal in this context concerns the possibility of drafting an international convention on global health Research and Development (R&D).92 The R&D convention has not materialised, and it appears increasingly uncertain whether States are open to negotiating such an instrument. The second line of development concerns the trend of invoking open innovation in the context of drug discovery and development. The concept of ‘open innovation’ was initially invoked by big companies referring to a type of business model that involves some sort of collaborative work between internal and external actors, in contrast to a single company.93 It has also been understood as a process where ‘a wide network of developers participate in building on a shared technological base that it freely available to all’.94 However, the frequent use of the term is unhelpful because it has been defined only vaguely.95 For instance, the WHO has adopted a broad approach to consider whether an initiative is open innovation when it loosely recognises practices involving some degrees of departure from patent in R&D.96 The concept has also been used by the industry with a different meaning, referring to a collaborative model of R&D in contrast to the single firm based model.97 There remains ambiguity on both WHO, Consultative Expert Working Group on R&D: Financing and Coordination (2013-2016), available at http://www.who.int/phi/cewg/en/. 90

WHO, Roadmap for Access 2019-2023 (2018), available at http://www.who.int/medicines/ access_use/Roadmap_for_access_zero_draft.pdf. 91

92 E.g. Germán Velásquez and Xavier Seuba, Rethinking Global Health: A Binding Convention for R&D for Pharmaceutical Products (2011), South Centre Research Paper 42, available at https://www. southcentre.int/wp-content/uploads/2013/04/RP42_Rethinking-global-health_EN.pdf. 93 Henry William Chesbrough, Open Innovation: The New Imperative for Creating and Profiting from Technology (2003).

James Boyle, ‘Open Source Innovation, Patent Injunction and the Public Interest’, 11 Duke Law & Technology Review (2012) 30, 31. 94

WHO, Research and Development to Meet Health Needs in Developing Countries: Strengthening Global Financing and Coordination, Report of the Consultative Expert Working Group on Research and Development: Financing and Coordination (2012), available at https://www.who.int/phi/CEWG_ Report_5_April_2012.pdf, at 30. 95

96

Ibid.

97

Chesbrough, supra note 93, at 828.

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sides and the objectives are conflicting. In particular, the use of the open innovation concept in the industry-led context refers to more than one kind of collaborative management of intellectual assets among specifically defined members.

IV. Towards Prioritising Access and Innovation to Realise the Right to Health Measures taken in the wake of the adoption of the TRIPS Agreement and the HIV/ AIDS crisis to foster better access to medicines have fallen woefully short of what is needed to ensure every patient is provided with the drugs they need. This section focuses on a few elements that can contribute to taking debates ahead of the current status quo where the predominance of patents seems unassailable in debates over access to medicines.

A. Right to Health: Rethinking the Obligations of the Duty Holders

From a right to health perspective, one of the central issues that needs to be tackled in novel ways is the types of obligations of the State as duty holder and the broadening of duty holders to actors that have significant capacity to influence access to medicines. Some of the central issues that arise concern public funding of upstream R&D activities, which would foster the realisation of access to scientific progress as a human right.

1. Duty of State to Fund Research, Manufacture, or Regulate Prices The right to health may be subject to progressive realisation but it also includes requirements for the State to adopt immediate measures within available resources and capacity.98 In the context of access to medicines, the previous proposal for the global health R&D treaty indicates that there are possibilities of sharing resources among nations and making it mandatory for each State to contribute to a global fi98

General Comment 14, supra note 35, and General Comment 17, supra note 79.

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nancing pool for medical innovation. However, those discussions have not made an explicit connection with broader public health objectives. Further, the R&D treaty has not been developed further into a concrete negotiation or draft. According to earlier proposals, the R&D treaty should ensure equitable access to the innovation output and set clear duties for participating countries to collectively govern, and ensure the conduct of essential health R&D at the global level.99 Especially, proposals have suggested that the objectives of the treaty should include allocating ‘fairly the costs of supporting needs driven medical research and development, in particular, to meet the health needs of developing countries’.100 Accordingly, the duty of the state in funding the R&D entails [n]orms and mechanisms to ensure sufficient, regular, predictable and sustainable financing for R&D for type I, II and III diseases. Such financing should be primarily from government contributions based on their level of development and managed by structures that are guided by the principles of transparency, inclusiveness that stress participation of developing countries in decision-making processes, equity and high governance standards.101

The necessity of leveraging the regulatory authority of the WHO at the international level and governmental agencies at national levels, as suggested by the proposals, requires that the State not only commit to contribute financially to R&D activities, but also need to make sure that the results from the R&D are affordable, including measures to ensure the price of the relevant products will not be determined by the cost of R&D as claimed by industrial drug developers.102 Those proposals opted for a strong regulatory approach with the role of government put at the centre, in contrast to the market-determinist approach taken by the current patent centric model. However, the strong regulatory approach might in itself be a political hinderance for the further development of the global R&D treaty proposal.

99 Think tanks and civil society organisations have made proposals concerning the content of the treaty. E.g. Velásquez and Seuba, supra note 92; Joint Submission by Health Action International, Knowledge Ecology International, Médecins Sans Frontières, Third World Network, An Essential Health and Biomedical R&D Treaty, June 2011, available at http://www.who.int/phi/news/phi_1_joint_ submission_en.pdf. 100

Ibid.

101

Ibid, at 4.

102

Ibid.

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2. Sharing Duties and the Private Sector: Rethinking Obligations of Duty Holders in International Law Debates concerning human rights and transnational corporations have been at best timid. The Ruggie Framework constitutes an acknowledgment that the existing system that pits individuals against States has outlived its utility, particularly in a SouthNorth context where many small countries of the global South may be smaller economies than the companies that come to do business. Yet, it needs a much deeper engagement that does not limit itself to looking at corporations vis-à-vis individuals but that looks more broadly at the links between incentives for innovation, the type of innovation that is socially desirable and the kind of reward that the innovator can claim in a context where the end point – the realisation of the human right to health of individuals and communities – must remain the central aim. In other words, the duties of corporations must start upstream of current debates. The starting point is to ensure that corporations innovate to ensure the realisation of the human right to health for rights holders, who may happen to be ‘patients’ but cannot be ‘consumers’ since they are right holders. Their obligations are thus linked to public health policies drawn by governments that seek to address the main diseases affecting significant proportions of the population, starting with life-threatening diseases and moving ahead from there, with lifestyle-related conditions that can be easily prevented through better preventive measures enshrined in public sector measures coming last. In a context where health-related innovation is in large part, though not entirely, linked to levels of economic development, there is also an international dimension to the national public health policies adopted by individual governments. This is borne out of the ICESCR’s admonishment that member States have duties that go beyond their own jurisdiction. This is particularly relevant for health where no LDC has the resources to develop new drugs to address all their main diseases, as was the case for countries severely affected by HIV/AIDS that needed to rely on medicines developed and often manufactured elsewhere. This framework for extra-territorial obligations also needs to be much strengthened so that it goes beyond academic debates into practical policy impacts that can make a difference for patients. This could start simply with a focus on technology transfer, one of the big unfulfilled promises whose need is undiminished and that is enshrined in dozens of treaties. In fact, technology

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transfer was one of the specific advantages that was advertised to developing countries during the TRIPS Agreement negotiations to convince them to sign up. The rationale was that stronger standards of intellectual property protection would ensure that the transfers that had not been forthcoming in previous decades would now flow to developing countries. The experience of the past couple of decades is that a few large and technologically already more advanced countries have probably benefitted from the new legal regime, but the bulk of small developing countries have not. Further, in an acknowledgment that intellectual property protection is not actually what drives technology transfer, LDCs have essentially been told that they do not need to implement their TRIPS Agreement obligations. This is clearly not supposed to imply that they will not benefit from technology transfers in the health sector.

B. Redefining Openness in Medical Innovation to Ensure Access to Medicines for All

The unsettled tension between human rights law and intellectual property regime discussed above and the remaining limitations in seeking to reconcile the different areas of law suggest the need to pursue a more systemic rethinking of the normative conditions for medical innovation. In contrast to the current monopoly and exclusivitybased model, a new definition of openness in ensuring access and innovation suggests at least three levels of reconfiguration. The first level concerns the openness of actors in the innovation practices, in contrast to the patent holder centric logic in the current normative order. This requires the re-identification and recognition of contributions and roles of non-patent holder entities, including the actual inventors of a given technology, clinicians who play important role as user innovators, academic researchers, and patients. The second level of openness concerns the norms of knowledge production and dissemination in a collective and community-based context, rather than depending on individual entities. The innovators’ community consists of multiple players in the process of making medical knowledge and innovation. This should be the collective entity determining the mechanism and norms upon which medical knowledge can be developed and shared openly with due scrutiny by peer users.

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The third level of openness involves the flexible and plural normative mechanisms including the analogy to the open source model in the context of computer software development. As analysed by considerable literature, the open source movement demonstrates the possibility of a community-norm based model of innovation that does not rely on the individualistic proprietary regime.103 The rather flexible and voluntary participation is in fact stringently about by the commonly recognised norms in the community of innovators. Violating the community rules will not necessarily result in liability in legal terms but will lose access to the communal resources from which the continuation of innovation can be ensured. Instead of loosely labelling any collaborative initiative as open innovation, the redefined openness entails a genuine possibility of departure of both the narrative and substance aspects of medical innovation from the current proprietary rights-based model. Narrative wise, it could help altering the almost default starting point of the debate, shifting from focusing on managing patent inside the system toward clarifying the community of innovators and the meaningfulness of medicines towards the users. In substance, it also helps moving the normative attention from focusing on reforming the current patent law, toward engaging other normative institutions in order to realise the access to medicines for all as part of the right to health.

C. Preferential Treatment: Ensuring Provision of Necessary Medicines in the Global South

Access to medicines as a core dimension of the right to health is an international issue because many countries do not have the scientific, technological, or economic capacity to invest in research and development or large-scale manufacturing of medicines. Ensuring more effective technology transfers would be a way to ensure that more capacity is built in small developing countries and LDCs. This brings up the South-North context that has defined international relations for decades but is not always acknowledged sufficiently. In fact, in the WTO context, the starting point was There is rich literature discussing the open source model in computer software development, and the viable analogy to innovation in medical context. E.g. Steven Weber, The Success of Open Source (2004); Georg von Krogh and Eric von Hippel, ‘Special Issues on Open Source Software Development’, 32(7) Research Policy (2003) 1149; Georg von Krogh et al., ‘Community, Joining, and Specialisation in Open Source Software Innovation: A Case Study’, 32(7) Research Policy (2003) 1217; Janet Hope, Biobazaar: The Open Source Revolution and Biotechnology (2008), at 44. 103

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to try and eliminate as much preferential treatment for developing countries as possible and (re)start from the older paradigm that sees legal equality as the best basis for achieving equitable outcomes. The reality of the world over the past couple of decades is that the majority of developing countries are not comparatively better off than they were in the early 1990s, with the exception of a few large countries whose economic growth gives the impression that the global South in general has been doing much better than earlier. In fact, the relative position of LDCs has, for instance, not improved even though they have in principle been the object of special attention in development policy by the very fact of being singled out as least developed. This points towards the need to strengthen existing preferential treatment guarantees, for at least all LDCs and countries with low human development scores on the Human Development Index.104 The need for strengthening preferential treatment is borne from two parallel points. Firstly, in the WTO context, the attempt to restrict preferential treatment has had devastating impacts on the lives of millions of people in the global South. This experiment must stop in a context where it is abundantly clear that the gap in human development between LDCs and Organisation for Economic Co-operation and Development-countries will remain vast for decades to come. There is thus no risk of these countries becoming too rich to warrant the preferential treatment they are given. The neoliberal policy context that has prevailed over the past couple of decades rejects such preferential treatment, as seen in the case of environmental agreements where attempts to water down differential treatment have been made repeatedly and with some measure of success in the climate change context.105 Yet, equity demands more preferential/differential treatment, not less. Secondly, as noted above human rights need to be conceived more clearly in an international context with extraterritorial obligations of the global North being given more importance. This implies that human rights are increasingly to be seen beyond the traditional individual/State relationship to add an international dimension. In the context of the right to health and access to medicines, this must be done from the start in view of existing inequalities among States. As a result, a more international understanding of human rights obligations must include differential treatment as one Philippe Cullet, ‘Differential Treatment in Environmental Law: Addressing Critiques and Conceptualizing the Next Steps’, 5 Transnational Environmental Law (2016) 305. 104

105

Ibid., at 318.

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of its building blocks. This is necessary to ensure that the benefits of this broader understanding reach the people who need them both, starting with LDCs and all other countries with low human development.

V. Conclusion Access to medicines has been recognised as a central component of the human right to health. This should help in giving priority to the right to health over other considerations, in particular economic ones. Yet, today’s international regulatory framework is largely structured around incentives given to innovators in the form of patent rights. Their importance for the chemical-based pharmaceutical industry and the concentration of the industry in the hands of a global oligopoly has ensured that policy-makers have shied away from taking any serious measures that would affect the economic interests of pharmaceutical companies. As a result, the TRIPS Agreement, which was resisted by many developing countries in the first place and got a bad name for itself before it was even implemented in the global South in the context of the HIV/AIDS crisis of the late 1990s, has only been revised in a minimalist fashion through an amendment that only came in force in 2017 and has not been used. Debates within the human rights field have not necessarily brought about the conceptual clarity that is missing within the WTO with regard to giving patients the priority they deserve in terms of access to medicines and in terms of rethinking systems of innovation for new medicines. In particular, while debates in human rights organs have addressed issues related to access to medicines, they have often failed to provide clear hierarchical priority to the rights of patients over companies and the parallel debate on authors’ rights has made the situation even worse since it tends to put in parallel inventors’ rights and patients’ rights. The international society of the twenty-first century needs to be able to give different and new answers to the challenges faced by millions of people without access to medicines and millions of people in need of new medicines. The current system wherein human rights are not recognised as being hierarchically superior to patent rights leads in practice to WTO norms prevailing in disputes where other norms are at best partially considered. This is morally problematic given, for instance, the direct links between the rights to life and health. There are various ways to address this

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conundrum. Some authors have proposed that it would be best to recognise that the ‘two systems of law are like oil and water’ and that the solution is to dissociate patent law from human rights.106 This outcome that lets patent rights prevail in practice over human rights concerns is something that we find unacceptable. This article therefore proposes new avenues to re-orient the debates around access to medicines to ensure that the right to health prevails over other concerns, to recognise that innovation based on sharing is a viable alternative to the current exclusionary model and to focus on the need to give much more importance to the inequalities between the majority of small developing countries and LDCs and countries with high human development, calling for much stronger differential measures to ensure medical innovation addresses the needs of these countries and to ensure existing medicines are provided to all patients needing them.

106 Siva Thambisetty, Improving Access to Patented Medicines: Are Human Rights Getting in the Way? (2018), Law, Society, and Economy Working Papers 3/2018, available at http://eprints.lse.ac.uk/875 40/1/Thambisetty_Access%20to%20Patented%20Medicines_Author.pdf, at 5.

WALTHER SCHÜCKING LECTURE

Women, Peace, and Security: Tackling Violence Against Women in the Contemporary World? CHRISTINE CHINKIN(

It is an honour to be asked to give the Walther Schücking memorial lecture. I think the subject of my lecture – Women, Peace, and Security (WPS) – is apposite for honouring Walther Schücking. Professor Schücking has been remembered as a progressive liberal,1 a pacifist who placed great trust in the civilising effect of international law, in the 1899/1907 Hague Conventions, and who argued for the benefits of international conciliation, compulsory third party dispute resolution, and a universal and institutional international legal order that recognised a commitment to disarmament. WPS, too, has its origins in the peace movement of before and during World War I, but specifically in what we now call the women’s peace movement. This was most famously represented by the Women’s Congress of 1915 where around 1,500 women from Europe and North America came together in The Hague to protest the war. It adopted a number of resolutions, many of which resonate with Schücking’s vision of the international legal order. For instance, the Women’s Congress expressed its belief that ‘war is the negation of progress and civilization,’ and accordingly ‘urge[d] the governments of all nations to come to an agreement to refer future international disputes to arbitration and conciliation’ and thus to promote a ‘constructive peace’ that includes ‘a permanent International Court of Justice to settle questions or differences of a justiciable character such as arise on the interpretation of treaty rights or of the law of nations.’ The Congress also advocated universal disarmament that it Emerita Professor of International Law and former Director and Professorial Research Fellow at the Centre for Woman, Peace and Security at the London School of Economics and Political Science. She is a also a William C. Cook Global Law Professor at the University of Michigan Law School. (

1 Christian Tams, ‘Re-Introducing Walther Schücking’, 22 European Journal of International Law (EJIL) (2011) 725.

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thought could only be realised through international agreement. It saw in the ‘private profits accruing from the great armament factories a powerful hindrance to the abolition of war.’2 Following the conclusion of the Congress, women delegates visited statesmen across fourteen countries to apprise them of the resolutions and hundreds of copies of the resolutions were mailed out, including in Germany, to politicians, civil society organisations, and private citizens. So it may well be that Schücking was aware of them. The end of the war saw different fortunes: the women demanded to be part of the drafting process of the peace treaty but were only able to submit their resolutions to Congress delegates and to meet with Woodrow Wilson while Schücking became one of the six German delegates to the Paris Peace Conference and subsequently a Judge at the Permanent Court of International Justice, a status no woman achieved until some seven decades later. The women’s peace movement however continued through the work of the Women’s International League for Peace and Freedom, which evolved from the Congress. While – as far as I know – not a feminist, Schücking’s political activism and his understanding of international lawyers as ‘participants in international politics’ who have a ‘duty not only to report on existing law but to further its development’ in the interests of justice3 is one that is familiar to many feminist international lawyers today. But to return to WPS. I think this is a subject that is under the radar screen for international lawyers as it is perceived more as a matter for United Nations (UN) or government policy-making than for legal application. But I consider that it is also a legal agenda, rooted in a number of regimes of international law. What I will do in this lecture is to describe the WPS agenda, discuss its status in international law, and then to ask what might women, peace, and security mean for tackling violence and conflict and achieving peace for women in the contemporary world? At its core, WPS is the agenda set out by the UN Security Council since it adopted Resolution 1325 in 2000, almost exactly 18 years ago, followed by a further seven resolutions in 2008, 2009, 2010, 2013, and 2015. Resolution 1325 was lobbied for by women activists and widely celebrated by them as for the first time in its history the International Congress of Women at The Hague, Resolutions adopted by the International Congress of Women, 1 May 1915, available at http://womhist.alexanderstreet.com/hague/doc1.htm. 2

3

Martti Koskenniemi, Gentle Civilizer of Nations (2002), at 216.

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male dominated and conservative Security Council had devoted a full session to debating women’s experiences during and after conflict, drawn attention to the ‘inextricable links between gender equality and international peace and security’, and, in the words of the preamble to the resolution, had recognised the ‘important role of women in the prevention and resolution of conflicts and in peace-building’. By bringing women onto the Security Council agenda it seemed to be an opening of the door to women in the decision-making and operations of the Council, to defining the intersection between gender, peace, and security and possibly to ‘idealism’ and ‘progress’ in international law. The resolution was adopted through a combination of civil society activism that had continued in various forms since 1915, and especially since the Fourth World Conference of Women in Beijing in 1995, the support of likeminded States, in particular Namibia, Bangladesh, and the United Kingdom and of UNIFEM, the then United Nations Development Fund for Women. So what did Resolution 1325 do? Resolution 1325 built upon the longstanding demands of women’s organisations and a number of contemporaneous UN agendas.4 It itself had three main themes: gender balance, gender mainstreaming, and ending impunity for the perpetrators of crimes of sexual violence committed in armed conflict. First, gender balance is about numbers – the call for more women to be included in significant roles. Resolution 1325 urges women’s representation and participation in all stages of conflict prevention, management, and resolution, for more women to be appointed as UN special representatives and envoys, and enhancement of the role and contribution of women in UN field-based peacekeeping operations. Second, gender mainstreaming, or taking a ‘gender perspective’, requires taking account of what the resolution calls the ‘special needs of women and girls’ in postconflict processes – repatriation, resettlement, rehabilitation, reintegration, and State-building. It calls for measures that ensure the protection of and respect for human rights of women and girls, particularly as they relate to the constitution, the electoral system, the police, and the judiciary. Third, 1325 emphasises the responsibility of States for prosecution of those responsible for genocide, crimes against humanity, and war crimes, including sexual and other violence against women and girls, thus asserting accountability and ending impunity for these crimes. Accordingly it rejects amnesty for these crimes. 4 Christine Chinkin, ‘Adoption of 1325 Resolution’, in Sara E. Davies and Jacqui True (eds.), Oxford Handbook on Women, Peace and Security (2018) 26, at 26.

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The subsequent resolutions have complemented 1325. Taken together the eight resolutions recognise that harms experienced by women in armed conflict, especially sexual violence, constitute a threat to international peace and security through their high incidence, through their contribution to the displacement of peoples and refugee flows, and, unless steps are taken to address it post-conflict, through their continuing divisiveness on communities and society. Four themes or pillars are distilled as the core of the women, peace, and security agenda: (i) women’s participation and representation in decision-making with respect to conflict, in peace operations and in key positions; (ii) prevention of sexual and gender-based violence in armed conflict and more radically of conflict; (iii) the need to protect women from conflict-related violence, especially sexual violence; (iv) relief and recovery. Thus women’s participation and representation are overriding premises while the other pillars highlight the temporality of conflict: prevention – before conflict; protection – during conflict; and relief and recovery – post-conflict. The WPS agenda entails making visible the reality of what happens to women in conflict, refusing to accept sexual violence as an inevitable by-product of war and recognising it for what it is – a war crime, a crime against humanity, and a cheap and effective tactic of war,5 causing separation, death, and injury; as such it destroys families and communities and lays those affected by it open to further harms, for instance vulnerability to exploitation and being trafficked. It emphasises the obligations on all parties to conflict to ensure protection against such acts and on States and international institutions to ensure immediate and long term medical and psychological and social assistance, tailored to the specific needs of those affected and challenging the stigma that is so often directed towards the survivors and their children so continuing the adverse consequences down generations. But WPS is also about women’s agency, their participation in political life, peace processes, and peacebuilding. We know from studies that when women are involved in peace talks as negotiators and mediators that both the chances of reaching agreement – thus at least stopping the immediate armed violence – and of the sustainability of such an agreement are increased. Further, when involved women impact upon the substance of the agreement. They are more likely to seek the inclusion of provisions for social justice – education, healthcare, access to resources and livelihoods – so that a peace agreement is not just a constitutional reallocation of power but also a social and economic design 5

United Nations Security Council (UNSC) Res. 1820, 19 June 2008.

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for moving forward. Supporting women’s empowerment and leadership brings greater opportunities and choices for women and thus for their children, their families, and their communities. Overall WPS is a human rights agenda encompassing civil, political, economic, social, and cultural rights. It seeks to enhance the guarantee of women’s human rights, secure access to justice, eliminate discrimination on the basis of sex and gender, and to promote the empowerment of women. The agenda should thus be read in conjunction with the Convention on the Elimination of All Forms of Discrimination against Women6 (CEDAW), the UN’s blueprint for women’s equality, although CEDAW is given little traction throughout the WPS resolutions. And there is a tension between WPS as a human rights agenda as initially perceived of by civil society and as a security agenda located within the Security Council, infused with the dictates of that body’s political priorities and assumptions of military solutions. In this sense it is less radical than the resolutions of the 1915 Women’s Congress. Put more broadly the resolutions urge integration of questions of gender throughout the UN system, following the initiative of gender mainstreaming that has been promoted as UN policy following the commitment made at the Fourth World Conference on Women in 1995. Institutional innovations have been progressively introduced. These include: the creation of UN teams of experts to be deployed at conflict zones to assist national authorities and to work with various officials in addressing impunity; placing women protection officers, gender advisors, and gender focal points in peace operations; and the creation of the position of the SecretaryGeneral’s Special Representative (SRSG) in sexual violence in armed conflict to report to the Security Council on the incidence of sexual violence in conflict, the steps taken to address it, and to identify and list those ‘credibly suspected of committing or being responsible for patterns of rape or sexual violence in situations of armed conflict [...] as a basis for more focused United Nations engagement […] including, as appropriate, measures in accordance with the procedures of the relevant sanctions committees,’7 that is raising the possibility of targeted sanctions being instigated against them.

6 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) 1979, 1249 UNTS 13. 7

UNSC Res. 1960, 16 December 2010.

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In the United Kingdom (UK) there is an additional dimension as WPS has become entwined with another contemporary foreign policy agenda, the Prevention of Sexual Violence in Armed Conflict Initiative (PSVI) championed by former UK Foreign Minister Lord Hague and the Special Envoy for the UN High Commissioner for Refugees Angelina Jolie. Women, Peace, and Security is both wider and narrower than PSVI. On the one hand, the four pillars of WPS make it wider in scope than PSVI; on the other hand it is women-specific while PSVI is a gender-neutral initiative. Its focus on prevention of and tackling impunity for sexual violence is with respect to all victims, men and boys and those targeted because of their actual or perceived sexual or gender identity, as well as women. There are strikingly few textual references to males in most of the WPS resolutions. They are a ghost-like presence as assumed perpetrators of sexual violence and, somewhat ironically, as the military protectors of women. They are explicitly addressed in the context of the different needs of women and men combatants in disarmament and demobilisation programmes. It seemed that this might be changing in that the Security Council’s Resolution 2106 (2013) emphasised for the first time the need to ‘recognise that men and boys are victims of this crime’. This somewhat laconic assertion was followed by mention of other categories of victim: ‘those who are forced to witness or perpetrate this violence against their family of community members.’ Resolution 2106 references the commitments made in the Declaration on Preventing Sexual Violence in Conflict adopted by the then G8 foreign ministers in London on 11 April 2013, one of the major landmarks of PSVI, and thus reflects PSVI’s broader spread in this regard. Resolution 2242 (2015), the most recent WPS resolution, is silent again as to crimes of sexual violence committed against men and boys and refers to them only ‘as partners in promoting women’s participation in the prevention and resolution of armed conflict, peacebuilding and post-conflict situations.’ Although the role of men and boys in the text of the Security Council resolutions is thus circumscribed (and that of LGBTQI persons has no mention) a broader understanding assumes that the WPS agenda cannot be progressed without taking account of the gendered nature of conflict, that conflict is a social enterprise and like all social interactions is constructed by and constructs and perpetuates social understandings of masculinity, femininity, and of gender outside and beyond this restrictive binary. Even though the nature of conflict is changing this remains true. The question is whether constructed social roles are also changing and how unpacking gender inclusivity can help us to understand this and the implications for policy and practice.

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We are learning a great deal about conflict-related gender-based and sexual violence but there is still a great deal we don’t know about its commission against women and girls, men and boys, and LGBTQI persons – its incidence, causes, and patterns. What is clear is that these different victims should not all be addressed together and that one size does not fit all. Greater attention must be given to the diverse ways in which sex and gender-based violence targets and impacts different people with differing consequences thereby demanding tailored, context-specific responses and programmes. WPS is thus a broad agenda seeking to bring women’s experiences of conflict into the security space of the Council. So what is its status in international law? Its language is that of international relations (international security), good governance (participation), humanitarianism (‘special needs’), and development (empowerment, leadership) rather than that of law. The focus is on shaping policy and on enhancing and making more coherent the interactions between international agencies in pursuing peace operations. But does it also create legally binding obligations? Could it even be said to be a special regime, or at least an emergent special regime of international law, like human rights law, international humanitarian law, or the law of the sea with its own institutional framework, language, processes, and ethos? There are some obvious starting points. First, the resolutions do not of course come within the sources of law set out in Article 38(1) Statute of the International Court of Justice. There is no WPS treaty and the resolutions are not country-specific UN Chapter VII resolutions deciding upon measures and subject to Articles 24 and 25 UN Charter. Rather they are what have come to be called thematic resolutions, presumably adopted under Chapter VI of the Charter, although this is not spelled out, and are thus not formally binding upon member States. The WPS resolutions join a host of other thematic resolutions on such issues as HIV/AIDS, children in armed conflict, protection of civilians, and youth and peace and security that provide for institutional responses and urge State actions. There is some crossover between these thematic resolutions but not in any consistent way and perhaps their very number militates against any claim for legal status. However, a second starting point is that where they reiterate States’ obligations under already existing international law they are binding as such. There are three separate legal regimes that address aspects of WPS creating what is now a sizeable

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body of law. I will mention briefly some pertinent aspects of existing law, noting that international law in this context has concentrated on States’ obligations with respect to prevention and prosecution of sexual violence. The first – and oldest legal regime dating back to the 19th century – to address sexual violence in armed conflict is international humanitarian law. Prior to World War One the Hague Regulations made a coded allusion to sexual violence by requiring that ‘Family honour and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected.’8 In the aftermath of that war and following from their vehement protests ‘against the odious wrongs of which women are the victims in time of war’ at The Hague in 1915, women’s organisations lobbied and petitioned the Paris Peace Conference for the inclusion of rape in any prosecutions that might take place.9 While the general principle was accepted, relevant trials did not eventuate. Following World War Two, the UN War Crimes Commission endorsed sexual crimes of violence as international crimes and trials of rape, attempted rape, and enforced prostitution took place in national courts across Europe and Asia in the late 1940s.10 And in 1949 the Fourth Geneva Convention’s11 Article 27 stated that ‘Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault.’ However these crimes were not explicitly included as grave breaches and thus subject to criminalisation within domestic law and subject to universal jurisdiction, although they could be read into acts ‘wilfully causing great suffering or serious injury to body or health’. Additional Protocol I’s Article 76 largely repeated Article 2712 while Protocol II prohibited ‘outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of

8 Art. 46 Hague Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land 1907, 205 CTS 277. 9 William A. Schabas, ‘International Prosecution of Sexual and Gender-based Crimes Perpetrated during the First World War’, in Martin Böse, Michael Bohlander, André Klip, and Otto Lagodny (eds.), Justice Without Borders: Essays in Honour of Wolfgang Schomburg (2018) 395, at 395. 10

Dan Plesch, Human Rights after Hitler (2017), at 14.

Convention relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention) 1949, 75 UNTS 287. 11

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) 1977, 1125 UNTS 3. 12

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indecent assault.’13 It is striking that in the Declaration on ending sexual violence in armed conflict adopted by the G8 as part of the UK’s PSVI Ministers recalled that ‘rape and other forms of serious sexual violence in armed conflict […] constitute grave breaches of the Geneva Conventions’ with the ensuing obligation to seek for and prosecute, or hand over for prosecution, any alleged perpetrator.14 They added their goal that ‘[t]here should be no safe haven for perpetrators of sexual violence in armed conflict.’ However international humanitarian law is essentially a code of conduct for armed forces – it is technical and detailed. It assumes enemy forces facing each other in battle and does not cover violations committed by forces from a victim’s own side, or of violence outside the framework of international or non-international armed conflict. Nor do the Geneva Conventions encompass other conflict-affected genderbased and sexual violence, for instance that committed by civilians during conflict, or such violence committed in the supposed post-conflict time but which is still affected by conflict, nor that committed against people who have fled the conflict zone and are in flight or placed in internally displaced person or refugee camps. International criminal law has been developed significantly in this regard, notably through the prosecution policies, trials, and punishment of perpetrators by the ad hoc international criminal tribunals for the former Yugoslavia and Rwanda, and the various hybrid courts such as the Special Court for Sierra Leone, and those in Timor Leste and Cambodia. It can now be asserted that where the other elements for crimes against humanity or war crimes are present: !

Rape can constitute a freestanding crime against humanity and a war crime;

!

Rape can constitute torture as a crime against humanity and a war crime, when it comes within the definition of torture;

!

Rape and other forms of sexual violence can constitute genocide when committed with intent to destroy in whole or in part a national, ethnical, racial, or religious group;

13 Article 4(2)(e) Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) 1977, 1125 UNTS 609. 14 Foreign and Commonwealth Office, Declaration on Preventing Sexual Violence in Conflict, 11 April 2013, available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/ attachment_data/file/185008/G8_PSVI_Declaration_-_FINAL.pdf.

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Rape and other forms of sexual violence can constitute persecution and enslavement as crimes against humanity;

!

Sexual violence can constitute crimes of outrages on personal dignity and inhumane treatment.

Under the 1998 Rome Statute of the International Criminal Court (ICC) rape, sexual slavery, enforced prostitution, forced pregnancy, forced sterilisation, and any other form of sexual violence of comparable gravity are spelled out as war crimes in both international and non-international armed conflict and as crimes against humanity. Gender-based persecution is also a crime against humanity. The tribunals and the ICC Elements of Crimes have been important in providing legal definitions for crimes such as rape, sexual slavery, and forced marriage. Further clarification of the crimes of forced marriage and pregnancy may eventuate from the Ongwen case involving the situation in Uganda, which is currently being heard by the ICC on charges that include forced marriage as an inhumane act and, for the first time in an international criminal court, forced pregnancy as a crime against humanity and war crime.15 In another development the International Law Commission (ILC) has adopted a set of draft articles on crimes against humanity that incorporates many of the relevant gender provisions of the Rome Statute.16 While this potentially addresses the lack of a convention on crimes against humanity, the ILC’s draft fails to take account of advances in gender and gender crimes in the twenty years since the negotiation of the Rome Statute. However the ICC jurisprudence has not developed in the way it was hoped, a position worsened by the acquittal by the ICC Appeal Chamber in June of this year on all charges against Jean-Pierre Bemba, which had been the first and to date only case where there had been a conviction for crimes of sexual violence.17 Many key concepts remain contested, including for instance what constitutes sexual violence. A In International Criminal Court (ICC), Pre-Trial Chamber II, Prosecutor v. Dominic Ongwen, Decision on the Confirmation of Charges, 23 March 2016, ICC-02/04-01/15-422-Red, at paras. 96101, the Pre-Trial Chamber held that the ‘essence of the crime of forced pregnancy is in unlawfully placing the victim in a position in which she cannot choose whether to continue the pregnancy.’ 15

International Law Commission (ILC), Report of the International Law Commission, 69th Session, 1 May-2 June and 3 July-4 August 2017, UN Doc. A/72/10, Chapter IV.C. 16

17 ICC, Appeals Chamber, Prosecutor v. Jean-Pierre Bemba Gombo, Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against Trial Chamber III’s ‘Judgment pursuant to Article 74 of the Statute’, 8 June 2018, ICC-01/05-01/08-3636-Red.

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broad reading of this is important as it allows for inclusion in international criminal law of crimes of sexual and gender-based in addition to rape. But this is not necessarily the position. For instance the ICC Pre-Trial Chamber in the case involving postelection violence in Kenya considered that forced circumcision and penile amputation did not constitute sexual violence. The Chamber accepted this violence as inhumane treatment but explained its view that ‘not every act of violence which targets parts of the body commonly associated with sexuality should be considered an act of sexual violence.’ On the facts before it the Chamber determined the violence to have been ethnically rather than sexually motivated and ‘intended to demonstrate cultural superiority of one tribe over the other.’18 Legal uncertainties and the ‘extreme instability of sexual violence in international criminal law’ alongside the reality that indictments and prosecutions are few and the vast majority of perpetrators do not face trial or punishment mean that international criminal law is not on its own an adequate tool for tackling conflict-related genderbased and sexual violence. The third pertinent body of law is international human rights law. WPS is a human rights initiative and Resolution 1325 was conceived of and lobbied for as a ‘human rights resolution that would promote the rights of women in conflict situations’.19 The CEDAW Committee – the monitoring Committee for the UN Convention on Elimination of Discrimination against Women – has taken this up and has supplemented the WPS agenda through its General Recommendation No. 30 on Women in Conflict Prevention, Conflict and Post-Conflict Situations. Adopted on the same day as another WPS resolution, Resolution 2122 in 2013,20 General Recommendation No. 30 is placed squarely within the framework of international human rights law and offers a more complex picture of the diverse effects of conflict on women’s lives than does the Security Council. It addresses the root or structural ICC, Pre-Trial Chamber II, Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, 23 January 2012, ICC-01/09-02/11-382-Red, at para. 266. In the event all charges were withdrawn. 18

UN Women, Preventing Conflict, Transforming Justice, Securing the Peace – A Global Study on the Implementation of United Nations Security Council Resolution 1325 (2015), available at http://wps. unwomen.org/pdf/en/GlobalStudy_EN_Web.pdf, at 15. 19

UN Committee on the Elimination of Discrimination Against Women (CEDAW Committee), General Recommendation No. 30, UN Doc. CEDAW/C/GC/30, 18 October 2013. 20

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causes of armed conflict in human rights terms, repeating that violence against women is a form of discrimination21 and that conflict exacerbates existing gender inequalities. Power imbalances and harmful gender norms are recognised as factors creating disproportionate risks for women. As a form of discrimination under the Convention, violence against women and girls leads to multiple other human rights violations, including those relating to inadequate delivery of economic and social rights: healthcare, education, and social services. Even when affirming the importance of women’s human rights, the Security Council makes no reference to women’s economic and social rights, categorising medical, legal, psychosocial, and livelihood matters in the language of ‘services’, rather than in that of rights. Unlike the Council the CEDAW Committee draws no hard distinction between conflict and post-conflict, observing that this transition is often not linear and can involve lengthy cycles of cessation of conflict and then slippage back into conflict, a transition that can exacerbate violence against women. In this Recommendation and its more recent General Recommendation No. 3522 the CEDAW Committee clearly implicates both State and non-State actors and, in line with general international law, sets out clearly the responsibility of States for the acts or omissions of both. States are responsible for preventing and punishing acts or omissions that constitute gender-based violence against women by their own organs and agents, and those acting on their behalf whose acts are attributable to the State, and paying reparations. States are also responsible for the acts of non-State actors through failure to exercise due diligence to prevent, protect against, investigate, prosecute, and punish offenders and pay reparations to victims of gender-based violence. The Committee recommends that reparation measures seek to rectify structural inequalities whereas the Security Council focuses on reparation for violations of individual rights, an approach that undermines the transformative potential of reparations. In General Recommendation No. 30 the CEDAW Committee asserted that ‘all the areas of concern addressed in those [WPS] resolutions find expression in the substantive provisions of the Convention’ and that accordingly ‘their implementation must be premised on a model of substantive equality and cover all rights enshrined in 21 CEDAW Committee, General Recommendation No. 19: Violence against women, UN Doc. A/47/38, 1992, first spelled out that ‘Gender-based violence is a form of discrimination that seriously inhibits women’s ability to enjoy rights and freedoms on a basis of equality with men.’

CEDAW Committee, General Recommendation No. 35 on gender-based violence against women, updating general recommendation No. 19, UN Doc. CEDAW/C/GC/35, 26 July 2017. 22

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the Convention’, essentially that WPS can only be applied in the framework of the Women’s Convention. On this basis, and on that of the Committee’s questioning States on their actions with respect to implementation of Resolution 1325, it can be argued that WPS can be taken into account in interpreting the Convention in accordance with Article 31 Vienna Convention on the Law of Treaties.23 But there are aspects of WPS that are not encompassed by these bodies of law. Another approach is to consider whether the principles of WPS that are not already entrenched as existing international law could be said to constitute customary international law. The starting point must be that of the ILC in its Draft Conclusions on Customary International Law that ‘[a] resolution adopted by an international organization or at an intergovernmental conference cannot, of itself, create a rule of customary international law.’24 So the question must be whether a Security Council resolution, or series of Security Council resolutions, can generate rules of customary international law. It is interesting that a great deal more scholarly attention has been paid to the normative effect of General Assembly resolutions than to that of Security Council resolutions, whether as evidence of State practice or, following the Nicaragua case,25 as opinio juris. Is the International Court’s position on how multilateral treaties can generate customary international law relevant, or are the various statements with respect to this process through General Assembly resolutions more appropriate? Of course the Security Council cannot claim the ‘virtually universal participation’26 of the General Assembly but the rotating membership of the ten non-permanent members over the 18 years since Resolution 1325 has ensured broad-based and regional representation in the Council debates on acceptance of WPS resolutions. Sir Michael Wood, ILC special rapporteur for its work on customary international law, has suggested that the Council through its actions or inaction might ‘stimulate develop23 E.g., CEDAW Committee, Concluding observations on the initial report of the State of Palestine, UN Doc. CEDAW/C/PSE/CO/1, 25 July 2018, and Concluding observations on the eighth periodic report of Cyprus, UN Doc. CEDAW/C/CYP/CO/8, 25 July 2018.

ILC, ‘Draft conclusions on identification of customary international law, with commentaries, 2018’, in Report of the ILC (2018), UN Doc. A/73/10, 2018, at para. 65. 24

25 International Court of Justice (ICJ), Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, 27 June 1986, ICJ Reports 1986, 392, at para. 183 et seq. 26

ILC, Draft conclusions, supra note 24, at 147.

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ments in general international law’ and that it as well as member States may ‘develop law through practice’. Does the fact of the serial buildup of the resolutions over a long period of time (now eighteen years) enhance their claim to normativity? There is clearly an accumulative effect but, as the ILC commentary notes, a non-binding resolution does not become binding simply through repetition. However can there be an argument that the repetition demonstrates the required legal intent for opinio juris? Or is it just reiteration of what is evidently a political agenda? Here it might be instructive to consider briefly how WPS came onto the international agenda and the reiteration of its key principles in other instruments. Resolution 1325 was the outcome of long term civil society lobbying going back, as I previously stated, to at least 1915. The key principles of Resolution 1325 were adopted in the Declaration and Platform for Action of the Global Summit on Women in Beijing in 1995 and the five year follow-up Declaration. Final documents of a Global Summit (or intergovernmental conference in the language of the ILC) are also not legally binding but their activities ‘may have value in providing evidence of existing or emerging law and may contribute to the development of a rule of customary international law’.27 James Crawford has observed that ‘[t]he “final act” or other statement of conclusions of a conference of States may be a form of multilateral treaty, but, even if it is an instrument recording decisions not adopted unanimously, the result may constitute cogent evidence of the state of the law on the subject.’ Representatives of 189 States participated at Beijing and the Declaration and Platform for Action were adopted unanimously. Aspects of WPS, notably the pillars relating to prevention of and protection against sexual violence in armed conflict, have also been developed through a range of other non-binding instruments for instance the previously mentioned G8 Declaration on Preventing Sexual Violence in Conflict and the subsequent Declaration of Commitment to End Sexual Violence in Conflict.28 The former was described by William Hague as a ‘historic agreement’ by ‘some of the world’s largest economies and most powerful nations.’ The commitments it contained were formally recognised in Security Council Resolution 2106 in 2013. The latter was launched by 27

Ibid.

Foreign and Commonwealth Office, A Declaration of Commitment to End Sexual Violence in Conflict, 24 September 2013, available at https://assets.publishing.service.gov.uk/government/uploads/ system/uploads/attachment_data/file/274724/A_DECLARATION_OF_COMMITMENT_TO_ END_SEXUAL_VIOLENCE_IN_CONFLICT.pdf. 28

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the UK at the start of the 68th session of the General Assembly and is now endorsed by over two thirds of all member States of the UN. What is beyond doubt is that the WPS agenda has generated widespread State, institutional, and civil society practice. So first I will take a brief look at State practice. The ILC Draft Conclusions include as evidence of State practice ‘conduct in connection with resolutions adopted by an international organization or at an intergovernmental conference.’29 There is evidence of such conduct in the integration of WPS into national policy through National Action Plans or NAPs. As of November 2018, 78 States have introduced NAPs including the United States, UK, Germany, and States from all continents. They include currently conflict-affected States (for example, Ukraine, South Sudan), post-conflict States (for example, Bosnia, Nepal, Liberia), and States not involved in conflict (for example, Belgium, Austria). This spread means that NAPs have been adopted by a range of States ‘whose interests [are] specially affected’.30 In many countries the NAP is incorporated into government and across government departments, for instance in the UK across the Foreign and Commonwealth Office, the Ministry of Defence, and the Department for International Development. There is a minister for WPS and the WPS is a priority under 2015 National Security Strategy. In 2017 the United States enacted the Women, Peace, and Security Act. There is also action at the regional level. The European Union (EU) adopted its Comprehensive Approach on Women, Peace and Security in October 2016 that is made mandatory for all EU external actions. In 2017 the EU representative announced at the Security Council open debate on women, peace, and security that it was working for the same goal: ‘the full and effective implementation of the Women, Peace and Security agenda. We have a standing priority to implement the global normative framework, from UNSCR 1325 to UNSCR 2242’. In 2018, the EU is ‘in the final stages of adopting our new European Union policy – the European Union strategic approach on women and peace and security.’31 In July 2016 the African Union Commission conducted a regional review on the Implementation of the Women, Peace, and Security Agenda in Africa. It highlighted the need ‘to recommit 29

ILC, Draft conclusions, supra note 24, Draft Conclusion 6 (2).

ICJ, North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), Judgment, ICJ Reports 1969, 3, at para. 73. 30

31 UNSC, Verbatim Record of the 8382nd meeting with an open debate on Women and Peace and Security, UN Doc. S/PV.8382, 25 October 2018.

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to the work that must continue at a national level, and reiterates the critical role of regional organiations in accelerating the implementation of the women, peace, and security agenda on the continent.’32 The African Union has also appointed Ms Bineta Diop as its Special Envoy on Women, Peace, and Security. In the Association of Southeast Asian Nations too heads of State have affirmed their commitment to the WPS agenda. There has also been impact on the structures and activities of military operations. North Atlantic Treaty Organization (NATO) States and their partners have acted since 2007 to promote the role of women in peace and security, including creating the post of the NATO Secretary General’s Special Representative for Women, Peace, and Security. Integration of gender perspectives into military training and operations has become policy in a number of States. Finland for example has explained that it is ‘working to increase the proportion of women in international operations, especially in operational tasks and leading positions.’33 While there are feminist concerns about the increased participation of women in military activities there is undoubtedly changed State practice in this regard. There is also institutional practice. Sir Michael Wood has recorded his view that ‘the practice of international (intergovernmental) organizations as such, in certain cases, may contribute to the creation, or expression, of customary international law.’34 James Crawford too similarly noted that although ‘[t]he activities of international organizations do not feature in the sources of international law enumerated in Article 38 of the Statute of the International Court. […] they are well placed to contribute to its development. This is due primarily to the capacity for international organizations to express collectively the practice of member States.’ Relevant institutional practice includes the creation of UN gender architecture (UN Women); new mandates (the SRSG on sexual violence in armed conflict; the inclusion of gender advisors and women protection officers in peace operations); military training African Union Commission, Implementation of the Women, Peace, and Security Agenda in Africa (2016), available at https://www.peacewomen.org/resource/african-union-commissionimplementation-women-peace-and-security-agenda-africa. 32

33 Ministry of Foreign Affairs of Finland, Women, Peace and Security: Finland’s National Action Plan 2018-2021, 12 March 2018, available at http://julkaisut.valtioneuvosto.fi/bitstream/handle/ 10024/160747/03_18_Women_Peace_Security.pdf?sequence=1&isAllowed=y, at 39. 34 ILC, Fourth report on identification of customary international law, UN Doc. A/CN.4/695, 8 March 2016, at para. 20.

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programmes on WPS; the formation of an informal expert group of the Security Council following Resolution 2242 to enable Council members to have enhanced understanding about the context of countries on its agenda including with respect to women; a commitment in Resolution 2242 to ensuring that the ‘relevant expert groups for sanctions committees have the necessary gender expertise’ and to expand civil society briefings to the Council. At the 2018 Security Council open debate on Women, Peace, and Security several speakers commented favourably on the increased participation of speakers from civil society over the past few years and highlighted the importance of this continuing. There is a Non-Governmental Organisation Working Group on WPS and in many areas civil society actively promotes WPS and challenges governments to stand by the commitments made in their NAPs. In the State-centric framework of international law civil society actions have of course never counted for the creation of custom, but are nevertheless relevant for the pressure they assert over governments thereby influencing practice. So there is thus a great deal of statewide activity and even more language in support of WPS and it seems difficult to conclude that all this activity does not entail some commitment to legal obligation. However it is important to remember the caution expressed by the ILC in the Commentaries to the Draft Conclusions on Customary International Law that ‘ascertaining acceptance as law (opinio juris) from such resolutions must be done “with all due caution”’ as is denoted by the word ‘may’. In each case, a careful assessment of all relevant factors is required in order to verify whether indeed the States concerned intended to acknowledge the existence of a rule of customary international law. There are many considerations weighing against such a conclusion including the considerable failure of uniform and consistent implementation and effectiveness: !

Sexual violence in armed conflict is if anything increasing. In 2018, the SRSG on sexual violence in armed conflict reported on nineteen countries where ‘verifiable information’ exists as to its prevalence. Despite some successes, as reported by the SRSG, the culture of impunity persists.

!

Women’s participation in peace processes remains lamentably low; the Secretary-General reported in October 2018 that ‘between 1990 and 2017,

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women constituted only 2 per cent of mediators, 8 per cent of negotiators and 5 percent of witnesses and signatories in all major peace processes.’35 !

Women’s participation in peace operations also remains minimal. The Secretary-General has described women’s participation in peace operations as an ‘essential measurement’ of WPS commitments. Numbers of women in the field are small: ‘representation of women among military troops and police officers at 4 and 10 per cent, respectively, as at December 2017. As at July 2018, 3 of 16 (19 per cent) police components were headed by women and there was only one woman military Force Commander.’36

!

Relief and recovery are seen as humanitarian not legal imperatives.

!

There is no dedicated enforcement machinery or State reporting mechanism provided for within the resolutions, nor is there any Security Council institution comparable to the Sanctions Committee or Counter-terrorism Committee.

!

States remain unwilling to make concrete commitments. In its analysis of the 2018 Security Council open debate on the implementation of Resolution 1325 Peace Women found that ‘[w]hile 49 (60%) of 81 representatives shared their broad commitments to implementing the WPS Agenda, only 16 (20%) of the 81 representatives shared concrete action steps for the upcoming year.’37

The gap between words and deeds, between rhetoric and action is reminiscent of the argument that different tests might be applied for determining custom in the context of human rights law-making – where there is also often such a disconnect – as argued by such jurists as Oscar Schachter and Christian Tomuschat and more recently by Judge Cançado Trindade. From a positivist international legal perspective I feel I must conclude that while the prohibition of sexual violence in armed conflict

UNSC, Report of the Secretary-General on women and peace and security, UN Doc. S/2018/900, 9 October 2018, at para. 25. 35

36

Ibid., at para. 12.

Peace Women, Security Council open debate on women, peace and security, October 2018, 25 October 2018, available at https://www.peacewomen.org/security-council/security-council-open-debatewomen-peace-and-security-october-2018. 37

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and of violence against women outside conflict have attained that status,38 WPS as a whole remains as policy rather than law. But I also think that this exposes the inadequacies of contemporary international law-making and a reluctance to perceive an emerging specialised legal regime. Like Walther Schücking I have a ‘quest for the lex ferenda.’39 I have very briefly outlined some aspects of the WPS agenda, its content and its status under international law. But questions about that status should not obscure its function so I will conclude by considering briefly what WPS might mean if tackling violence against women before, during and post-conflict was taken seriously in the contemporary world and how that might contribute to sustainable peace. So what might WPS mean for three of its stakeholders – the UN, governments, and academics as a component of civil society? For the UN: what it should mean is a fulfillment of its own commitments, something that despite the rhetoric remains sadly lacking. Shortcomings include the failure to ensure consistent and meaningful participation of women in activities carried out under UN auspices. This includes not only in peace processes and peace operations but also in key roles such as special envoys, special representatives of the SecretaryGeneral in conflict-affected areas, leaders of Commissions of Inquiry, heads of peace operations in the field (in 2014 a woman was appointed head of a peacekeeping force for the first time – in Cyprus), senior personnel in UN Headquarters and throughout key departments such as the Department of Peacekeeping Operations and the PeaceBuilding Support Office. This is an often repeated commitment and is supported by evidence that inclusivity has a beneficial effect on tackling violence and securing peace. Although progress remains slow, the Secretary-General’s commitment to achieving system-wide gender parity is welcome. Recent appointments are important, including Bintou Keita as the first woman Assistant Secretary-General for Peacekeeping Operations, Jane Connors as first UN rights advocate for victims of sexual exploitation and in March 2018 the first ever female head of the Department of Political Affairs. It also implicates building on the institutional innovations introduced in 2015 in Resolution 2242, for instance with respect to the Informal Experts Group on 38 This is the view of the CEDAW Committee in its General Recommendation No. 35, see supra note 22. 39 Jost Delbrück, ‘Law’s Frontier – Walther Schücking and the Quest for the Lex Ferenda’, 22 EJIL (2011) 801.

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WPS, to Security Council on-site missions taking into account gender considerations and the rights of women through open and transparent consultation with local and international women’s groups, and inviting civil society representatives to brief the Council on country specific issues. WPS should be included in all country specific mandates, not as a box-ticking exercise but in a contextual and purposeful way. These are – or should be – relatively simple things to put into action and could also be a significant step towards addressing one of the critiques of WPS: its heavily top down and privileged nature that fails to take into account that tackling violence and conflict requires local knowledge, expertise, and commitment. The Security Council holds the highest place in the UN hierarchy; its decisions with respect to international peace and security are made by diplomats in New York, far removed from the women whose lives will be affected by them. In seeking to implement such ‘top down’ decisions there is a danger of losing sight of local institutions and actors especially at the peacebuilding stage, and thus of making erroneous assumptions, failing to benefit from the local knowledge and expertise available or, worse, disrupting local efforts. Of course the UN comprises governments and it is their responses that are key and their words are not matched by actions. In particular, actual long term and adequate financial commitment has been disappointing. While the number of NAPs is increasing providing for local implementation and translating the global issues into a domestic context, many fail to include allocation of responsibilities, sustained commitment to budgeting, measures for evaluation and monitoring, or integration across all other domestic policies. WPS is too easily seen institutionally and substantively as a separate compartmentalised agenda distinct from human rights, gender equality, or the sustainable development goals instead of as integral to the success of those other agendas, and vice versa. This also loses the opportunities for coherent and integrated monitoring at the international level, for instance through all the human rights mechanisms. This leads into more structural issues. Governments’ responses to WPS have been perhaps too comfortable: it is easy to condemn sexual violence in armed conflict, to urge more prosecutions, even to accept the need for wider participation of women in conflict management and resolution and to offer technical, legal expert assistance and training. These are important but such innovations do not require structural change or tackling the difficult questions. Less weight is given to the WPS pillar for preven-

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tion of conflict; that is to the need to challenge structural bases of harms such as the impact of militarism and militarisation, the continuing legal arms trade, the inequalities fostered by neo-liberal economic globalisation, and the continuum of violence against women that moves from the home through to armed conflict. These harms are accentuated when the same practices are normalised and repeated post-conflict. The Secretary-General has made prevention of conflict central to his stewardship. WPS should be integral to his undertaking. And for academics: I think we have three roles. The first is to keep the WPS agenda alive, through theory and practice to enhance its normative status and even to be instrumental in shaping it as a specialist regime that is grounded in, but goes beyond, the existing legal regimes discussed above. Second is to provide evidencebased research to inform policy and to facilitate knowledge exchange. Third is to challenge the normative and conceptual ambiguities in the very wording of ‘peace’ and ‘security’. It is to recall that although international law has been seen as a discipline for promoting peace it has no definition of peace. It is also to resist the assumption that peace – and security – are achieved through military action and that WPS can be co-opted into other political agendas. The most evident concern here is the asserted linkage in Security Council Resolution 2242 between WPS and the counterterrorism and counter-extremism policy frameworks, a linkage that has both opportunities and dangers. It creates the opportunity for ensuring continued policy attention to WPS but at the cost of its instrumentalisation and further securitisation, diverting funding and co-opting women as sources of information and informants, thereby risking a backlash against women’s rights defenders and heightening insecurity. In a lecture honouring the pacifist Walther Schücking it is appropriate to ask how these three stakeholders – the UN, governments, and academia – can play different roles in keeping WPS connected to its civil society origins and its transformative potential for peace. But not a gender-neutral peace but rather a feminist peace.

GENERAL ARTICLES

Coordination of Different Principles and Values in International Law RICCARDO PISILLO MAZZESCHI(

ABSTRACT: The theme of coordination between different principles and values is becoming central to contemporary international law. This is because the latter has become a broad and complex legal system and is going through a phase of profound transformation. This also implies a paradigmatic and ideological change of the international legal order, which tends to shift from a law of rules to a law of values. In this transition phase, conflicts occur especially between the principles of ‘old’ international law and the principles of ‘new’ international law. In this paper it is claimed that, in international law, three different methods are used to try to resolve the antinomies between conflicting principles: a) a ‘traditional positivist’ method; b) a ‘modern positivist’ method; c) a ‘value-based’ method. These three methods are strictly linked to three different conceptions on the sources of general international law and on the means for identification of that law. This article examines separately the three methods and the practical results to which they arrive, using as a main example the conflict between principles on international immunities and principles on fundamental human rights. The conclusion is that the interpreter should today avoid the ‘traditional positivist’ method, because it is now unsuitable for the reality of contemporary international law. Instead, he should use both the ‘modern positivist’ method and the ‘value-based’ method, coordinating them among themselves. KEYWORDS: Conflicting Principles, Antinomies, Sources of International Law, Jus Cogens, Immunities, Fundamental Human Rights, Access to Justice, Balancing

I. Introduction The topic of coordination of different principles and values is today a central theme in international law. This is probably due to the fact that the international legal system1 is becoming ever wider and more complex. The typical content of Professor of International Law, University of Siena, Department of International and Political Sciences. This article is based on the closing keynote lecture presented at the 13th Annual Conference of the European Society of International Law (Naples, 2017). 1 I start from the assumption that international law is a unitary legal system that has a systemic nature. Of course I am aware of the wide debate in literature on the topic of fragmentation of international law. (

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‘traditional’ international law regulates only matters concerning inter-State relations; that is, legal questions mostly pertaining to the external relations of States. In my view, ‘contemporary’ international law has much changed: the theory of human rights, the development of international criminal law, the increasing role of the individual in many fields of international law, and other well-known factors have produced a trend towards an overall expansion of the content and scope of application of international law.2 Thus, contemporary international law regulates not only the traditional inter-State relationships, but also an increasing number of relationships which exist between States and individuals and of inter-individual relationships.3 In short, one could say that international law, by widely expanding its scope of application, has become a more complete and modern legal system.4 Therefore, it is logical that, within this wider system, the question of coordination and possible conflict between different principles and rules has become more important. Another factor to consider, as we shall see, is the possible conflict between the values that underlie ‘traditional’ international law and those that underlie ‘modern’ international law. I limit myself to maintaining that the view in favour of the fragmentation of international law is not confirmed by international practice. On this topic, see, e.g., International Law Commission (ILC), Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group of the ILC Finalized by Martti Koskenniemi, UN Doc. A/CN.4/L.682,13 April 2006; Martti Koskenniemi and Pälvi Leino, ‘Fragmentation of International Law? Post-modern Anxieties’, 15 Leiden Journal of International Law (LJIL) (2002) 553; Joost Pauwelyn, Conflict of Norms in Public International Law: How WTO Law Relates to Other Rules of International Law (2003); Bruno Simma and Dirk Pulkowski, ‘Of Planets and the Universe: Self-contained Regimes in International Law’, 17 European Journal of International Law (EJIL), (2006) 483; Andreas Zimmermann and Rainer Hoffmann (eds.), Unity and Diversity of International Law (2006); Benedetto Conforti, ‘Unité et fragmentation du droit international: glissez, mortels, n’appuyé pas’, 111 Revue Générale de Droit International Public (RGDIP) (2007) 5; Eyal Benvenisti, ‘The Conception of International Law as a Legal System’, 50 German Yearbook of International Law (GYIL) (2008) 393; Bruno Simma, ‘Universality of International Law from the Perspective of a Practitioner’, 20 EJIL (2009) 265. 2 See, e.g., Benedetto Conforti, ‘Cours général de droit international public’, 212 Recueil des Cours (RdC) (1988) 9, at 21-25; Benedetto Conforti, Diritto internazionale (11th ed., 2018), at 3; Riccardo Pisillo Mazzeschi, ‘Human Rights and the Modernization of International Law’, in Federico Lenzerini and Ana F. Vrdoljak (eds.), International Law for Common Goods. Normative Perspectives on Human Rights, Culture and Nature (2014) 89, at 90. 3 Suffice it to think of such fields as human rights law, international criminal law, contemporary international humanitarian law, European Union law, internal administrative law of international organisations, international law on foreign investments, international environmental law. 4 More generally, on the structural changes of contemporary international law, see the literature cited, infra note 13.

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However, the topic of coordination of different principles has not, so far, been extensively examined by international lawyers. I divide my paper into five parts: I briefly introduce the topic of resolution of antinomies in the general theory of law (II.); then I start considering the issue of resolution of conflicts of norms in international law arguing that there are three different methods to solve the problem (III.); I then illustrate: the ‘traditional positivist method’ (IV.); the ‘modern positivist method’ (V.); and the ‘value-based method’ (VI.). Finally, I try to reach a conclusion.

II. Resolving Conflicts of Norms in the General Theory of Law Obviously, the problem of how to resolve conflicts between norms (so-called antinomies) affects all legal systems, and hence also the general theory of law. This is a complex problem that cannot be dealt with here. For the sake of simplicity, let me say that there is an antinomy when a legal system has two incompatible norms, that is, when it regulates the same case in different manners.5 Although some authors perceive law as a system of necessarily coherent norms, it is more correct to assume that any legal system can and in fact does have antinomies. Legal systems generally have criteria for solving antinomies; that is, criteria to establish which of two incompatible norms should prevail. Moreover, the more a legal system is complex, the more likely it is to have antinomies.6 That said, it is necessary to distinguish the general question of antinomies between norms from the more specific question of antinomies between principles.

5 See, e.g., Enrico Diciotti, ‘Ordinamento giuridico’, in Giorgio Pino, Aldo Schiavello, and Vittorio Villa (eds.), Filosofia del diritto: Introduzione critica al pensiero giuridico e al diritto positivo (2013), at 200-201; Riccardo Guastini, Le fonti del diritto e l’interpretazione (1993), at 409-411; Marko Milanovic, ‘Norm Conflict in International Law: Whither Human Rights?’, 20 Duke Journal of Comparative and International Law (2009) 69, at 72-75. See also ILC, Fragmentation, supra note 1, at paras. 21-25. 6 See Milanovic, supra note 5, at 69.

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In most domestic legal systems, there are three criteria for solving antinomies: (i) the hierarchical criterion, according to which the higher-ranking of two conflicting norms belonging to different levels in the hierarchy of sources prevails; (ii) the chronological criterion, according to which the later of two conflicting norms arising at different times prevails; and finally (iii) the criterion of speciality, according to which the special rule of two conflicting norms in a genus-species relationship prevails. However, these three criteria for resolving conflicts of norms do not always ensure the coherence of the legal system that contains them. First, if there is no hierarchy between the three criteria, there may be conflicts for which a number of criteria can be used and each produces a different solution. Secondly, there may be conflicts between norms of equal rank, arising in the same period, but which are not in a genusspecies relationship. In this case none of the three criteria can be used. When the three criteria fail to work, it must be concluded that the solution of antinomies is not predetermined by the legal system in question. Thus, according to dominant opinion in the general theory of law, the solution is entrusted to the interpretation and evaluation of judges or legal practitioners in every concrete case.7

B. The Specific Question of Antinomies Between Principles

The question is partly different for norms that are considered to be general principles of the legal order, especially constitutional principles. When there is a conflict of principles, one should perhaps speak of the problem of ‘coordination’ rather than ‘antinomy’ between principles. In the general theory of law, it is widely believed that principles have certain structural and functional characteristics;8 that is, they are more generic and undeterSee Diciotti, supra note 5, at 205-206. The literature on principles is very extensive. See, inter alia, Ronald Dworkin, ‘The Model of Rules’, 35 University of Chicago Law Review (1967) 14-46; Ronald Dworkin, Taking Rights Seriously (1977), at chapters 2 and 3; Ronald Dworkin, Law’s Empire (1986), at chapters 10 and 11; H.L.A. Hart, The Concept of Law (2nd ed.,1961), at 254-268; John Rawls, A Theory of Justice (1971), especially at chapter II; Joseph Raz, ‘Legal Principles and the Limits of Law’, 81 Yale Law Journal (1972) 823; Neil MacCormick, Legal Reasoning and Legal Theory (1978); Julius Stone, ‘From Principles to Principles’, 97 Law 7 8

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mined than other norms and more important because they usually proclaim or express values. Various operational consequences derive from these characteristics of principles.9 We are particularly concerned with two of these consequences. The first is the possibility of frequent conflicts between principles. Since the principles are generic and undetermined, they are likely to conflict with each other. Moreover, hypotheses of conflicts are not usually predetermined, but tend to emerge when principles are applied to individual and concrete cases. For the purpose of this paper, the second operational consequence of principles is very important. It consists in so-called ‘balancing’. A conflict between principles cannot usually be solved by the three traditional criteria mentioned above (lex superior, lex specialis, lex posterior), because a principle is rarely special or hierarchically superior to another. Even the chronological criterion does not seem appropriate for resolving conflicts between principles. The criterion deemed most appropriate is therefore ‘balancing’,10 a technique used by many constitutional courts to settle conflicts between constitutional principles. Balancing two (or more) principles means assessing their respective weights or importance, and then giving priority to the principle having more weight or importance. In other words, it is necessary to make an assessment of the comparative importance of the principles at stake in a given case. The assessment leads to non-application of one or more principles and application of the other. The basis of the criterion of balancing lies in the principle of proportionality.11

Quarterly Review (1981) 224; Carlos S. Nino, Introduzione all’analisi del diritto (1996), at 370-388; Robert Alexy, Theorie der Grundrechte (1985) (A Theory of Constitutional Rights (2002)); Robert Alexy, ‘On the Structure of Legal Principles’, 13 Ratio Juris (2000) 294; Robert Alexy, ‘On Balancing and Subsumption. A Structural Comparison’, 16 Ratio Juris (2003) 433. For the Italian literature see, e.g., Norberto Bobbio, Principi generali di diritto (1966), in Norberto Bobbio (ed.), Contributi ad un dizionario giuridico (1994) 257-279; Anna Pintore, Norme e principi. Una critica a Dworkin (1982); Guastini, supra note 5, at 447-461; Guido Alpa, I principi generali (1993), at chapters I, II, and III; Giorgio Pino, Diritti e interpretazione. Il ragionamento giuridico nello Stato costituzionale (2010); Giorgio Pino, ‘Principi, ponderazione, e la separazione tra diritto e morale. Sul neocostituzionalismo e i suoi critici’, 56 Giurisprudenza costituzionale (2011) 965; Giorgio Pino, Teoria analitica del diritto, I, La norma giuridica (2016), at 73-96. 9 See Pino, Teoria, supra note 8, at 85-96. 10 On ‘balancing’ see especially Dworkin, Nino, and Alexy, supra note 8. 11 See especially Alexy, ‘On the Structure’, supra note 8; Alexy, ‘On Balancing’, supra note 8.

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III. Dealing With Conflicts of Norms in International Law The problem of coordinating conflicting norms, as I said, is also raised in international law.12 It happens above all in the contemporary era, due to the greater complexity of international law and to the profound transformations that are affecting it. It is well to make some observations on this process.

A. Is There a Contrast Between ‘Old’ and ‘New’ International Law?

Many scholars of international law believe that a structural transformation of international law has been occurring over the last few decades, and has already largely been achieved.13 It can be termed ‘modernisation’ of international law. Since this is a gradual process, ‘old’ and ‘new’ international law currently coexist, while also conflicting. As I mentioned, I share this interpretation of the recent history of international law, although it must be acknowledged that the term ‘modernisation’ gives only a synthetic framework, useful from a systematic point of view, but incapable of describing the recent historical evolution of international law which is more complex and diversified.14

See Milanovic, supra note 5; W. Czaplinski and G. Danilenko, ‘Conflict of Norms in International Law’, 21 Netherlands Yearbook of International Law (1990) 3; Erich Vranes, ‘The Definition of ‘Norm Conflict’ in International Law and Legal Theory’, 17 EJIL (2006) 395; Pauwelyn, supra note 1; ILC, Fragmentation, supra note 1; Ralf Michaels and Joost Pauwelyn, ‘Conflict of Norms or Conflict of Laws? Different Techniques in the Fragmentation of Public International Law’, 22 Duke Journal of Comparative and International Law (2012) 349; João E. Christófolo, Solving Antinomies Between Peremptory Norms in Public International Law (2016). 13 See, for classic works, Wolfgang G. Friedmann, The Changing Structure of International Law (1964); Robert Y. Jennings, ‘Treaties as “Legislation”’, in Gabriel M. Wilner (ed.), Jus et Societas. Essays in Tribute to Wolfgang Friedmann (1979) 159; Bruno Simma, ‘From Bilateralism to Community Interest in International Law’, 250 RdC (1994-VI) 217; Christian Tomuschat, ‘Obligations Arising for States without or against Their Will’, 241 RdC (1993-IV) 195; Juan A. Carrillo Salcedo, ‘Reflections on the Existence of a Hierarchy of Norms in International Law’, 8 EJIL (1997) 583. More recently see Theodor Meron, The Humanization of International Law (2006); Riccardo Pisillo Mazzeschi, ‘Responsabilité de l’Etat pour violation des obligations positives relatives aux droits de l’homme’, 333 RdC (2008),198; Pisillo Mazzeschi, ‘Human Rights’, supra note 2; Riccardo Pisillo Mazzeschi and Pasquale De Sena (eds.), Global Justice, Human Rights and the Modernization of International Law (2018). 14 See, e.g., Antonia Truyol y Serra and Robert Kolb, Doctrines sur le fondement du droit de gens (2007). 12

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Indeed, a different general approach, which can be defined as ‘traditional’, is taken by other scholars, who do not agree that any such process of structural change is occurring, or if so, play down its importance.15 They remain faithful to a traditional and ‘State-centred’ conception of international law, based on the absolutely central role of State sovereignty. But these authors do not question the universal character of the international legal system. Lastly, one should also consider a third general approach on the interpretation of the historical development of international law. It can be defined as a ‘critical’ approach, and it includes various theories, that share the idea of conducting a strong critical attack against the very system of international law. As is well known, in the past there have been several theories that challenged international law.16 In more recent times, other contesting theories have developed, which can be grouped under the name of ‘New Approaches to International Law’.17 Their common denominator is the attempt to make a comprehensive critique of international law as a whole and to rethink its foundations. These theories are well known and they cannot be detailed here. I limit myself to mentioning the ‘New Haven School’,18 the ‘Critical Legal Studies’,19 the

15 See, e.g., Prosper Weil, ‘Towards Relative Normativity in International Law?’, 77 American Journal of International Law (AJIL) (1983) 413; Prosper Weil., ‘Le droit international en quête de son identité. Cours général de droit international public’, 237 RdC (1992-VI) 9, especially at 25-39 and 66-81; Jean Combacau, ‘Le droit international: bric-à-brac ou système?’, 31 Archives de philosophie du droit (1986) 85; Jean Combacau and Serge Sur, Droit international public (7th ed., 2006), at 17-28. 16 See, e.g., Georges Burdeau, Traité de Science politique (1949); Carl Schmitt, Le nomos de la terre dans le droit de gens du jus publicum europaeum (1950); Hans J. Morgenthau, ‘Positivism, Functionalism, and International Law’, 34 AJIL (1940) 260; Hans J. Morgenthau, Politics Among Nations: The Struggle for Power and Peace (1948); Grigory I. Tunkin, Droit international public, problèmes théoriques (transl. from Russian by the Centre de Recherches sur L'U.R.S.S. et les Pays de l'est of the Faculty of Laws and Political and Economic Sciences of Strasbourg, 1965). 17 See Anne-Marie Slaughter, Andrew S. Tulumello, and Stephan Wood, ‘International Law and International Relations Theory: A New Generation of Interdisciplinary Scholarship’, 92 AJIL (1998) 367; Jos M. Beneyto and David Kennedy (eds.), New Approaches to International Law: the European and the American Experiences (2012); Prabhakar Singh and Benoît Mayer (eds.), Critical International Law (2014). 18 See, e.g., Myers S. McDougal, ‘International Law, Power and Policy: A Contemporary Conception’, 82 RdC (1952) 133; W. Michael Reisman, ‘The View from the New Haven School of International Law’, 86 American Society of International Law Proceedings (1992) 118. 19 See, e.g., David Kennedy, International Legal Structures (1987); Nigel Purvis, ‘Critical Legal Studies in Public International Law’, 32 Harvard International Law Journal (HILJ) (1991) 81. ‘Critical Legal Studies’, in a wide meaning, also include the deconstructionist theory and the socio-idealistic theory. See infra notes 20 and 21.

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‘deconstructionist’ theory,20 the ‘socio-idealistic’ theory,21 the ‘feminist’ theory,22 and the Third World Approaches to International Law, or TWAIL, movement.23 Many of these theories question the universal, unitary, and systemic nature of international law; and therefore they have a different approach both from the modern and the traditional one on the issue of the coordination between conflicting principles and values. Coming back to the afore-said first general approach, I would like to point out that, within its framework, one may distinguish two partially different theories. The first theory can be summarised in the formula of the ‘verticalisation’ of international law. According to this view,24 the relative weight of the two basic functions of international law, coexistence and co-operation between States, has shifted in favour of co-operation. This means that the international society is now perceived as a ‘single human collectivity’, i.e. a ‘community of States as a whole’ rather than a collectivity of individual States. This process of change of the international community also diminishes the importance of the ‘voluntaristic’, ‘relativistic’, and ‘individualistic’ nature of the old international legal order, in favour of a new ‘objective’, ‘communitybased’, and ‘vertical’ nature. According to other definitions, one can talk about a gradual transition from a ‘private law’ character to a ‘public law’ character of international

Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (1998); Martti Koskenniemi, The Gentle Civilizer of Nations, The Rise and Fall of Modern International Law, 1870-1960 (2001); Martti Koskenniemi, La politique du droit international (2007); Martti Koskenniemi, ‘The Fate of Public International Law: Between Technique and Politics’, 70 Modern Law Review (2007) 1-30; Martti Koskenniemi, ‘International law in the world of ideas’, in James Crawford and Martti Koskenniemi (eds.), The Cambridge Companion to International Law (2012) 47.This theory has also been defined as ‘structuralist’. 21 Philip Allott, Eunomia: New Order for a New World (1990); Philip Allott, The Health of Nations: Society and Law beyond the State (2002). 22 See, e.g., Hilary Charlesworth, Christine M. Chinkin, and Shelly Wright, ‘Feminist Approaches to International Law’, 85 AJIL (1991) 613; Hilary Charlesworth and Christine Chinkin, The Boundaries of International Law: A Feminist Analysis (2000). 23 See, e.g., Mohammed Bedjaoui, Pour un nouvel ordre économique international (1979); Makau wa Mutua, ‘What is TWAIL?’, 94 American Society of International Law Proceedings (2000) 31; James T. Gathii, ‘Alternative and Critical: The Contribution of Research and Scholarship on Developing Countries to International Legal Theory’, 41 HILJ (2000) 263; Obiora C. Okafor, ‘Newness, Imperialism, and the International Legal Reform in Our Time. A TWAL Perspective’, 43 Osgoode Hall Law Journal (2005) 177; B.S. Chimni, ‘Third World Approaches to International Law: Manifesto’, 8 International Community Law Review (2006) 3. 24 The view is illustrated in a magisterial way by Carrillo Salcedo, supra note 13. 20

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law.25 This new nature is confirmed by the development and establishment of the concepts of jus cogens and erga omnes obligations. Finally, these changes in the nature of the international legal system also point to an ideological evolution of international society, strengthened by ‘absorption of the values it encompasses into contemporary international law’.26 The second theory can be summarised in the formula of the ‘humanisation’ of contemporary international law. This view27 also favours the idea of the ‘modernisation’ of international law, but it tends to focus not only on the changing nature of the international community, but also on the impact of human rights theory, which has become strongly established and has pervasive effects throughout the contemporary international law system. In this regard, the so-called ‘humanisation’ of international law means gradual transition from a ‘State-centred’ international order to a ‘humancentred’ one, which attributes a key role to individuals and the protection of the human person. This theory shall not detain us here. Suffice it to recall that its proponents maintain that the theory of human rights has not only contributed to the aforementioned change in the nature of international law, but has also produced other structural changes to this law: a) extension of the material scope of application of international law to relations between States and individuals, and between individuals; b) extension of the subjects of international law to include individuals, groups of individuals, and other non-State actors; c) greater integration of international law with domestic law. Of course, all these effects are linked to each other.28

25 See Riccardo Pisillo Mazzeschi, ‘The Marginal Role of the Individual in the ILC’s Articles on State Responsibility’, 14 Italian Yearbook of International Law (2004) 42-44; Pisillo Mazzeschi, ‘Responsabilité’, supra note 13, at 201. 26 Carrillo Salcedo, supra note 13, at 588. 27 See, e.g., Bruno Simma, ‘International Human Rights and General International Law: A Comparative Analysis’, in Collected Courses of the Academy of European Law (vol. IV, Book 2, 1993) 155; Theodor Meron, ‘International Law in the Age of Human Rights - General Course of Public International Law’, 301 RdC (2003) 13; Meron, The Humanization, supra note 13; Riccardo Pisillo Mazzeschi, Esaurimento dei ricorsi interni e diritti umani (2004), at 16-36; Pisillo Mazzeschi, ‘Responsabilité’, supra note 13, at 198-220; Pisillo Mazzeschi, ‘Human Rights, supra note 2, at 89-101; Linos-Alexandre Sicilianos, ‘L’influence des droits de l’homme sur la structure du droit international’, 116 RGDIP (2012) 5, at 241. See also Menno T. Kamminga and Martin Scheinin (eds.), The Impact of Human Rights Law on General International Law (2009). For criticism of this view see Alain Pellet, ‘“Droits-de-l’hommisme” et droit international’, Gilberto Amado Memorial Lecture, 18 July 2000. 28 See Pisillo Mazzeschi, ‘Human Rights’, supra note 2, at 89-93.

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Both theories have merits: the former highlights the ‘communitarian’ aspects of modern international law, while the latter draws attention to the growing role of the individual and of humanitarian values within the present international community. In any case, the two theories come to essentially similar conclusions: there is a difference between ‘old’ international law, aimed at regulating coexistence between States and based on the principles of sovereignty and formal equality of States, and ‘new’ international law, aimed at regulating co-operation and justice between States, and their collective and community interests, as well as the interests of individuals and humankind. Moreover, it is worth noting that the general approach supporting the ‘modernisation’ of international law implies a dynamic interpretation of that law and fosters a paradigmatic and ideological change in the international legal order, which could and should tend to move from a ‘law of rules’ (having a conceptual foundation in positivism and normativism) towards a ‘law of values’ (having a conceptual foundation in neo-natural law theories).29 Therefore, if we take this approach into consideration, we must deal not only with the coordination between principles but also with that between values. As we shall see, the above-mentioned approaches on the historical development of international law also have an impact on how to resolve normative antinomies. However, I will try not to be biased by my favour towards the ‘modernisation’ approach; and I will examine both traditional and modern methods to resolve normative antinomies, trying to highlight the merits and defects of each method.

B. Examples of Conflict Between Principles

As I said, in my view, contemporary international law has been undergoing a transition for several decades, in which the ‘old’ and ‘new’ legal systems coexist, sometimes harmoniously and sometimes in a conflicting way. In this paper, I am not interested in examples of ‘harmonious’ coexistence between the ‘old’ and ‘new’ law. I would rather give some examples of ‘conflicting’ coexistence. Actually, the structural changes caused by the ‘new’ law have not only created conflicts 29 In my opinion, this process of change is also going to mark a higher degree of maturity of international law: the freedom of individual and ‘egoistic’ rights of States should be associated with the ethical and social dimension of law.

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between different principles and values30, but have even caused ‘two antagonistic and perhaps even irreconcilable logics to coexist within the international legal order’.31 Examples include: conflict between the principle of formal equality and that of substantial equality between States; conflict between the principle of effectiveness and that of legitimacy in matters relating to the subjectivity of States and the acquisition of sovereignty in violation of fundamental international norms; conflict between the principles of State sovereignty and the prohibition of force on one hand, and the principle of humanitarian intervention on the other; conflict between the principle of territorial integrity of States and the principle of self-determination of peoples; conflict between the principle of freedom of the State to decide its economic and industrial policy and the principle of protection of the environment; conflict between the principle of protection of property and foreign investments and the principles of the New International Economic Order; conflict between the principle of freedom of the seas and that of deep-sea-bed resources as common heritage of mankind.32 Lastly, it is worth recalling the very current and topical conflict between the principles underpinning international immunities on one hand, and the principles of protection of fundamental human rights and prohibition of international crimes on the other. I will take this issue as a paradigmatic example of the conflicts between ‘old’ and ‘new’ law, because it is an issue that has become central to contemporary international law; and because it reflects well the conflict between State-centred and humancentred international law. Hence it is a topic that can be considered, to a large extent, representative of the general developments of contemporary international law. As is well known, in recent times, there have been some very important judgments that have tackled this problem and have solved it in different ways. For example, the judgments Pinochet33 and Jones and Mitchell34 of the House of Lords; the Kadhafi 30 See Hisashi Owada, ‘Conflict of Values in International Law: Universality of International Law in a Globalizing World’, 14 Austrian Review of International and European Law (2009) 7; Karl Zemanek, ‘On the Inadequate Coordination of the Principles of International Law’, in Guerra y paz: 19452009: obra homenaje al dr. Santiago Torres Bernárdez (2010) 349. 31 Carrillo Salcedo, supra note 13, at 591. 32 On these conflicts see Zemanek, supra note 30; Owada, supra note 30; Pisillo Mazzeschi, ‘Human Rights’, supra note 2, 90-99. 33 House of Lords, Regina v. Bartle and the Commissioner of Police for the Metropolis and Other, Ex Parte Pinochet and Regina v. Evans and Another and the Commissioner of Police for the Metropolis and Others, Ex Parte Pinochet, Judgment, 25 November 1998 (so-called Pinochet I), 119 International Law

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decision of the French Court of Cassation;35 the judgments Ferrini36 and Milde37 of the Italian Court of Cassation; the judgments Waite and Kennedy,38 Al-Adsani,39 Stichting Mothers of Srebrenica,40 and Jones v. UK41 of the European Court of Human Rights; the judgments Arrest Warrant42 and Jurisdictional Immunities of the State43 of the International Court of Justice (ICJ); and judgment No. 238/2014 of the Italian Constitutional Court.44 As you can see, there are numerous possibilities of conflicts between principles (or customary norms) of the ‘old’ international law and principles (or customary norms) of the ‘new’ international law, and also between the different values underlying the former and latter principles.

Reports (ILR) (2002) 51, at 112 et seq.; House of Lords, Regina v. Bartle and the Commissioner of Police for the Metropolis and Other, Ex Parte Pinochet; Regina v. Evans and Another and the Commissioner of Police for the Metropolis and Others, Ex Parte Pinochet, Judgment, 24 March 1999 (so-called Pinochet III), 119 ILR (2002) 135, at 137 et seq. 34 Jones v. Ministry of Interior Al-Mamlaka Al-Arabiya AS Saudiya (the Kingdom of Saudi Arabia) and others [2006] UKHL 26. 35 French Court of Cassation (Cour de Cassation, Chambre Criminelle), Arrêt n.1414, 13 March 2001, 105 RGDIP (2001) 473. 36 Italian Court of Cassation, Ferrini v. Repubblica Federale di Germania, Judgment of 11 March 2004, No. 5044, 87 Rivista di diritto internazionale (2004) 539 et seq. (English translation in 128 ILR (2004) 658 et seq.). 37 Italian Court of Cassation, Milde, Judgment, 13 January 2009, No. 1072, 92 Rivista di diritto internazionale (2009) 618. 38 European Court of Human Rights (ECtHR), Waite and Kennedy v. Germany, Appl. No. 26083/ 94, Judgment, 18 February 1999. 39 ECtHR, Al-Adsani v. United Kingdom, Appl. No. 35763/97, Judgment, 21 November 2001. 40 ECtHR, Stichting Mothers of Srebrenica et al. v. The Netherlands, Appl. No. 65542/12, Decision, 11 June 2013. 41 ECtHR, Jones and Others v. United Kingdom, Appl. No. 34356/06 and 40528/06, Merits and Just Satisfaction, Judgment, 14 January 2014. 42 International Court of Justice (ICJ), Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, 14 February 2002, ICJ Reports 2002, 3. 43 ICJ, Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening), Judgment, 3 February 2012, ICJ Reports 2012, 99. 44 Italian Constitutional Court, Judgment No. 238 of 2014, available at https://www.cortecostitu zionale.it/documenti/download/doc/recent_judgments/S238_2013_en.pdf.

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C. Three Methods to Coordinate Conflicting Principles

What are the criteria or methods adopted by international law to coordinate conflicting principles and values, or in other terms, to resolve antinomies of the system? Are the same criteria commonly used by State legal systems and identified by the general theory of law? In my opinion, the answer is partially positive,45 but three factors need to be taken into account: a) here we are only concerned with conflicts between norms of general international law (principles and customary norms), and hence between non-written norms with rather vague content; b) the typical features of international law must be considered; c) there are no written and predetermined rules in international law setting out criteria for solving antinomies, and therefore reference should be made to international practice and literature. Against this background, it seems to me that one can distinguish between three general methods for resolving the antinomies of international law. Resuming the terminology I have already used,46 I distinguish between a ‘traditional positivist’ method, a ‘modern positivist’ method, and a ‘value-based’ approach. I use these three terms for the sake of brevity, aware that they are approximations, as there is a wide variety of positivist theories and even ‘value-based’ theories, more or less related to neo-naturalism.

IV. The Traditional Positivist Method In addressing the issue of co-ordination between conflicting norms of general international law, scholars who maintain a ‘State-centred’ conception of international law use a method that can be defined as ‘traditional positivist’. This definition brings to mind ‘formalistic’ positivism, which has been criticised, by advocates of ‘neoSee also ILC, Fragmentation, supra note 1, at paras. 18-19 and 26. In fact, the Report of the Study Group is largely based on the criteria of lex specialis, lex posterior, and lex superior (see sections C, D, and E of the Report). However, the Report is not limited to the antinomies between norms of general international law, but instead deals with all sources of international law, with particular regard to treaties. 46 See Riccardo Pisillo Mazzeschi, ‘La protezione internazionale dei diritti dell’uomo e il suo impatto sulle concezioni e metodologie della dottrina giuridica internazionalistica’, 8 Diritti umani e diritto internazionale (2014) 275, at 305-311. For the term ‘modern positivism’ see also Jan Wouters and Cedric Ryngaert, ‘Impact on the Process of the Formation of Customary International Law’, in Kamminga and Scheinin (eds.), supra note 27, 111, at 118-127. 45

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constitutionalism’47 and of ‘modern normative theories’,48 as a ‘model of rules’, which are applied mechanically without regard to the values that inspire them or to their justice and fairness. It also brings to mind ‘voluntaristic’ positivism, by which international law is based solely on the consent of States and therefore tends to reject the idea that there are collective interests of the international community that can limit the contractual will of individual States. The literature and jurisprudence that adopt this method tend to deny or avoid conflicts between ‘old’ and ‘new’ international law, or alternatively resolve conflicts in favour of ‘old’ international law. They achieve these results by using particular interpretive arguments, often of a logical-formalistic nature, or by adopting a conservative conception of the sources of international law.

A. Views That Tend to Deny or Avoid Conflicts

International and national courts often tend to avoid conflicts between different norms or principles of general international law through a number of interpretive techniques. The International Law Commission (ILC) has even stated that: ‘In international law, there is a strong presumption against normative conflict’.49 Actually, many examples of these conflict avoidance techniques are described in a recent pa47 For the most representative authors of neo-constitutionalism see Dworkin, Nino, and Alexy, supra note 8. The term ‘neo-constitutionalism’ can be used with very different meanings. In the theory of law and in the present work, the term ‘neo-constitutionalism’ means a unitary stream of the theory and philosophy of law, which has developed some general theses about law. These theses mainly concern: a) the connection between law and morality; b) the nature of law as an interpretative practice; c) the rationality of the law enforcement process; d) the twofold dimension (factual and ideal) of law; e) the clear distinction between rules and principles. These theses intend to overcome the traditional conceptions of law, especially legal positivism and realism. Note that the main exponents of neo-constitutionalism do not qualify themselves as advocates of natural law, but rather as non-positivists; but in reality, in my view, neo-constitutionalism, insisting on the connection between law and morality, the existence of an objective morality, and the ideal dimension of law, can be considered as a particular current of contemporary natural law. In this regard, see also Mauro Barberis, ‘Il giusnaturalismo: tendenze e problemi attuali’, in Pino, Schiavello, and Villa (eds.), supra note 5, 25-29. 48 See, e.g., Lon Luvois Fuller, The Morality of Law (1964); Rawls, supra note 8; Owen M. Fiss, ‘Objectivity and Interpretation’, 34 Stanford Law Review (1982) 739; Kent Greenawalt, Law and Objectivity (1992), at chapters 9, 10, and 11. On these theories see Gary Minda, Postmodern Legal Movements. Law and Jurisprudence at Century’s End (1995); Gary Minda, Teorie postmoderne del diritto (2001), at 79-108. 49 ILC, Fragmentation, supra note 1, at para. 37.

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per.50 Such examples include the judgment Al-Jeddah of the House of Lords,51 the judgments Behrami52 and Bosphorus53 of the European Court of Human Rights, the Kadi judgments of the Court of First Instance54 and the European Court of Justice,55 and the Solange decisions of the German Constitutional Court.56 Conflict avoidance techniques include the concept of dualism or pluralism between legal systems and the ‘equivalent protection’ rule.57 A further example is judgment No. 238/2014 of the Italian Constitutional Court,58 which also uses the instrument of dualism to avoid directly addressing the problem of conflict between incompatible international norms.59 However, the most striking example in the avoidance category was recently provided by the ICJ on the possibility of conflict between the norms on international immunities and those on fundamental human rights and prohibition of international crimes. In the case on Jurisdictional Immunities of the State,60 among other things, the ICJ had to examine the question, invoked by Italy, whether in that particular case, the customary norm on State immunity conflicted with jus cogens norms, such as those regarding war crimes and war-crime victims’ right to reparation. The Court found no Milanovic, supra note 5. R (In re Al-Jedda) v. Secretary of State for Defence [2007] UKHL 58, [2008] 1 AC 332. 52 ECtHR, Behrami and Behrami v. France, Appl. No. 71412/01, Saramati v. France, Germany, and Norway, Appl. No. 78166/01, Decision, 2 May 2007. 53 ECtHR, Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi v. Ireland, Appl. No. 45036/ 98, Judgment, 30 June 2005. 54 Court of First Instance, Kadi v. Council and Commission, Case T-315/01, Judgment, 21 September 2005, ECLI:EU:T:2005:332. 55 European Court of Justice, P. Kadi and Al Barakaat International Found v. Council and Commission, Joined Cases C-402/05 P and C-415/05 P, Judgment, 3 September 2008, ECLI:EU:C: 2008:461. 56 Federal Constitutional Court (Bundesverfassungsgericht) (FCC), BVerfGE 37, 271 (so-called Solange I); FCC, BverfGE 73, 339 (so-called Solange II). 57 For similar interpretive techniques of coordination between norms of national and international law see Sir Daniel Bethlehem, ‘The Supremacy of International Law?’, EJIL: Talk!, 2 and 3 June 2016, available at https://www.ejiltalk.org/the-supremacy-of-international-law-part-one/. 58 Italian Constitutional Court, Judgment No. 238 of 2014, supra note 44. 59 See, e.g., Riccardo Pisillo Mazzeschi, ‘Access to Justice in Constitutional and International Law: The Recent Judgment of the Italian Constitutional Court’, 24 Italian Yearbook of International Law (2014) 9; François Boudreault, ‘Identyfying Conflicts of Norms: the ICJ Approach in the Case of the Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening)’, 25 LJIL (2012) 1003. 60 ICJ, Jurisdictional Immunities, supra note 43. 50 51

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conflict in abstracto. According to its ruling, there was no conflict between these rules and the rule on State immunity because: ‘The two sets of rules address different matters’,61 even if the rules prohibiting war crimes violated by Germany belong to jus cogens. In fact, the rules on State immunity are procedural and therefore do not affect the question of whether the conduct of Germany was lawful or unlawful. For the same reason, recognising the immunity of a foreign State under international law does not mean recognising a situation created by violation of a rule of jus cogens as lawful. The Court reiterated the same argument in relation to the possibility of conflict between the immunity rule and the obligation of the offending State to provide reparation for the victim. The Court asserted that the obligation of the State to repair the offence was independent of the rules governing the means by which reparation was to be provided, and that the rule on State immunity only concerned the latter rules. I disagree with the Court’s arguments62 (these had previously been sustained by certain scholars).63 First, although they are elegant and sophisticated legal arguments, they are completely abstract and formalistic, and they avoid addressing the crucial point of the dispute, namely possible conflict between different customary norms and how to solve any conflict. Second, and above all, the arguments are not convincing. The rule on State immunity is not purely procedural, because it does not disregard the content of the acts or conduct for which the State may be entitled to immunity. Moreover, rules prohibiting war crimes are completely useless if the victims of such crimes cannot enforce them by access to justice and ask for reparation. In other

Ibid., at para. 93. See also paras. 81, 82, 94, and 100. This writer already had the opportunity to criticise these arguments of the ICJ. See Riccardo Pisillo Mazzeschi, ‘Il rapporto fra norme di ius cogens e la regola sull’immunità degli Stati: alcune osservazioni critiche sulla sentenza della Corte internazionale di giustizia del 3 febbraio 2012’, 6 Diritti umani e diritto internazionale (2012) 310. 63 See, e.g., Andreas Zimmerman, ‘Sovereign Immunity and Violations of International Jus Cogens Some Critical Remarks’, 16 Michigan Journal of International Law (MJIL) (1995) 433, at 438; Jürgen Bröhmer, State Immunity and the Violation of Human Rights (1997), at 194-196; Hazel Fox, The Law of State Immunity (2002), at 525 (but see Fox, The Law of State Immunity (3rd ed., 2013), at 477-478); Andrea Gattini, ‘The Dispute on Jurisdictional Immunities of the State before the ICJ: Is the Time Ripe for a Change of the Law?’, 24 LJIL (2011) 173, at 178-179. See also Jones, supra note 34, at paras. 42-45 (Lord Hoffmann). Recently the United Kingdom Supreme Court has long debated the question of whether the rule on State immunity has a procedural or substantive character and the problem of the distinction between procedural and substantive bars to the existence of jurisdiction: see Benkharbouche v. Secretary of State for Foreign and Commonwealth Affairs [2017] UKSC 62, at paras. 15-30. 61 62

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words, there is a universal principle of justice, according to which there is no real substantive right in the absence of procedural remedies for its violation.

B. Conservative Views on International Sources

Authors who adopt a traditional positivist method have another tool for resolving conflicts between norms of general international law: they can interpret the sources of this law (custom, general principles of law recognised in foro domestico, and general principles of international law) in a conservative way. They often also show a sceptical attitude towards jus cogens. Let us examine these aspects separately.

1. Traditional Concept of Custom As is well known, there are various approaches in literature regarding the way of formation and identification of the rules of customary international law. By simplifying, one can distinguish a ‘traditional’ approach and a ‘modern’ approach. They have recently been described by the Special Rapporteur M. Wood in the ILC work on ‘Identification of Customary International Law’.64 In short, the traditional approach requires two constituent elements for the formation of a customary rule (State practice and opinio juris); while the modern approach emphasises one constituent element over the other: either State practice or opinio juris.65 Many authors adhere to the traditional ‘two-element’ approach and remain faithful to a ‘State-centred’ conception of international law. Recently this approach has See Michael Wood, Special Rapporteur, First report on formation and evidence of customary international law, UN Doc. A/CN.4/663, 17 May 2013, at paras. 95-101 (with extensive reference to the literature). On the more general topic of formation and identification of international custom, see the ILC works on ‘Identification of customary international law’ and the five reports of the Special Rapporteur Michael Wood (UN Docs. A/CN.4/663, 17 May 2013 (First Report), A/CN.4/672, 22 May 2014 (Second Report), A/CN.4/682, 27 March 2015, A/CN.4/695, 8 March 2016 and Addendum 1, 25 May 2016, and A/CN.4/717, 14 March 2018). 65 See, e.g., Wood, First Report, supra note 64, at paras. 97-98 and Wood, Second Report, supra note 64, at para. 27. However, it should be noted that a very different approach is taken by Martti Koskenniemi, who highlights the role of justice and equity in international custom. See Martti Koskenniemi, ‘The Normative Force of Habit: International Custom and Social Theory’, in Martti Koskenniemi (ed.), International Law (1992) 213. 64

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been vigorously supported also by the Special Rapporteur M. Wood66 and approved by the ILC.67 Moreover, a large part of these scholars starts from the premise that even under the classic dualistic concept of international custom, one should ascribe more importance to the element diuturnitas (general practice), because it is more certain and stable than to the element opinio juris (sense of legal obligation).68 In addition, in identifying custom, these writers often tend to: a) interpret diuturnitas as a ‘real’ practice (physical conduct) and not as a ‘written and oral’ practice;69 b) give more weight to a ‘quantitative’ identification of practice than to a ‘qualitative’ one; c) consequently, give more weight to an older practice than to a more recent one; d) give more importance to an international practice than to a domestic one (e.g., decisions of national courts);70 e) finally, interpret new customary norms in a restrictive sense, conceived only as possible exceptions to existing customary norms. All these elements almost inevitably settle conflicts between ‘old’ and ‘new’ customary norms in favour of the former. Let us again take the example of how some scholars and international courts address the problem of possible conflict between the ‘old’ norms on international immunities and the ‘new’ norms on fundamental human rights and the prohibition of international crimes.

66 Wood, First Report, supra note 64, at paras. 55-61 and Wood, Second Report, supra note 64, at paras. 3-4, 21-31. 67 See the Draft conclusions adopted by the ILC at its seventieth session in 2018, ILC, Report of the International Law Commission, UN Doc. A/73/10, 30 April-1 June and 2 July-10 August 2018, at para. 65. 68 See Wood, First Report, supra note 64, at para. 96. 69 See, e.g., H.W.A. Thirlway, International Customary Law and Codification (1972), at 58. On the contrast between ‘real’ and ‘oral’ practice see Simma, supra note 27, at 213-223; Bruno Simma and Philip Alston, ‘The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles’, 12 Australian Year Book of International Law (1992) 82, at 88-100; Bruno Simma and Andreas L. Paulus, ‘The Responsibility of Individuals for Human Rights Abuses in Internal Conflicts: A Positivist View’, 93 AJIL (1999) 302, at 307-308 and 316. 70 See, e.g., Wood, First Report, supra note 64, at para. 84; Wood, Second Report, supra note 64, at paras. 5, 41(e).

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Several authors71 start from the premise that certain customary norms on immunities are well rooted in international practice. In their opinion, the problem is solved entirely by determining whether a new customary norm, establishing an exception (the so-called human rights exception) to said immunity, has come into existence more recently. This possible norm should enable national courts to exercise their jurisdiction over foreign States, foreign State officials, and international organisations accused of serious violations of fundamental human rights. After a mainly quantitative examination of inter-State practice and international case law, the authors in question reach the conclusion that the alleged ‘human rights exception’ is not supported by sufficient State practice. In this view, the existence of a conflict between norms on immunities and norms on fundamental human rights is therefore ruled out on the basis of the method of identifying international custom. In fact, the ICJ has also adopted this view, in the Arrest Warrant72 and the Jurisdictional Immunities of the State73 cases. In the latter case, although the Court had already excluded in abstracto the possibility of a conflict between the rule on State immunity and the rule on war crimes, it also denied the existence of a ‘human rights exception’ to immunity on the basis of said traditional method of identification of custom.74 In my view, this thesis can be criticised for various reasons, all linked to an outdated concept of international custom and to an outdated method of identifying custom.75 However, another criticism is also due. The argument in question is based on a simplistic interpretive method because it requires that the interpreter confine himself to seeking a human rights exception only in State practice specifically pertaining to the field of immunities.76 This would lead to the international law of immunities being considered a kind of self-contained regime that contains within itself the general rule 71 See, e.g., Zimmerman, supra note 63; Christian Tomuschat, ‘L’immunité des Etats en cas de violations graves des droits de l’homme’, 109 RGDIP (2005) 51; Carlo Focarelli, ‘Immunité des Etats et jus cogens. La dynamique du droit international et la fonction du jus cogens dans le processus de changement de la règle sur l’immunité juridictionnelle des Etats étrangers’, 112 RGDIP (2008) 761; Gattini, supra note 63, at 174-176. 72 ICJ, Case Concerning the Arrest Warrant, supra note 42, at paras. 56-59. 73 ICJ, Jurisdictional Immunities, supra note 43. 74 Ibid., at paras. 83-91. 75 See Pisillo Mazzeschi, ‘La protezione’, supra note 46, at 309-310; Thilo Rensmann, ‘Impact on the Immunity of States and their Officials’, in Kamminga and Scheinin (eds.), supra note 27, 151, at 162-163. 76 For similar criticism see Rensmann, supra note 75, at 167.

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and the possible exception to it. Instead I believe that the norms on immunities should not be interpreted in isolation in the exclusive context of their field, but should also be compared with the norms contained in other, possibly more recent, fields of international law.77 In short, precisely because the international legal order has a unitary and uniform character, nothing prevents the interpreter from comparing norms that come from different fields, thus providing a ‘systematic’ interpretation of international law.

2. Traditional Concept of General Principles of Law Recognised In Foro Domestico As is well known, the issue of the general principles of law recognised by civilised nations in foro domestico has always aroused a variety of opinions among scholars.78 In particular, many advocates of ‘voluntaristic’ positivism have even denied that these principles have the value of international legal norms, and have considered them either as mere interpretative criteria or as simple inspirational criteria for the creative activity of the law by an international court or arbitrator.

77 For this view see also the Dissenting opinion of Judges Rozakis and Caflisch in ECtHR, AlAdsani, supra note 39, at para. 3; the Separate opinion of Judge ad hoc Dugard in ICJ, Case Concerning Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment of 3 February 2006, ICJ Reports 2006, at paras. 6-12; and the Concurring opinion of Judge Pinto de Albuquerque, joined by Judges Hajiyev, Pejchal, and Delov in ECtHR, Grand Chamber, Al-Dulimi and Montana Management Inc. v. Switzerland, Appl. No. 5809/08, Judgment, 21 June 2016, at para. 71. See also ILC, Fragmentation, supra note 1, at paras. 410-423, for the principle of ‘systemic integration’ in resolving normative conflicts. 78 See, inter alia, the following classical works: Hersh Lauterpacht, Private Law Sources and Analogies in International Law (with special Reference to International Arbitration) (1927); Bin Cheng, General Principles of Law: as Applied by International Courts and Tribunals (1953); Alain Pellet, Recherche sur les Principes Généraux de Droit en Droit International (1974). More recently see Robert Kolb, La Bonne Foie en Droit International Public: Contribution à l’Etude des Principes Généraux de Droit (1999); Alain Pellet, ‘Article 38’, in Andreas Zimmerman, Christian Tomuschat, and Karin Oellers-Frahm (eds.), The Statute of the International Court of Justice: A Commentary (2006) 677; Giorgio Gaja, ‘General Principles of Law’, May 2013, Max Planck Encyclopedia of Public International Law (MPEPIL), available at http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1410. In 2018 the ILC decided to include the topic ‘General principles of law’ in its programme of work and appointed Marcelo Vásquez-Bermúdez as Special Rapporteur. See also the 2017 recommendation of the WorkingGroup on the long-term programme of work, ILC, Report of the International Law Commission, 1 May-2 June and 3 July-4 August 2017, UN Doc. A/72/10.

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There are also some traditional positivists who recognise these principles as true international norms, however they tend to consider them a source of subordinate level in relation to custom and treaties. In fact, for some, these principles are subordinate to custom because they have been transferred ‘all together in block’ to international law by a customary norm. For other scholars, they are subordinate to treaties, as they were set up as a new source of international law by Article 38 Statute of the Permanent Court of International Justice.79 Finally, with regard to the content of these principles, traditional positivists believe that the principles recognised in foro domestico are only applicable in international law when they are fit to govern situations typical of this law, namely inter-State relations. They are allegedly not applicable when they govern relationships between States and individuals or between individuals. This means that these principles are not considered applicable to a wide range of legal relationships currently governed by contemporary international law. It is clear that in denying legal validity to general principles of law, or in any case giving them a subordinate level in source hierarchy and limiting their applicability to international law, all these views tend to ascribe a modest role and little value to these principles. This means limiting their potential in ‘new’ international law.

3. Traditional Concept of General Principles of International Law The views of traditional positivist writers regarding the general principles of international law, in other words regarding principles not derived from domestic legal systems but based solely on international law, are even more conservative.80 A first group of scholars even denies the existence of such principles and believes that they do not constitute an independent source of international law, separate from customary and treaty norms.81 For both views, see the authors cited by Pellet, supra note 78, at 370-380. On this topic see, recently, Riccardo Pisillo Mazzeschi and Alessandra Viviani, ‘General Principles of International Law: From Rules to Values?’, in Pisillo Mazzeschi and De Sena (eds.), supra note 13, 113, at 113-161. 81 See Georges Scelle, Précis de Droit des Gens. Principes et systématique, Deuxième partie (1934), at 312-315; Hans Kelsen, Principles of International Law (2nd ed., 1966), at 440, 539-540; Grigory I. 79 80

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A second group of authors admits the existence of the general principles of international law but considers them to be mainly principles of legal logic or principles forming the basis of all legal systems.82 In this way, their number and role end up being very limited. According to a third view, the principles in question arise from the very structure of the international legal order,83 for example, principles such as consent, self-defence, good faith, territorial sovereignty, domestic jurisdiction, formal equality of States, and reciprocity. As you can see, these are only a few principles, all of which belong to ‘old’ international law. Finally, according to a fourth view, now supported by various scholars, the general principles of international law derive from already existing customary norms or by a particular treaty regime by induction, abstraction, or generalisation84. Compared to Tunkin, Theory of International Law (tr. William E. Butler, 1974), at 190-203. Other writers only admit the existence of the general principles of law recognised in foro domestico: see, e.g., Dionisio Anzilotti, Corso di diritto internazionale (1955), at 106-110; Paul De Visscher, ‘Cours général de droit international public’, 136 RdC (1972, II) 112; Lord Arnold D. Mc Nair, ‘The General Principles of Law Recognized by Civilized Nations’, 33 British Yearbook of International Law (BYIL) (1957) 1; Wolfgang Friedmann, ‘The Uses of “General Principles” in the Development of International Law’, 57 AJIL (1963) 279. 82 See, e.g., Hermann Mosler, ‘General Principles of Law’, in Encyclopedia of Public International Law, vol. 7 (1984) 511; Gerald G. Fitzmaurice, ‘Some Problems Regarding the Formal Sources of International Law’, in Frederik M. van Asbeck et al. (eds.), Symbolae Verzijl (1958), at 153-176; Christian Dominicé, ‘La societè internationale à la recherche de son équilibre. Cours général de droit international public’, 370 RdC (2013), at 82-86. 83 See, e.g., Max Sørensen, Les sources du droit international. Etude sur la jurisprudence de la Cour Permanente de Justice Internationale (1946), at 116-122; M. Cherif Bassiouni, ‘A Functional Approach to “General Principles of International Law”’, 11 MJIL (1990) 768, especially at 770-775; Oscar Schachter, International Law in Theory and Practice (1991), at 50-55 (but this writer distinguishes five categories of general principles); Ian Brownlie, Principles of Public International Law (7th ed., 2008), at 19. 84 This view is widespread in literature. See, e.g., Wilhelm Wengler, Völkerrecht (1964), at 361-371; Gaetano Arangio-Ruiz, The UN Declaration on Friendly Relations and the System of the Sources of International Law (1979), at 65-70; Johan G. Lammers, ‘General Principles of Law Recognized by Civilized Nations’, in Frits Kalshoven, Pieter J. Kuyper, and Johan G. Lammers (eds.), Essays on the Development of the International Legal Order in memory of Haro F. Van Panhuis (1980) 53, at 69, 72-74; Christian Tomuschat, ‘International Law: Ensuring the Survival of Mankind on the Eve of a New Century. General Course on Public International Law’, 281 RdC (1999) 339; Pierre-Marie Dupuy, ‘L’unité de l’ordre juridique international. Cours général de droit international public’, 297 RdC (2002) 182; Guillaume Protière, ‘Les principes généraux dans la jurisprudence internationale: éléments d’une différenciation fonctionnelle’, 1 Revue du Droit Public et de la Science Politique en France et à l’Etranger (2008) 259; Gaja, supra note 78, at para. 18; Rüdiger Wolfrum, ‘Sources of International Law’, May

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the others, this theory allows one to give a greater role to the general principles of international law. However, it is also conservative, because it still connects and relates the existence and validity of general principles to existing customary or treaty law. It therefore gives general principles a minimal role in the creation and progressive development of ‘new’ international law.

4. Sceptical Views About Jus Cogens Finally, many traditional positivists show an attitude of opposition or considerable scepticism towards the concept of jus cogens,85 or at least towards its application to resolving antinomies.86 As already mentioned, ‘formalistic’ and ‘voluntaristic’ positivism tend to reject the idea that there are collective interests of the international community and even more the idea that some of those interests or values are so fundamental as to be incorporated in peremptory and hierarchically superior norms. To quote Weiler and Paulus: ‘The assertion of hierarchies in international law challenges the very foundation of a classical, positivist account of international law – sovereign equality and consent – and revives thereby the ancient debate between positivists and naturalists’.87 In addition, the problem of the hierarchy of norms in international law also raises the broader issue of the very purpose of the international legal order, understood by 2011, MPEPIL, available at http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-978 0199231690-e1471, paras. 33-39. 85 See, inter alia, Weil, ‘Towards Relative Normativity’, supra note 15, at 423-430; Weil, ‘Le droit international’, supra note 15, at 223-224, 262-279; Georg Schwarzenberger, ‘International Jus Cogens?’, 43 Texas Law Review (1965) 455, especially at 476 et seq.; Georg Schwarzenberger, International Law and Order (1971), at 27-56; Gennadij M. Danilenko, Law-Making in the International Community (1993), at 211-252. However, it should be noted that the ILC has decided to start a codification work on the topic ‘jus cogens’ and has appointed Dire Tladi as Special Rapporteur. See Dire Tladi, First report on jus cogens, UN Doc. A/CN.4/693, 8 March 2016; Dire Tladi, Second report on jus cogens, UN Doc. A/CN.4/706, 16 March 2017; Dire Tladi., Third report on jus cogens, UN Doc. A/CN.4/714, 12 February 2018. 86 See, e.g., Focarelli, supra note 71; Joe Verhoeven, ‘Considérations sur ce qui est commun. Cours général de droit international public (2002)’, 334 RdC (2008) 228, especially at 235-236.; Robert Kolb, ‘Observations sur l’évolution du concept de jus cogens’, 113 RGDIP (2009) 837, at 844-846; Gattini, supra note 63, at 178-180. 87 Joseph Weiler and Andreas L. Paulus, ‘The Structure of Change in International Law or Is There a Hierarchy of Norms in International Law?’, 8 EJIL (1997) 559.

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the scholars in question as a system of coexistence and coordination among sovereign States pursuing their own interests in a wide area of freedom protected by international law,88 rather than as a system of co-operation that pursues interests and collective values of the international community,89 which can also transcend the individual interests of single States. On a more specific and concrete level, these positivist writers stand opposite the idea that international law has become a complex legal system requiring a hierarchy of norms to resolve antinomies. They also maintain that the content of jus cogens is indeterminate and therefore creates uncertainty and instability in international law.90 This is aggravated by the fact that the logic of jus cogens requires that its content be determined by a judge, and that on the contrary, compulsory jurisdiction is lacking in international law.91 Finally, several of these scholars, basically favourable to the persistent objector rule, raise doubts about the compatibility of that rule with the concept of jus cogens.92 In conclusion, the most traditional positivist scholars are sceptical, for many reasons, about jus cogens, although, as we shall see,93 there are contemporary writers who reconcile the positivist approach with the concept of jus cogens.94 In any case, sceptical views on jus cogens end up excluding the possibility that the hierarchical criterion can work to resolve conflicts between norms of general international law.

88 See Weil, ‘Towards Relative Normativity’, supra note 15, at 418-421; Combacau and Sur, supra note 15, at 17-28. 89 See Friedmann, supra note 13; Friedmann, ‘General Course in Public International Law’, 127 RdC (1969, II) 47; Carrillo Salcedo, supra note 13. See also the Declaration of President Bedjaoui in ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, ICJ Reports 1996, 270271, at para. 13. 90 See Weil, ‘Le droit international’, supra note 15, at 269-271, 274-277. See also the writers cited by Tladi, First report, supra note 85, at para. 43, fn. 135. 91 On this point see Carrillo Salcedo, supra note 13, at 592. 92 See the doctrinal debate cited by Weiler and Paulus, supra note 87, at 559, fn. 52. 93 See infra, part V.C. 94 See Tladi, First report, supra note 85, at paras. 50-60.

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C. Results of the Traditional Positivist Method

Summarising, the traditional positivist method of addressing the problem of conflicts between norms of general international law almost always ends up promoting ‘old’ rather than ‘new’ international law. This occurs first of all by adopting views that seek to deny or avoid conflicts. Even conservative views on international sources tend to achieve the same result indirectly, because they resist the process of creation and/or identification of new norms of general international law. This is evident with regard to the traditional concept of custom, which by relying on the predominance of diuturnitas and its restrictive interpretation, favours a static rather than dynamic nature of the international legal order. The same ‘static’ result is obtained by means of the traditional concept of principles of law recognized in foro domestico, which, if interpreted in a more modern way, could play an important role in the new areas of international law. A similar argument applies to the general principles of international law. Finally, even sceptical views on the operation of jus cogens, albeit for different reasons, tend to favour ‘old’ over ‘new’ international law. In fact, most jus cogens norms belong to ‘new’ international law. This ‘static’ conception of international law not only hampers identification of new norms of general international law but also tends to obstruct the proper operation of at least two of the three criteria for the solution of antinomies used in the general theory of law: the chronological criterion, which tends to favour the dynamic rather than the static nature of any legal system, and the hierarchical criterion, which requires an opening, instead of a closure, towards the idea of peremptory and hierarchically superior norms.

V. The Modern Positivist Method As mentioned above, there is a second general method, which I define as ‘modern positivist’, for solving antinomies in international law. With this term, I refer to a method that one can still define as positivist in a broad sense because it has a ‘normativist’ character, i.e. it is founded on rules rather than on values. On the other

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hand, however, it can be defined as ‘modern’ because it is more open to innovations in the theory of international sources and to the ideas of ‘verticalisation’ and ‘humanisation’ of contemporary international law.95 The literature and international practice that adopt this method do not deny the existence of conflicts between ‘old’ and ‘new’ international law, but try to solve them with more ‘modern’ tools, i.e. with more innovative theories about the sources of general international law and the methods for their identification. However, in this general approach, we can distinguish several more specific views, covering the following aspects: a) a modern concept of international custom; b) a modern concept of general principles of law recognised in foro domestico; c) use of the hierarchical criterion through the notion of jus cogens.

A. Modern Concept of Custom

A first view put forward by many scholars is that in some or all fields of ‘new’ international law, the manner in which customary norms are created and/or identified is innovative compared to the traditional manner. The innovations regard two different but closely related aspects. First, there is a tendency to extend the concept of diuturnitas96 to encompass not only the so-called ‘real’ practice of States, determined by their actual behaviour, but also their so-called ‘written and oral’ practice, consisting of certain legal acts, statements, and declarations of States. According to some authors,97 ‘written and oral’ practice has become even more important than ‘real’ practice. Secondly, there is also a tendency to give a more important role to the element opinio juris than to the element diuturnitas.98 With regard to the method of identifiSee supra, part III.A. See, e.g., Schachter, supra note 83, at 335-342; Meron, The Humanization, supra note 13, at 360366; Pisillo Mazzeschi, ‘Responsabilité’, supra note 13, at 205. 97 Wouters and Ryngaert, supra note 46, at 115-118, 123. 98 See Georges Abi-Saab, ‘Reflexions on the Contemporary Processes of Developing International Law, Gilberto Amado Memorial Lecture, June 20 1985; Georges Abi-Saab, ‘Cours général de droit international public’, 207 RdC (1987-VII) 169; Schachter, supra note 83, at 338-342; Georges Abi-Saab, ‘Entangled Treaty and Custom’, in Yoram Dinstein (ed.), International Law at a Time of Perplexity: Essays in Honour of Shabtai Rosenne (1988) 717, at 729-738; Tomuschat, supra note 84, at 333-334; 95 96

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cation of custom, the traditional logic, whereby the assessment of diuturnitas is preliminary and fundamental, while the assessment of opinio juris only serves to confirm the existence of custom, is even reversed. In fact, this modern concept of custom and/or its identification lends itself to application in newer areas of international law (for instance, human rights, international criminal law, international environmental and development law, the law on prohibition of force), where the customary norms are characterised by strong opinio juris of the international community, and on the contrary, by rather weak or sometimes even contradictory inter-State practice. Indeed, in support of this modern concept of custom, several authors cite some important international judgments concerning the above mentioned areas, such as two decisions of the Nuremberg Tribunal,99 the ICJ decision in the Nicaragua case,100 the decision of the International Criminal Tribunal for the Former Yugoslavia (ICTY) Appeal Chamber in the Tadic case,101 and other precedents of international practice. In my view, the modern concept of custom that, still in the context of the twoelement approach, favours ‘written and oral’ practice and the element opinio juris, must be approved.102 Furthermore, I believe that it not only applies to new areas of international law, but is spreading in a more generalised way to the whole international legal order, because of the general process of acceleration in the formation of custom, especially in the context of conferences for codification of international law. However, I must also admit that adherence to this modern concept of custom is not neutral in terms of the values and interests at stake, since by favouring opinio juris Antonio Cassese, ‘The Martens Clause: Half a Loaf or Simply Pie in the Sky?’, 11 EJIL (2000) 187, at 213-215; Wouters and Ryngaert, supra note 46, at 127-131. 99 International Military Tribunal, Trial of German Major War Criminals, 1946, cmd. 6964, MIsc. No. 12, at 65; International Military Tribunal, United States v. von Leeb (‘The High Command Case’), 11 Trial of War Criminal before the Nuremberg Military Tribunals under Control Council Law No. 10 (1948), 462, at 533-35. 100 ICJ, Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, 27 June 1986, ICJ Reports 1986, at paras. 183-186, 218220. 101 International Criminal Tribunal for the former Yugoslavia (ICTY), Prosecutor v. Tadic, Decision on the defence motion for interlocutory appeal on jurisdiction, 2 October 1995, Case No. ICTY-94-1AR72, at para. 99. 102 But see, for a contrary view, Simma and Alston, supra note 69, at 104, who speak of a ‘strained, or even denaturated, ‘new’ theory of custom’.

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with respect to diuturnitas, this concept ends up favouring the identification of ‘new’ international law. It may therefore indirectly tend to resolve conflicts between ‘old’ and ‘new’ customary norms in favour of the former, perhaps through the chronological criterion for the resolution of antinomies.

B. Modern Concept of General Principles of Law Recognised In Foro Domestico

A second view, again in the context of the ‘modern positivist’ method, is supported by some scholars who give a very innovative role to the general principles of law recognised by civilised nations in foro domestico. A distinguished author103 argues that in contemporary international law, these principles can no longer be limited to those that are applicable, on the basis of content, to relations between States. Instead, they may also include principles that are applicable to relations between States and individuals, and which are intended to safeguard human dignity, such as for example principles prohibiting torture, massacre, genocide, slavery, apartheid, racial discrimination, and other inhumane methods of government. This view opens the possibility of expanding the list of fundamental human rights recognised by general international law, without resorting to traditional customary law. According to another scholar,104 there are norms of general international law on human rights which are not based on custom or inter-State practice or State consent, but are ‘constitutional’ in the sense that they derive from rights contained in the constitutions of contemporary States. In fact, these two theories have been supported in the literature and international practice. Although there is still no agreement on the role of the principles of law recognised in foro domestico in the framework of international sources, it is admitted that they are very useful for regulating new areas of international law, where customary

Conforti, Diritto internazionale, supra note 2, at 49-52. See also Benedetto Conforti, Appunti dalle lezioni di diritto internazionale (1976), at 27-28. 104 Louis Henkin, ‘Human Rights and “State Sovereignty”’, 25 Georgia Journal of International Comparative Law (1996) 31. 103

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norms are not already established.105 Consider, for example, the case law of the international criminal courts in matters of international criminal law, the case law of the internal administrative tribunals of international organisations in the field of workers’ rights, and the case law of the European Court of Human Rights and the Court of Justice of the European Union in the field of human rights. Thus, the principles of law recognised in foro domestico, if conceived in a modern way, require neither a limit to their content nor the element of traditional inter-State diuturnitas. This means that they have much dynamic potential in the international legal order.

C. Jus Cogens as a Hierarchical Criterion

The third view of modern positivists, not necessarily an alternative to the two examined above, favours use of the concept of jus cogens. This means using that hierarchical criterion that also plays an important role in the general theory of law.106 I will spare you the history of the concept of jus cogens in international law,107 however some comments on its use as an instrument to resolve antinomies between norms of general international law are in order. It should be said that this instrument radically marks the passage from a ‘traditional positivist’ to a ‘modern positivist’ method, since it is based on the idea that a process of ‘verticalisation’ of international law and a change in the very nature of the international community have occurred.108 On a more practical level, the theory in question argues that the peremptory (or jus cogens) norms of international law (whether customs or principles of law recognised in foro domestico or general principles of international law) constitute a hierarchically superior source (or at least with a higher force of resistance) than other norms of the same legal order.109 So, in the See, e.g., Antonio Cassese, Diritto internazionale (2nd ed., 2013), at 293-295. See supra para. II.A. 107 For an historical evolution of the concept of jus cogens see Tladi, First report, supra note 85, at paras. 18-41. 108 See supra part III.A. 109 According to Tladi, the hierarchical superiority of jus cogens ‘cannot be seriously questioned’. See Tladi, Second report, supra note 85, at para. 27. 105 106

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case of irreconcilable conflict between peremptory norms and non-peremptory norms, the former prevail. Again, the best example is the conflict between the general norms on international immunities (which are commonly considered non-peremptory) and the general norms on fundamental human rights and prohibition of international crimes (which are commonly considered peremptory). Many authors argue that in this situation, the instrument of jus cogens resolves the conflict in favour of the second set of norms.110 This argument has also been supported by national and international courts in some famous cases, some major examples of which are: the decisions of the Court of Livadia and the Greek Supreme Court in the Distomo case;111 the judgments of the Italian Court of Cassation in the Ferrini112 and Milde113 cases; the dissenting opinion of Judges Rozakis, Caflish, Costa, Wildhaber, Cabral Barreto, and Vajić in the AlAdsani decision of the European Court of Human Rights;114 the opinions of Lords Browne-Wilkinson115 and Hope of Craighead116 in the Pinochet III judgment of the House of Lords; the dissenting opinions of Judge Al-Khasawneh and Judge ad hoc

See, inter alia, Mathias Reimann, ‘A Human Rights Exception to Sovereign Immunity: Some Thoughts on Princz v. Federal Republic of Germany’, 16 MJIL (1995) 403, at 420-423; M. Cherif Bassiouni, ‘International Crimes: Jus Cogens and Obligations Erga Omnes’, 59 Law and Contemporary Problems (1996) 63; Andrea Bianchi, ‘Immunity versus Human Rights: The Pinochet Case’, 10 EJIL (1999) 265; Maurice Kamto, ‘Une troublante ‘immunité totale’ du ministre des affaires étrangères’, 35 Revue belge de droit international (2002) 518, at 526-529; Geoffrey Robertson, Crimes against Humanity: The Struggle for Global Justice (1999), at 408-409; Rosanne Van Alebeek, ‘The Pinochet Case: International Human Rights Law on Trial’, 71 BYIL (2000) 49; Pisillo Mazzeschi, supra note 62, at 316-326. 111 Court of First Instance of Leivadia, Prefecture of Voiotia v. Federal Republic of Germany, Case No. 137/1997, Judgment of 30 October 1997, excerpts reprinted in: 50 Revue Hellenique de Droit International (1997) 595; Hellenic Supreme Court (Areios Pagos), Prefecture of Voiotia v. Federal Republic of Germany, Case No. 11/2000, Decision of 4 May 2000 (for a summary see Maria Gavouneli and Ilias Bantekas, Prefecture of Voiotia v. Federal Republic of Germany Greek Supreme Court decision on sovereign immunity in action for injuries caused by humanitarian law violations during military occupation, 95 AJIL (2001) 198). 112 Italian Court of Cassation, Ferrini, supra note 36. 113 Italian Court of Cassation, Milde, supra note 37. 114 ECtHR, Al-Adsani, supra note 39, Joint Dissenting Opinion of Judges Rozakis, Caflish, Costa, Wildhaber, Cabral Barreto, and Vajić. 115 Pinochet III, supra note 33, Opinion of Lord Browne-Wilkinson, at para. 198. 116 Pinochet III, supra note 33, Opinion of Lord Hope of Craighead, at para. 247. 110

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van den Wyngaert in the ICJ judgment on Arrest Warrant;117 the separate opinion of Judge ad hoc Dugard in the ICJ judgment on Armed Activities on the Territory of the Congo;118 the dissenting opinion of Judge Cançado Trindade in the ICJ judgment on Jurisdictional Immunities of the State.119 In my opinion, the method of resolving the conflict in question based on jus cogens should be approved, but should be specified with regard to four important aspects.120 First, the norms on international immunities may not only be in conflict with the substantive norms on the protection of fundamental human rights and the prohibition of international crimes, but also and more directly with the instrumental norms on the right of access to justice and the right to reparation for the victims.121 In fact, it is clear that the existence of norms in international law, prohibiting violations of fundamental human rights and international crimes (norms creating obligations for States and corresponding rights for individuals), is totally useless if individuals cannot then effectively invoke and enforce these norms through the right of access to justice and the right to reparation. In other words, there is a necessary functional link between the substantive and the instrumental norms, based on the already mentioned general principle of law for which there is no substantive right if there is no judicial remedy for its violation. Second, and as a result, the conflict between the two sets of norms should not be assessed in the abstract, but in concrete terms. This conflict exists if and when, in a given case, the norms on international immunities prevent the victim of violations of fundamental human rights or international crimes from obtaining access to justice and reparation in any other way or in an equivalent manner (according to the rule of ‘equivalent protection’). In other words, the victim’s right to obtain access to justice cannot be precluded entirely as that would constitute a real denial of justice. ICJ, Case Concerning the Arrest Warrant, supra note 42, Dissenting Opinion of Judge AlKhasawneh, at 98, para.7; ibid., Dissenting Opinion of Judge ad hoc van den Wyngaert, at 155, paras. 2728. 118 ICJ, Case Concerning Armed Activities, supra note 77, Separate Opinion of Judge ad hoc Dugard, at 84-89, paras. 3-14. 119 ICJ, Jurisdictional Immunities, supra note 43, Dissenting Opinion of Judge Cançado Trindade, at 179 et seq., especially paras. 117-120, 214-220, and 288-299. 120 See also Pisillo Mazzeschi, supra note 62, at 316-326 and supra note 59, at 13-22. 121 For this view, see also the Dissenting Opinion of Judge Yusuf, in ICJ, Jurisdictional Immunities, supra note 43, at 291 et seq., paras. 9-20 and 30-34. 117

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Third, in my view, the instrumental norms ensuring access to justice and the right to reparation, at least for the violation of fundamental human rights, have now become part of international customary law. Fourth, such instrumental norms also have the character of jus cogens, because as I already said, they have a functional, strict and necessary link with the substantive norms that protect basic human rights, which have the character of jus cogens. This conclusion also seems to me inevitable from a solely logical point of view. In fact, the peremptory nature, for the entire international community, of the need to protect fundamental human rights and to prevent impunity for international crimes would not have any practical effectiveness if access to justice and right to reparation for victims of violations were not covered by norms also having the same peremptory nature. This view was also expressed by the Inter-American Court of Human Rights in its Goiburú judgment;122 and by the President of the Special Tribunal for Lebanon in his order of 2010 in the El-Sayed case.123 I now return to the more general theory, which favours applying jus cogens as a hierarchical criterion for resolving conflicts between norms of general international law. I believe that this theory must be approved and that it can also be successfully used in fields other than those exemplified above. One advantage is that it provides a clear solution to such conflicts and thus ensures legal certainty. Another advantage, of course, is that it finally gives substance to the idea that the norms of jus cogens, incorporating core values of the international community, should take precedence over norms of general international law of a non-peremptory nature. D. Results of the Modern Positivist Method

In my opinion, the modern positivist method is more appropriate today than the traditional positivist method for addressing the problem of conflicts between norms of general international law. Inter-American Court of Human Rights, Goiburú et al. v. Paraguay, Merits, Reparations, and Costs, Judgment, 22 September 2006, Series C No. 153. 123 Special Tribunal for Lebanon, In the Matter of El Sayed, Order by the President Cassese, 15 April 2010, Case No. CH/PRES/2010/01, available at https://www.stl-tsl.org/crs/assets/Uploads/20100415_ CH-PRES-2010-01_Order_Assigning_Matter_to_Pre-Trial_Judge_EN.pdf?. See also the Concurring opinion of Judge Pinto de Albuquerque in ECtHR, Al-Dulimi, supra note 75, at paras. 33-37 (upholding the right of access to a court in criminal matters as ‘an intransgressible norm of jus cogens’). 122

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The modern concepts of customary law and of principles recognised in foro domestico, reflecting a ‘dynamic’ approach to general international law, allow greater openness to ‘new norms’ and ‘new’ areas. As a result, the problem of antinomies can be solved in a more balanced way. This, of course, does not necessarily mean that the modern positivist method always ends up resolving conflicts in favour of ‘new’ international law. In certain cases, for example, the criterion of speciality could favour ‘old’ norms with respect to ‘new’ ones. With regard to the view that favours the use of the hierarchical criterion of jus cogens, it has the advantages listed above. However, it must be recognised that international practice and jurisprudence, while often admitting the existence of jus cogens in contemporary international law in the abstract, have so far shown little willingness to apply this concept in practice, especially in order to resolve antinomies. Moreover, several authors hold that the exact content of jus cogens is still uncertain.124

VI. The Value-Based Method Finally, I come to the third general method used by international law to resolve antinomies or to coordinate conflicting norms or principles. This method is radically different from the two ‘positivist’ methods examined above, because it is based primarily on values and general principles that express and incorporate these values. Some scholars favour applying this method, especially for resolving conflicts between ‘State-centred’ and ‘human-centred’ norms.125 Actually, this method is not new, and is rooted in the general theory of law. Since the 1960s, several authoritative scholars of the general theory of law have advanced innovative ideas concerning the foundation and sources of law. They criticised positivism as a rigid ‘model of rules’ and proposed a model based on rights and principles, i.e. ultimately on values. This approach has been called a ‘doctrinal movement of fundamental rights’ or ‘neo-constitutionalism’, or more broadly ‘modern normative theory of law’126 which ascribes an important role to judicial interpretation of the law. 124 125 126

See supra part IV.B.1. See infra part VI.B. See supra notes 47 and 48.

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It is therefore not surprising that these theories have also influenced international legal theory. In fact, since the 1970s, some authors127 have proposed an approach to the interpretation of human rights norms in international law based on values, especially in the case of vague and general norms. On the other hand, it is clear that the two processes of ‘verticalisation’ and ‘humanisation’ of international law that gradually developed in the same period have contributed to the growth of the role of values in the entire international legal order. The growth in importance of the general principles of international law and of the criterion of ‘balancing’ conflicting principles and values can also be placed in this general framework. These two aspects deserve some comments.

A. The Growing Role of General Principles of International Law

As we have seen,128 traditional positivist writers either deny the existence of the general principles of international law as a source of that law or propose a series of conservative views that tend to severely limit the role of these principles. The prevailing view is that these principles derive from already existing customary norms through a process of induction, abstraction, or generalisation. In my opinion,129 this argument can be accepted, but only with regard to certain general principles of international law, which are usually the oldest and those working in the more traditional areas of international law. For example, one can cite such principles as territorial sovereignty, formal equality of States, effectiveness, freedom of the seas, State responsibility for wrongful acts, reparation for wrongful acts, and selfdefence. In identifying these principles, the interpreter who adopts a positivist approach, derives a vague and general principle from specific customary norms or from groups of specific customary norms. But the difference between these principles and the customary norms from which they are abstracted or deduced is relative, because the criteria of generality and vagueness are also relative. 127 See Luigi Condorelli, ‘La proprietà nella Convenzione europea dei diritti dell’uomo’, 53 Rivista di diritto internazionale (1970) 175; Luigi Condorelli, ‘I diritti politici nella Convenzione europea dei diritti dell’uomo’, 54 Rivista di diritto internazionale (1971) 189. 128 Supra part IV.B.3. 129 See Pisillo Mazzeschi and Viviani, supra note 80, especially at 137-155.

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However, in my view, in addition to these general principles of international law, there are also other principles, which are usually the most recent ones and those working in the newer areas of international law. Some are binding but non-peremptory: for example, the principles of non-harmful use of State territory, prevention of significant transboundary pollution, peaceful settlement of international disputes, and deep-seabed resources as a common heritage of mankind. Others have binding force and are even peremptory: for example, the principles of non-use of force, selfdetermination of peoples, prohibition of genocide, prohibition of gross violations of human rights, and prohibition of violations of fundamental obligations under international humanitarian law. These principles are more interesting because of their foundation and different method of identification. In fact, several authoritative scholars hold that these principles are based not on existing customary norms but on their general recognition by the international community,130 often understood in the broadest sense, i.e. not limited to States and international organisations, but including non-governmental organisations, individuals, groups of individuals, legal entities, associations, and political movements representing civil society in various ways. This general recognition does not depend on the classic elements of diuturnitas and opinio juris that characterise customary norms, but on the fact that the international community believes that these principles express shared international legal values, and sometimes even fundamental and therefore peremptory values. This belief largely stems from the ethical/ legal value of the said principles, and is identified by many elements of the ‘real’ as well as ‘written and oral’ practice of all the above actors constituting the international community at large. Furthermore, in contemporary international life, characterised by a multitude of international forums and frequent international relations between these actors, recognition of the principles in question can be quick, provided it is clear and widely generalised.

130 See Simma, supra note 27, at 224-229; Simma and Alston, supra note 69, at 102-106; Bassiouni, supra note 83, at 769; Henkin, supra note 104, at 38-39; Dupuy, supra note 84, at 182-187. For a similar view see also Dominicé, supra note 82, at 91-92; ICJ, Pulp Mills on the River Uruguay (Argentina v. Uruguay), Merits, Judgment, 20 April 2010, ICJ Reports 2010, Separate Opinion of Judge Cançado Trindade, at 151, para. 39.

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This view is confirmed by several aspects of international practice and jurisprudence.131 However, it must be emphasised that at theoretical level, this argument assumes that these ‘new’ general principles of international law develop outside the traditional system of sources of international law. It also means that in identifying these principles, the interpreter does not take a positivistic approach, but a broadly neo-naturalistic approach inspired by the modern normative theories of law (‘doctrinal movement for fundamental rights’ and ‘neo-constitutionalism’) that I mentioned above. In conclusion, in my opinion, it must be recognised that there are two categories of general principles of international law, which by and large developed in different historical periods and in different ways. When the international community was smaller and consisted only of States, the values and general principles regulating this community had to go through the formal sources, and basically through traditional customary law that was a guarantee of stability and certainty, especially by virtue of its element of inter-State diuturnitas. This result was also influenced by the dominant positivism of the time. When in more recent times the international community was extended to other actors, the general values and principles of this community could express themselves even outside formal sources and traditional customary law. This result was also influenced by the fact that many of the latest scholars of international law have gone beyond positivism. In other words, in contemporary international law, as in any developed legal system, certain values, especially the most traditional ones, are incorporated in positive law and are based on formal sources; but other values, especially the ‘newest’, may be independent of formal sources and based directly on recognition by the social basis of the legal system, namely the international community. This difference should not be overestimated, because in my opinion the ultimate foundation of every legal order still rests on its recognition, in a more or less formal way, by the social basis of the order. Finally, the growing role of general principles of international law is important because it greatly affects the problem of coordinating different values. Indeed, one may well wonder whether the criterion of ‘balancing’, which is useful for coordinating

131 See the international practice and case law cited by Simma, supra note 27, at 226-228; and by Simma and Alston, supra note 69, at 105-106.

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different principles of State constitutions,132 also works for coordinating the principles of international law.

B. Balancing Conflicting Principles or Values

I believe that the criterion of balancing principles and values can also be used in international law when specific rules to resolve antinomies are lacking. This especially happens when the conflict is between general principles of international law. Of course, it is also required that the conflict arise between two or more principles and values of the same force and that the interpreter be unable to apply the hierarchical criterion of jus cogens. This view is shared by several authors and confirmed by some precedents of international practice. Let me again take the example of the conflict between the norms on immunities and those on fundamental human rights and the prohibition of international crimes. I assume that since the two sets of norms are of a general nature, the conflict actually arises between general principles of international law rather than between customary norms. I also distinguish the immunity of foreign State officials, the immunity of foreign States and the immunity of international organisations. With regard to immunity of foreign State officials, the criterion of balancing principles or values was explicitly proposed by judges Higgins, Kooijmans, and Buergenthal in their joint separate opinion in the ICJ Arrest Warrant judgment.133 They criticised the approach adopted by the majority of judges of the Court, who failed to appropriately balance the interests underlying the exercise of jurisdiction and those underlying the exception of immunity. They also said that since the norm on immunity evolves over time, a balancing test is now necessary between the global human community’s interest in preventing impunity for perpetrators of serious crimes against its members and the community of States’ interest in allowing them to act freely at inter-State level without undue interference. Thus ‘[a] balance […] must be struck between two sets of functions which are both valued by the international commu-

See supra part II.B. ICJ, Case Concerning the Arrest Warrant, supra note 42, Joint Separate Opinion of Judges Higgins, Kooijmans, and Buergenthal, at 85 et seq., paras. 70-79. 132 133

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nity.’134 A similar argument also inspired, albeit less explicitly, the views of certain Lord Justices in the Pinochet I and Pinochet III judgments of the House of Lords.135 They excluded the possibility that the functional immunity of a Head of State could cover acts of torture and other serious international crimes, since such acts can never be regarded by international law as acts performed in the exercise of official duties of a Head of State. The balancing criterion was also supported with regard to State immunity. In his dissenting opinion in the ICJ judgment on Jurisdictional Immunities of the State, judge Yusuf held that when jurisdictional immunities conflict with fundamental rights protected by human rights law or by humanitarian law, a balance between these different values is necessary, and that nowadays State use of immunity to obstruct access to justice and the right to an effective remedy can be considered a ‘misuse’ of immunity.136 According to some authors,137 the Italian Court of Cassation, though apparently using jus cogens in its Ferrini judgment,138 also actually balanced the values of the principle of sovereign equality of States (which implies recognising immunity to the State) and that of respect or inviolable human rights (which forms the basis of the ban on war crimes). The balancing test was also used, although with a different result, by the Greek and the Polish Supreme Courts in the Margellos139 and the Natoniewsky140 judgments. Regarding the immunity of international organisations, some elements of international practice seem to use the balancing test between conflicting principles or values. Albeit in a non-explicit way, this criterion was used by the European Court of HuIbid., at para. 75 (emphasis added). See in judgment Pinochet I, supra note 33, the opinions of Lord Steyn (para. 115) and Lord Nicholls of Birkenhead (at para. 110); and in judgment Pinochet III, supra note 33, the opinions of Lord Hutton (at paras. 225, 262, 265), Lord Phillips (at para. 290), and Lord Browne-Wilkinson (at para. 65). 136 ICJ, Jurisdictional Immunities of the State, supra note 43, Dissenting opinion of Judge Yusuf, at 291 et seq., especially at paras. 28-30 and 37. 137 Pasquale De Sena and Francesca De Vittor, ‘State Immunity and Human Rights: The Italian Supreme Court Decision on the Ferrini Case’, 16 EJIL (2005) 89. 138 Italian Court of Cassation, Ferrini, supra note 36. 139 Greek Supreme Court, Margellos and Others v. Federal Republic of Germany, Judgment, 17 September 2002, 129 ILR (2007) 533. See Pasquale De Sena, ‘Proportionality and Human Rights in International Law: Some ‘Utilitarian? Reflections’, 99 Rivista di diritto internazionale (2016) 1020. 140 Polish Supreme Court, Natoniewsky v. the Federal Republic of Germany and the Federal Chancellery for Payment, Judgment, 29 October 2010, 30 Polish Yearbook of International Law (2010) 299. 134 135

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man Rights in a series of well-known decisions (Waite & Kennedy,141 Beer & Regan,142 and Naletilić143), in which the Court balanced the immunity of international organisations with the right of access to justice for the victim. However, it must be recognised that the Court recently abandoned this approach (Mothers of Srebrenica case144) and proved reluctant to limit the principle of immunity. Finally, it should be noted that the balancing criterion can be used not only to resolve conflicts between principles of ‘old’ and ‘new’ international law, but also to coordinate different principles or values of the ‘new’ law. Let me take, from the field of international environmental law, three examples of concepts expressing the idea of balance between different values. The concept of sustainable development tries to find a balance between the principle of States’ freedom of economic development and the principle of environmental protection. Likewise, the concept of inter-generational equity tries to balance the need to development of present generations and the need to safeguard natural resources for future generations. Finally, the concept of common but differentiated responsibilities aims at balancing and coordinating the development needs of less-developed countries and the primary responsibility of developed countries to deal with the consequences of environmental degradation.

C. Results of the Value-Based Method

The value-based method combined with the criterion of balancing is in my opinion an interesting attempt, quite innovative for the international legal order, to address the problem of conflicts between norms of general international law, and especially between general principles. As mentioned above,145 antinomies are more likely to occur between the principles of ‘old’ and ‘new’ international law. If ‘new’ principles are identified and interpreted in a modern way, as I have suggested above,146 directly expressing recognition of the international community as a whole, ECtHR, Waite and Kennedy, supra note 38, at paras. 63-68. ECtHR, Beer and Regan v. Federal Republic of Germany, Appl. No. 28934/95, Judgment, 18 February 1999, at paras. 48-49, 53, 57-58. 143 ECtHR, Naletilić v. Croatia, Appl. No. 51891/99, Decision, 4 May 2000, at para. 1 b). 144 ECtHR, Stichting Mothers of Srebrenica, supra note 40, at paras. 161-165. 145 Supra part III.A. and III.B. 146 Supra part VI.A. 141 142

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they obviously make an important contribution to innovation of general international law. This does not mean that the method based on values and balancing always ends up preferring ‘new’ principles to ‘old’. In fact, the balancing criterion requires the interpreter to evaluate the relative weight of the conflicting principles in each individual case, and it may be that in certain cases the weight of ‘old’ principles prevails. In this sense, the balancing criterion offers the advantage of flexibility, as compared, for example, to the hierarchical criterion of jus cogens. It also tends to give more discretion to the interpreter or judge. This too can be an advantage in an international legal system that attributes an increasing role to international and national courts. On the other hand, however, the method based on values and balancing currently only seems supported by part of the international legal literature, and has not yet found enough support in international practice. This method is exposed to the criticism of those who fear the interpretative discretion of judges and prefer the certainty of the law. Nor is it supported by those who continue to adopt a positivist conception of international law, or by those who fear that the use of values could reintroduce some element of reference to natural law into the theory of international sources. According to these authors,147 norms must be carefully distinguished from values: international norms are usually inspired by certain values, but they cannot be obtained deductively from those values; on the contrary, their existence and content must be assessed solely on the basis of the theory of sources.

VII. Conclusion Some general conclusions can be drawn from what has been said so far. A first conclusion concerns a comparison of the specific criteria used to resolve antinomies in the general theory of law and those used in international law. The chronological criterion and the criterion of speciality do not work well for the theory of law or for international law when it is not a matter of specific rules, but of norms having a general and indefinite content. This applies to constitutional principles in domestic legal systems, and to customary norms, principles of law recognized 147 For a strong criticism of a value-oriented methodology, see recently Carlo Focarelli, Diritto internazionale (4th ed., 2017), at 22-26.

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in foro domestico and general principles of international law in the international legal system. In this respect, the resolution of antinomies is similar in the general theory of law and in international law. The conclusion is partly different for the hierarchical criterion. In domestic legal systems, one constitutional principle is rarely hierarchically superior to another, although today one sometimes speaks of fundamental constitutional principles that have a certain primacy over other constitutional principles. On the other hand, in contemporary international law, the idea that certain general norms, expressing fundamental values of the entire international community, have peremptory character and are also hierarchically superior to other general norms has been established, albeit with some dissent. Finally, similarity can again be found between the general theory of law and international law as regards the criterion of balancing as a technique for resolving conflicts between conflicting principles or values. However, it must be admitted that this criterion has for the moment been much more developed and accepted in domestic legal systems than in international law. A second conclusion concerns comparison of the three general methods used by international law to coordinate conflicting principles or values. From what I have already said, it is clear that I consider the ‘traditional positivist’ method obsolete, outdated, and today incorrect. The views of that method that tend to deny or avoid antinomies are formalistic and unconvincing even from the point of view of mere legal logic. On the other hand, views that conceive or interpret the sources of general international law conservatively are outdated from a historical point of view and ignore the undeniable developments of contemporary international law. On the contrary, I believe that the ‘modern positivist’ method has many advantages. Modern conceptions of the sources of general international law have the merit of giving the right weight to ‘new’, ‘human-centred’ international law, without necessarily implying that it should prevail over ‘old’ international law in the case of conflict. With regard to the hierarchical criterion of jus cogens, it can and should be of great importance in the resolution of antinomies. However, it should be recognised that the ‘modern positivist’ method has so far been more successful in the literature

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than in international practice. In particular, the case law of international courts has so far avoided using the hierarchical criterion of jus cogens. A valid solution could therefore be to use the ‘value-based’ method, in addition to the ‘modern positivist’ one, especially when there is no hierarchy between conflicting norms of general international law. The former method has advantages and is in many respects the most innovative. It is also the most flexible, because it does not solve antinomies in a clear-cut way and a priori, but allows the judge or interpreter to decide case by case, based on the relative weight of the various principles at stake, and then to coordinate the conflicting principles or values. However, the flexibility of this method can also be a limit for those who prefer the predictability of the law. In fact, the main subjects of international law, the States themselves, do not seem very willing to grant extensive interpretative powers to international courts; nor are the latter particularly eager to accept such powers. So, although the ‘value-based’ method and the balancing criterion are theoretically attractive, in my opinion, they do not have much chance of quick success in international law. Ultimately, I would favour using both the ‘modern positivist’ and the ‘value-based’ method. Although they are founded on different approaches of general legal theory (positivism and modern normative theory of law), I believe that these two theoretical positions are not irreconcilable in contemporary international law: the interpreter should not feel rigidly constrained by either position.

The Divide Between Human Rights, International Trade, Investment and Development Law ANNALISA CIAMPI(

ABSTRACT: This article comprehensively reconstructs the historical developments that have led to the particular evolution of human rights law as distinct from international trade and investment law as well as international development law. It submits that one of the causes of the current crisis of the international human rights regime lies in its relative isolation from these other domains of global governance. It thus argues for the desirability to overcome such a separation and examines prospects of feasibility. China’s new international human rights diplomacy is critically assessed amongst current efforts to bridge normative and institutional divides that could pave the way for human rights-coherent economic and development policies. KEYWORDS: Human Rights, Havana Charter, New International Economic Order, WTO, International Investment Law, Sustainable Development, China’s Human Right Diplomacy

I. Introduction Human rights, international trade law, international investment law, and international development law emerged, and largely developed, along separate paths. While historically interrelated, they have evolved in distinct, partly overlapping, partly conflicting regimes, consisting of norms and institutions independent of each other. Human rights rules and principles differ from those governing trade, investment or

( LL.M. (Harvard); Full Professor of International Law, University of Verona; Visiting Professor of European Human Rights Law, Monash University; Former Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association. A previous version of this paper was given at the International Workshop ‘History and International Law: An Intertwined Relationship’ in June 2018, funded under EU Marie-Curie Project REQUE 2, H2020-MSCA-IF-2015. I am grateful for initial conversations on this topic with Gilad Ben-Nun, Marie-Curie fellow in this Project. I am also grateful to the Editors of the German Yearbook of International Law (GYIL) as well as to the two anonymous GYIL reviewers for their comments and advice.

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development assistance in normative structure, legal framework, institutional settings, as well as dispute settlement mechanisms. A lot has been written about the history of these various areas of international law and their relative isolation from each other.1 This article submits that the particular historical evolution of human rights law, as distinct from other bodies of international law (such as international trade and investment law and international development law) is at the origin of its current ‘effectiveness’ crisis. It thus inquires into how it came about and how it could be overcome. History shows such an evolution to be the result of several failures during the Cold War and the decolonisation period: the failures of the unitary design of the Universal Declaration of Human Rights (UDHR) and the Havana Charter for an International Trade Organization (Havana Charter)2 (Part II) and the failure of the new International Economic Order (NIEO) (Part III). The modern era has seen an unprecedented and unparalleled development in terms of adoption of human rights instruments and their ratification by States. Yet, it has also marked the beginning of a widening divide between the theory and practice of human rights: while the normative and institutional settings have never been thicker, small and large-scale human rights breaches have never been more widespread, while being at the same time well detected and documented (Parts IV.A and V.A). After significant achievements and developments in the last decade of the 20th century (Part IV.B), international trade and investment law has also entered a period of crisis – which is mostly a ‘legitimacy’ crisis. The so-called new generation of free trade agreements (FTAs) and the sustainable development goals (SDGs) attempt to reunite with human rights in a single framework trade and investment, and development, respectively (Part V.B). 1 See e.g. Bardo Fassbender and Anne Peters, The Oxford Handbook of the History of International Law (2012), in particular Martti Koskenniemi, ‘A History of International Law Histories’, 943, and Arnulf Becker Lorca, ‘Eurocentrism in the History of International Law’, 1034; see also Ignacio De La Rasilla del Moral, ‘The Shifting Origins of International Law’, 28 Leiden Journal of International Law (2015) 419 and Anne Orford, ‘International Law and the Limits of History’, in Wouter Werner, Marieke de Hoon, and Alexis Galán (eds.), The Law of International Lawyers: Reading Martti Koskenniemi (2017) 297; and Samuel Moyn, The Last Utopia. Human Rights in History (2010), at 11-43. 2 Havana Charter for an International Trade Organization 1948, UN Doc. E/CONF.2/78, 24 March 1948 (the Havana Charter did not enter into force due to lack of instruments of acceptance within the prescribed time frame).

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This article also reflects on recent and current efforts at bridging some of the existing gaps from within the human rights regime itself (Part VI). In this respect, it examines the United Nations (UN) doctrine of the universality and interdependence of human rights and offers a critical assessment of China’s new international human rights diplomacy. It concludes with some reflections as to the doubtful power of existing human rights norms and institutions to positively affect future historical developments and the compelling need to bridge normative and institutional divides in order to pave the way for human rights-coherent economic and development policies (Part VII).

II. The Aftermaths of WWII and the Cold War History shows that the divide between human rights and other branches of international law is the result of numerous failures dating back to the aftermath of the Second World War (WWII).

A. The Failure of the Unitary Design of the UDHR and the Split into ‘Generations’ of Rights

The UDHR proclaimed by the UN General Assembly in Paris on 10 December 1948, under the heading ‘International Bill of Human Rights’,3 is generally agreed to be a milestone document in the history of human rights and the foundation of international human rights law.4 Drafted by representatives with different legal and cul3 Universal Declaration of Human Rights (UDHR) 1948, United Nations General Assembly (UNGA) Res. 217A (III), 10 December 1948. 4 As is well known, the Charter of the United Nations 1945, 15 UNCIO 335, envisages respect for human rights protection as something to be encouraged and promoted. See Art. 1(3) (‘The Purposes of the United Nations are: […] To achieve international cooperation […] in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion’), Art. 55(c) (‘the United Nations shall promote: […] universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion’) and Art. 56 (‘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'). These articles, with other provisions, have been called a ‘golden thread’ running through the Charter, which establish human rights as a matter of international concern. Dinah L. Shelton, Advanced Introduction to International Human Rights Law (2014), at 31-32.

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tural backgrounds from all regions of the world, the UDHR set out, for the first time, fundamental human rights to be universally protected. Although it does not provide for democracy as a right in itself, the Declaration refers explicitly to democracy by way of limiting the purview of rights derogations.5 And it recognises the link between human rights and economic and social conditions.6 The UDHR thus encapsulated in a single document the progressive realisation of democracy and development through the universal and effective recognition and observance of rights – with no distinction between mostly ‘negative’, classical civil and political rights, (essentially ‘positive’) social, economic, and cultural rights (ESC), and collective rights. It was not, however, a treaty in the formal sense. While several authoritarian States (including the former Soviet Union and Yugoslavia, Poland, Czechoslovakia, and Saudi Arabia) abstained, not even liberal democracies were ready to commit themselves to binding legal obligations.7 Then came the Cold War, which ‘froze’ most significant possibilities of UN action, and human rights became ‘yoked to the ideological conflict’ between the United States (US) (as leader of the Western countries) and the Soviet Union (along with its satellites).8 Deep political disagreement and profoundly different conceptions of rights between the Western and non-Western world – which included not only former socialist States but also the newly independent, developing States – led to the subdivision of human rights into three categories: the so called ‘first generation’ rights, known as civil and political rights, ESC as ‘second generation’ rights, and ‘group rights’ as ‘third generation’ rights.9 It took 18 years for the signature of the first universal inUnder Art. 29(2) UDHR, national limitations on the rights catalogued in the Declaration shall, inter alia, ‘meet the just requirements of morality, public order and the general welfare in a democratic society’ (emphasis added). In addition, Art. 21(1) UDHR proclaims an important element of democracy, namely, a right ‘to take part in the government […], directly or through freely chosen representatives.’ Moreover, an explicit requirement of holding elections on the basis of equal and universal suffrage is contained in section 3, which proclaims that ‘the will of the people shall be the basis of the authority of the government’. 5

6 Art. 28 UDHR provides: ‘Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized’. 7 The resolution was adopted with – of the then 58 members of the United Nations (UN) – 48 members in favour and 8 abstaining. 2 did not vote. 8

Eric A. Posner, The Twilight of Human Rights Law (2014), at 18.

See R. J. Vincent, Human Rights and International Relations (1986), at 61 for a survey of the development of human rights during the Cold War era and the claim that the history of East-West relations was ‘in an important sense the history of a dispute about human rights.’ See also Stephanie 9

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struments for the protection of a wide scope of international human rights – the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) of 196610 – and then another decade for their entry into force.11 The adoption of the UN Covenants as two separate instruments marks the formal split between first and second generation of rights and the setting aside of collective rights. The first divide concerns both the substance of State obligations – ESC shall be progressively realised, rather than directly implemented12 – and the supervisory mechanism, with only the ICCPR being endowed with a monitoring system which includes the right of individual complaint. Even after the entry into force of the recently adopted additional protocol to the ICESCR,13 the systems are different, as are the numbers of ratifications of the Covenants themselves and the rate of acceptance of their optional protocols.14 The vision of rights into ‘generations’ remains also Soiffer and Dane Rowlands, ‘Examining the indivisibility of human rights: A statistical analysis’, 17 Journal of Human Rights (2018) 89, at 103: ‘The initial division of human rights was largely the result of Cold War politics. The Soviet bloc and developing States were in favor of a binding treaty that addressed what have come to be known as economic, social, and cultural rights but looked unfavorably on civil and political rights. The Anglo-American sphere, in contrast, took the opposite view.’ For the opinion that Cold War politicking were not the only factors that led to the division of UN recognised human rights into two distinct categories, see Craig Scott, ‘Interdependence and permeability of human rights norms: Towards partial fusion of the international covenants on human rights’, 27 Osgoode Hall Law Journal (1989) 769. For a challenge to the widespread belief that Western countries have been antagonistic to economic and social human rights, see Daniel Whelan and Jack Donnelly, ‘The West, Economic and Social Rights, and the Global Human Rights Regime’, 29 Human Rights Quarterly (2007) 908. 10 International Covenant on Civil and Political Rights (ICCPR) 1966, 999 UNTS 171; International Covenant on Economic, Social and Cultural Rights (ICESCR) 1966, 993 UNTS 3. 11 The ICCPR was adopted by the UNGA Res. 2200A (XXI), 16 December 1966 and entered into force on 23 March 1976. The ICESCR was opened for signature in New York on 19 December 1966 and entered into force on 3 January 1976.

In accordance with Art. 2(1) ICESCR: ‘Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.’ 12

13 Optional Protocol to the ICESCR 2008, UN Doc. A/63/435, adopted by the UNGA on 10 December 2008 and opened for signature on 24 September 2009. It entered into force on 5 May 2013. 14 As of 30 September 2018, the ICCPR has 172 State parties and its First Additional Protocol 116. The ICESCR has 169 parties, its Additional Protocol 23. In the literature, the generations of human rights narrative has been abandoned by Steven L.B. Jensen, ‘Putting to rest the Three Generations Theory of human rights’, OpenGlobalRights, 15 November 2017, available at https://www.openglobalrights.org/

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at the regional level, particularly within the Council of Europe, which is considered to be the most advanced regional system for human rights protection.15

B. The Failure of the Havana Charter and the ‘Isolation’ of International Trade Law

In parallel to the developments of the human rights movement described above, the years immediately following WWII and the economic recession of the 1930s saw another failure: The failure of the Havana Charter, which in turn resulted in a twofold split: the divide between international economic law and development and, within the first pillar, between trade and investment. Under the leadership of the US and the United Kingdom acting through the United Nations Economic and Social Council, a Preparatory Committee, meeting between 1946 and 1947, was established to produce a draft charter for the creation of an international trade organisation. On 21 November 1947, 57 States met in Cuba as part of the UN Conference on Trade and Employment to finalise the drafting of the proposal which became the Charter for an International Trade Organization (ITO).16 Because of the lack of ratification of the Charter by the US Congress, the ITO never came into existence. This resulted in the abandonment of the ITO all together by the other States which had taken part in the negotiations.17 In addition to a chapter on commercial policy – the provisions of which already featured in the General Agreement on Tariffs and Trade (GATT, the forerunner of putting-to-rest-the-three-generations-theory-of-human-rights/. See also Parick Macklem, The Sovereignty of Human Rights (2015). The Council of Europe was established by ten Western European States in 1949. It has since expanded to include Central and Eastern European countries, bringing the total membership to 47 States. Membership in the Council is conditioned upon adherence to the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) 1950, 213 UNTS 221, the first human rights treaty of the post-war period, followed by the European Social Charter – which has a distinct monitoring mechanism – in 1961. See Shelton, supra note 4, at 35. 15

Richard N. Gardner, Sterlin-Dollar, Diplomacy: Anglo-American Collaboration in the Reconstruction of Multilateral Trade (1956), at 42. 16

Stephen Woolcock, ‘The ITO, the GATT and the WTO’, in Nicholas Bayne and Stephen Woolcock (eds.), The New Economic Diplomacy: Decision-Making and Negotiation in International Economic Relations (2003) 103, at 112. Simon Lester, Bryan Mercurio, and Arwel Davies, World Trade Law. Text, Materials and Commentary (3rd ed., 2018), at 57. 17

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the World Trade Organization (WTO)) – the Havana Charter covered disciplines such as employment and economic activity and regulated a number of substantive matters. These included fair labour standards, economic development, and reconstruction (including cooperation for development and investment), restrictive business practices, procedures relating to services and commodity agreements.18 Most notably, the Charter proclaimed that the avoidance of unemployment or underemployment was necessary for achieving the expansion of trade (Article 2). It required members to take into account workers’ rights under international declarations, conventions, and agreements and to eliminate unfair labour conditions ‘through whatever action may be appropriate and feasible’ (Article 7). The Charter also covered specific aspects of competition by addressing unfair business practices (Article 46). On international investment, it established that international investment can be of great value in promoting economic development and reconstruction, and consequent social progress (Article 12).19 GATT, which was originally to be a specific trade agreement within the broader institutional context of the Havana Charter, entered into force on 1 January 1948. It provided an alternative to realise the trade interests of the US and other countries, without having to make the concessions that had been requested under the ITO. Tariffs concessions and more generally the liberalisation of trade relations were set as objectives distinct and separate from that of development and were regulated for almost 50 years under the GATT. Investment fell within the separate purview of a network of bilateral investment treaties (BITs). The failure of the Havana Charter was thus at the origin of a twofold divide, the effects of which materialised during the Cold War: the separation between international economic law and what would later become international development law,20 and the divide between trade and investment – the latter wholly internal to the international normative and institutional framework of economic relations.

For a comprehensive account, see Giorgio Sacerdoti, ‘The Havana Charter’, in Rüdiger Wolfrum (ed.), Max Plank Encyclopaedia of Public International Law (2014). 18

19 In anticipation of a debate that is still on-going, however, these provisions were seen by developing States as overly protective of multinational enterprises, while developed States considered them too protective of host countries. Sacerdoti, ‘The Havana Charter’, supra note 18, at paras. 20-21. 20

Infra Part III.A.

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The offshoots of the multiple divides of the aftermaths of WWII – that will be referred to in modern times as the ‘fragmentation’ of international law’21 – were multiple in turn.

III. The Decolonisation Period and the End of the Cold War The decolonisation beginning in the early 1960s and continuing through the 1970s and beyond brought about the emergence of new international actors. This was the period of the rise and fall of the NIEO and the emergence of human rights as a major force in international relations.

A. The Failure of the NIEO and the ‘Divorce’ Between the Furtherance of Development and International Cooperation in Economic Matters

In 1964, the UN Conference on Trade and Development was set up as a counter to the GATT and used by developing countries, particularly following the oil crisis of 1973, to press for changes in the management of the global economic system. The newly independent States in Africa and South America formed a new bloc of countries, the Non-Aligned movement, besides the (largely developed) Western States and the Soviet bloc. Sponsored by these States that at the time formed the majority of the UN General Assembly, the NIEO was proclaimed unanimously by way of a Declaration and a Program of Action on its establishment in May 1974.22 It should be founded on full Martti Koskenniemi, ‘Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law’, Report of the Study Group of the International Law Commission, UN Doc. A/CN.4/L.682, 13 April 2006. 21

22 UNGA Res. 3201 (S-VI), 1 May 1974 (Declaration on the Establishment of a New International Economic Order); UNGA Res. 3202 (S-VI), 1 May 1974 (Programme of Action on the Establishment of a New International Economic Order). For the view that ‘these founding documents are mostly of historical interest for international relations’, see Giorgio Sacerdoti, ‘New International Economic Order (NIEO)’, Max Plank Encyclopaedia of Public International Law (2015), available at http:// opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1542?prd=EPIL, at para. 19. On the NIEO see also Hans Wolfgang Singer, ‘The New International Economic Order: An Overview’, 16 The Journal of Modern African Studies (1978) 539, and Fesseha Mulu Gebremariam,

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respect of a set of principles, including: the broadest co-operation of all States based on equity, whereby the prevailing disparities in the world may be banished and prosperity secured for all, and full and effective participation on the basis of equality; the right of every country to adopt the economic and social system that it deems the most appropriate for its own development; and full permanent sovereignty of every State over its natural resources and all economic activities. By way of these proclamations, the UN pledged to take action on inequities and injustices in the international system, eliminate the gap between developed and developing countries, ensure accelerating economic and social development, and secure peace and justice. International cooperation in economic matters and the furtherance of development were to proceed hand in hand. Developing countries had to be assisted by industrialised nations to achieve sustained development on terms chosen by developing countries themselves. At the same time, the latter should not be subject to reciprocal obligations and should be protected from external interference.23 However, when the Charter of Economic Rights and Duties of States,24 which was to turn into reality these proclamations of principles, was adopted, its approval was not unanimous. Among the developed States, six abstained and ten voted against. And for the most part, the general strategy of rich countries was to reject the NIEO broadly. Some efforts were made to provide developing countries with additional trade preferences. While the original text of the General Agreement did not allow for preferences, Part IV GATT on ‘Trade and Development’ (added in 1964) had dropped the reciprocity requirement for developing countries when developed countries negotiated (non-preferential) concessions with them. In 1979, the principle of non-reciprocal trade relations and the establishment of generalised systems of preferences accepted through a temporary waiver of the most-favoured nation treatment obligation in 1971, ‘New International Economic Order (NIEO): Origin, Elements and Criticisms’, 4 International Journal of Multicultural and Multireligious Understanding (2017) 22. Giorgio Sacerdoti, ‘New International Economic Order (NIEO)’, supra note 22, at para. 14. See also Miguel Wionczek, The New International Economic Order: Past Failures and Future Prospects (1979). Philip S. Golub, ‘From the New International Economic Order to the G20: how the “global South” is restructuring world capitalism from within’, 34 Third World Quarterly (2013) 1000; Xu Chongli, ‘The Rise of Newly Emerging Countries and the Construction of a New International Economic Order: A Perspective from the Chinese Path’, 34 Social Sciences in China (2013) 22; Willard Scott Tompson (ed.), The Third World. Premises of US policy (rev. ed., 2017). 23

UNGA Res. 3281 (XXIX), 12 December 1974 (Charter of Economic Rights and Duties of States). 24

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became a GATT permanent feature (so-called ‘Enabling Clause’). The International Monetary Fund created a trust fund to help developing countries by selling off a third of its gold holdings, particularly by the Europeans. A few agreements were also signed, for example in sugar and rubber, to ensure the stability of price of commodities for which developing countries were the main producers. Trade preferences and non-reciprocity, however, remain the most important legacy of the NIEO. ‘Abandoned’ by the Western world, the furtherance of development became the remit of the developing countries, the UN and its specialised agencies. It took another decade for the UN General Assembly to proclaim the right to development as an inalienable ‘third generation’, solidarity human right, with the Declaration on the Right to Development (1986),25 and to call for the adoption of a strategy for sustainable development (1987).26 The failure of the NIEO thus marked the definite separation between international economic law, in which market sector principles prevailed, and international development law, and paved the way to the duality of their respective regimes. Because of the limited availability of official development assistance, and despite the rejection of a customary standard for investment liberalisation and protection, developed States felt the need to attract foreign investment in order to meet their own economic development goals, especially after the debt crisis in the 1980s. They, therefore, undertook international commitments – mostly in the form of bilateral treaties – that guaranteed a minimum level of treatment, so as to protect foreign investors from the uncertainties of customary international law on the economic rights of aliens, weak governance in ‘new’ States and the only recent adoption by many of them of the market economy model. Hence the failure of the NIEO also relinquished the issue of protection of developed States’ investors in developing States 25 UNGA Res. 41/128, 4 December 1986 (Declaration on the Right to Development). On the Declaration and its subsequent developments, see UN High Commissioner for Human Rights (OHCHR), Development is a Human Right, available at https://www.ohchr.org/EN/Issues/Development/Pages/ DevelopmentIndex.aspx. 26 Report of the World Commission on Environment and Development: Our Common Future (‘Brundland Report’), UN Doc. A/42/427, 4 August 1987. On the multiple layers of international development law, which continue to shape the contemporary regime of development – the human rights dimension, the concept of sustainable development and the debates about development and good governance –, see Stephan W. Schill, Christina J. Tams, and Rainer Hofmann, ‘International Investment Law and Development: Friends or Foes?’, in Stephan W. Schill (ed.), International Investment Law and Development. Bridging the Gap (2015) 3, at 14.

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to BITs, that in a few decades will become the truly global phenomenon that we know today.

B. The ‘Influence’ of International Human Rights Law

It is generally acknowledged that in the 1960s and more prominently in the 1970s and 1980s, international human rights law began to exercise its influence and human rights become a major force in international relations.27 1975 was the year of the Helsinki Accords and the beginning of the Helsinki process. Despite their lack of formal status as international treaties setting out binding commitments, the Helsinki Accords provided a framework for the scrutiny of human rights practice in the former Soviet Union and the States in its area of influence.28 The Soviet Union ratified the ICCPR in 1973. In 1977, the US Congress passed a law conditioning certain types of aids to compliance with human rights.29 The Convention on the Elimination of All Forms of Discrimination against Women was adopted in 1979, based on a General Assembly resolution sponsored by 22 developing countries and some East European States.30 The Convention against Torture – which remains a milestone in the protection of the most fundamental human rights – was signed in 1984.31 Following a proposal by Poland and other countries of Samuel Moyn, supra note 1, at 176-211. See also Steven L.B. Jensen, The Making of International Human Rights: The 1960s, Decolonization, and the Reconstruction of Global Values (2016), reinterpreting the history of international human rights in the post-1945 era by documenting how pivotal the Global South – namely Jamaica, Liberia, Ghana, and the Philippines – was for their breakthrough in the 1960s, laying the foundation – in profound and surprising ways – for the so-called human rights revolution in the 1970s, when Western activists and States began to embrace human rights. 27

28 On the impact of the Helsinki Accord on bringing about systemic change to the Cold War order, see Daniel C. Thomas, The Helsinki Effect: International Norms, Human Rights, and the Demise of Communism (2001), contending that the signing of the Helsinki Accord, for most of the Eastern bloc countries, opened up the floodgates of liberalisation and democratisation by providing the means for both domestically mobilised and transnational groups to work together. 29 The Foreign Assistance Act promises that no financial assistance will be given to States engaging ‘in a consistent pattern of gross violations of internationally recognized human rights’ (United States (US) Code Title 21, § 2151n). The same will be true to a larger or smaller extent for practically all developed countries and for the European Community.

Convention on the Elimination of All Forms of Discrimination against Women 1979, 1249 UNTS 13. 30

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984, 1465 UNTS 85. 31

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the Soviet bloc, the Convention on the Rights of the Child was opened to signature in 1989.32 The end of the Cold War in 1989-1991, however, was not a triumph of human rights or a direct result thereof. The collapse of the Soviet Union was not caused by its human rights violations, or by domestic or international opposition fuelled by those violations.33 The real historical causes were of a socio-economic nature and lay in the failure of the Soviet system to deliver economic prosperity due to the inefficiencies of the Soviet command economy, which remained technologically backward and full of corruption, as well as the decline in the price of oil – one of the Soviet Union’s assets, together with gold and natural gas.34

IV. The Last Decade of the XX Century The decade between the end of the Cold War and the end of the century was marked again by historic failures. In the 1990s, there was consensus that all countries must respect human rights; yet, some of the worst atrocities of our modern era were committed in many parts of the world, including within the European borders. The WTO was established in 1994, but the attempt to negotiate a Multilateral Agreement on Investment (MAI) was abandoned in 1998.

A. The Divide Between the Theory and Practice of International Human Rights

In the post-Cold War, post-decolonisation era, the existence of an international human rights regime is well-established. While not all countries have ratified all human rights treaties, most countries have ratified most of them. Moreover, some 32

Convention on the Rights of the Child 1989, 1577 UNTS 3.

‘But with the collapse of the Soviet Union, the major ideological alternative to liberal democracy was gone, and so was the only country that could prevent the United States from imposing its values (for good or ill) on foreign countries.’ Posner, supra note 8, at 21. 33

Robert Strayer, Why Did the Soviet Union Collapse? Understanding Historical Change (2015), at 56; Philip Hanson, The Rise and Fall of the Soviet Economy. An Economic History of the USSR From 1945 (2014), at 218. 34

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treaties – including the ICCPR and the Convention on the Rights of the Child – have been ratified nearly by all States and each of the six major human rights treaties have more than 150 parties. 1993 was the year of establishment of the UN Office of the High Commissioner for Human Rights (OHCHR), with the task of the coordination and leadership of the multiple human rights bodies existing at the universal level and established under the UN Charter and international human rights treaties. The OHCHR is guided in its work by General Assembly Resolution 48/141,35 the UN Charter, the UDHR and subsequent human rights instruments, the 1993 Vienna Declaration and Programme of Action,36 and the 2005 World Summit Outcome Document.37 The mandate includes preventing human rights violations, securing respect for all human rights, promoting international cooperation to protect human rights, coordinating related activities throughout the UN, and strengthening and streamlining UN human rights work. In addition to its mandated responsibilities, the OHCHR should lead efforts to integrate a human rights approach within all work carried out by the UN system.38 Taking on human rights-related causes becomes one of the most important functions of non-governmental organisations (NGOs) around the world. In the 1990s, NGOs focusing on human rights issues increase in number and activities.39 While the determination of what NGOs do best remains an area of continuing scholarly de-

35

UNGA Res. 48/141, 20 December 1993.

World Conference on Human Rights, Vienna Declaration and Programme of Action, 25 June 1993, UN Doc. A/CONF.157/24. 36

37

UNGA Res. 60/1, 24 October 2005.

For the official policy of the organisation, see the OHCHR, official website, available at www. ohchr.org. 38

39 For an overview of the most important human rights non-governmental organisations (NGOs), see the database of NGOs with Consultative Status with ECOSOC, at UN, Coordination, available at www.un.org/esa/coordination/ngo; the World Association of Non-Governmental Organizations, available at https://www.wango.org; and the Human Rights NGOs List from Duke University Library, available at https://library.duke.edu/research/subject/guides/ngo_guide/ngo_database.

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bate,40 NGOs have influenced the human rights practices of governments and popular perceptions of human rights. As advocacy organisations, human rights NGOs work with or against governments in developing agendas for action. Through treaty negotiations with governments, they seek to establish international standards for State behaviour. To mobilise public opinion, they investigate and report human rights abuses and offer direct assistance to victims of those abuses. They lobby political officials, corporations, international financial institutions, intergovernmental organisations, and the media. NGOs are also increasingly involved in providing services, such as holding training programmes for upholding the rule of law and providing humanitarian assistance in disaster areas. While States remain the major protectors – and abusers – of human rights, NGOs such as Amnesty International and Human Rights Watch emerged as central players in the promotion of human rights around the world. Amnesty International – launched in 1961 by lawyer Peter Benenson through the ‘Appeal for Amnesty’ in the Observer newspaper, after two Portuguese students are jailed for raising a toast to freedom – evolved from seeking the release of political prisoners to upholding the whole spectrum of human rights: from abolishing the death penalty to protecting sexual and reproductive rights, and from combatting discrimination to defending refugees and migrants’ rights – ‘for anyone and everyone whose freedom and dignity are under threat’.41 Human Rights Watch, which began in 1978 with the creation of Helsinki Watch designed to support the citizens groups formed throughout the Soviet bloc to monitor government compliance with the 1975 Helsinki Accords,42 formally adopted the all-inclusive name Human Rights Watch, in 1988. The new 40 See e.g. Claude E. Welch, Jr. (ed.), NGOs and Human Rights. Promise and Performance (2000), assessing the performance of NGOs by examining a number of significant organisations, including Amnesty International, Human Rights Watch, and the International Commission of Jurists. The authors identify the goals of such organisations, analyse their strategies, and consider the resources necessary to implement those strategies effectively. They also look at some of the major financial supporters of NGOs and reveal evidence that transnational networks of organisations can both exert pressure on States and influence public opinion, resulting in the improved protection of human rights around the world.

For a full historical account of Amnesty International’s story and current campaigns see Amnesty International, available at https://www.amnesty.org/en. 41

Helsinki Watch adopted a methodology of publicly ‘naming and shaming’ abusive governments through media coverage and through direct exchanges with policymakers. By shining the international spotlight on human rights violations in the Soviet Union and Eastern Europe, Helsinki Watch contributed to the dramatic democratic transformations of the late 1980s. 42

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human rights challenges in the 1990s led to important innovations in, and further broadened and strengthened, its work.43 The 1990s was also the era when the legal theory of jus cogens emerges and permeates diplomatic intercourses (within the UN and in inter-State relations), judicial arguments in national and international fora, and the academic debate.44 As is well known, jus cogens refers to rules of customary international law that bind all States, irrespective of ratification of the relevant treaties, and cannot be derogated from under any circumstances.45 They are generally held to include the prohibition of torture, genocide, and other serious breaches of human rights.46 Moreover, according to the ensuing prevailing narrative, it is held that the absoluteness of these prohibitions would eventually prevent breaches, and ensure respect, of the most fundamental human rights. Events, however, will make a mockery of this view, notwithstanding the developments at the normative, institutional, and operational level described above.

43 Its reporting on the 1991 Persian Gulf War, Human Rights Watch (HRW) for the first time addressed violations of the laws of war in bombing campaigns. In 1997, HRW shared in the Nobel Peace Prize as a founding member of the International Campaign to Ban Landmines. See Human Rights Watch, available at https://www.hrw.org.

In the extensive literature on the subject, see e.g. Lauri Hannikainen, Peremptory Norms (Jus Cogens) In International Law (1988); Andreas L. Paulus, ‘Jus Cogens in a Time of Emergency and Fragmentation. An Attempt at a Re-appraisal’, 74 Nordic Journal of International Law (2005) 297; Christian Tomuschat and Jean-Marc Thouvenin (eds.), The Fundamental Rules of the International Legal Order (2006); Alexander Orakhelashvili, Peremptory Norms in International Law (2008); Bardo Fassbender, The United Nations Charter as the Constitution of the International Community (2009); Jochen A. Frowein, ‘Jus Cogens’, in Rüdiger Wolfrum (ed.), Max Planck Encyclopedia of Public International Law (2013). 44

45 According to the well-known definition of Art. 53 of the Vienna Convention on the Law of Treaties 1969, 1155 UNTS 331, a jus cogens norm is one which permits of no derogation and which can be modiWed only by a subsequent norm having that same character. 46 See e.g. Erika De Wet, ‘The Prohibition of Torture as an International Norm of Jus Cogens and Its Implications for National and Customary Law’, 15 European Journal of International Law (EJIL) (2004) 97; Lorna MacGregor, ‘State Immunity and Jus Cogens’, 55 Int. and Comparative Law Quarterly (2006) 437; Ole Spiermann, ‘Humanitarian Intervention as a Necessity and the Threat or Use of Jus Cogens’, 71 Nordic Journal of International Law (2002) 523; Joe Verhoeven, ‘Droit des traits, réserves et ordre public (jus cogens)’, 13 Js trib (1994) 765; Eva Kornicker, ‘State Community Interests, Jus Cogens and Protection of the Global Environment’, 11 Georgetown Int. Environmental Law Review (1998) 101.

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The European Union (EU) was established by the Maastricht Treaty 1992 (TEU),47 bringing within one ‘temple’, i.e. under a single institutional framework, the European Communities and the activities of the member States in the fields of the Foreign and Security Policy and Justice and Home Affairs (the latter included at the time the areas of asylum, immigration, judicial cooperation in civil and criminal matters, and police cooperation). Human rights – long protected by the European Court of Justice as unwritten general principles – are formally recognised as a matter of EU domestic constitutional law (Article 6 TEU). Human rights acquire a prominent role as a limit to the legitimacy of acts by both the EU institutions and the member States (when acting within the scope of EU law).48 They also officially enter the benchmarks to be met by new members before they obtain the economic benefits of the European internal market (Article 49 TEU). This, however, will be at the origin of the divide between requirements demanded from third States applying for membership to the EU and internal standards. The treaties provide that respect for human rights, democracy, and the rule of law lie at the foundation of the EU, but true enforcement mechanisms are conspicuously absent in order to ensure compliance by the member States.49 Similarly, the promotion of human rights is confirmed as an objective of the Common Foreign and Security Policy, as well as of all other forms of cooperation with third countries, including development cooperation. As an external human rights actor, however, the EU fails to devote significant resources into advancing human rights outside Europe.50 These contradictions are but the tip of the iceberg of a larger scenario, where human rights acquire prominence in the dominant discourse, but human practices 47

Treaty on European Union (TEU) 2002, OJ 2012 C 326/13 (Consolidated Version).

See e.g. James D. Dinnage and John F. Murphy, The Constitutional Law of the European Union (2nd ed., 2008), at 947-986; Paul Craig and Gráinne de Búrca, EU Law: Text, Cases § Materials (6th ed., 2015), at 362-406; Robert Schütze, European Constitutional Law (2nd ed., 2016), at 429-470. 48

49 The so called ‘Article 7 TEU procedure’, which, at its most severe, allows for the suspension of voting rights in case of a ‘serious and persistent breach’ of European Union (EU) values by an EU country, has never been resorted to. It was amended by the Treaty of Amsterdam to include in addition to a sanctioning mechanism, an ‘early warning’ (preventive) mechanism, i.e. a procedure to be triggered in case of a ‘clear risk of a serious breach’ – rather than a ‘serious and persistent breach by a Member State’ – of the common values of the EU. Both mechanisms still exist and are now enshrined in Art. 7 TEU but have so far not been applied.

See e.g., Annabel Egan and Laurent Pech, ‘Respect for human rights as a general objective of the EU’s external action’, in Sionaidh Douglas-Scott and Nicholas Hatzis (eds.), Research Handbook on EU Law and Human Rights (2017) 243. 50

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fall short of the proclamations of principles and the actual commitments of international organisations and their member States. Where the 1970s had seen the human rights movement acquiring prominence in international law, the 1990s set the beginning of a divide between the theory and the practice of human rights. At the door of Europe, the dissolution of the Soviet Union on 26 December 1991 and the establishment of the Russian Federation is marked by the First Chechen War, a rebellion by the Chechen Republic of Ichkeria against the Russian Federation, fought from December 1994 to August 1996. The armed conflict set the prelude to the ten-year long Second Chechen War (1999-2009), with estimates of military and civilian casualties varying in the number of tens of thousands. As is well known, in the civil war erupted in the former Yugoslavia in 1991, countless international crimes are committed by all sides to the conflict. In 1994, the Rwandan genocide, during the Rwandan Civil War, which had started in 1990, kills between 500,000 and 1,000,000 Rwandans constituting an estimated 70% of the Tutsi population. These atrocities prompted the establishment of the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda – which in turn will pave the way to the creation of an international criminal court – an independent, permanent court with the task to put an end to impunity for the perpetrators of the most serious crimes of concern to the international community as a whole.51 The Rome Statute of the International Criminal Court (ICC) was adopted on 17 July 1998 and entered into force on 1 July 2002. Whatever its success,52 this can hardly be measured in terms of prevention and punishment of human rights and international humanitarian law breaches worldwide. Another manifestation of this rising divide between human rights theory and practice is the Western response to human rights conditions in China. When the Soviet Union was in the throes of its collapse and the fall of the Berlin Wall just a few months away, two events with human rights implications had occurred in China: the Chinese Government’s armed repression of the political unrest in Tibet in 1987-1989 and the violent suppression of the pro-democracy movement at Tiananmen Square in See United Nations Security Council (UNSC) Res. 827, 25 May 1993; UNSC Res. 955, 8 November 1994; and Rome Statute of the International Criminal Court 1998, 2187 UNTS 90. 51

An examination of the International Criminal Court (ICC) alternative fortunes in the first decade of the 21st century (and its current uncertain future) is beyond the scope of this article. On some of the ICC current developments, however, see infra note 84. 52

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June 1989. Western countries imposed severe economic sanctions and arms embargoes on Chinese entities and officials, which led in turn to a spiral of harsher measures of suppression of other protests around China and heavier condemnation by the West. Initially, the US adopted strong measures against the Chinese government, including the suspension of military sales, the cancellation of high-level visits and regular meetings between the two countries, a request to stop all new loans from the International Monetary Fund and the World Bank, the revocation of China’s most favoured nation status and the connection of the issue of human rights with trade.53 ‘American bilateral monitoring’ of Chinese human rights conditions, however, officially ended in 1994, when the Clinton administration decided not to link these two issues.54

B. The ‘Divorce’ Between Trade and Investment

The WTO was established in 1995, after over seven years of the Uruguay Round of negotiations between 127 countries (1986-1994), to substitute the informal framework of GATT, of which it incorporated (in addition to the practice developed thereunder) most of the substantive and institutional components. The Preamble of the Marrakesh Agreement recognises that interstate relations in the field of trade and economic endeavour should be conducted with a view to raising standards of living, ensuring full employment […], while allowing for the optimal use of the world’s resources in accordance with the objective of sustainable development, seeking both to protect and preserve the environment and to enhance the means for doing so in a manner consistent with their respective needs and concerns at different levels of economic development.55

53 Donald D. A. Schaefer, ‘US foreign policies of presidents Bush and Clinton: the influence of China’s most favored nation status upon human rights issues’, 35 The Social Science Journal (1998) 407. See also Rosemary Foot, Rights beyond Borders: The Global Community and the Struggle over Human Rights in China (2000); Ming Wan, Human Rights in Chinese Foreign Relations (2001); Robert L. Suettinger, Beyond Tiananmen: The Politics of U.S.-China Relations 1989-2000 (2003); Rosemary Foot and Andrew Walter, China, the United States, and Global Order (2011). 54

233. 55

Ann Kent, China, the United Nations, and Human Rights: The Limits of Compliance (1999), at Marrakesh Agreement establishing the World Trade Organization 1994, 1867 UNTS 3.

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Yet, the main purpose of the Organization is ‘to ensure that trade flows as smoothly, predictably and freely as possible’.56 The word ‘human rights’ does not appear in the Agreement or its annexes (about 60 agreements and decisions totalling 550 pages), but for an indirect mention in one of the ‘general exceptions’ under Article XX GATT,57 which allows ‘the adoption or enforcement by any contracting party of measures […] relating to the products of prison labour’ (paragraph (e)).58 Significantly, while Article XX is one of the most frequently invoked provisions in trade disputes, the ‘prison labour’ exception has never been invoked or applied. Much has been written about the role of human rights within the WTO.59 Whether one believes that trade liberalisation advances human rights or not, the fact remains that the WTO normative and institutional framework is one set to advance trade and trade-related values. Human rights consistent practices can be a by-product of trade in so far as trade fosters economic development and this, in turn, raises living conditions for all.60 When this happens, practices consistent with human rights are not 56 See the World Trade Organization (WTO), official website home page, available at https://www. wto.org/index.htm. 57 The General Agreement on Tariffs and Trade (GATT) 1994, 1867 UNTS 190, which must be read with GATT 1947, is in Annex 1A of the WTO Agreement. 58 The very function of Art. XX GATT is to safeguard non-trade values even if this results in a restriction of trade. It cannot be excluded, however, that a challenge of a trade restrictive measure successfully brought under Art. XX GATT results in the adoption of a measure more restrictive than the one originally challenged, by way of implementation of the ruling which ‘recommends’ the withdrawal or modification of the measure to bring it into conformity with GATT requirements. This is typically the case when the measure complained of is found to provisionally justified under one the subparagraph of Art. XX but fails to meet the requirement of impartiality and even-handedness of the chapeau.

In the vast literature, see e.g. Sarah Joseph, Blame it on the WTO?: A Human Rights Critique (2011); Thomas Cottier, Joost Pauwelyn, and Elisabeth Bürgi (eds.), Human Rights and International Trade (2005); Frederick M. Abbott, Christine Breining-Kaufmann, and Thomas Cottier (eds.), International Trade and Human Rights: Foundations and Conceptual Issues (2006). 59

60 The claim has also been advanced that there is (or should be) an individual ‘right to trade’. Robert McGee, ‘The Moral Case for Free Trade’, 29 Journal of World Trade (1995) 69; Amartya Sen, Development as Freedom (1999); Ernst-Ulrich Petersmann, ‘Human Rights, Markets and Economic Welfare: Constitutional Functions of the Emerging UN Human Rights Constitution’ in Abbott, BreiningKaufmann, and Cottier, supra note 59, at 29. ‘Absolutist claims in favour of a right to trade are indeed problematic, because trade liberalization can have harmful effects on human rights. These negative effects are of two main types. The first is that, in the short term, trade liberalization ipso facto harms inefficient producers, and can also be costly at the aggregate level, especially for developing countries. In principle, these costs can be compensated by the greater earnings produced by free trade, but this does not always happen in the short term, or in some cases at all. Second, some of the rules imposed by trade regimes go beyond a simple reduction of protectionist measures, and can interfere with the ability of countries to

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the result of human rights norms or policies but rather a side-effect, so to say, of norms and policies designed for another end: a predictable and stable international trade legal framework. As to investment, its separation from trade ensuing from the failure of the NIEO, becomes a divorce. Recognising that certain investment measures can have traderestrictive and distorting effects, the Agreement on Trade-Related Investment Measures, negotiated during the Uruguay Round, applies only to measures that affect trade in goods.61 Any attempt to negotiate a Multilateral Agreement on Investment (MAI) was abandoned in 1998. In consequence thereof, while access of foreign investment to foreign markets remains under the full sovereignty of host countries, the bulk of rules concerning substantive standards of protection of foreign investment and procedural provisions on dispute settlement (both between the investor and the host State and between the latter and the State of nationality of the investor) continued to be negotiated bilaterally. The network of existing BITs expanded to include more and more complex treaties. At the end of the 1990s, but for the ‘Brazilian exception’,62 no State was outside the investment treaty system. These normative developments resulted in the emergence of two separate settings for the resolution of international disputes. While private traders have no possibility to vindicate their rights within the WTO, member States affected by non-respect of rules and commitments by their trading partners can bring their claims under the pursue human rights objectives.’ Lorand Bartels, ‘Trade and Human Rights’, in Daniel Bethlehem et al. (eds.), The Oxford Handbook of International Trade Law (2009) 571, at 573. Under the Agreement on Trade-Related Investment Measures 1994, available at http://kenyalaw. org/treaties/treaties/1092/AGREEMENT-ON-TRADE-RELATED-INVESTMENT-MEASURES, no member shall apply a measure that is prohibited by the provisions of Art. III GATT (national treatment) or Art. XI GATT (quantitative restrictions). 61

On the position that Brazil has assumed in the investment treaty system, not only as the sole major power never to have ratified a Bilateral Investment Treaty (BIT), but also as the designer of a new model – the Cooperation and Facilitation Investment Agreement – which focuses on investment facilitation rather than investor protection, and alternative dispute resolution and State-to-State arbitration rather than investor-State arbitration, see Henrique Choer Moraes and Felipe Hees, ‘Breaking the BIT Model: Brazil’s Pioneering Approach to Investment Agreements’, 112 AJIL Unbound (2018) 197. See also Engela C. Schlemmer, ‘Dispute Settlement in Investment-Related Matters: South Africa and the BRICS’, 112 AJIL Unbound (2018) 212, on South Africa’s recent decision to withdraw from the investment treaty system and to replace investment treaty protections with legislation and investor-State dispute settlement mechanisms (ISDS) with resort to domestic courts. These actions resulted from the shock South Africa experienced when early cases challenged South Africa’s actions under its constitutional mandate to redress the historic injustices of apartheid. 62

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Dispute Settlement Understanding (DSU).63 With the newly established Appellate Body developing a largely consistent case-law and a climate of trust in trade disputes resolution, the DSU would long be considered the ‘crown jewel’64 of the entire multilateral trade system. It was mostly utilised by the US and the EU, but also by developing countries against other developing and developed countries as well; and it was effective also in terms of compliance with its final rulings.65 In contrast, in the 1990s, investor-State dispute settlement mechanisms (ISDS) become standard provisions included in BITs, giving foreign investors private standing to invoke treaty breaches against the host State before an arbitral tribunal, thus avoiding the historical sensitive political implications of State-to-State dispute settlement in the exercise of diplomatic protection – something ‘dramatically different from anything previously known in the international sphere.’66 Arbitral awards – mostly pronounced at the initiative of investors from developed countries against host developing States – resulted in a sparse and fragmented case-law. With these developments, the twofold divide between human rights and international economic law, and, within the latter, between the multilateral setting of trade and the extensive network of BITs unconnected to the WTO, was completed.

V. The New Century The beginning of the 21st century is indelibly marked by two events: the September 11 attacks of 2001 and the global financial shock of 2008, with the ensuing economic crisis. The distance between the theory and practice of human rights became more profound, posing dramatically the question of the ‘effectiveness’ of the international human rights regime, while both the WTO and the investment treaty system entered a period of crisis, which is also a ‘legitimacy’ crisis and continues to be ongoing. 63

The Dispute Settlement Understanding (DSU) is Annex 2 of the WTO Agreement.

James Baccus, Inside the World Trade Organization, Special Keynote Address on 17 April 2002 at Columbia University, available at https://www8.gsb.columbia.edu/apec/sites/apec/files/files/ discussion/bacchusdp.pdf. 64

65

Lester, Mercurio, and Davies, supra note 17, at 149.

66

Jan Paulsson, ‘Arbitration Without Privity’, 10 ICSID Review (1995) 232, at 256.

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At the normative level, by the turn of the century most States had ratified the majority of the most important human rights treaties.67 Institutionally, the Human Rights Council (HRC) was established in 2006 to replace the former UN Commission on Human Rights – long criticised for including among its members, some of the most prominent human rights violators and for the uneven selection of situations to subject to the Commission’s scrutiny.68 The HRC is the only global intergovernmental human rights body, made up of 47 UN member States elected by the UN General Assembly, responsible for strengthening the promotion and protection of human rights around the globe and for addressing situations of human rights violations and make recommendations on them. Among other procedures and mechanisms, the Council set up the Universal Periodic Review (UPR)69 and continued to work with, and expanded, the so-called Special Procedures.70 The UPR is a process to periodically assess the human rights situations in all 193 UN member States. All UN member States are obliged to go through a review once every five years on all human rights issues – not just those enshrined in treaties to which they are parties.71 It is thus the 67 The updated status of ratification of the nine core international human rights instruments – International Convention on the Elimination of All Forms of Racial Discrimination; ICCPR; ICESCR; Convention on the Elimination of All Forms of Discrimination against Women; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; Convention on the Rights of the Child; International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families; International Convention for the Protection of All Persons from Enforced Disappearance; Convention on the Rights of Persons with Disabilities – is available at https://www. ohchr.org/en/professionalinterest/pages/coreinstruments.aspx. 68 UNGA Res. 60/251, 15 March 2006. Little has been written about the Human Rights Council (HRC) and its role in enforcing human rights law. See, however, M. Cherif Bassiouni and William A. Schabas (eds.), New Challenges for the UN Human Rights Machinery. What Future for the UN treaty Body System and the Human Rights Council Procedures? (2011), at 239-478. On the first two successive terms of US membership on the HRC (2009-2015), see Mark P. Lagon and Ryan Kaminski, Bolstering the UN Human Rights Council’s Effectiveness (2017). 69 See the Universal Periodic Review (UPR) official website, OHCHR, Universal Periodic Review, available at https://www.ohchr.org/EN/HRBodies/UPR/Pages/UPRmain.aspx.

See the Special Procedures of the HRC official website, OHCHR, Special Procedures of the Human Rights Council, available at https://www.ohchr.org/EN/HRBodies/SP/Pages/Welcomepage. aspx. 70

71 Edward McMahon and Marta Ascherio, ‘A Step Ahead in Promoting Human Rights? The Universal Periodic Review of the UN Human Rights Council’, 18 Global Governance: A Review of Multilateralism and International Organizations (2012) 231. China was initially concerned that the UPR process might ‘overlap with the work of human rights treaty bodies and special mechanisms, thus

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first human rights mechanism to ensure in principle that every State is equally represented and evaluated. Special procedures, established by the former Commission on Human Rights, are made up of special rapporteurs, special representatives, independent experts, and working groups that monitor, examine, advise, and publicly report on thematic issues or human rights situations in specific countries, as well as interact with a country’s population on human rights concerns. They are appointed directly by the HRC, on the basis of open calls publicly available, for the purpose of assisting the Council in the discharge of its functions in relation to specific rights (thematic) or (country-specific) situations.72 The Council also provides a forum for advancing human rights norms, including through the passage of thematic resolutions. Human rights institutions also flourished and expanded at the regional level. The European Convention on Human Rights has established itself as the most sophisticated and successful regional system of human rights protection in the world. Thanks to the automatic right of individual application introduced in 1998,73 the European Court of Human Rights (ECtHR) holds to account 47 member States for violations of the rights and freedoms guaranteed by the Convention to over 800 million persons. The Inter-American Court of Human Rights, the African Court on Human and Peoples’ Rights and the Arab Human Rights Commission are all functioning institutions that oversee compliance with their respective human rights charter.74 Law schools – where future generations of judges, lawyers, and law-makers are formed – include in their curricula international human rights courses, not exclusively devoted to international careers. These developments in legal education in turn

increasing report burdens for developing countries’ (Permanent Mission of the People’s Republic of China to the UN, 2006). However, the UPR process was adopted as a complementary measure to the work of treaty bodies, emphasising its ‘cooperative nature’ and suggesting that it should be ‘constructive, non-confrontational and non-politicized’ (Meghna Abraham, Building the New Human Rights Council: Outcome and Analysis of the Institutional-Building Year (2007), at 36). 72 Relatively little has been written also about the UN Special Procedures. For a rare exception, see Humberto Cantú Rivera, The Special Procedures of the Human Rights Council (2015); and Bassiouni and Schabas (eds.), supra note 68, at 387-478. 73 See Protocol No. 11 to the ECHR, restructuring the control machinery established thereby 1994, ETS No.155 (entry into force 1 November 1998). 74 Dinah L. Shelton, supra note 4, at 61-73. See also Daniel Moeckli, Sangeeta Shah, and Sandesh Sivakumaran (eds.), International Human Rights Law (3rd ed., 2017).

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prompted private litigation, in the US and elsewhere, based upon human rights violations.75 Human rights language is used everywhere and is routinely invoked to criticise governments in political and diplomatic discourse. Human Rights NGOs continue to grow in the number and outreach of their reporting, lobbying, and advocacy activities,76 contributing to make both small and large-scale human rights breaches well-detected and documented. At no time in history has there been more information available to governments and the public about the state of human rights around the world.77 Yet, the September 11 attacks by the Islamic extremist group al-Qaeda against US targets exposed the fragility of fundamental rights and freedoms of the most powerful democracy and set the beginning of the most geographically and temporally undefined war in history, the war against international terrorism. America’s recourse to waterboarding and other inhuman interrogation techniques at the detention centre of Guantanamo Bay – where inmates are subject to indefinite detention and the jurisdiction of military tribunals – are found too cruel to be justified even against suspects of the terrorist bombing in New York and Washington DC.78 Despite pronouncements of the US Supreme Court that Guantanamo inmates are

75

Posner, supra note 8, at 26.

For an interesting empirical analysis of the human rights discourse in national constitutions and international agreements, see David S. Law, ‘The Global Language of Human Rights: A Computational Linguistic Analysis’, 12 Law & Ethics of Human Rights (2018) 111. On new forms of civic activism, ‘different from the familiar NGO model, being self-consciously shapeless, indeterminate ad even nebulous in from, deed and vision’, see Richard Youngs, Civic Activism Unleashed: New Hope or False Dawn for Democracy? (2019). 76

77

Beth A Simmons, Mobilizing for Human Rights. International Law in Domestic Politics (2009), at 9.

So did the infamous briefing of the US administration attempting to devise a definition of torture that would not include waterboarding. The Washington Post, Memorandum for Alberto R. Gonzales, Counsel to the President, 1 August 2002, available at http://www.washingtonpost.com/wp-srv/nation/ documents/dojinterrogationmemo20020801.pdf. 78

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entitled to habeas corpus review of their detention,79 a few hundred people are still detained and subject to the jurisdiction of military tribunals.80 54 countries, including core European countries such as the United Kingdom, Italy, and Germany, participated in the extraordinary rendition operations run by the Central Intelligence Agency. Reports commissioned by the European Commissioner of Human Rights81 – a sort of human rights watch-dog of the Council of Europe with information and communication tasks in the field of human rights – and judgments by the ECtHR82 found extraordinary renditions to violate the prohibition against torture, the rights to life and liberty, and the right to a judicial remedy. And human rights practices do not improve elsewhere in the world. The war between Georgia, Russia, and the Russian-backed self-proclaimed Republics of South Ossetia and Abkhazia in August 2008, follows a period of worsening relations between Russia and Georgia, both formerly constituent republics of the Soviet Union. Another war erupts in 2014, when Russia seizes Crimea from Ukraine in an illegal See the Boumediene v. Bush case in which the US Supreme Court on 12 June 2008, held that the Military Commissions Act of 2006, which barred foreign nationals held by the US as ‘enemy combatants’ from challenging their detentions in US federal courts, was an unconstitutional suspension of the writ of habeas corpus guaranteed in the US Constitution: ‘The Nation’s basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. To hold that the political branches may switch the Constitution on or off at will would lead to a regime in which they, not this Court, say “what the law is”’. US Supreme Court, Boumediene v. Bush, 553 U.S. 723 (2008). 79

80 As recently as 8 August 2018, the US Court of Appeals for the District of Columbia Circuit affirmed the district court’s denial of a petition for habeas corpus relief to Moath Hamza Ahmed AlAlwi, a detainee at Guantanamo Bay. Al-Alwi was captured in December 2001 for his Taliban-related activities and has remained in US custody ever since. US Court of Appeals of the Second Circuit for the District of Columbia Circuit, Al-Alwi v. Trump, No. 17-5067 (D.C. Cir. 2018), available at https://law. justia.com/cases/federal/appellate-courts/cadc/17-5067/17-5067-2018-08-07.html. 81 Council of Europe, Parliamentary Assembly, Alleged secret detentions and unlawful inter-State transfers of detainees involving Council of Europe member States, Doc. 10957, 12 June 2006 (‘the 2006 Marty Report’); Council of Europe, Parliamentary Assembly, Secret detentions and illegal transfers of detainees involving Council of Europe member States: second report, Doc. 11302 rev., 11 June 2007 (‘the 2007 Marty Report’).

European Court of Human Rights (ECtHR), Grand Chamber, El Masri v. the former Yugoslav Republic of Macedonia, Appl. No. 39630/09, Merits and Just Satisfaction, Judgment, 13 December 2012; ECtHR, Chamber, Al Nashiri v. Poland, Appl. No. 28761/11, and Husayn (Abu Zubaydah) v. Poland, Appl. No. 7511/13, Merits and Just Satisfaction, Judgments, 24 July 2014; ECtHR, Chamber, Nasr and Ghali v. Italy, Appl. No. 44883/09, Merits and Just Satisfaction, Judgment, 23 February 2016; ECtHR, Chamber, Abu Zubaydah v. Lithuania, Appl. No. 46454/11, and Al Nashiri v. Romania, Appl. No. 33234/12, Merits and Just Satisfaction, Judgments, 31 May 2018. 82

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move that violated the territorial integrity of the former Soviet Republic, and sparked a war that has displaced nearly two million people and destroyed the country’s infrastructure.83 Africa is afflicted in the South by a major armed conflict in the Darfur region of Sudan, that began in February 2003 between rebel groups and the government of Sudan, which they accused of oppressing Darfur's non-Arab population. The government responded to attacks by carrying out a campaign of ethnic cleansing against Darfur’s non-Arabs, which resulted in the death of hundreds of thousands of civilians.84 The North is marked by the Arab Spring, a series of anti-government protests, demonstrations and armed rebellions that commenced in Tunisia in 2010 and spread, in early 2011, across North Africa and the Middle East, as a response to oppressive regimes and low living standards. One of the consequences is the multiState North Atlantic Treaty Organization-led military intervention in Libya, in March 2011, and the ensuing chaos that still dominates the country. The Syrian civil war also grew out of a popular uprising against the regime of President Bashar alAssad in March 2011, as part of the Arab Spring in the Middle East. The brutal response of the security forces against initially peaceful protests demanding democratic reform and the end of repression, triggered a violent reaction, dragging the country into a full-scale civil war which after eight years (at the time of writing), is still ongoing. At the same time, the pillars of European integration are besieged by the ensuing influx of refugees and migrants as well as the terrorist attacks in Europe and its own never-ending war against terrorism, and ultimately Brexit and the rise of anti-establishment populist parties.

Russian President Vladimir Putin’s justifies Russia’s annexation of Crimea and the subsequent conflict in eastern Ukraine, in part, by asserting that Crimea is mostly comprised of ethnic Russians. 83

On 4 March 2009, the ICC released an arrest warrant for Sudanese President Omar al-Bashir on charges of war crimes and crimes against humanity. A second arrest warrant, adding a new charge of genocide, was issued on 12 July 2010 (ICC, Prosecutor v. Omar Hassan Ahmad Al Bashir, ICC-02/0501/09). This was the first genocide charge ever brought by the ICC. With the issuance of these two ICC arrest warrants, al-Bashir also became the first ever sitting head of State to be wanted by an international court. Several ICC member States have since hosted al-Bashir contrary to their obligations to arrest ICC fugitives, while the UN Security Council, having referred the situation to the ICC, has consistently failed to ensure al-Bashir’s arrest. This is amongst the causes of the ICC current unsettled status and uncertain future. 84

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While human rights law and institutions continue to look as healthy as ever before, the severe economic downturn that followed the 2008 Financial Crisis, with low growth and rising unemployment and homelessness, bring significant additional challenges to the realisation of human rights on the ground. This crisis of effectiveness and relevance is paralleled by a legitimacy crisis which invest both the multilateral regulation of trade within the WTO and the dispute settlement mechanism between States and foreign investors, under traditional BITs.

B. FTAs and SDGs as Attempts at Reuniting Trade, Investment, and Development

Notwithstanding the ever-closer link between international trade and international investment in the globalised economy of the early 21st century, ‘[t]he regulation of financial movements, trade in goods and services and of the making of direct investments remains subject […] to different regimes.’85 As a paradox or perhaps an irony of history, however, trade and investment become ‘companions’ in the multifaced crisis that invests, in parallel, their respective institutional settings and adjudicatory mechanisms. The Doha Development Round, the WTO trade-negotiation round commenced in Qatar in 2001, to reduce subsidies for developed countries’ agricultural industries and open up developing countries’ markets to services, comes to halt in 2008. Neither developed economies like the US and the EU, nor developing countries like China or India were willing or able to make the fundamental needed concessions.86 In 2015, after repeated attempts to revive the talks, trade ministers from more than 160 ‘Jürgen Kurtz has convincingly argued in favor of convergence in law-making, adjudication, and interpretation of relevant instruments between trade and investment law [Jürgen Kurtz, The World Trade Organization and International Investment Law: Converging Systems (2012).] […] as to the economic underpinning. […] [However] [t]he close connection between these types of operations, more as complementarity than as substitution from an economic and business perspective, has not lead to a significant approximation, merging or the bringing under a unitary “umbrella” of these different types of operations, institutionally and law making wise. Nor does it appear that we will witness such a movement in the near future.’ Giorgio Sacerdoti, ‘Trade and Investment Law: Institutional Differences and Substantive Similarities’, 9 Jerusalem Review of Legal Studies (2014) 1, at 1-3 (emphasis in the original). 85

86 David A. Gantz, Liberalizing International Trade after Doha: Multilateral, Plurilateral, Regional, and Unilateral Initiatives (2013), at 30-49.

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countries formally acknowledged the divide on the future of the Doha Round.87 Failure to achieve Doha ambitious agenda undermined the credibility of the multilateral trading system and hurt least-developed countries. But the failure also means that future multilateral trade agreements are probably doomed to fail for the same reasons as Doha. Many countries began to negotiate bilateral and regional trade deals in which they agree to eliminate tariffs for products made within the trading bloc.88 In principle, this new generation of FTAs falls under the exception of Article XXIV GATT. FTAs, however, have grown in number and scope to such an extent that they risk segregating the world into overlapping trading blocs with different rules that will substitute, rather than remain complementary to, the multilateral trading system.89 Moreover, since late 2017, the US has been blocking new appointments to the Appellate Body,90 which on 1 October 2018 was reduced to the minimum three members it needs to hear an appeal. If the stalemate is not overcome over the next year, on

WTO, Tenth Ministerial Declaration, Nairobi, 19 December 2015, WT/MIN(15)/DEC, available at https://www.wto.org/english/thewto_e/minist_e/mc10_e/nairobipackage_e.htm. 87

For example, the US recently concluded the Trans-Pacific Partnership with Japan, Vietnam, and nine other countries. America and the EU are also negotiating the Transatlantic Trade and Investment Partnership. China, which is not part of the Trans-Pacific Partnership, has signed many bilateral and regional agreements and proposed a 16-country trade deal that would include India and Japan. An overview of Free Trade Agreements (FTAs) and other trade negotiations see European Commission, Overview of FTA and Other Trade Negotiations, December 2018, available at http://trade.ec.europa.eu/ doclib/docs/2006/december/tradoc_118238.pdf. 88

For a different view see e.g. Shujiro Urata, ‘Mega-FTAs and the WTO: Competing or Complementary?’, 30 International Economic Journal (2016) 231, arguing that mega-FTAs and the WTO can be complementary, as mega-FTAs could facilitate negotiations with a smaller number of negotiating members, and further stresses the importance of extending mega-FTAs to a global level by merging with other mega-FTAs and by accepting new members. 89

90 The US raises a number of objections to positions taken by the WTO Appellate Body. In the Annual Report issued by the US Trade Representative in 2017 an entire section is devoted to the tendency of the Appellate Body to ‘Issu[e] Advisory Opinions on Issues Not Necessary to Resolve a Dispute’ (Office of the United States Trade Representative, 2018 Trade Policy Agenda and 2017Annual Report of the President of the United States on the Trade Agreements Program, March 2018, available at https://ustr.gov/about-us/policy-offices/press-office/reports-and-publications/2018/2018-tradepolicy-agenda-and-2017, at 27). This point has long been a concern of the US with regards to their participation in the WTO. See ‘United States Blocks Reappointment of WTO Appellate Body Member’, 110 American Journal of International Law’ (AJIL) (2016) 573; Arman Sarvarian and Filippo Fontanelli, The USA and Re-Appointment at the WTO: A “Legitimacy Crisis”?, EJIL: Talk!, 27 May 2016, available at https://www.ejiltalk.org/the-usa-and-re-appointment-at-the-wto-a-legitimacy-crisis.

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11 December 2019 the WTO Appellate Body will be reduced to a single member and the WTO dispute settlement system will become non-operational. The 2018 trade wars pose an even more serious threat to the WTO, where States respond to perceived WTO-inconsistent conduct by imposing equivalent tariffs in an escalation of reciprocal tariff increases. While WTO members adopting trade-restrictive measures on doubtful legal grounds is not a novelty, States imposing countermeasures based on their own assessment that the justifications put forward are illfounded, break their key commitment under the DSU. WTO members should refrain from unilaterally interpreting the conduct of other members as violations and reacting on the basis of their own interpretation.91 International investment law, now governed by over 3000 BITs, suffers from an analogous crisis which affects both the areas of substance (rights and obligations of the investor and the host State) and procedure (dispute resolution).92 Although the number of investment disputes continue to grow, many States are withdrawing from, or re-examining, their commitments.93 Increased recognition that Western power has become less extensive, while certain non-Western States are more active in the investment treaty system in recent years, has led to efforts to reform the regime,94 with a For a thorough examination of the current combination of trade wars and a disappearing Appellate Body as signs of a deeper breakdown of the commitment that underpins the WTO Agreements, see Geraldo Vidigal, Westphalia Strikes Back: the 2018 Trade Wars and the Threat to the WTO Regime, 2 October 2018, available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3259127. 91

Stephan Shill, The Multilateralization of International Investment Law (2009); Jose E. Alvarez and Karl P. Sauvant (eds.), The Evolving International Investment Regime: Expectations, Realities, Options (2011); Jose E. Alvarez, International Investment Law (2017); Jose E. Alvarez, The Public International Law Regime Governing International Investment (2011); Jonathan Bonnitcha, Lauge N. Skovgaard Poulsen, and Michael Waibel, The Political Economy of the Investment Treaty Regime (2017); Muthucumaraswamy Sornarajah, The International Law on Foreign Investment (4th ed., 2017). See also Congyan Cai and Anthea Roberts (eds.), ‘Symposium on the BRICS Approach to the Investment Treaty System’, 112 AJIL (2018) 187; and Fabio C. Morosini and Michelle Ratton Sanchez Badin (eds.), Reconceptualizing International Investment Law from the Global South (2017), discussing alternative approaches to the regulation of international investment among States in the Global South. 92

See Sergio Puig and Gregory Shaffer, ‘Imperfect Alternatives: Institutional Choice and the Reform of Investment Law’, 117 AJIL (2018) 361, at 365: ‘In the last decade, countries have terminated BITs with ISDS clauses (such as Ecuador, Indonesia, and South Africa), withdrew from the ICSID Convention (notably, Bolivia, Ecuador, and Venezuela), threatened to leave it (including Argentina, El Salvador, and Nicaragua), or created new constraints on using ISDS (such as Norway and New Zealand).’ 93

For recent work on this topic see Anthea Roberts, ‘Incremental, Systemic and Paradigmatic Reform of Investor-State Arbitration’, 113 AJIL (2018) 412; Cai and Roberts, supra note 92. See also Fabio C. Morosini and Michelle Ratton Sanchez Badin (eds.), Reconceptualizing International Invest94

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view – inter alia – to rebalancing foreign investment protection with the regulatory powers of the host State and making ISDS more predictable, consistent, and transparent. Some of the FTAs discussed above,95 which primarily aim to establish or further deepen preferential trade relations between the parties, now include an investment chapter – comprehensive of both investment protection and dispute settlement provisions.96 Among the proposals that have emerged is also the possibility of international investment courts instead of ISDS.97 Some FTAs also include a development and/or an environment chapter. It is too early to assess this new generation of FTAs with respect to their stated aim of fostering trade and investment while at same time promoting human rights, particularly labour rights, the protection of the environment, and other third generation rights (such as the right to clean water and other essential goods, usually provided by State public services).98 Whether they will be successful or not, they represent a clear sign that there exists a need to ‘reunite’ within a single normative framework these multiple areas of the law. In the same perspective, it is worth recalling that in 2000, building upon a decade of major UN conferences and summits, world leaders adopted the UN Millennium ment Law from the Global South (2017), discussing alternative approaches to the regulation of international investment among States in the Global South. 95

See supra note 88 and corresponding text.

For an interesting discussion of whether and to what extent considerations regarding transparency in trade dispute settlement under the recent FTAs concluded by the EU, may be transposed on ISDS, Christoph Schewe, ‘Clearing up? Transparency in the Dispute Settlement of International Trade Agreements’, 59 GYIL (2016) 391. 96

On the EU proposed Multilateral Investment Court currently under discussion in the framework of the UN Commission on International Trade Law, see United Nations Commission on International Trade Law, Working Group III, available at http://www.uncitral.org/uncitral/en/commission/ working_groups/3Investor_State.html. Other efforts at bridging some of the existing gaps include the ongoing UN work on a declaration for the rights of peasants and negotiations of a binding treaty on business and human rights, which would regulate the activities of transnational corporations and other business enterprises with respect to human rights. 97

For an overview, see Susan Ariel Aaronson and Jean Pierre Chauffour, The Wedding of Trade and Human Rights: Marriage of Convenience or Permanent Match?, WTO research and analysis, available at https://www.wto.org/english/res_e/publications_e/wtr11_forum_e/wtr11_15feb11_e.htm. For a thorough examination of the social and labour provisions contained in the chapters on sustainable development of trade agreements negotiated by the EU since 2008, see Lilian Richieri Hanania, ‘The Social Dimension of Sustainable Development in EU Trade Agreements: Strengthening International Labour Standards’, 59 GYIL (2016) 435. 98

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Declaration,99 committing their nations to a new global partnership to reduce extreme poverty and setting out eight time-bound targets that have become known as the Millennium Development Goals (MDGs). The MDGs range from halving extreme poverty to halting the spread of HIV/AIDS and providing universal primary education, all by the target date of 2015. Starting from 2016, UN General Assembly Resolution 70/1 ‘Transforming our World: the 2030 Agenda for Sustainable Development’ (2030 Agenda), set a new framework, called Sustainable Development Goals (SDGs).100 The SDGs are a collection of 17 global goals, broad and interdependent, that cover social and economic development issues including poverty, hunger, health, education, global warming, gender equality, water, sanitation, energy, urbanisation, environment, and social justice. Through the MDGs first, and the SDGs later, the right to development has thus been linked to economic growth and poverty reduction, rather than political rights and personal freedoms. It is also linked to the right to security. On 20 July 2016, the UN issued an updated overview of the major international economic and policy challenges that must be addressed to achieve the aims of the 1974 Declaration on the Establishment of a New International Economic Order.101 The report finds that some of the ideas raised at the time are still relevant and useful for implementing the 2030 Agenda for Sustainable Development. This is another important recognition that the furtherance of development away from international cooperation in economic matters is an unattainable goal.

99

UNGA Res. 55/2, 18 September 2000.

UNGA Res. 70/1, 23 August 2015. The Sustainable Development Goals (SDGs) build on the principles agreed upon in UNGA Res. 66/288, 11 September 2012 – a non-binding document released as a result of Rio+20 Conference held in 2012. The SDGs are broad and interdependent, yet each has a separate list of targets to achieve. Achieving all 169 targets would signal accomplishing all 17 goals. 100

UN Secretary-General Report, Updated overview of the major international economic and policy challenges for equitable and inclusive sustained economic growth and sustainable development, and of the role of the United Nations in addressing these issues in the light of the New International Economic Order, UN Doc. A/71/168, 20 July 2016. 101

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VI. Efforts at Bridging Existing Divides from Within the Human Rights Regime With a view to filling the considerable gap between the recognition of human rights and their implementation on the ground, the UN has put great emphasis, in the first quarter of this century, on the universality, indivisibility, and interdependence of human rights. A more radical attempt at bridging the divide between human rights and international economic and development law has recently been put forward by China, as part of its broader effort to redefine its role on the world scene, challenging existing – and assuming – leadership in economic and non-economic fields.

A. The Doctrine of the Universality and Indivisibility of Human Rights

According to the UN conceptual framework since the Vienna Declaration, ‘[a]ll human rights are universal, indivisible and interdependent and interrelated’, and must be treated ‘in a fair and equal manner, on the same footing, and with the same emphasis’.102 The principle of universality means that human rights shall enjoy universal protection across all boundaries and civilisations, regardless of political, economic, or cultural systems. Human rights are inalienable, i.e. they are inherent in all persons and cannot be alienated from an individual or group except with due process and in specific situations. They are interrelated, because improvement in the realisation of any one human right is a function of the realisation of the other human rights, and interdependent, as the level of enjoyment of anyone right is dependent on the level of 102 Para. 5 of the Vienna Declaration and Programme of Action, supra note 36, which reads as follows: ‘All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms.’ Prior to Vienna, the belief that human rights are ‘indivisible’ had been formally expressed in the Proclamation of Teheran 1968 (Final Act of the International Conference on Human Rights, Teheran, 22 April to 1 May 1968, UN Doc. A/CONF.32/41) and Alternative Approaches and Ways and Means within the United Nations System for Improving the Effective Enjoyment of Human Rights and Fundamental Freedoms 1977, UNGA Res. 32/130 (XXXII), 16 December 1977 (para. 13 and preambular para. 6, respectively).

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realisation of the other rights. Human rights are finally indivisible: all civil, cultural, economic, political, and social rights are equally important. Improving the enjoyment of any right cannot be at the expense of the realisation of any other right.103 These concepts have been criticised on various fronts. The debate is intense, not at the level of legalisation but at the level of implementation and enforcement.104 A fundamental challenge to the universality of human rights, however, is China’s ‘cultural relativism’. China’s collectivist conception of human rights, including its emphasis on ‘development first’, won considerable support regionally, when forty-six Asian governments convened at the Bangkok Conference,105 a regional prelude to the 1993 World Conference on Human Rights in Vienna. The right to development then found its way into the Vienna Declaration, which, significantly, endorsed that rights are ‘universal’ and ‘inalienable’, but in the ‘context of a dynamic and evolving process of international norm-setting’ in which ‘national and regional particularities’ are to be borne in mind.106 In the 21st century, China still promotes the concept that human rights must be ‘based on national conditions, with the right to development as the primary basic human right’, a point emphasised in the Beijing Declaration in 2017.107 103 Various UN organs and specialised agencies and the human rights commissions in a variety of States also advance the tenet. See e.g. United Nations Children’s Fund, Human Rights Approach (2016), available at: https://www.unicef.org/crc/index_framework.html. The UNGA resolution that established in 2006 the Human Rights Council underlines that ‘all human rights are universal, indivisible, interrelated, interdependent and mutually reinforcing’, UNGA Res 60/251, 3 April 2006, at preambular para. 3. This wording is found in basically all HRC resolutions. See also OHCHR, Your Human Rights (2016), available at: http://www.ohchr.org/en/issues/pages/whatarehumanrights.aspx. 104 Nicole Deitelhoff and Lisbeth Zimmermann Things we lost in the fire: how different types of contestation affect the validity of international norms, PRIF Working Papers No. 18 (2013), available at https://www.files.ethz.ch/isn/175046/PRIF_WP_18.pdf. 105 The regional conference’s final document, the Bangkok Declaration, claims that human rights must be approached from a pluralistic perspective that respects differences in culture, region, religion, and history, and makes several references to a nation’s right to ‘freely pursue’ its development in economic and other spheres, citing the right to self-determination but also a right to development as such. Final Declaration of the Regional Meeting for Asia of the World Conference on Human Rights (Report of the Regional Meeting for Asia of the World Conference on Human Rights (Bangkok, 29 March2 April 1993), UN Doc. A/CONF.157/ASRM/8A/CONF.157/PC/59, 7 April 1993. 106

Vienna Declaration and Programme of Action, supra note 36, at para. 5.

Beijing Declaration, 8 December 2017, available at http://www.xinhuanet.com/english/201712/08/c_136811775.htm, preambular para. 5. The Beijing Declaration was adopted by the First SouthSouth Human Rights Forum, attended by delegates from 70 developing countries from Asia and Africa. See Katrin Kinzelbach, ‘Will China’s rise lead to a new normative order? An analysis of China’s state107

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The indivisibility of human rights is also part of the normative backbone of the UN official doctrine of human rights. The idea is that improvement in the realisation of any one right is a function of the realisation of the others and that improving the enjoyment of any right cannot be at the expense of the realisation of any other right. The UN, however, have never provided a firm definition of what indivisibility means, or the policy implications of asserting it as a principle. Nor is there any evidence that the UN’s adoption and promotion of the idea was ever informed by empirical fact.108 The indivisibility of human rights has also received little philosophical attention, especially when compared to the purported universality of human rights.109 The core difficulty that the thesis of indivisibility faces is that it is possible to fully implement or secure certain human rights (for example, rights not to be enslaved or tortured) without fully implementing or securing other human rights (for example, rights to education or food), and vice versa. Moreover, it has long been recognised that not only ESC and collective rights, but also classical liberal rights imply positive obligations. The realisation of all rights and freedoms requires choices as to ways in which to implement them and to what extent, and resources.110 Moreover, most (not absolute) rights can be balanced against public interests (public order, health, security, etc.). But they can equally be balanced against other rights.111 Asymmetrical implements on human rights at the United Nations (2000-2010)’, 30 Netherlands Quarterly of Human Rights (2012) 299. 108 The empirical literature does not unanimously support the existence of indivisibility among human rights. Most of the studies find that the relationship between human rights is neither bidirectional nor simultaneous. Furthermore, the robustness of the few studies that do find support for simultaneous achievement is questionable. See Stephanie Soiffer and Dane Rowlands, ‘Examining the indivisibility of human rights: A statistical analysis’, 17 Journal of Human Rights (2018) 89, at 102, holding that ‘empirical testing reveals that there is reason to believe that only some pairs of human rights are indivisible’. 109 Michael Goodhart, ‘None So Poor That He Is Compelled to Sell Himself: Democracy, Subsistence, and Basic Income’, in Shareen Hertel and Lanse Minkler (eds.), Economic Rights: Conceptual, Measurement, and Policy Issues (2007) 94, at 104: ‘Only a few scholars, however, have explored the analytic bases of this claim [concerning the indivisibility of human rights].’ For an historical and political discussion of indivisibility, see Daniel Whelan, Indivisible Human Rights: A History (2010). On the philosophical thesis of the indivisibility of human rights, Ariel Zyberman, ‘The Indivisibility of Human Rights’, 36 Law and Philosophy (2017) 389. 110 In a human rights perspective, one can even say that one of the very essential functions of the State is precisely to synthesise the multiple claims and aspirations to the realisation of various rights and freedoms by multiple stakeholders. And in a democratic State, the right to participate in the political process leading to such choices is a pre-requisite to the realisation of all other rights and freedoms. 111

‘[T]he rights and freedoms of others’, in the wording of Arts. 9-11 ECHR.

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mentation of rights, therefore, is not only possible, but – to some extent, at least – a necessity. Beyond theoretical and political criticisms of principle, there are very few win-win situations in human rights and human rights are hardly a zero-sum up game. Very few people on earth would not wish for a world where all rights are equally protected, respected, and fulfilled for everyone. However, to ensure to the maximum extent the realisation of all rights and freedoms by all at any given moment is an unattainable goal, as much as it is worth pursuing.

B. China’s New International Human Rights Diplomacy

Since the turn of the millennium, China has emergence as a major player in multilateral contexts – from its membership in the WTO, its avowal since 9/11 to counter international terrorism and its key role in seeking to defuse the threat of nuclear conflict on the Korean peninsula, to its increasing participation in UN peace-keeping operations.112 The rise of China as an international actor on the international arena seems to have incrementally progressed largely unnoticed in recent years. Attention so far has been mainly focused on single economic initiatives, such as the creation of the Asian Infrastructure Investment Bank, the New Development Bank, and, most notably, the so called Belt and Road Initiative, a multi-trillion dollar development strategy announced by the Chinese government in 2013, to address an ‘infrastructure gap’ across the Asia Pacific area and Central and Eastern Europe.113 But China has also established an ‘international commercial court’ (guoji shangshi fating), marking the first

112 Congyan Cai, ‘New Great Powers and International Law in the 21st Century’, 24 EJIL (2013) 755. On China’s rapid moves to the centre stage of world politics, see also Rosemary Foot and Andrew Walter, China, the United States, and Global Order (2011); Yongjin Zhang, ‘“China anxiety:” discourse and intellectual challenges’, 44 Development and Change (2013) 1407; David Shambaugh, China Goes Global: The Partial Power (2013); Evelyn Goh (ed.), Rising China’s Influence in Developing Asia (2016).

The project not only cements China as a major source of outward international investment (some estimates list the Belt and Road Initiative (BRI) as one of the largest infra-structure and investment projects in history, covering more than 68 countries, including 65% of the world’s population and 40% of the global Gross Domestic Product as of 2017). The BRI is broadly viewed also as a commercial and geo-political project to enhance China’s international status and to export the products of its excess capacity. 113

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time the country is creating a world legal institution.114 Moreover, unlike some other BRICS-States (Brazil, Russia, India, and South Africa) that have shied away from investor protection and ISDS,115 China has extended the jurisdiction of existing domestic commercial arbitral institutions in the country to cover foreign investment disputes and created new Chinese institutions to deal with such disputes, as well as joint arbitration centres with States in regions where China invests heavily, such as Africa.116 And China has been moving beyond trade and investment policies in the Asia Pacific Region, Central and Eastern Europe, and other areas of the world.117 One dimension that has received little attention so far is China’s attempt to establish itself as an international human rights world champion, with the HRC as the natural arena for the display of such a move. Along with the former Soviet Union, China contributed to the rise of the second generation of rights and played an important role in the three-generation debate. After Tiananmen, however, human rights had become a structural weakness that China had to overcome through active diplomacy. As mentioned in the previous paragraph, under the Chinese conception, civil and political rights, deemed essentially individual rights, are, at China’s present state of national development, subsidiary to a claimed ‘people’s right to subsistence’, termed ‘the most important of all human rights, without which the other rights are out of the

On 1 July 2018, the Supreme People’s Court, pursuant to its power to set up ‘tribunals’ issued the ‘Supreme People’s Court Regulations on Certain Issues in Establishing an International Commercial Court’. The Supreme People’s Court is establishing three such tribunals – in Shenzhen, Beijing, and Xi’an. Opening ceremonies have already been held in Shenzhen and Xi’an, although it is unknown when the courts will start accepting cases. Matthew S. Erie, ‘The China International Commercial Court: Prospects for Dispute Resolution for the “Belt and Road Initiative”’, ASIL Insights, 31 August 2018, available at https://www.asil.org/insights/volume/22/issue/11/china-international-commercial-courtprospects-dispute-resolution-belt. 114

115

See supra notes 62 and 94.

Huiping Chen, ‘China's Innovative ISDS Mechanisms and Their Implications’, 112 AJIL Unbound (2018) 207, concluding that Chinese innovations of recent years in ISDS should be understood as reflecting three important goals of China’s broader international strategy: to protect China’s outbound investors, to help shape international investment treaty discourse, and to offer alternative Chineseinitiated international institutions so as to disrupt the monopoly currently enjoyed by Western-initiated international institutions. 116

On 4 April 2018, for example, China filed a request for consultation with the US with a view to ascertaining whether US tariff increase on steel, aluminium, and other Chinese products are in conformity with WTO law. China claims the tariffs would be in excess of the US’ and are inconsistent with Arts. I and II GATT and Art. 23 DSU. WTO, United States – Tariffs Measures on Certain Goods from China, Request for consultation by China, 4 April 2018, WT/DS543/1. 117

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question’.118 In the multilateral setting, China also asserts a right to develop in a manner linked to its own cultural framework and economic development, different from the liberal West. Both these positions have now found an embodiment in two recent HRC resolutions, bot sponsored by China, and a number of other States. On 7 July 2017, the HRC passed resolution 35/21 untitled ‘The contribution of development to the enjoyment of all human rights’,119 by a recorded vote of 30 to 13, with three abstentions. All Westerns countries sitting in the Council voted against.120 The resolution reaffirms that ‘all human rights are universal, indivisible, interdependent and interrelated and that the international community must treat human rights globally in a fair and equal manner, on the same footing and with the same emphasis’ and ‘[r]ecognizes that development and the realization of human rights and fundamental freedoms are interdependent and mutually reinforcing’. It also reaffirms that the SDGs ‘are integrated and indivisible, global in nature and universally applicable, take into account different national realities, capacities and levels of development and respect national policies and priorities’ and that ‘the existence of extreme poverty inhibits the full and effective enjoyment of human rights’. On this basis, resolution 35/21 calls upon all States ‘to realize people-centred development of the people, by the people and for the people’ and ‘to spare no effort to promote sustainable development, in particular while implementing the 2030 Agenda for Sustainable Development, as it is conducive to the overall enjoyment of human rights’ (paragraphs 2-3). The link between development and human rights, in particular first-generation rights is not new,121 nor is China’s expressed support for economic, social, and cultural rights and its often-claimed record in lifting some of its citizens out of poverty. The resolution does spell out a number of sensible things, but it also seeks to frame the 118 Government White Paper, Human Rights in China, Preface, Information Office of the State Council of the People’s Republic of China, November 1991, available at www.china.org.cn/e-white, at Section I, first unnumbered paragraph. 119

HRC, Resosultion 35/21, UN Doc. A/HRC/RES/35/21, 22 June 2017.

The voting was as follows: In favour: Bangladesh, Bolivia (Plurinational State of), Botswana, Brazil, Burundi, China, Congo, Côte d’Ivoire, Cuba, Ecuador, Egypt, El Salvador, Ethiopia, Ghana, India, Indonesia, Iraq, Kenya, Kyrgyzstan Mongolia, Nigeria, Philippines, Qatar, Rwanda, Saudi Arabia, South Africa, Togo, Tunisia, United Arab Emirates, Venezuela (Bolivarian Republic of); Against: Albania, Belgium, Croatia, Germany, Hungary, Japan, Latvia, Netherlands, Portugal, Slovenia, Switzerland, United Kingdom of Great Britain and Northern Ireland, United States of America; Abstaining: Georgia, Panama, Republic of Korea. 120

121

See the Declaration on the Right to Development, supra note 25.

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right to development as a right for States, not for people and communities. Far from achieving its purpose of empowering vulnerable populations, when cast this way, the right to development can be used by States to justify major construction and development projects, which often trample the rights of the very populations the norm is intended to protect.122 Moreover, the right to development has a collective (though not statist) component, but its exercise presupposes popular participation in the political process of development. Such a right of participation can only be meaningful if those who will reap the fruits also bear the burdens of development, and are able to exercise their civil and political rights.123 The right to development is a human right enjoyed by peoples but also by individuals.124 And empirical evidence suggests that the open society attainable through many first-generation rights does not impair, but indeed strengthens, national development. 125 Resolution 37/23, adopted by the HRC on 23 March 2018,126 by a recorded vote of 28 to 1, with all 17 Western States but the US abstaining rather voting against,127 122 Miloon Kothari, China’s Trojan Horse Human Rights Resolution, The Diplomats, 22 March 2018, available at https://thediplomat.com/2018/03/chinas-trojan-horse-human-rights-resolution/. 123 Before it was replaced in 2006 by the HRC, the UN Human Rights Commission, whose membership reflected a wide cross-section of human, legal, and political cultures, affirmed that democracy, development and human rights are interdependent and mutually reinforcing and that democracy is based on the freely expressed will of the people to determine their own political, economic, social, and cultural systems and on their full participation in all aspects of their lives. Commission on Human Rights, Resolution 2003/36, UN Doc. E/CN.4-RES/2003/36, 23 April 2003, Interdependence between democracy and human rights. 124 Art. 1 Declaration on the Right to Development, supra note 25. See David I. Fisher, ‘The Emerging Right to Development and its Relationship to First Generation Rights: An Analysis of the “Asian Values” View’, 55 Scandinavian Studies in Law (2015) 321, at 338, stressing that: ‘The “Asian values” claim to place the interest in national development before respect for first generation rights is not borne out by an examination of the right to development as it has come to expression in various international instruments.’

I endorsed this approach in my report to the UNGA (72nd session), in my previous capacity as UN Special Rapporteur on the rights to freedom of peaceful assembly and of association: Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, UN Doc. A/72/ 135, 14 July 2017, at 7-8, stressing that ‘a major shift in the global human rights conversation requires the recognition that the interaction between development and human rights is twofold. Development contributes to human rights, and the enjoyment of those rights promotes development’. 125

126

HRC, Resolution 37/23, UN Doc. A/HRC/37/23, 23 March 2018.

The voting was as follows: In favour: Angola, Brazil, Burundi, Chile, China, Côte d’Ivoire, Cuba, Democratic Republic of the Congo, Ecuador, Egypt, Ethiopia, Iraq, Kenya, Kyrgyzstan, Mexico, Mongolia, Nepal, Nigeria, Pakistan, Panama, Philippines, Qatar, Saudi Arabia, Senegal, South Africa, Togo, United Arab Emirates, Venezuela (Bolivarian Republic of). Against: United States of America. Abstaining: Afghanistan, Australia, Belgium, Croatia, Georgia, Germany, Hungary, Japan, Peru, Republic 127

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also seeks to promote a State-centric approach in the implementation of all human rights, including the right to development. Under the title ‘Promoting mutually beneficial cooperation in the field of human rights’, the resolution states that the work of the HRC shall be guided by the ‘principles of universality, impartiality, objectivity and non-selectivity’, but also by the principles of ‘constructive international dialogue and cooperation’. The notion of ‘mutually beneficial cooperation’, however, remains vague and undefined – the resolution requests the Council’s Advisory Committee to conduct a study and submit a report on the matter. The main emphasis is on ‘technical assistance and capacity building’ and the UPR ‘as a mechanism based on cooperation and constructive dialogue’ (paragraphs 3 and 5). Again, this resolution privileges the sovereign State over people and communities, and inter-State dialogue and cooperation over recognition, monitoring, and accountability for violations and justice for victims.128 Whatever their shortcomings and uncertain future,129 these two recent HRC resolutions address existing gaps: eradication of extreme poverty is paramount to the enjoyment of rights and international cooperation is key to sustainable and inclusive development. It is paradoxical, however, and again perhaps an irony of history, that they were proposed by one of the States with the worst historical human rights record (regularly cited in Secretary General’s reports as engaging in persistently unpunished reprisals against human rights defenders at both the national and international levels). And that they find no support – or even the open opposition – of the traditional human rights champions.130 of Korea, Rwanda, Slovakia, Slovenia, Spain, Switzerland, Ukraine, United Kingdom of Great Britain and Northern Ireland. ‘The “cooperation” which the resolution presents can become an escape route for governments who prefer an absence of scrutiny for their questionable practices, and go to great lengths at home and abroad to avoid it. For civil society and affected populations, however, the move away from scrutiny is a move to entrench impunity for human rights violations.’ Kothari, supra note 122. 128

129 After just over a decade of existence, the HRC itself is threatened to follow its predecessor’s faith because of the US resigning its membership, effective 19 June 2018: OHCHR, Current Membership of the Human Rights Council, available at https://www.ohchr.org/EN/HRBodies/HRC/Pages/Current Members.aspx. 130 See Hun Joon Kim, The prospects of human rights in US–China relations: a constructivist understanding (2018), at 3, considering it likely that relations between the US and China – the two most important actors in world politics today – will profoundly affect the 21st century international order and that international human rights norms will become increasingly important in the future US-China relations: ‘although convergence is not completely impossible, the past dynamic of competition and confrontation will continue and human rights will still be a contentious issue in U.S.-China relations.’

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VII. Conclusions A. The ‘Effectiveness’ of International Human Rights Law

The international regime of human rights is relatively weak compared to the regime of trade (or other regimes). No competitive market forces drive countries toward compliance, nor are States generally consistent in their application of human rights standards to their foreign policy, or employ sanctions – political, economic, military, or otherwise – to coerce other countries into improving their human rights record. This is because contrary to the extent of trade openness, a country and its citizens are hardly affected if the human rights of citizens from other countries are violated in other countries.131 Without powerful countries taking a strong interest in the effectiveness of international human rights regimes, there is little cost for those with a poor human rights record to ratify the treaty as a symbolic gesture of good will, instead maintaining its poor record in actual reality.132 Moreover, unlike growth in gross domestic product, import and export data, and foreign direct investment stocks and flows, numerical values are not entirely attributable to human rights practices. The effectiveness of human rights law therefore is hardly measurable. Only some violations of human rights are reportable in statistics (e.g., prisons overcrowding or trials behind a reasonable time). For most violations, numbers are hardly telling, even in relation to the most fundamental rights. How to measure, for example, breaches of the rights to life and personal liberty arising out of extra-judicial killings and punishments – by definition, committed by State officials without the sanction of any judicial proceeding or legal process and as extra-legal fulfilment of their prescribed role? Statistics remain equally unsatisfactory with respect to the measurement of implementation of social and economic rights. Human Admittedly, the cause of ‘China anxiety’ is not the material aspect of power that China has been projecting in the world but rather the challenge made by the political and economic success of China to the fundamental philosophical assumptions and political beliefs of the US and other Western countries, such as belief in democracy or a liberal world order. G. John Ikenberry, ‘The rise of China and the future of the West: can the liberal system survive?’, 87 Foreign Affairs (2008) 23; G. John Ikenberry, America’s challenge: the rise of China and the future of liberal international order (2011). Eric Neumayer, Do International Human Rights Treaties Improve Respect for Human Rights? (2005), at 926. 131

132

Jack L. Goldsmith and Eric A. Posner, The Limits of International Law (2007).

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rights indicators such as those developed by the OHCHR,133 do not fundamentally alter this picture.134 Even assuming that human rights violations can be measured, this is not necessarily telling of the impact of international human rights law, i.e. of the effects of human rights norms and institutions on human rights practices. Correlations can be established between improvement of human rights and certain data such as treaty ratification, acceptance of the jurisdiction of monitoring bodies, and the number of international cases brought by private parties against the State concerned.135 Attempts have also been made at singling out specific variables, specifically in relation to treaty ratification.136 It is not possible, however, to completely isolate the effects of human rights OHCHR, Human Rights Indicators. A Guide to Measurement and Implementation (2012). According to the forward by Navi Pillay as the High Commissioner at the time, the Guide is premised on the recognition that ‘[i]In recent years, the critical need for such tools has become increasingly evident. On the eve of the Arab Spring, there were still reports about the remarkable economic and social progress and general improvements in governance and the rule of law that some countries in the region were achieving. At the same time, UN human rights mechanisms and voices from civil society were painting a different picture, and reporting on exclusion, the marginalization of communities, discrimination, absence of participation, censorship, political repression or lack of an independent judiciary and denial of basic economic and social rights.’ 133

On the use of statistics to measure human rights, see the interesting work by Sally Engle Merry, The Seduction of Quantifications. Measuring Human Rights, Gender Violence, and Sex Trafficking (2016), at 1: ‘Numerical assessments such as indicators appeal to the desire for simple, accessible knowledge and to a basic human tendency to see the world in terms of hierarchies of reputation and status. […] Counting things requires making them comparable, which means they are inevitably stripped of their context, history, and meaning.’ On the challenges of measuring compliance and effectiveness, Oona A. Hathaway, ‘Do Human Rights Treaties Make a Difference?’, 111 Yale Law Journal (2002) 1935. 134

See Heather Smith-Cannoy, Insincere Commitments: Human Rights Treaties, Abusive States, and Citizen Activism (2012), at 1, noting that: ‘Between 1947 and 2007, more than one hundred new global human rights treaties emerged, covering a range of issues from prohibitions on torture and children in battle to apartheid in sports. And governments are signing on, making public commitments to protect the human rights of their citizens. Yet for all the progress on global human rights in the twentieth century, a series of battles remain.’ 135

See e.g. Eric Neumayer, supra note 131, finding that rarely does treaty ratification have unconditional effects on human rights. A beneficial effect of ratification of human rights treaties is typically conditional on the extent of democracy and the strength of civil society groups as measured by participation in NGOs with international linkages. In the absence of democracy and a strong civil society, treaty ratification has no effect and is possibly even associated with more human rights violations. See also Adam S. Chilton and Eric Posner, ‘Respect for Human Rights: Law and History’, Coase-Sandor Working Paper Series in Law and Economics No. 770 (2016), providing evidence that for two treaties – the Convention on Elimination of Discrimination Against Women and the Convention Against Torture – recent improvements in human rights are attributable to long running trends that pre-date the emergence of the relevant treaty regimes. Contrast Gráinne De Búrca, ‘Human Rights Experimentalism’, 111 AJIL (2017) 277, using ‘experimentalist governance’ as theory of the causal effectiveness of human rights treaties. 136

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norms and procedures. Although some scholars have provided the powerful explanation that human rights have contributed to change or have even transformed the sovereign State system, whether human rights treaties with their machineries have actually improved people’s lives remains questionable: ‘If they have, the effect has been small’.137 Improvements have been in the details. It is also difficult to deny that human rights improvements on the ground in various areas of the world in the last decade of the 20th century were not the product of the human rights movement, but are rather attributable to economic growth, the collapse of communism, and other offsetting factors.

B. The Need to Overcome the Divides

This article retraced the main phases that brought about the divide between human rights and international trade and investment, which could have been instead each other’s most natural allies. The story of the relationship between human rights and development is also a story of separation – the latter having had a much later emergence as a matter of international concern. The particular evolution of human rights as a separate branch of international law, with its own form (treaties), substance (rights and obligations), and procedure (monitoring mechanisms), was a by-product of the Cold War. So was the internal division into generations of rights, based upon the preponderance of their respective dimension (individual, ESC, or collective). Subsequent failures have deepened, rather than cured the divides. The story of human rights is also a story of a rising divide between theory and practice. This essay also examined some of the recent and current attempts to bridge the divides both internal and external to the human rights regime, including the new generation of FTAs, the SDGs, the doctrine of the universality and interdependence of human rights, and, most recently, China’s new international human rights diplomacy. They may or may not be effective with respect to their stated aim, but they are worth exploring, as are other efforts at filling existing gaps and reconciling actors, actions, and policies.

137

Posner, supra note 8, at 27.

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For the past 70 years, the development of international legal rules has been the central collective strategy to promote respect for, and observance of, human rights. International human rights law grows every day, enriching itself with new treaties, declarations, and resolutions. And States and NGOs continue to feel a need for such international instruments covering certain areas of human rights. Whether or not the twilight or decline of human rights is a plausible scenario,138 however, it is at least doubtful that existing human rights norms and institutions possess the power to positively affect future human rights practices. There might be reasons to resist the ‘merger and acquisition of human rights’139 by trade law or other branches of international law. There is a more compelling need, however, to overcome historical divides and integrate human rights in development and in the economic sphere, with a view to ensuring human rights-coherent development and economic policies.

Stephen Hopgood, The Endtimes of Human Rights (2013), arguing that we are on the verge of the Global Human Rights Regime. 138

139 The expression is borrowed from the famous Petersmann-Alston debate: Philip Alston, ‘Resisting the Merger and Acquisition of Human Rights by Trade Law: A Reply to Petersmann’, 13 EJIL (2002) 815 and Ernst-Ulrich Petersmann, ‘Taking Human Dignity, Poverty and Empowerment of Individuals More Seriously: Rejoinder to Alston’, 13 EJIL (2002) 845.

State Responsibility for the Destruction of Cultural Property PATRIZIA VIGNI(

ABSTRACT: International cultural property law has significantly developed at the level of standard-setting and to some extent at the level of ‘secondary rules’ concerning the individual criminal responsibility for the damage and destruction of cultural objects (in particular when it is intentional). But a gap remains as to State responsibility, an issue carefully shunned in treaties concerning the conservation of cultural property (especially during peacetime). This article addresses the question of how this lacuna can be filled by the application of general principles governing State responsibility for internationally wrongful acts. The analysis highlights that in this field there is a constant interplay between the conduct of States and private actors, with the consequent need to devise some form of shared responsibility for cultural offences, especially when they affect properties of outstanding value. Although no peremptory norm has yet emerged in this field, practice has shown the tendency to make a distinction between ordinary and serious breaches entailing international crimes. This affects the question of who may invoke the responsibility for destruction of cultural objects of great importance to humanity, and raises the question of the applicability of the ‘responsibility to protect’ doctrine to prevent and suppress crimes against cultural property. KEYWORDS: Cultural Property, Destruction, Crimes against Humanity, War Crimes, State Responsibility, Shared Responsibility, Responsibility to Protect

I. Introduction There is no question that the inclusion of norms recognising the international responsibility both of States and individuals within treaty regimes increases the effectiveness and enforcement of the substantive obligations established by these regimes.

Senior Lecturer and Researcher of Public International Law at the Department of Business and Legal Studies, University of Siena, Italy. Degree in Law (University of Siena, Italy), Magister Juris (University of Oxford, United Kingdom), Doctorate in International Law (University of Siena, Italy). The author would like to express her gratitude to Professor Francesco Francioni for his inspiration and support during the drafting of this article and to the Editors of the German Yearbook of International Law for their valuable comments. (

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Yet, while individual criminal responsibility is regulated in detail under international criminal law and in some treaties on the protection of cultural property (cultural property treaties), such as the 1999 Second Protocol to the 1954 Hague Convention for the protection of cultural property in the event of armed conflict (Hague Convention)1 and the 2017 Nicosia Convention on offences relating to cultural property (Nicosia Convention), adopted within the framework of the Council of Europe and not yet in force,2 in general, international treaties concerning cultural property do not provide for specific norms on State responsibility. This lacuna also affects international treaties of humanitarian law (humanitarian law treaties), which include norms on the protection of cultural property. Therefore, both humanitarian law and cultural property treaties cannot be considered as examples of ‘self-contained’ regimes in which special norms relating to responsibility and dispute settlement accompany substantive obligations applicable to a specific subject-matter of international law in a complete and autonomous manner.3 In contrast, proper ‘self-contained’ regimes exist in the field of human rights, such as, for example, the International Covenants on Civil and Political Rights4 and on Economic, Social and Cultural Rights,5 at the global level, and the European Convention on Human Rights,6 the American Convention on Human Rights,7 and the African Charter on Human and Peoples’ rights,8 at the regional level. The institutionalised 1 Convention for the Protection of Cultural Property in the Event of Armed Conflict (Hague Convention) 1954, 249 UNTS 215; and Second Protocol to the Hague Convention 1999 (Second Protocol), United Nations (UN) Educational, Scientific and Cultural Organization (UNESCO) Doc. HC/ 1999/7, 26 March 1999. 2

Convention on Offences relating to Cultural Property (Nicosia Convention) 2017, ETS 221.

For this lacuna of international cultural heritage law see Lucas Lixinski and Vassilis P. Tsevelekos, ‘The Strained, Elusive and Wide-Ranging Relationship between International Cultural Heritage Law and the Law of State Responsibility: From Collective Enforcement to Concurrent Responsibility’, in Alessandro Chechi and Marc-André Renold (eds.), Cultural Heritage Law and Ethics: Mapping Recent Developments, Studies in Art Law (2017), 7, at 10. For a similar lacuna affecting international humanitarian law treaties see Marco Sassòli, ‘State Responsibility for Violations of International Humanitarian Law’, 846 International Review of the Red Cross (2002), 401, at 404. 3

4

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

5

International Covenant on Economic, Social and Cultural Rights (ICESCR) 1966, 993 UNTS 3.

European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, ETS 5. 6

7

American Convention on Human Rights (ACHR) 1969, 1144 UNTS 123.

8

African Charter on Human and Peoples’ Rights (ACHPR) 1981, 1520 UNTS 217.

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structure characterising these treaty systems allows to ascertain the responsibility of the contracting States for the violation of the individual substantive rights, granted in the conventions.9 Among these rights, the right to take part in cultural life10 and the right to cultural development11 demonstrate the importance of culture for the broad understanding of human life.12 The organs established by human rights treaty regimes have developed significant case-law according to which the obligation of States of safeguarding cultural heritage, including cultural property, is also owed to individuals in order to grant their human rights to cultural life and cultural development.13 Although human rights treaties play an important role for the protection of the cultural identity at the international level, for the purposes of the present article, these treaties will not be examined as autonomous sources of international norms on State responsibility for illicit conducts affecting cultural property. Yet, the argument emphasising the human dimension of the need to protect cultural heritage can be of assistance to provide further bases to assert State responsibility for the unlawful destruction of cultural property. The absence of norms on State responsibility within cultural property and humanitarian law treaties raises the question whether general international norms on State responsibility are applicable as ‘secondary rules’ to the violations of the ‘primary rules’ 9 For the positive contribution of the institutionalisation of human rights treaties in support of the effective protection of human rights see Dinah Shelton, Remedies in International Human Rights Law (2007), at 173. 10 See Art. 15(1)(a) ICESCR and Art. 17(2) ACHPR. See also Art. 27(1) Universal Declaration of Human Rights, UN General Assembly (UNGA) Res. 217 A (III), 10 December 1948. For an analysis of this issue see Katja S. Ziegler, ‘Cultural Heritage and Human Rights’, 26 Oxford Legal Studies Research Paper (2007). 11

See Art. 1 ICCPR, Art. 1 ICESCR, Art. 22(1) ACHPR, and Art. 26 ACHR.

See Ana F. Vrdoljak, ‘Human Rights and Cultural Heritage in International Law’, in Federico Lenzerini and Ana F. Vrdoljak (eds.), International Law for Common Goods. Normative Perspectives on Human Rights, Culture and Nature (2014) 139, at 140. For the opinion of an authoritative international political body recognising that the conservation of cultural heritage is essential to maintain social cohesion and international peace see Human Rights Council Res. 33/20 (Cultural Rights and the Protection of Cultural Heritage), UN Doc. A/HRC/RES/33/20, 30 September 2016. 12

13 This is particularly so within the ACHR framework. The Inter-American Court on Human Rights (IACtHR) has in fact repeatedly affirmed that the right of indigenous peoples to live and freely use the territory that was traditionally occupied by their ancestors ‘must be recognized and understood as the fundamental basis of their cultures’. See IACtHR, Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Judgment, 31 August 2001, Series C No. 79, at 149. For a thorough overview of the IACHR case-law and the issue of the interaction between culture and human rights see Federico Lenzerini, The Culturalization of Human Rights Law (2014), at 174-189.

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contained in these treaties.14 The 2001 International Law Commission (ILC) Draft Articles on State Responsibility (ASR)15 provide for basic provisions that may be useful to ascertain the legal consequences of the breach of the substantive obligations laid down in cultural property treaties. Although the ASR have never become the content of a legally binding multilateral instrument, they are widely recognised as a document reflecting general principles of international law on the responsibility of States for wrongful acts.16 Under Article 1 ASR any internationally wrongful act entails State responsibility. Thus, even if cultural property treaties do not provide for a distinctive responsibility regime, the ASR are applicable to the wrongful acts arising from the breach of the obligations established by these treaties.17 Moreover, to the extent that some norms relating to cultural property have been recognised as part of customary international law,18 their breach comes within the scope of application of general principles on State responsibility, including those contained in the ASR. This essay is not aimed at analysing the issue of the legal nature of international norms on cultural property, whether customary or treaty-originated. However, this issue has a considerable impact on the forms and extent of the responsibility of a State for the breach of obligations relating to cultural property. For example, States that are

The distinction between primary and secondary rules was formulated by the Special Rapporteur Ago for the first time during the 32nd Session of the International Law Commission (ILC), see ILC Yearbook 1980, Vol. 2 Part 2, at para. 23. For the relevance of this distinction see Giorgio Gaja, ‘Primary and Secondary Rules in the International Law on State Responsibility’, 97 Rivista di Diritto Internazionale (2014), 981, at 982. 14

Responsibility of States for Internationally Wrongful Acts (ASR) 2001, UNGA Res. 56/83, 12 December 2001. 15

16 For an overview of the issue of international responsibility of States see Robert Kolb, The International Law of State Responsibility: An Introduction (2017) and Pierre-Marie Dupuy, ‘Quarante ans de codification du droit de la responsabilité internationale des Etats: un bilan’, 107 Revue Générale de Droit International Public (2003), 305. 17 For the view that the international responsibility of States is a ‘cardinal institution’ of international law as it results from the recognition of international legal personality of States see James R. Crawford, ‘State Responsibility’, September 2006, Max Planck Encyclopedia of Public International Law, available at http://opil.ouplaw.com/. 18 For example, the prohibition of an attack against cultural property both during international and non-international conflicts, which is established in Art. 4(1) Hague Convention, is also recognised as an obligation of customary nature. See Roger O’Keefe, ‘Protection of Cultural Property’, in Dieter Fleck (ed.), The Handbook of International Humanitarian Law (2008), 433, at 443.

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not parties to the 1954 Hague Convention cannot be considered responsible for the breach of the substantive obligations of the Convention of exclusively treaty nature, such as the duty of States parties to mark cultural property under special protection with a distinctive emblem during armed conflicts, which is sanctioned in Article 10. The aim of the present essay is therefore to ascertain, according to international norms on State responsibility, such as the ones included in the ASR, first, which conducts bringing about the destruction of cultural property, both during wartime or times of peace, consist in wrongful acts, from which State responsibility arises, especially with regards to their nature as ordinary or serious breaches of law; second, to which State or States a wrongful behaviour may be attributed; third, in which circumstances such responsibility may be precluded; and forth, which consequences arise from the recognition of State responsibility including, in particular, the determination of the States and persons entitled to invoke such responsibility according to the different character of the obligations that have been violated. As to the diverse types of reparation and countermeasures that may be adopted to respond to State responsibility, this essay will only investigate whether or not general rules of international law, in particular, the ASR, are suitable for application in cases of the breach of the obligations arising in the field of cultural heritage. Finally, the principle of ‘responsibility to protect’ (R2P) is worth mentioning. This principle recognises the responsibility, or better to say the duty, of sovereign States to protect their populations by means of positive actions. The R2P was originally formulated with respect to the protection of fundamental human rights in order to legitimise the humanitarian interventions of the international community in the case a sovereign State is unable to secure these rights to its population.19 Recently, a proposal has been put forward to extend the R2P principle to the protection of cultural heritage,20 in particular against serious violations, such as intentional destruction and illicit removal

For an overview see Philip Cunliffe, ‘The doctrine of the ‘responsibility to protect’ as a practice of political exceptionalism’, 23 European Journal of International Relations (2017), at 466-486. 19

20 See UNESCO, Expert Meeting on the ‘Responsibility to Protect’ and the protection of cultural heritage, Recommendations, 27 November 2015 available at http://www.unesco.org/new/fileadmin/ MULTIMEDIA/HQ/CLT/pdf/R2P-Recommendations-EN.pdf. These Recommendations invite member States to consider the protection of cultural heritage as an inherent part of the protection of fundamental human rights.

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in the context of armed conflict, on the assumption that such protection is a fundamental interest both of individuals and the international community as a whole.21 Despite its terminology, the R2P principle seems to define the scope of the primary rules establishing the general duties of sovereign States to prevent and prosecute illicit conducts rather than to sanction a new form of State responsibility. Nevertheless, the examination of this principle may be beneficial for the purpose of clarifying some aspects inherent to the issue of State responsibility, such as the definition of the scope of breaches, attribution of illicit conducts, and title to invocation. In short, although this essay mainly focuses on the analysis of the impact of the application of the ASR with respect to the unlawful destruction of cultural property, other norms of international law may be of assistance in ascertaining the peculiarities of State responsibility in this field.

II. The Substantive Aspects of State Responsibility for Wrongful Acts Resulting in the Destruction of Cultural Property A. Defining Cultural Property

Although this essay is not aimed at examining the content of the primary norms relating to the protection and conservation of cultural property, some substantive aspects of these norms must be nevertheless taken into account in order to understand whether or not State responsibility occurs. In fact, according to Article 12 ASR, one of the constitutive elements of international State responsibility is the wrongful conduct of the State resulting in the breach of an international obligation, whether of customary or treaty character. First of all, one must delimit the category, or, better to say, the categories, of the objects that these norms are aimed at protecting. For the present purpose, the definition of cultural property is meant to include all tangible cultural objects and sites the 21 For this dual accountability of States deriving from the responsibility to protect (R2P) principle see Jadranka Petrovic, ‘What Next for Endangered Cultural Treasures; The Timbuktu Crisis and the Responsibility to Protect’, 11 New Zealand Journal of Public and International Law (2013), 381, at 404. For a thorough analysis of the evolution of the R2P principle see Jennifer M. Welsh et al., 51 The International Spectator, Special Issue on the Responsibility to Protect (2016), at 1-85.

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protection of which must by ensured by States in the interest of States, peoples, and the international community as a whole.22 Thus, international norms relating to the protection of the intangible components of cultural heritage, such as the traditions and expressions of culture of peoples, will not be investigated. Several cultural property and humanitarian law treaties provide for a definition of cultural property highlighting its outstanding value. For example, Article 1 Hague Convention affirms that cultural properties protected by the Convention are ‘movable or immovable property of great importance to the cultural heritage of every people’. Similarly, Articles 53 Additional Protocol I (Geneva Protocol I) and Article 16 Additional Protocol II (Geneva Protocol II) to the 1949 Geneva Conventions23 mentions ‘the historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples’. Despite of the use of different wording, the definitions, provided for both in the Hague Convention and Geneva Protocol I, seem to embrace the same types of cultural properties, i.e. tangible movable and immovable objects of cultural value for the people (and the State) to which they belong.24 This interpretation of the definitions provided in the Hague and Geneva regimes was also endorsed by the International Criminal Tribunal for the Former Yugoslavia (ICTY) in its appeals judgment of the Kordić case while comparing the texts of the abovementioned norms.25

22 For a precise definition of ‘cultural property’ see Kerstin Odendahl, ‘Global Conventions for the Protection of Cultural Heritage’, in Mitja Guštin and Terje Nypan (eds.), Cultural Heritage and Legal Aspects in Europe (2010), 100, at 101. For the problems relating to the definition of cultural property see Lyndel Prott and Patrick J. O’Keefe, ‘Cultural Heritage or Cultural Property?’ in 1 International Journal of Cultural Property (1992), 307.

Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field 1949, 75 UNTS 31; Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea 1949, 75 UNTS 85; Geneva Convention Relative to the Treatment of Prisoners of War 1949, 75 UNTS 135; Geneva Convention Relative to the Protection of Civilian Persons in Time of War 1949, 75 UNTS 287; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts 1977, 1125 UNTS 3; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts 1977, 1125 UNTS 609. 23

24

See also O’Keefe, supra note 18, at 439.

ICTY, Appeals Chamber, Prosecutor v. Dario Kordić and Mario Čerkez, Judgment 17 December 2004, IT-95-14/2-A, at para. 91. 25

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The State-centric definition of cultural property embodied in the Hague and Geneva Conventions is justified by the fact that these treaties are aimed at balancing the opposite interests of the parties to an armed conflict.26 On the contrary, the development of a definition of cultural property of universal (not merely national) value is envisaged in most recent treaties, such as the 1972 United Nations (UN) Educational, Scientific and Cultural Organization (UNESCO) World Heritage Convention (WHC).27 Article 1 of this convention circumscribes the scope of the definition of ‘cultural heritage’ to monuments, buildings, and sites which are of outstanding universal value.28 In an even broader manner, Article 1(1)(a) 2001 UNESCO Underwater Heritage Convention (UHC)29 includes in the definition of ‘underwater cultural heritage’ ‘all traces of human existence’ of cultural character ‘which have been […] under water […] for at least 100 years’ and which, according to Article 2(3) of the Convention must be preserved ‘for the benefit of humanity’. The recognition of the universal value of cultural property, as an essential element of human life under international law, strictly intersects with the protection of human rights, as is explicitly emphasised in some international legal instruments, such as the European Convention on the Value of Cultural Heritage for Society (Faro Convention).30 In addition, this interconnection between culture and human rights also underlines the need to recognise the seriousness of some breaches affecting cultural property. 26 According to a State-centric approach, the value of cultural property is determined by the State to which this property belongs. Thus, the protection of this property must be ensured in the interest of this State. However, although, under the Hague Convention and the two Geneva Protocols, each State has to identify the objects pertaining to its cultural property, this identification can be considered valid only if it is carried out in good faith, i.e. with the only aim of conserving objects and sites of real cultural significance. See O’Keefe, supra note 18, at 438. 27 Convention for the Protection of the World Cultural and Natural Heritage (WHC) 1972, 1037 UNTS 151. 28

See Art. 1 WHC.

Convention on the Protection of the Underwater Cultural Heritage (UHC) 2001, 2562 UNTS I-45694. 29

30 Framework Convention on the Value of Cultural Heritage for Society (Faro Convention) 2005, CETS 199. For the view that the adoption of international treaties recognising the importance of cultural heritage for human life, such as the Faro Convention, has increased the impact of the cultural dimension on the protection of human rights see Vrdoljak, supra note 12, at 171. For an overview of the Faro Convention see Kerstin Odendahl, ‘Securing and Enhancing the Common Cultural Heritage’, in Stefanie Schmahl and Marten Breuer (eds.), The Council of Europe. Its Law and Policies (2017), 749, at 762.

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Thus, the definition of diverse categories of cultural property entails different obligations, for the violation of which State responsibility may arise. As an example, the Hague Convention and Second Protocol to the Hague Convention identify two specific categories of cultural property with regards to which ‘special’ and ‘enhanced’ protection is acknowledged, respectively. According to Article 8 of the Convention ‘special protection’ must be ensured with respect to cultural property of very great importance for the respective State.31 Beside, Article 10(a) Second Protocol to the Hague Convention establishes ‘enhanced protection’ for ‘cultural heritage of greatest importance for humanity’.32 Both these types of protection entail most stringent obligations vis-à-vis States parties,33 which may be waived in very exceptional circumstances, in particular when property under ‘enhanced protection’ is at issue.34 Similarly, the delimitation of the scope of the definition of cultural property appears to be crucial to recognise State responsibility according to the 2003 UNESCO Declaration concerning the Intentional Destruction of Cultural Heritage (2003 UNESCO Declaration), adopted after the demolition of the Buddhas of Bamiyan by the military and para-military forces of the Taliban government of Afghanistan.35 Article II 2003 UNESCO Declaration delineates the scope of the definition of cultural heritage so as to include ‘cultural heritage linked to a natural site’. In light of this definition, States must comply with the obligations of adopting

31 The definition of ‘cultural property of very great importance’, provided for in Art. 8 Hague Convention, includes refuges intended to shelter movable cultural property and centres containing immovable cultural property.

The greatest importance of this type of cultural property is inferred from the special treatment that this property enjoys according to national legislation and from the fact that this property is eligible for the inclusion in the List provided for in Art. 27(1)(b) Second Protocol to the Hague Convention. 32

33 Both special and enhanced protection entail the immunity of the cultural property concerned. In case of property under enhance protection, immunity is almost absolute. See infra Section II.B.4.

According to Art. 11 Hague Convention the immunity of cultural property under special protection can be only withdrawn in case of ‘unavoidable military necessity’. Besides, cultural property under enhanced protection only loses its status if it concretely becomes a military objective. For a more extensive analysis of military necessity see infra Section II.B.4. 34

35 UNESCO, General Conference, Declaration concerning the Intentional Destruction of Cultural Heritage (2003 UNESCO Declaration), Res. 33, 32 Session, 17 October 2003, available at http://portal. unesco.org/en/ev.php-URL_ID=17718&URL_DO=DO_TOPIC&URL_SECTION=201.html. For a thorough exam of the facts and legal consequences of the Buddhas’ demolition see Francesco Francioni and Federico Lenzerini, ‘The Destruction of the Buddhas of Bamiyan and International Law’, 14 European Journal of International Law (EJIL) (2003), 619-651.

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preventative measures with the aim of avoiding the destruction of such heritage.36 Besides, Article VI 2003 UNESCO Declaration only recognises State responsibility in the case of the intentional destruction ‘of cultural heritage of great importance for humanity’, which patently entails a more serious breach of international law. Thus, the delimitation of the scope of the concept of cultural property is not only essential to ascertain in which circumstances a wrongful conduct affecting such property entails State responsibility, but it also helps to determine the diverse level of gravity of alleged violations.

B. Illicit Conducts Entailing the Destruction of Cultural Property

1. General Remarks Although the disappearance of cultural property is universally considered as an irreparable loss for humanity, State responsibility only arises when the destruction of cultural objects or sites is the result of a conduct of a State that is in breach of the existing international obligations concerning the protection of cultural property. Therefore, some concrete features of the conduct of a State entailing the destruction of cultural property must be taken into account in order to ascertain whether or not this conduct results in a wrongful act from which State responsibility arises. These features may affect the time in which destruction occurs, namely wartime or time of peace; the place in which destruction is carried out, i.e. in the territory of the alleged State or in the territory of another State; and finally, the intent with which a State performs a conduct entailing the destruction of cultural property.37 In this regard, the intentional destruction of cultural property may be considered as a serious breach of international law in some circumstances. Thus, a distinction between ordinary and serious violations of international law is also needed. In addition, special attention must be paid to the waiver of military necessity with regard to the protection of cultural property during armed conflicts since this waiver entails an intrinsic 36

See Arts III and IV 2003 UNESCO Declaration.

For an analysis of the different features characterising conducts entailing the destruction of cultural property see Odendahl, supra note 21. 37

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component of the conduct that otherwise should be considered unlawful. Finally, the element of damage affecting cultural property deserves to be taken into account with respect to some illicit conducts that may only occur in presence of such element.

2. The Relevance of Time and Place Both customary and treaty norms concerning the protection of cultural property during armed conflicts provide for very clear obligations that are aimed at preventing the destruction of this property. Direct attacks against cultural property located in the territory of another State are prohibited with the exception of the cases in which military necessity requires such attacks or when a cultural site has been turned into a military objective.38 In addition, during wartime, States cannot use cultural properties located in their territory so as to expose them to destruction.39 Cultural property treaties that are applicable during wartime and humanitarian law conventions also provide for specific norms on State responsibility arising from the breach of their substantive obligations. For example, Article 38 Second Protocol to the Hague Convention states that the condemnation of individual illicit conducts, under Article 15, does not exclude State responsibility for the same types of conducts under international law. Thus, State responsibility may be ascertained in accordance with the general provisions of international law in the cases in which a State has violated the substantive obligations of the Hague Convention and its Protocols. Most precisely, Section II of Part V Geneva Protocol I provides for a set of rules sanctioning responsibility deriving from breaches of the Geneva Conventions and Geneva Protocol I. In particular, Article 91 affirms that any party to an armed conflict has the duty to pay compensation in cases of breach of one of the obligations provided for in the Protocol, including, therefore, those established in Article 53 relating to attacks against cultural property. Regrettably, the applicability of Article 91 is limited, as all norms of Geneva Protocol I, to situations occurring during See Art. 4 Hague Convention, Art. 15(1)(c) Second Protocol to the Hague Convention, and Arts. 53 and 16 Geneva Protocol I and Protocol II respectively. For a thorough analysis of international humanitarian obligations owed by States with respect to cultural heritage during armed conflicts see O’Keefe, supra note 18, at 499-500. 38

39

See Art. 4(1) Hague Convention.

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international armed conflicts. Therefore, it is inapplicable with respect to offences perpetrated both during peacetime and non-international armed conflicts, which are regulated by Geneva Protocol II. Geneva Protocol II does not include a norm dealing with State responsibility corresponding to Article 91 Geneva Protocol I. This lacuna demonstrates that the drafters of the 1977 Protocols considered this subject-matter as an issue only affecting international relations between States and, thus, not to be treated in the context of merely internal conflicts.40 However, one must recall that Article 16 Geneva Protocol II explicitly recognises the priority of the Hague Convention as lex specialis with regard to the issue of the protection of cultural property during armed conflicts. This clause of subordination of Geneva Protocol II (which also appears in Article 53 Geneva Protocol I) recognises the priority of the application of the norms of the Hague Convention with respect to States that are parties to both the Hague Convention and Geneva Protocols.41 In the present writer’s view, this clause of subordination of the Geneva Protocols should be interpreted so as to imply the priority of the entire regime arising from the Hague Convention, including the Second Protocol to the Hague Convention and, in particular, its Article 38 acknowledging State responsibility in the case of the breach of the obligations of the Convention. In fact, although the Second Protocol to the Hague Convention was adopted 22 years later with respect to the 1977 Geneva Protocols and, thus, could not be taken into account by the drafters of the clause of subordination, the evolving and contextual interpretation of the norms of both the Geneva and Hague regimes leads to the conclusion that the very purpose of the clause of subordination is to ensure the best protection of cultural property during armed conflicts, that is, according to Articles 53 and 16 Geneva Protocols I and II respectively, the protection provided for in the Hague regime as a whole.42 This conclusion is also According to this view, when States do not comply with the obligation of protecting cultural property during non-international conflicts, individuals would be the only persons entitled to invoke the breach of this obligation within the domestic legal orders of transgressing States. This discrepancy between States’ obligations under Art. 1(1) Protocol I and II is highlighted by Theodor Meron, ‘The Geneva Conventions as Customary Law’, 81 American Journal of International Law (AJIL) (1987), 348, at 353, most precisely at footnote 16. 40

41 In addition, Arts 19 and 22 Hague Convention and Second Protocol, respectively, affirm that the regime of the Hague Convention applies to armed conflicts both of international and non-international character.

According to Art. 2 Second Protocol to the Hague Convention the ‘Protocol supplements the Convention in relations between the Parties’. 42

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consistent with the rules of treaty interpretation laid down in Article 31 Vienna Convention on the Law of Treaties.43 Conversely, cultural property conventions that are applicable in time of peace, only provide for individual criminal responsibility, such as, for example, Article 12 Nicosia Convention on offences relating to cultural property (including unlawful destruction),44 which requires States parties to establish their jurisdiction over individual criminal responsibility arising from the offences which have been perpetrated either in their territory or by their nationals. Although the presence of norms relating to individual criminal responsibility in cultural property conventions must be deemed to be a step forward in the effective enforcement of these conventions, the lack of corresponding provisions concerning State responsibility appears to be slightly paradoxical if one considers that the majority of the substantive obligations of these conventions recognise the primary accountability of States for the management and preservation of cultural property.45 In addition, substantive norms of international treaties prohibiting the destruction of cultural property during time of peace have a very vague content although the general duty to preserve cultural property is also envisaged within the WHC, the UHC, and human rights treaties.46 Moreover, according to Article 4 WHC, the scope of the general duty to protect and conserve cultural property is also narrowed by the fact that States parties must only ensure this protection with respect to cultural property that is located under their jurisdiction. This limitation, which seems to reaffirm the supremacy of State sovereignty, appears to be discordant with the recogniVienna Convention on the Law of Treaties 1969, 1155 UNTS 331; for a similar conclusion see O’Keefe, supra note 18, at 446. 43

44

See Art. 10 Nicosia Convention, supra note 2.

45

See for example Art. 4 WHC, supra note 27, and Art. 18 UHC, supra note 29.

See Arts. 4 WHC and 2(3) UHC. See also the norms of human rights treaties recognising cultural human rights, supra notes 10 and 11. Actually the WHC, UHC, and human rights treaties are also applicable during armed conflicts. The duty to ensure the cultural rights of individuals during wartime according to Art. 15 ICESCR has been explicitly stated by the UN Committee on Economic, Social and Cultural Rights. See UN Committee on Economic, Social and Cultural Rights, General Comment No. 21, Right of everyone to take part in cultural life (Article 15, para. 1a of the Covenant on Economic, Social and Cultural Rights), E/C.12/GC/21, 21 December 2009, at para. 50(a). For a doctrinal view recognising the applicability of the WHC and human rights law during armed conflicts see Roger O’Keefe ‘Protection of Cultural Property’, in Andrew Clapham and Paola Gaeta (eds.), The Oxford Handbook of International Law in Armed Conflict (2014), 492, at 507-510. 46

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tion of the universal value of cultural property that is one of the fundamental principles of the Convention.47 Although the inclusion, in the WHC, of a clear obligation of protecting cultural property wherever it is located would have better reflected the spirit of the Convention, other norms of the WHC seem to be more in tune with this spirit. For example, Article 6(3) requires States parties to refrain from taking measures which might damage cultural property situated in the territory of another State.48 Moreover, most recent and up-to-date treaties, such as the UHC, have established general obligations requiring States parties to preserve cultural property for the benefit of humanity.49 This is particularly so with respect to cultural property located in the Area, which is notoriously out of State jurisdiction.50 Finally, the ongoing development of customary international norms and general principles, such as those relating to erga omnes obligations and universal jurisdiction, seems to facilitate the recognition of State responsibility for illicit conducts affecting cultural property located in the territory of another State. As an example, in the 2013 ruling of the Temple of Preah Vihear case (Temple case), the ICJ, recalling Article 6 WHC, has upheld that the prohibition of the destruction of cultural property is an erga omnes obligation that does not only bind the State under the jurisdiction of which the injured cultural property is located, but it also affects other States acting in the proximity of this property.51

For the territorial limit of the international obligations concerning the protection of cultural property during peacetime see Lixinski and Tzevelekos, supra note 3, at 18. 47

48 For the view that Art. 6(3) WHC overcomes the limit of State sovereignty see Guido Carducci, ‘Articles 4-7’, in Francesco Francioni (ed.), The 1972 World Heritage Convention: A Commentary (2008), 103. 49

See Art. 2(3) UHC.

See Art. 11 UHC. For an overview concerning this convention see Guido Carducci, ‘New Developments in the Law of the Sea: The UNESCO Convention on the Protection of Underwater Cultural Heritage’, in 96 AJIL (2002), 419, at 424. 50

51 ICJ, Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand), Judgment, 11 November 2013, ICJ Reports 2013, at para. 106. For the view that the duty to protect cultural heritage is an erga omnes obligation see Annalisa Ciampi, ‘Identifying an Effectively Protecting Cultural Heritage’, 97 Rivista di diritto internazionale (2014), 699, at 716.

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In sum, State responsibility arising from the breach of the international obligations concerning the protection of cultural property during armed conflicts has been repeatedly recognised thanks to the precise content of these obligations. Nevertheless, emerging customary norms recognising the duty to preserve cultural property in the interest of humanity also seem to acknowledge State responsibility irrespective of the time and place in which the violation affecting such property occurs, particularly when this violation consists in a serious breach of international cultural property law.52

3. The Intentional Destruction of Cultural Property The condemnation of the acts of hostility against cultural property specially affects intentional destruction when it is not justified by military necessity during wartime or by the need to safeguard an essential interest during times of peace. Conducts resulting in the intentional destruction of cultural property can amount to a wrongful act only when the intent of the wrongdoer is proven.53 When State responsibility is at issue, the relevant intent pertains to individuals perpetrating the destruction on behalf of a State.54 Moreover, acts of intentional demolition of cultural property may sometimes consist in serious breaches of international law due to their particularly hostile character. For this reason, these acts are also classified as international crimes against humanity or war crimes according to international criminal and humanitarian law, as is demonstrated by the following case-law.55 In fact, the ICTY has repeatedly recognised the responsibility of individuals for serious attacks against cultural property when devastating acts are performed on a sys-

52 See Francesco Francioni, ‘Beyond State Sovereignty: The Protection of Cultural Heritage as a Shared Interest of Humanity’, in 25 Michigan Journal of International Law (2004), 1209, at 1219. 53 In the Strugar case, the ICTY considered that the intention of the wrongdoers was an essential element in order to classify the shelling of the Old Town of Dubrovnik as a war crime instead of the erroneous targeting of the town. See ICTY, Trial Chamber, Prosecutor v. Pavle Strugar, Judgment 31 January 2005, IT-01-42-T, at para. 214. 54

See infra Section III.

For doctrinal views supporting this conclusion see Francioni, supra note 52, at 1216-1217 and Ana F. Vrdoljak, ‘Intentional Destruction of Cultural Heritage and International Law’, in Kalliopi K. Koufa (ed.), Multiculturalism and International law (2007), 377, at 387. 55

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tematic basis.56 In particular, in the Kordic case, the ICTY specifies that a conduct envisaging a crime against humanity does not need any connection to an armed conflict.57 In addition, in the Strugar case, the Tribunal upheld that the deliberate and conscious attacks against cultural sites entail war crimes that cannot be considered as less serious breaches of international law than crimes against humanity.58 Most recently, the International Criminal Court (ICC) applied Article 8(2)(e)(iv) Rome Statute of the ICC (ICC Statute) prohibiting intentional attacks against cultural property59 for the first time in the Al Mahdi judgment sentencing the head of the terrorist group of Hesbah that perpetrated the destruction of Timbuktu (Mali) historic buildings.60 The ICC acknowledged the responsibility of Al Mahdi both ‘for the execution phase of the attack’ and ‘as co-perpetrator’.61 Thus, in the view of the ICC, international criminal responsibility may arise either from the direct activity of a person or from his/her support of the actual perpetrators of a crime. All these cases patently envisage examples of individual criminal responsibility. However, the types of conducts for which individuals have been sentenced by inter-

56 ICTY, Trial Chamber, Prosecutor v. Tihomir Blaskic, Judgment 3 March 2000, IT-95-14, at para. 227. See also ICTY, Trial Chamber, Prosecutor v. Radoslav Brdanin, Judgment, 1 September 2004, IT-99-36-T, at para. 1023. 57 ICTY, Trial Chamber, Prosecutor v. Dario Kordić and Mario Cerkez, Judgment 26 February 2001, IT-95-14/2-T, at para. 206. For the view that the ICTY case-law provides support to the doctrine according to which the obligation of safeguarding cultural heritage also exists during time of peace see Vrdoljak, supra note 12, at 169.

See the Strugar case, supra note 53, at para. 459. For the need to ascertain the intent and knowledge of a conduct of devastation in order to qualify it as a war crime see O’Keefe, supra note 46, at 511. 58

59 Paragraphs (b)(ix) and (e)(iv) of Art. 8(2) Rome Statute of the International Criminal Court (ICC) 1998, 2187 UNTS 90, respectively list ‘intentionally directing attacks against buildings dedicated to religion, education, art […] historic monuments […], provided they are not military objective’ among war crimes occurring during armed conflicts of international or internal character.

ICC, Trial Chamber VIII, Prosecutor v Ahmed Al Faqi Al Mahdi, Judgment, ICC01/12-01/15171, 27 September 2016. The ICC also issued an order to establish reparation for the hard injuries affecting people and properties. See ICC, Trial Chamber VIII, Prosecutor v Ahmed Al Faqi Al Mahdi, Reparations Order, ICC-01/12-01/15-236, 17 August 2017. For a thorough comment on these ICC decisions see Karolina Wierczynska and Andrzej Jakubowski, ‘Individual Responsibility for Deliberate Destruction of Cultural Heritage: Contextualizing the ICC Judgment in the Al-Mahdi Case’, 16 Chinese Journal of International Law (2017), 1. 60

61

Al Mahdi Judgment, supra note 60, at paras. 53 and 59.

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national criminal tribunals and courts may be also performed by States.62 Moreover, individuals that are charged with international crimes are, with the exception of terrorists, in some way related to the State apparatus or to an organised group that may be assimilated to a public institution.63 However, when there is no evidence of the fact that a State was aware of the intention of private persons of performing an international crime, such as the wanton destruction of cultural property, and did not make any effort to prevent it, State responsibility may only arise from the breach of the obligation either of preventing or punishing an international crime. In this case, the illicit conduct of the State does not entail an international crime per se, as the ICJ affirmed in the 2007 Genocide case.64 For this reason, both international criminal courts and legal scholarship currently emphasise the relevance of shared responsibility between States and private actors.65 In addition, both a 2012 statement of the President of the UN Security Council and Security Council Resolutions 2085 (2012) and 2347 (2017)66 point out that the deliberated attacks against cultural property perpetrated during armed conflicts, whether of international or internal character, may be considered as war crimes and, For example, the perpetration of international crimes embracing the wanton destruction and appropriation of property, not justified by military necessity, as sanctioned in Art. 8 ICC Statute, should be most appropriately attributed to a State or groups acting on behalf of a State rather than to single individuals since the performance of these criminal conducts at least requires the existence of a basic organised structure. For a detailed overview of the issue of crimes affecting cultural heritage see Federico Lenzerini, ‘Intentional Destruction of Cultural Heritage, Crimes Against Humanity and Genocide: Towards an Evolutionary Interpretation of International Criminal Law’, in Europa Ethnica (2017). 62

See Pierre Marie Dupuy, ‘International Criminal Responsibility of the Individual and International Responsibility of the State’ in Antonio Cassese, Paola Gaeta, and John R.W.D. Jones (eds.), The Rome Statute of the International Criminal Court. A Commentary, Vol. II (2002), 1085, at 1087. 63

ICJ, Case concerning the application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) (Genocide case), Judgment, 26 February 2007, ICJ Reports 2007, paras. 325-350. For the view that the Genocide ruling achieved the positive result of recognising the duty of States to prevent international crimes as an autonomous obligation of a State with respect to the prohibition, affecting both States and individuals, of perpetrating these crimes see Berglind H. Birkland, ‘Reining in Non-State Actors: State Responsibility and Attribution in Cases of Genocide’, 84 New York University Law Review, (2009), 1623, at 1648. 64

For a thorough analysis of the issue of shared responsibility between States and non-State actors see Jean D’Aspremont et al., ‘Sharing Responsibility Between Non-State Actors and States in International Law: Introduction’, in 62 Netherlands International Law Review (NILR) (2015), 49. 65

UN Security Council (UNSC), Statement by the President, S/PRST/2012/26, 10 December 2012; UNSC Res. 2085, 20 December 2012, on the situation and entrenchment of terrorist groups and criminal networks in the north of Mali; and UNSC Res. 2347, 24 March 2017, on destruction and trafficking of cultural heritage by terrorist groups and in situations of armed conflict. 66

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thus, entailing both State and individual responsibility in accordance with international criminal law.67 Moreover, in the arbitral award concerning the intentional destruction, on behalf of Ethiopia, of the obelisk known as Stela of Matara,68 the act of destruction was considered as a serious breach of international law. Finally, the African Commission on Human and Peoples’ Rights has stated that the destruction of Timbuktu’s historic buildings has also entailed a breach of the African Charter on Human and Peoples’ Rights. 69 Nevertheless, the only very provision asserting State responsibility arising from the international destruction of cultural property may be identified in Article VI 2003 UNESCO Declaration. Article VI 2003 UNESCO Declaration provides for State responsibility both in cases of intentional destruction and failure to prevent the ‘destruction of cultural heritage of great importance for humanity’.70 Although this declaration is a typical instrument of soft law and, thus, non-binding per se, it seems to envisage some obligations of customary international law. Legal doctrine is divided with regard to the extent of the scope and character of the obligations recognised in Article VI 2003 UNESCO Declaration. Some legal author believes that customary international law only recognises both the prohibition of attacking and the duty to prevent attacks against cultural property during wartime, while the same obligations would not exist during time of peace.71 By contrast, accord67 For the innovative character of UNSC Res. 2347 (2017) that, for the first time, includes the protection of cultural heritage among the tasks of a UN mission (MINUSMA) see Laura Pineschi, ‘Tutela internazionale del patrimonio culturale e missione di pace delle Nazioni Unite’, 101 Rivista di diritto internazionale (2018), 5, at 8. 68 Eritrea-Ethiopia Claims Commission, Partial Award, Central Front – Eritrea’s Claims 2, 4, 6, 7, 8 & 22 (Stela of Matara case), Decision 28 April 2004, RIAA XXVI, 115.

African Commission on Human and Peoples Rights, Press Release on the Destruction of Cultural and Ancient Monuments in the Malian City of Timbuktu, 51st Ordinary Session, 10 July 2012 available at http://www.achpr.org/press/2012/07/d115. For an analysis of the statement of the African Commission see Lenzerini, supra note 13, at 193. 69

70

law’.

According to Art. VI, a State ‘bears the responsibility, to the extent provided for by international

71 See O’Keefe, supra note 18, at 462. According to this author the duty to protect and prevent the destruction of cultural heritage during time of peace would entail only a treaty obligation as sanctioned, for example, in Art. 2 and 13 Hague Convention and Art. 5 Second Protocol. For the view that norms relating to the protection of cultural property during peacetime have a too vague content to be effective see Eric Posner, ‘The International Protection of Cultural Property: Some Skeptical Observations’, 7 Chicago Journal of International Law (2007), 213, at 220.

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ing to a more persuasive legal tenet, these obligations must be assumed to exist under customary international law both in war and peacetime.72 In fact, it would be illogical to require States to comply with stricter obligations during armed conflicts than during time of peace, in particular when the cultural property affected is an object or a site of universal value.73 Patently, the content of the prohibition of intentionally destroying cultural property and of the obligation of preventing such destruction during peacetime cannot be as detailed under customary law as in treaty norms. For example, Article 7 Hague Convention compelling Contracting States to adopt regulatory measures to prepare special personnel during time of peace in order to prevent damage of cultural property during wartime only envisages a treaty obligation. However, at least, the general duty of States to abstain from and prevent the intentional destruction of cultural property of universal value during peace time seems to be recognised under customary international law due to the extensive practice both of international organisations, primarily the UNESCO, and tribunals.74 In fact, this general obligation is also acknowledged by some less ‘cultural property-friendly’ scholars according to whom, in some circumstances, the demolition of cultural property may be justified by the need to safeguard vital needs.75 In short, the recognition of State responsibility according to Article VI 2003 UNESCO Declaration is aimed both at facilitating to widespread the conviction that the intentional destruction of cultural property of great value should be sanctioned at the international level as a serious breach of international law and at exhorting weaker States to comply with the duty to seek international assistance in order to prevent

72 For the view that international practice following the adoption of the cultural property and humanitarian law treaties has developed the conviction that there exists the duty to protect cultural property both in time of war and peace see Francioni, supra note 52, at 1220 and Vrdoljak, supra note 55, at 385.

See Federico Lenzerini, ‘The UNESCO Declaration Concerning the Intentional Destruction of Cultural Heritage’, 13 Italian Yearbook of International Law (2003), 131, at 139. For the initial doctrine that cultural property must be safeguarded in the public interest of the international community since it cannot be treated as ordinary property see Joseph Sax, Playing Darts with a Rembrandt Public and Private Rights in Cultural Treasures (1999), at 9. 73

74

See Francioni and Vrdoljak, supra notes 52 and 55.

For an exponent of this legal tenet see Kanchana Wangkeo, ‘Monumental Challenges: The Lawfulness of Destroying Cultural Heritage During Peacetime’, 28 Yale Journal of International Law (2003), 183, at 273. 75

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criminal groups from destroying cultural property in their territory.76 The latter issue is consistent with the R2P principle that has been developing within the international community. Thus, the distinction between ordinary and serious breaches of international law appears to be necessary when illicit conducts entail the destruction of cultural property. The ASR only recognise the need to draw such a distinction with regard to the issue of the legal consequences arising from the occurrence of the breaches of diverse international norms, namely ordinary or peremptory norms.77 Article 40 ASR provides for a quite narrow definition of serious breaches of law. In fact, the violations must be ‘gross and systematic’ and can only affect ‘peremptory norms’. This might lead to believe that some grave violations perpetrated against cultural property would remain out of the scope of the ASR. Nevertheless, although the existence of peremptory norms relating to cultural property is not yet generally recognised, some violations affecting cultural property have already been categorised as serious breaches of international law both in international treaties and case-law. As an example, in the abovementioned Strugar, Stela of Matara, and Al Mahdi cases, the ICTY, EritreaEthiopia Claims Commission, and ICC, respectively upheld that the intentional destruction of cultural property during armed conflicts had to be considered as a serious violation of international law due to the fact that the attacks had been perpetrated against specially protected sites the conservation of which should have been granted in the interest of peoples.78 Thus, the ASR may help to confirm the view that a distinction between ordinary and serious breaches of law is necessary, in particular in the field of cultural property law where the interests at issue do not only pertain to States, but also to individuals, 76 Art. VIII 2003 UNESCO Declaration invites States to cooperate to provide, among other things, ‘judicial and administrative assistance, as requested by interested States, in the repression of intentional destruction of cultural heritage’ that has been performed by individuals whose criminal responsibility is sanctioned in Art. VII Declaration. 77 According to Art. 41 ASR, the serious breach by a State of a peremptory norm may also generate duties for other States, such as the obligation of cooperating to bring to an end such breach and the prohibition of recognising as lawful the situations originated from the breach itself. 78 See ICTY, Strugar case, supra note 53, at para. 232, Stela of Matara case, supra note 68, at para. 113, and Al Mahdi case, Judgment, supra note 60, at paras. 14-18. For an overview of ICTY caselaw sanctioning serious breaches against cultural property see Wierczynska and Jakubowski, supra note 60, at 12. For the view that the Al Mahdi case is a relevant example of the condemnation of the destruction of cultural property as a form of international crime see Pineschi, supra note 67, at 13.

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communities, and the international society as a whole. Among the illicit conducts entailing the demolition of cultural property, intentional acts of destruction certainly deserve to be considered most severely in consideration of their hostile character.

4. Military Necessity According to the majority of legal doctrine, military necessity is a constitutive element of a conduct that makes such conduct lawful in itself.79 As a consequence, belligerent States may invoke the waiver of military necessity only if it is expressly recalled in the norms of international humanitarian law.80 Among humanitarian norms relating to the protection of cultural property, Articles 4(2) Hague Convention, 2(d) and 3(b) of the Statute of the ICTY (ICTY Statute),81 and 8(2)(a)(iv) ICC Statute allow States to invoke this waiver. Actually, the Hague Convention recognises three types of military necessity according to which the possibility of invoking this waiver progressively shrinks: ‘imperative’ necessity that applies in cases of ‘general protection’;82 ‘unavoidable’ necessity pertaining to properties ‘under special protection’ the invocation of which must be commanded by an high military officer;83 and the absolute immunity of cultural property ‘under enhanced protection’ that may be waived only when this property is used as a military objective.84 Some other scholars believe that military necessity is an exception, such as other circumstances precluding wrongfulness, that may be invoked regardless of the fact that a norm expressly mentions it. See Hilaire McCoubrey, International Humanitarian Law: Modern Development in The Limitation of Warfare (1998). For an overview of legal doctrine relating to military necessity see Craig J. S. Forrest, ‘The Doctrine of Military Necessity and the Protection of Cultural Property during Armed Conflicts’, 37 California Western International Law Journal (2006), 177. 79

See among others Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (2004). 80

81 While Art. 2(d) Statute of the ICTY (ICTY Statute) 1993, UN Doc. S/25704 Annex, 25 May 1993, condemns the wanton extensive destruction and appropriation of property not justified by military necessity, Art. 3(b) is aimed at prosecuting people for the wanton destruction of cities not justified by military necessity. 82

See Art. 4(2) Hague Convention.

Art. 11(2) Hague Convention. For the view that this norm of the Hague Convention does not draw a significant distinction between ‘imperative’ and ‘unavoidable’ necessity see Forrest, supra note 79, at 209. 83

84 See Arts. 12 and 13 Second Protocol to the Hague Convention. Art. 13 Second Protocol specifies the concrete circumstances in which military action may affect cultural property ‘under enhanced protection’ that mainly correspond to the case in which such property has lost this particular status.

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The only concrete attempt at defining military necessity with respect to cultural property can be identified in Article 6 Second Protocol to the Hague Convention, which establishes that ‘imperative’ military necessity may excuse an attack against a cultural object, if this object has been transformed in a military objective and the attack is the only feasible alternative to obtain military advantage.85 Besides, the Geneva Conventions and their Protocols do not mention the waiver of military necessity. Nevertheless, Articles 52 and 53 Geneva Protocol I, dealing with the protection of civilian and cultural objects respectively, formulate the concept of ‘military objective’ on the basis of which attacks against civilian and cultural property may be justified if such property is concretely used for military purposes and its destruction brings about a definitive contribution to military action. The ICTY has interpreted the notion of ‘military necessity’, mentioned in Articles 2(d) and 3(b) ICTY Statute, consistent with Articles 52 and 53 Geneva Protocol I. In line with this interpretative approach, one might argue that the waiver of military necessity and the justification of attacking cultural property, which is actually used for military purposes, overlap. Nevertheless, some legal author has underlined that the ‘military exception’ provided for in Geneva Protocol I is less permissive than the waiver of military necessity as sanctioned in Article 6 Second Protocol to the Hague Convention. In fact, according to Articles 52 and 53 Geneva Protocol I, cultural objects may be categorised as military objectives only when their actual use is no longer aimed at carrying out cultural activities, but at accomplishing military purposes. Thus, the regime of Geneva Protocol I should be likened to the protection that Articles 12 and 13 Second Protocol to the Hague Convention provides for cultural property ‘under enhanced protection’.86 Regardless of this doctrinal argument, the ICTY has patently limited the recognition of the admissibility of the waiver of military necessity with respect to serious

For the relevance of the introduction of a concrete criterion, such as the concept of ‘military objective’, for the delimitation of the scope of the definition of ‘military necessity’ in Art. 6 Second Protocol to the Hague Convention see Alice Lopes Fabris, ‘Military Necessity under the 1954 Hague Convention’, 1 Santander Art and Culture Law Review (2015) 275, at 283. For a detailed overview of this issue see also O’Keefe, supra note 46. 85

86

See O’Keefe, supra note 46, at 505.

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breaches affecting cultural property.87 In particular, the ICTY upheld that, even if the attacks against civil and religious buildings were allowed by military necessity, these attacks should have been proportional to the strength of the civilian resistance, which was minimal in this specific case.88 In this regard, some scholars highlight that, when military necessity is invoked to justify an attack against cultural property, the standard of proportionality should be assessed on the basis of criteria other than the quantity of the objects stricken. In particular, the value of cultural property should be taken into account so as to exclude the legitimacy of the waiver of military necessity in the case of damage or, even worse, destruction of cultural objects of inestimable value.89

5. The Element of Damage In certain circumstances, the ascertainment of the presence of damage may be necessary to classify a conduct as illicit according to international law. In particular, the violation of the prohibition of intentional destruction of cultural property only occurs if harm, most precisely destruction, affects such property. Conversely, damage does not seem to be required for the breach of the prohibition of performing ‘acts of hostility directed against the historic monuments’ as provided for in Articles 53 and 16 Geneva Protocols I and II respectively. Thus, the deliberate bombing of an area where historic properties are located would per se entail a breach of the obligation established in these articles even if this conduct did not bring about detrimental effects.90 In the Brdanin case, the Tribunal denied that the massive destruction of private and religious buildings was justified by reasons of military necessity since these building could not be considered as military objectives. Brdanin case, supra note 56, at para. 596. 87

Ibid., at para. 639. For the view that proportionality must govern military action when goods of special value, such as cultural property, are at issue see Forrest, supra note 79, at 194. 88

89 See O’Keefe, supra 46, at 501. For a recent view upholding that the waiver of military necessity should be only allowed with respect an attack against cultural property of outstanding value only when this attack is the only viable military action see Judge Pocar’s dissenting opinion in the ICTY Appeals ruling of the Prlic case. ICTY, Appeals Chamber, Prosecutor v. Jadranko Prlic and others, Judgment 29 November 2017, IT-04-74-A, Judge Pocar Dissenting Opinion, at 8. 90 See Michael Bothe, Karl J. Partsch, and Waldemar A. Solf, New Rules for Victims of Armed Conflicts. Commentary on the Two 1977 Protocols Additional to the Geneva Convention of 1949 (2013). For the view that the presence of material damage is not necessary to allow States other than the injured State to claim the breach of an erga omnes obligation see Alessandra Gianelli ‘Il contributo della dottrina

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As to less serious infringements concerning cultural property, State responsibility may arise as a consequence of the mere omission of complying with the obligations of procedural character, such as, for example, the duty of the territorial State to mark cultural property under special protection with an emblem as is provided for in Article 10 Hague Convention.91 In this case the breach of Article 10 occurs even if no detrimental consequences originate from it. Conversely, when a cultural object or site under special protection is destroyed by another State, the omission of the territorial State of placing the required emblem may envisage a more serious breach of law, such as the violation of the prohibition, sanctioned in Article 4 Hague Convention, of using ‘the property […] for purposes which are likely to expose it to destruction or damage’. In short, the legal grounds on the basis of which State responsibility is acknowledged may significantly change or be totally excluded depending on whether or not the element of damage is present.

6. Conclusive Remarks In short, the content of international obligations and the modalities in which the breaches of such obligations occur may affect the application of the ‘secondary rules’, i.e. the norms on State responsibility. It is therefore essential to ascertain the concrete features of a wrongful act in order to facilitate the prevention and punishment of the violations of the international obligations concerning cultural property, such as, in particular, the most serious breaches that may entail the disappearance of unique or exceptional cultural pieces or sites, especially those of outstanding universal value. As far as serious violations against cultural property are concerned, while proper international regimes of punishment of individual criminal responsibility have been established and successfully applied in the last two decades, corresponding legal procedures do not yet exist with regard to the ‘multilateral response to State responsibility’ for international crimes.92 italiana al tema della responsabilità internazionale degli Stati per fatto illecito: qualche osservazione’, 99 Rivista di Diritto Internazionale (2016), 1042, at 1056. 91 For a thorough exam of the norms of the Hague Convention concerning emblems see Odendahl, supra note 22, 104. 92 See André Nollkaemper, ‘Concurrence Between Individual Responsibility and State Responsibility in International Law’, 52 International Comparative Law Quarterly (ICLQ) (2003), 615, 627.

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This lacuna of international humanitarian and criminal law makes the application of general norms on States responsibility the only suitable instrument for ascertaining whether or not an international crime has been perpetrated by a State, in particular during an armed conflict.93 Nevertheless, once the applicability of international norms on State responsibility is allowed as a consequence of the breach of an international obligation, such applicability cannot be excluded on the basis of the level of seriousness of the breach. Thus, the existence of treaty norms, such as the abovementioned Article 38 Second Protocol to the Hague Convention, seems to promote the applicability of international norms on State responsibility with respect to the violation of any obligations concerning the protection of cultural property.

III. The Attribution of Wrongful Conducts Entailing the Destruction of Cultural Property to States A. State Responsibility for the Wrongful Conducts of State Organs

According to Article 2 ASR, internationally wrongful acts, from which State responsibility arises, occur when two essential elements are present: first, these acts are attributable to a State, the so-called subjective element, and, second, they entail a breach of international law, the objective element. The ASR acknowledge several legal grounds allowing the attribution of a wrongful act to a State. First of all, the responsibility of a State arises from the conduct of its organs, as provided by Article 4 ASR. Thus, when a domestic organ, whether legislative, judicial, or administrative, whether central or local, does not adopt preventative measures required under international law for the protection and conservation of cultural property, this may generate the responsibility of the State to which this organ belongs for the damage of such property,94 as the ICJ expressly stated in its 1962 judgment of 93 For the need to apply general norms on State responsibility to the cases of responsibility for breaches of humanitarian law in order to fill the lacunae of humanitarian law treaties see Sassòli, supra note 3, at 404.

For the view that the definition of the concept of ‘State organ’ is essential for the ascertainment of State responsibility see Francesco Salerno, ‘Genesi e usi della nozione di organo nella dottrina internazionalista italiana’, 92 Rivista di diritto internazionale (2009), 921, at 924. According to this author’s 94

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the Temple case.95 The only exception to this general principle is shown by Article 34 WHC establishing the so-called ‘federal clause’ on the basis of which the responsibility of a federal State is excluded when its constituent States have the exclusive competence of managing cultural heritage under domestic law and the federal State has made its member States aware of the duty to adopt implementing measures of international obligations. This norm must be deemed to be lex specialis with respect to general international law, under which the wrongful behaviour of constituent States always entails the responsibility of federal States.96 According to general international law, a wrongful behaviour of an organ may be attributable to a State even in the cases in which this behaviour also entails the responsibility of the individual organ due the strict link existing between the State and its organs, as the ICJ upheld in the Genocide case.97 The same reasoning is also espoused in Article 58 ASR. Nevertheless, some doubts still arise in literature with regard to the cases in which lower State organs have perpetrated international crimes the occurrence of which is determined by the existence of a specific psychological element, such as dolus specialis view, an organ is an individual or a body that is defined as such by domestic law, ibid., 939. For the opinion that the attribution of a conduct with respect to a State has factual nature even in the case in which this conduct is performed by an official State organ see Gaetano Arangio Ruiz, ‘State Responsibility Revised. The Factual Nature of the Attribution of Conduct to a State’, in Quaderni della Rivista di diritto internazionale, Supplemento (2017), 69. The ICJ recognised the obligation of Thailand to restore, to Cambodia, the objects that had been removed from the Temple by the Thai authorities during their occupation of that area. ICJ, Temple of Preah Vihear (Cambodia v. Thailand), Judgment (Temple case), 15 June 1962, ICJ Reports 1962, 35. 95

The priority of the provisions of special character concerning the attribution of responsibility is also recognised in Art. 55 ASR. For the view that the independence of constituent States with respect to the federal State is not a reason that may justifies the non-attribution of a conduct to the federal State, see ILC, Text of the Draft Articles with Commentaries thereto, Draft articles on responsibility of States for internationally wrongful acts, Report of the International Law Commission on the work of its fiftythird session, A/56/10, 10 August 2001, 30, at 42. See also Ben Boer, ‘Article 34 the Federal Clause’, in Francesco Francioni (ed.), The 1972 World Heritage Convention: a Commentary (2008), 355-361. 96

In this case the ICJ acknowledged that individual and State responsibility may co-exist when international crimes are at issue. ICJ, Case concerning application of the Convention on the prevention and punishment of the crime of genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, 11 July 1996, ICJ Reports 1996, at para. 32. Similarly, in the Furundzija case, the ICTY upheld that State responsibility arises when State organs perpetrate or omit to punish international crimes performed by individuals. See ICTY, Trial Chamber, Prosecutor v. Anto Furundzija, Judgment 10 December 1998, IT-95-17/1-T, at para. 142. For an overview of this matter see Dupuy, supra note 63, at 1096. 97

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with respect to genocide or, with reference to the clear intent to destroy in crimes against cultural property. According to some legal author, while the attribution of ordinary breaches of international law of organs is immediate vis-à-vis the State to which these organs belong, when the conduct of organs entails aggravate responsibility, a stricter standard of proofs would be required in order to confirm the interconnection between the State apparatus and the conduct of its organs.98 However, in the view of the ILC, Article 4 ASR must be applied regardless of any distinction between ordinary or aggravated responsibility arising from the different conducts of State organs.99 Recent case-law seems to confirm the rule laid down in Article 4 ASR. In the Stela of Matara case, the Eritrea-Ethiopia Claims Commission acknowledged the responsibility of Ethiopia although it was not certain whether the destruction was authorised or condoned by the government or it was the result of the autonomous decision of some soldiers.100 In sum, international practice has so far provided enough evidence to support the view that a State cannot escape the attribution of an illicit conduct that one of its organs has perpetrated against cultural property.

B. State Responsibility Arising from the Wrongful Conducts of Private Persons

The direct attribution of responsibility to a State also affects the conduct of private persons or entities exercising elements of governmental authority on behalf of this State as contemplated by Article 5 ASR. This is particularly relevant as to the issue of the conservation of cultural property in those cases in which States have formally transferred the competence of managing their cultural properties to private agencies. As an example, one can mention the cases in which private persons have been designated by a State to ensure the conservation of buildings of outstanding universal value while, 98 For the view that the responsibility for wrongful acts of heads of States and other high officers may be easily attributed to States while crimes of lower organs can be unknown by a State and, thus, their attribution to this State may require higher standards of proof see Nollkaemper, supra note 92, at 632. 99 See commentary of Art. 4 ASR, supra note 96, at 41. For an overview of the problems following the adoption of the ASR, see James Crawford and Simon Olleson, ‘The Continuing Debate on a UN Convention on State Responsibility’, 54 ICLQ (2005), at 959-971 and Gaja, supra note 14, at 981-992. 100

Stela of Matara case, supra note 68, at 149.

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under Article 4 WHC, this obligation of conservation entails a primary duty of a State.101 The concern for the privatisation and private management of cultural property has been raised by the Parliamentary Assembly of the Council of Europe that has upheld that privatisation and private management should not ‘absolve the [S]tate from its responsibility to ensure’ the protection of cultural property.102 Moreover, the violation of the international obligation of protecting cultural property may occur during armed conflicts at the hands of private persons and entities, such as military contractors. In these circumstances, the ground of attribution of the illicit conduct of the contractors with respect to the contracting State may vary according to the diverse strength of the connection between the State and contractors. The attribution of the conduct of private military contractors to the State is based on Article 5 ASR, which relies on the criterion of the contractors being empowered to exercise governmental authority by the law of the State. Conversely, in the cases in which private military contractors enjoy wide autonomy and do not participate in the exercise of governmental functions, State responsibility is founded on the same ground as responsibility deriving from illicit conduct of common private actors. These diverse bases of attribution of illicit conducts may generate some lacunae in the determination of State responsibility even in cases of serious offences perpetrated by private contractors against cultural property, such as intentional destruction.103 For this reason, some codes of good practices, such as the so-called For the increasing privatisation of the management of cultural heritage see Kurt G. Siehr, ‘Immovable Cultural Heritage at Risk: Past – Present – Future’, 21 International Journal of Cultural Property (2014), 267, at 274. 101

Council of Europe, Parliamentary Assembly, ‘The private management of cultural property’, Recommendation 1730, 25 November 2005, at para. 6. 102

For the diverse legal grounds of attribution of the conduct of private military contractors vis-à-vis the contracting State see Carsten Hoppe, ‘Passing the Buck: State Responsibility for Private Military Companies’, 19 EJIL (2008), 989, at 991-992. For a thorough analysis of the issue of the involvement of private military contractors in armed conflicts see Ana F. Vrdoljak, ‘Women and private military and security companies’, in Francesco Francioni and Natalino Ronzitti (eds.), War by Contract. Human Rights, International Humanitarian Law and the Regulation of Private Military and Security Companies (2011), 280-298. For the view that private contractors generally fall out of a State’s organisation as it is demonstrated by the fact that they cannot invoke functional immunity as State organs, see Salerno, supra note 94, at 954. In contrast, another legal author recognises that a particularly strict relationship between a State and private contractors may allow to consider the latter as State organs and, thus, attribute private illicit conducts with respect to States according to Art. 4 ASR, see Mamadou Hebie, ‘L’attribution aux États des actes des sociétés militaires privées et de leurs employés en vertu de l’article 4 du Projet d’articles sur la responsabilité internationale des États’, in Rudiger Wolfrum (ed.) Select Proceedings of the Third Biennial Conference of the European Society of International Law (2008), 598. 103

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Montreux Document, have been adopted in recent years in order to guide States in the selection and training of private military companies that are going to operate on behalf of the States themselves.104 In general terms, the conduct of private persons may be only attributed to a State when these persons act on the instructions or under the direction or control of the State itself. This is the rule stated in Article 8 ASR. In these circumstances, the behaviour at issue is a private conduct that is only indirectly recognised to be the conduct of the State in light of the effective control exercised by the State vis-à-vis private actors.105 As the ICJ has highlighted in several rulings, the extent of the scope of the definition of ‘effective control’ may be determining to attribute the illicit conduct of a private person to a State. According to the ‘effective control’ standard, which has firstly acknowledged in the Nicaragua case106 and, then, reaffirmed in the Genocide case,107 State responsibility only occurs when the State has control over ‘the operations in the course of which the alleged violations were committed’ and can foresee and, thus, prevent the private conduct.108 Consistent with the ‘effective control’ test, the conduct of private military corps entailing a wrongful act cannot be attributed to a State when this act only occurs when the specific intent of the wrongdoer, the so-

See Montreux Document on pertinent international legal obligations and good practices for States related to operations of private military and security companies during armed conflict, Montreux, 17 September 2008. The Document was adopted by 17 States, including the UK and US, and was recorded by the UN General Assembly and the Security Council. UN GA and SC, Agenda item 76, Status of the Protocols Additional to the Geneva Conventions of 1949 and relating to the protection of victims of armed conflicts, A/63/467–S/2008/636. For a detailed analysis of this document see Ana F. Vrdoljak, ‘Cultural Heritage, Human Rights and the Privatisation of War’, in Andrea Durbach and Lucas Lixinski (eds.), Heritage, Culture and Rights: Challenging Legal Discourses (2017). For an overview on this matter see Francioni and Ronzitti, supra note, at 103. 104

105 For a thorough exam of this matter see Claus Kress, ‘L’organe ‘de facto’ en droit international: réflexions sur l’imputation á l’Etat de l’acte d’un particulier á la lumière des développements récents’, 105 Revue Général de Droit International Public (2001), 93-144 and Marko Milanovic, ‘State Responsibility for Acts of Non-state Actors: A Comment on Griebel and Plücken’, in 22 Leiden Journal of International Law (2009), 307.

See ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, 27 June 1986, ICJ Reports 1986, at paras. 101-102. 106

107

Genocide case, supra note 64.

For the view that the ‘effective control’ test leads to a narrow interpretation of the scope of the responsibility of States with respect to the conduct of individuals acting under State control without precise instructions see Arangio Ruiz, supra note 94, at 95-96. 108

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called dolus specialis, exists,109 such as, for example, in the case of perpetration of the intentional destruction of cultural property. A different conclusion might be reached according to the concept of ‘overall control’, which was formulated by the ICTY in the Tadic case,110 but that was not embraced by the ICJ in the Genocide case.111 In keeping with the ‘effective control’ standard, factors other than the existence of a factual relationship between a State and private actors must be therefore taken into account in order to determine whether or not a private conduct may be attributed to a State. First of all, the ascertainment of the standard of due diligence of States is essential to acknowledge if a State has violated the obligation of preventing breaches (especially serious breaches) of international law, in particular when these breaches have been perpetrated during armed conflicts by private persons such as military contractors or foreign paramilitary troops or insurrectional movements supported and led by that State.112 In addition, the intent of a State may be also crucial to establish if a private conduct may be attributed to that State. This is particularly so in the cases in which the

Genocide case, supra note 64, at para. 376. For a strong dissenting opinion against this argument see Antonio Cassese, ‘On the Use of Criminal Law Notions in Determining State Responsibility for Genocide’, in 5 Journal of International Criminal Justice (2007), 875, at 879. For an analysis of the attribution of the conduct of private armed groups with respect to a State in the Genocide judgment see Milanovic supra note 105, at 307. 109

110 See ICTY, Appeals Chamber, Prosecutor v. Dusko Tadic, Judgment 15 July 1999, IT-94-1-A. On the basis of the ‘overall control’ standard, when a State has the complete control over an organisation or group of private persons, its responsibility cannot be excluded for all the activities performed by these persons even if some of these activities have not been specifically directed by the State. 111

Genocide case, supra note 64, at paras. 238-241.

For the view that the scope of the concept of due diligence may vary according to the different international obligations referring to it see Elena Fasoli, ‘State Responsibility and the Reparation of NonEconomic Losses related to Climate Change under the Paris Agreement’, 101 Rivista di diritto internazionale (2018), 90, at 94-96. This view is also confirmed by the advisory opinion of the Seabed Dispute Chamber relating to activities performed in the Area. See International Tribunal of the Law of the Sea, Seabed Disputes, Responsibilities and Obligations of States Sponsoring Persons and Entities with respect to Activities in the Area, Advisory Opinion, n. 17, 1 February 2011, at para. 117 available at https://www. itlos.org/fileadmin/itlos/documents/cases/case_no_17/adv_op_010211.pdf. For an overall analysis on this matter see Riccardo Pisillo Mazzeschi, ‘The Due Diligence Rule and the Nature of the International Responsibility of States’, in 35 German Yearbook of International Law (1992), 9. 112

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intent of the private actors is relevant to define the type of breach that has been perpetrated, such as, for example, the intentional destruction of cultural property.113 Thus, while in the cases of ordinary violations perpetrated by private actors, the standard of ‘effective control’ merely asks for the ascertainment of the existence of a strict link between the State and activities performed by the private actors, a stricter standard of review, both of the intent and due diligence of States is required when the attribution of more serious breaches, such as international crimes, is at issue.114 This analysis also appears necessary to determine whether the conditions exist to affirm the shared responsibility between States and non-State actors.115

C. The Attribution of Responsibility for the Illicit Conducts of Insurrectional Movements

A peculiar case of attribution of a wrongful conduct to a State occurs when this conduct has been carried out by an insurrectional movement and is attributed to the new State originating from the insurrection.116 Article 10 ASR recognises the responsibility of the new State by reason of the continuity existing between the insurrectional movement and the government of this State. This norm may be useful to identify the State to which an illicit conduct may be attributed in the cases in which In the Strugar case, the ICTY attached great importance to the relationship between the official government and the individuals that perpetrated crimes as de facto organs, namely the wanton attacks against cultural properties in the city of Dubrovnik. The ICTY also recognised that the superior-subordinate relationship does not necessarily have to arise from the superior’s formal or de jure status. See Strugar case, supra note 53, at paras. 362-366. The same reasoning had been embraced in ICTY’s previous ruling relating to the Tadic case in which the criminal conducts of individuals could be classified as war crimes, only if the perpetrators were considered to act under the control of the government. See Tadic case, supra note 110, at para. 98. For the difficulty of ascertaining the State’s intent and due diligence standard in cases of international crimes performed by individuals see Nollkaemper, supra note 92, at 634. 113

See supra Section II.B.3. For a view highlighting the relevance of due diligence for the attribution of the conduct of private actors to States see D’Aspremont et al., supra note 65, 54. 114

115 For the possibility of excluding the shared responsibility between States and private actors as a result of the application of the standards of due diligence with respect to States see Kimberley N. Trapp, ‘Shared Responsibility and Non-State Terrorist Actors’, 62 NILR (2015), 141, at 144. 116 Under Art. 13 ASR, international responsibility should only arise from the breach of norms that are in force for the State that is charged with such breach. Since the new-born State did not exist at the time of the occurrence of the breach, it should not be considered responsible.

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insurrectional movements had breached the obligations concerning the protection of cultural property while these movements were fighting for their independence and, ultimately, in their successful achievement of statehood. This type of attribution of the conduct of private actors has been also acknowledged by the ICJ, in the Croatia v. Serbia case with regard to the violations of customary law perpetrated by the insurrectional group that, subsequently, became the official government of Serbia. Nevertheless, the ICJ did not verify whether or not the rule established in Article 10 ASR reflects a norm of customary nature.117 Similarly, such a customary norm cannot even be recognised according to State practice in conclusive terms. In fact, only some French courts implicitly seem to have acknowledged the responsibility of the new-born States for the wrongful acts of insurrectional movements.118 In short, the criterion of attribution of responsibility established in Article 10 ASR is scarcely applied in international practice mainly because of political reasons, i.e. the purpose of facilitating the consolidation and development of newly born States. Thus, the alternative is preferred of prosecuting and punishing individuals through criminal law mechanisms, whether of national or international character.119 Certainly, this trend within current international practice does not make bode well for the possibility of recognising, in the near future, State responsibility for the illicit destruction of cultural properties perpetrated by the insurrectional movements from which a State originated.

ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment, Merits, 3 February 2015, ICJ Reports 2015, at para. 105. The ICJ did not scrutinise Art. 10 in depth in this case because it had already denied its jurisdiction over the conduct of insurrectional groups, to which this ground of attribution should have been applied. 117

118 The Conseil d’Etat stated that France could not be considered to be responsible for the illicit conducts perpetrated, in the Algerian territory, by the Front de Libération National (the Algerian liberation movement that rose up against the French colonial government) due to the fact that these conducts should have been attributed to Algeria, namely the new-born State. Conseil d’Etat, 2/6 SSR, Hespel case No. 11092, 5 Dec. 1980 and Conseil d’Etat, Grillo case No. 178498, 28 July 1999, as quoted by Patrick Dumberry, ‘New State Responsibility for Internationally Wrongful Acts by an Insurrectional Movement’, 17 EJIL (2006), 605, at 615.

The scarce application of Art. 10 ASR in international practice is highlighted by Sassòli, supra note 3, at 410. 119

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D. Joint Responsibility of States

The attribution of a wrongful behaviour to a State may also occur as a consequence of the interference of this State with respect to the conduct of another State. Articles 16, 17, and 18 ASR establish that, in the cases of assistance, control, or coercion over the commission of a wrongful act of another State, such act is also attributable to the controlling or coercing State. The major difference between these situations is identified in the diverse modalities of attribution of illicit conducts. Under Articles 16 and 17, the wrongful behaviour may be attributed to the assisting or controlling State only if it is bound by the international obligation that has been violated by the actions of the assisted or controlled State. Thus, if the obligation that has been violated belongs to a treaty to which the assisting or controlling State is not a party, this State cannot be considered responsible for the breach of such obligation as a result of the application of the pacta tertiis principle. In this regard, it appears to be essential to determine whether an international obligation has customary or treaty nature. As observed above,120 this problem also affects some crucial obligation, such as the prohibition of destroying cultural property during time of peace. Conversely, under Article 18, the coercing State is considered responsible for the breach of international norms regardless of the fact that it is not bound by these norms. This consequence is due to the fact that coercion usually precludes the attribution of responsibility to the coerced State.121 While the case in which a State assists or exercises control over another State perpetrating a breach of international law is quite common so as to allow the ICJ to consider Article 16 ASR as reflecting a customary rule in the Genocide case,122 the coercion of

120

See supra Section II.B.

For the view that the recognition of the unconditional responsibility of coercing State is an act of fairness with respect to the victims of the wrongful behaviour of a coerced State the responsibility of which is precluded under international law, see ILC Report, supra note 96, at 70. 121

122 See Genocide case, supra note 64, at para. 420. For a doctrinal view recognising the customary character of the rule provided for in Art. 16 ASR, see Roger O’Keefe, ‘Article 98 Agreements, the Law of Treaties and the Law of State Responsibility’, in Marcel Szabo (ed.), State Responsibility and the Law of Treaties (2010), 51, at 53.

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States may appear rare in the contemporary international community, as the ILC has affirmed in its commentary of Article 18.123 Nevertheless, domestic instability of many States facing long internal conflicts or economic crises may lead to weaken the capacity of these States to oppose external pressure of third States. Thus, the recognition of the responsibility of weak or failed States may not only be considered unfair with respect to these States, but it also appears to be ineffective for the purpose of ensuring the compliance with international obligations the breach of which is ascribed to weak States.124 In these circumstances, the advocates of the R2P doctrine envisage the right of third States to intervene in order to preserve fundamental rights. Articles 16, 17, and 18 ASR may be helpful for the attribution of wrongful behaviours affecting cultural property, for example, when a State assists or, even worse, obliges another country to destroy objects belonging to its cultural heritage in breach of treaty norms, such as Article 6(3) WHC. Thus, it appears to be very important to identify the situations in which weak States do not have any concrete means to oppose the instructions of a third State of removing or destroying cultural properties. In these cases, the application of Article 18 ASR, to the extent that international treaty obligations may become binding vis-à-vis third States, would be extremely beneficial for the achievement of the final objective of safeguarding cultural property. Finally, some scholars, and the ICJ itself,125 have recently hypothesised that the rule established in Article 16 ASR and aimed at regulating the concurring responsibility of the assisting and assisted States for the breach of an international obligation may be also beneficial to recognise State responsibility on the ground of the complic-

123

ILC Report, supra note 96, at 69-70.

For the relevance of the incapacity of failed and weak States of opposing to the external pressure of third State and non-State actors for the purpose of the attribution of illicit conducts see Trapp, supra note 115, at 154-155. 124

See Genocide case, supra note 64, at paras. 418-436. For an analysis of the issue of complicity as it results in the Genocide case see Eduardo Savarese, ‘Complicité de l’Etat dans la Perpétration d’Actes de Génocide: le Notions Contiguës et la Nature de la Norme En marge de la décision Application de la convention sur la prévention et la répression du crime de génocide (Bosnie- Herzégovine c. Serbie et Monténégro)’, 53 Annuaire Français de Droit International (AFDI) (2007), 280. 125

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ity occurring between a State and private actors.126 Most precisely, complicity occurs when private persons act autonomously, but concertedly with a State. Although international law has traditionally recognised scarce autonomy of non-State actors, in recent times, the role of private persons has undeniably increased in terms of participation in international policy, as the proliferation of private armed companies and the enhanced military capacity of unofficial armed groups have demonstrated. This is also so with regard to the illicit conducts affecting cultural property. For example, the unlawful destruction of cultural objects perpetrated by unofficial military corps during internal armed conflicts may be assisted by a complicit foreign State that does not nevertheless exercise an effective control over the wrongdoer military groups. Thus, new legal grounds, such as complicity between State and private actors, must be developed in order to attribute illicit conducts to States operating together with persons that may have diverse legal capacity and political power within the international legal order.127 Therefore, the enforcement of the substantive obligations relating to the protection of cultural property can be most effectively achieved when the concrete responsible actors are identified.

IV. Circumstances Precluding State Responsibility Once the breach of an international obligation occurs and is attributed to a State, a wrongful act exists and legal consequences can take place unless the wrongdoer State demonstrates that its conduct is justified by one of the circumstances precluding wrongfulness provided for under international law. These circumstances apply to any breach of international law and, thus, should be also valid for the violation of the obligations concerning cultural property. Nevertheless, both cultural property, as a whole, and its distinct components are deemed to be goods of special interest under international and domestic law and, 126 According to the ‘complicity’ theory, the attribution of responsibility to a State is only envisaged when the relationship between that State and private actors cannot be categorised according to the ‘effective control’ standard, which remains the primary rule of attribution of a private wrongful conduct to a State. See Savarese, supra note 125, at 290. 127 For an overall scrutiny of the matter of the complicity between States and private actors see Helmut P. Aust, Complicity and the Law of State Responsibility (2011).

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thus, are not treated as ordinary belongings.128 Moreover, the existence of several multilateral conventions safeguarding cultural property in the interest of individuals, peoples, and the international community demonstrates that the breaches of international obligations relating to cultural property must be treated more severely than other violations of international law. This severe approach also affects the application of the circumstances precluding wrongfulness. Actually, Article 26 ASR already establishes a general limitation with respect to these circumstances, that is the exclusion of their application in cases of breach of peremptory norms. As indicated above, the category of peremptory norms is pretty narrow and obligations relating to the protection of cultural property have not so far reached this category. Under Article 20 ASR, the consent of a State may justify the illicit conduct of the wrongdoer only if this conduct entails an ordinary breach of international law and the State granting the consent is the only entitled person to authorise the derogation from the international obligation at issue.129 These types of bilateral obligations are quite rare in cultural property law due to the special interests involved. Thus, the violation of the international obligations relating to cultural property, which a State may owe to other States, individuals, and/or the international community, as stated, for instance, in Articles 2(3) UHC, cannot be validly authorised by the mere consent of a State even if such violation does not entail a breach of a peremptory norm.130 Therefore, although the exclusive right of coastal States ‘to regulate and authorize activities directed at underwater cultural heritage in their […] territorial sea’ is recognised under Article 7(1) UHC, the destruction of cultural objects at sea cannot be validly authorised by a State on the allegation that these objects are located in a marine area 128 International law recognises the special status of some goods, such as cultural heritage and, in the field of environmental law, biodiversity. This similarity of cultural and environmental common goods is also highlighted by the UN. See UN, Framework Convention on Climate Change, Technical Paper, ‘Non-economic losses in the context of the work programme on loss and damage’, FCCC/TP/2013/2, 9 October 2013. 129 For the view that consent is valid only if it is granted by all the right-holders see ILC Report, supra note 96, at 73 and Ademola Abbas, ‘Consent Precluding State Responsibility: A Critical Analysis’, 53 ICLQ (2004), 211, at 215-216. 130 In this regard, some legal authors have formulated the definition of ‘legal injury’, according to which the breach of the obligations affecting the general interest also brings about the non-material and non-economically quantifiable damage that States other than the concretely injured State may suffer as a consequence of the mere occurrence of the violation. For this view see Brigitte Stern, ‘Et si on utilisait la notion de préjudice juridique? Retour sur une notion délaissée à l’occasion de la fin des travaux de la C.D.L sur la responsabilité des États’, 47 AFDI (2001), 3 and Fasoli, supra note 112, at 111.

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under its jurisdiction. The conservation of underwater cultural heritage is in fact an obligation that States parties to the UHC must ensure for the benefit of humanity.131 Other circumstances precluding wrongfulness, such as force majeure, self-defence, distress, and necessity also operate in a very stringent manner, particularly with respect to illicit conducts affecting cultural property. The pleas of self-defence, distress, and necessity, provided for in Articles 21, 24, and 25 ASR, generally allow the preclusion of wrongfulness of intentional behaviours that were performed as the only way to safeguard human lives or other essential interests.132 In addition, some international treaties of humanitarian law, such as the Geneva Conventions, exclude the applicability of these legal grounds of preclusion with respect to the breaches of the obligations provided therein, the so-called obligations of total restraint. In fact, humanitarian law is, in itself, aimed at preserving essential interests the safeguard of which does not allow any exception. Among these obligations, the duty to protect cultural objects and sites, established in Articles 53 and 16 of Geneva Protocols I and II respectively, is worth mentioning. Finally, one cannot exclude that the need to preserve cultural property may be invoked as a justification of an otherwise illicit conduct. As an example, some restrictions of property rights of foreign nationals on cultural objects, which prima facie may clash with the international standards of justice on the treatment of aliens, may be justified by the need to prevent illicit export of cultural properties of great importance for the national heritage of the State, as British judges upheld in the Iran v. the Barakat Galleries Ltd. case.133 Similarly, the occupation of the territory of another State could be excused by the necessity of protecting a cultural or religious site that is located 131 See Rules concerning activities directed at underwater cultural heritage, Annex to the UHC. For the view highlighting the general interest in the protection of underwater cultural heritage according to the UHC, see Francioni, supra note 52, at 1210 and Carducci, supra note 50, at 432. 132 The plea of self-defence must always comply with the requirements of proportionality and necessity as well as the obligations of total restraint. See ILC Report, supra note 96, at 75. For an overall analysis see David W. Bowett, Self-Defence in International Law (1958).

See Government of Iran v. the Barakat Galleries Ltd., 2009 Q.B. 22, as mentioned by Robert Kirkwood Paterson and Marc-André Renold, ‘Foreign Culture: Export Controls on Material of Foreign Origin’, in James A.R. Nafzinger and Robert Kirkwood Paterson (eds.), Handbook on the Law of Cultural Heritage and International Trade (2014), 571, at 584. See also https://plone.unige.ch/art-adr/ cases-affaires/jiroft-collection-2013-iran-v-barakat-galleries. In this case, the British Court allowed the return of some cultural objects to Iran even if the title claimed by Iran was based exclusively on Iranian national ownership law. 133

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in that territory. All these examples mainly affect the plea of necessity. However, even in the case in which an illicit conduct is aimed at preserving cultural property, a State must demonstrate that this conduct is proportionate and necessary in relation to the aim pursued.134 This argument has been espoused by some domestic courts in order to deny the jurisdictional immunity of foreign States when the acquisition of a cultural object has entailed a breach of international law.135 In addition, international illicit conducts, the justification of which is sought on the ground of the need to safeguard cultural property, must be assessed in terms of proportionality in particular when these conducts may entail the violation of human rights. Although the conservation of cultural property is at the present considered as an essential element to guarantee both individual and collective cultural rights, other fundamental human rights, such as the rights to life or to human treatment, cannot be sacrificed in the name of culture and its preservation.136 Similar to other international norms, such as those concerning State immunity, international rules on State responsibility, including those dealing with circumstances precluding wrongfulness, must be therefore applied according to the diverse substantive obligations the violation of which is alleged.137 134 For the view that the legitimacy and scope of the invocation of the need to protect superior interests as a reason of preclusion of wrongfulness are still vague under international law see Giorgio Gaja, ‘La possibilité d’invoquer l’état de nécessité pour protéger les intérêts de la communauté internationale’, in Droit du pouvoir, pouvoir du droit: Mélanges offerts à Jean Salmon (2007), 417.

In the Altmann case, the plaintiff sought the restitution of some Klimt’s paintings that had belonged to Altmann’s ancestors and had been taken by Austria following the events of Nazi occupation. The US Court of Appeals denied the jurisdictional immunity of Austria on the assumption that the paintings at issue had been appropriated by the then Austrian government in violation of international law. Therefore, this appropriation could not be considered as a valid sovereign act with respect to which US legislation concerning State immunity had to be applied. See Altmann v. Republic of Austria, 317 F.3d 954 (9th Circuit, 2002), paras. 43-47. For an extensive analysis of domestic case-law concerning State immunity in cases of restitution of cultural property see Riccardo A. Pavoni, ‘Sovereign Immunity and the Enforcement of International Cultural Property Law’, in Francesco Francioni and James Gordley (eds.), Enforcing International Cultural Heritage Law (2013), 79-109. 135

136 The need to preserve a core set of universal human rights in order to guarantee the existence itself of humanity is recognised by Lenzerini, supra note 13, at 244. For an example of an international act condemning serious violations of human rights that are perpetrated with the aim of preserving cultural intangible heritage, such as religious and cultural traditions, see Economic and Social Council (ECOSOC), UN Commission on Human Rights, Integration of the Human Rights of Women and the Gender Perspective. Violence against Women. Report of the Special Rapporteur Ms. Radhika Coomaraswamy, submitted in accordance with Commission on Human Rights Resolution 2000/49, Cultural practices in the family that are violent towards women, E/CN.4/2002/83, 31 January 2002. 137

See Gaja, supra note 14.

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V. Consequences Arising from State Responsibility A. Invocation of Responsibility and Injured States

The ascertainment of State responsibility needs to bring about legal and practical consequences in order to be effective. These consequences may entail the possibility of other States of invoking the responsibility of the wrongdoer State so as to achieve some form of reparation or adopt countermeasures as a result of the breach of law. This issue is also dealt with in Parts II and III ASR, the application of which may be beneficial to identify which legal and practical consequences are allowed under international law with respect to the breaches resulting in the destruction of cultural property. Consequences may differ with respect to the diverse character and content of the obligations that a State owes to another State, several States, the international community or even persons or entities other than a State. Article 42 ASR recognises the right of the injured State or States138 to invoke the responsibility of the wrongdoer State. The status of injured State can be easily identified in the case of the breach of bilateral obligations, such as, for example, the duty to conserve cultural objects that a State has temporarily borrowed from another State according to a loan agreement.139 However, responsibility affecting bilateral relationships also occurs when the violation concerns a norm of a multilateral treaty or of customary nature the compliance with which may also involve the interest of the international community. In fact, the right to invoke responsibility does not have to be assimilated to the interest in the achievement of the aim for which an obligation was established. For example, although the preservation of underwater cultural heritage must be ensured ‘for the benefit of humanity’ according to Article 2(3) UHC, the right to invoke the responsibility for the damage to cultural objects that are located in the territorial sea of a State belongs to the latter State,140 which, in this context, has 138 Art. 46 ASR establishes that if there are several injured States, each one can invoke responsibility individually. 139 See, for example, the dispute between the US and China concerning the damage suffered by one of the Great Wall’s warrior statues during a temporary exhibition in Philadelphia. See Kingling Lo, ‘China urges US to get tough on man who stole thumb from US$4.5 million terracotta warrior on display in a Philadelphia museum’, in South China Morning Post available at https://www.scmp.com/news/china/ diplomacy-defence/article/2133707/china-urges-us-get-tough-man-who-stole-thumb-us45. 140

See Art. 7 UHC.

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the role of the ‘injured State’. A concrete example of the distinction between the right to invoke responsibility and the interest in the compliance with international obligations is provided by the case concerning the Spanish San José galleon, sunken, in the 18th century, off of the coast of what is today Colombia.141 Following the discovery of the San José shipwreck, Colombia has declared that it intends to rescue the vessel and its cargo with the assistance of a United States (US) private company that will retain some part of the recovered goods as compensation. On the one hand, a typical bilateral dispute has occurred between Spain and Colombia both claiming the ownership of the vessel. Thus, if the title of Spain, as flag State of the San José galleon, were to be recognised, Spain, as the ‘injured State’, would have the right to invoke the responsibility of Colombia for any illicit act affecting the vessel. On the other hand, the activities of rescue of the San José shipwreck, which the Colombian government seeks to carry out, has raised the concern of the UNESCO, in particular, with regard to the consistency of these activities with the general aims of the UHC, which stipulate that underwater cultural heritage must be safeguarded in the interest of humanity.142 This initiative by UNESCO is all the more indicative of a general interest to the preservation of underwater cultural heritage for the benefit of humankind since Colombia is not a party to the UHC. This type of initiative also seems to consolidate the recognition of the status of norm of customary character with respect to the obligation of protecting cultural property in war and peace time. In addition, the invocation by a single State of the responsibility of another State may also involve collective obligations.143 In these circumstances, the single State may only invoke responsibility in two specific cases: when it has been specially affected by the breach of a collective obligation or when the obligation is of such a character that

For an overview see Antonio J. Rengifo, ‘Ruling over the San José galleon is unclear’, in UN Periódico digital, Universidad Nacional de Colombia (2018), available at http://unperiodico.unal.edu.co/ pages/detail/ruling-over-the-san-jose-galleon-is-unclear. 141

For the political reaction of the UNESCO to the potential activity of rescue announced by Colombia see Llazar Semini, ‘UNESCO against Colombia’s commercial recovery of a shipwreck’, in Washington Post, 27 April 2018, available at https://www.washingtonpost.com/world/the_americas/unesco-againstcolombias-commercial-recovery-of-a-shipwreck/2018/04/27/ 29ecaae2-4a0a-11e8-8082-105a446d19b8_ story.html?utm_term=.dd46c8c8f060. 142

These obligations are owed by a State towards a group of States or the international community as a whole. 143

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its breach ‘radically changes the position of all the other States to which the obligation is owed’, as established by Article 42(b)(ii) ASR.144 An example of the first hypothesis is provided by the case in which the illicit conduct of a State entails the damage or destruction of cultural objects that are located in the Area in breach of Article 12 UHC. In this case, while any State party is bound by the obligation of protecting cultural objects in the Area vis-à-vis all other parties, the injured State that may be specially affected by the conduct of the wrongdoer State is the one that is recognised to be as the State of the cultural origin of the objects themselves according to Article 11(4) UHC. The second hypothesis concerns the so-called interdependent obligations.145 In the case of the breach of one of these obligations, all States parties to the regime other than the wrongdoer State must be considered as injured States. An example of these types of obligations relating to cultural property is provided by the regime established by the WHC. The inscription of cultural properties of outstanding universal value in the World Heritage List, as provided for in Article 11 WHC, would be scarcely effective if a State party might treat the cultural properties that are located in its territory as ordinary assets or, even worse, as commercial goods. It is therefore consistent with Article 42(b)(ii) ASR that any party to the WHC is entitled to invoke the responsibility of another party for the breach of the obligations of protection and conservation established in Articles 4, 5, and 6 WHC. The invocation of State responsibility according to this legal ground has so far remained on paper mainly due to the failure of international law to provide collective judicial or administrative instruments for the condemnation of these types of violations. An example of this kind of breach is provided by the case concerning the demolition of the Ajyad Fortress, an Ottoman castle, which was built in the 18th century. In 2002, Saudi Arabia tore down this fortress that was located in its own territory in order to enhance the commercial growth of the area. Despite the strong condemnation of the act on the part of Turkey, as historic successor of the Ottoman Empire, and regardless of the fact that Saudi Arabia has been a party to the WHC since 1978, neither unilateral nor collective

144

For a definition see ILC Report, supra note 96, at 118-119.

These obligations must be implemented by all States parties in a consistent and simultaneous manner. They are usually aimed at establishing international legal regimes. 145

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action was taken against this inconsiderate conduct in order to enforce international rules on State responsibility.146 In short, Article 42 ASR appears to be strongly based on the bilateral approach that traditionally applies in international law and identifies two essential actors, namely the wrongdoer and injured State. The only attempt at recognising collective rights corresponding to collective interests, such as those safeguarded in cultural property conventions, may be acknowledged in paragraph (b)(ii) of this Article.

B. The Right of a State Other than the Injured State to Invoke Responsibility

Article 48 ASR recognises the right of a State other than the injured State to invoke responsibility in cases of the breach of the obligations that are aimed at safeguarding a collective interest and are owed by the wrongdoer towards a group of States or the international community as a whole. As examples of these types of obligations, the ILC commentary of Article 48 mentions erga omnes obligations as defined by the ICJ in the Barcelona Traction case.147 Although this article does not adopt the traditional bilateral approach for the attribution of the right to invoke responsibility, the scope of the rights that this article recognises with respect to States other than the injured State is quite limited: in fact, these States may only request the cessation of the breach, guarantees of non-repetition, and reparation in the sole interest of the injured State.148

See James Palmer, ‘Destroying Ottoman castle to build hotel is ‘cultural massacre’’, in Independent, 9 January 2002, available at https://www.independent.co.uk/news/world/middle-east/destroying-otto man-castle-to-build-hotel-is-cultural-massacre-9162998.html. For an analysis of this case see Lixinski and Tsevelekos, supra note 3, at 17. 146

See ILC Report, supra note 96, at 127 and ICJ, Case concerning the Barcelona Traction, Light and Power Company, Limited (New Application: 1962) (Belgium v. Spain) Second Phase, Judgment, 5 February 1970, ICJ Reports 1970, at para. 34. For an overview on erga omnes obligations see Maurizio Ragazzi, The Concept of International Obligations Erga Omnes (2000), and Joris A. Frowein, ‘Obligations erga omnes’, December 2008, in Max Planck Encyclopedia of Public International Law, available at http:// opil.ouplaw.com/. 147

For the inadequacy of the ASR in dealing with the issue of the breach of erga omnes obligations see Paolo Picone, ‘Gli obblighi erga omnes tra passato e futuro’ in 98 Rivista di diritto internazionale (2015), 1081. 148

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The extension of the right to invoke responsibility vis-à-vis States other than the injured State is also provided in common Article 1 Geneva Conventions that allows any State party to claim the breach of one of the obligations established by the Conventions and Geneva Protocol I.149 Thus, the violation of the obligations provided for in Article 53 Geneva Protocol I with regard to the protection of cultural property during international armed conflicts may be invoked erga omnes. Conversely, since this responsibility regime does not apply to Geneva Protocol II, the breaches of the obligations established in its Article 16 concerning offences against cultural property during non-international armed conflicts can be only invoked according to common Article 1 Geneva Conventions if such breaches entail violations that, under common Article 3 Geneva Conventions, are inescapable.150 In the Strugar case, the ICTY included the shelling of the Old Town of Dubrovnik among these types of violations although it was perpetrated during an internal conflict.151 In addition, several treaties on cultural heritage consider the protection of cultural properties as a general interest of humanity as a whole, such as, for example, the WHC and UHC. Simultaneously, international practice is increasingly recognising the interest of the international community in the protection of cultural property as it was reaffirmed in the UNESCO Amicus Curiae Observations submitted to the ICC in the Al Mahdi case.152 149 Section II of Part V Protocol I to the Geneva Conventions implements the obligation of repressing the breaches of the Conventions and of Protocol I. For the assimilation of Art. 1 Geneva Conventions with Art. 48 ASR, see Sassòli, supra note 3, at 424 and 433. For a detail analysis of the scope of common Art. 1 Geneva Conventions see Laurence Boisson de Chazournes and Luigi Condorelli, ‘Common Article 1 of the Geneva Conventions revisited: Protecting collective interests’, 837 International Review of the Red Cross (2000). 150 Art. 3 mainly prohibits cruel physical injuries to civil population. However, on the basis of an extensive and up-to-date interpretation, serious attacks against cultural property contemplated under Art. 16 Protocol II should be considered as unjustifiable conducts under humanitarian law. For the view that common Art. 3 Geneva Conventions does not provide an exhaustive list of grave breaches of international humanitarian law see Thomas Graditzky, ‘Individual Criminal Responsibility for Violations of International Humanitarian Law Committed in Non-International Armed Conflicts’, 322 International Review of the Red Cross (1998). For the opinion that serious attacks against cultural property must be considered crimes against peace see Francioni and Lenzerini, supra note 35, at 644. 151 The ICTY upheld that ‘cultural property is, by definition, of great importance to the cultural heritage of every people’ and, thus, ‘the victim of the offence at issue [was] to be understood broadly as a ‘people’, rather than any particular individual’. See Strugar case, supra note 53, at para. 232. 152 ICC, Trial Chamber VII, Prosecutor v. Ahmad Al Faqi Al Mahdi, UNESCO Amicus Curiae Observations Submitted Pursuant to Rule 103 of the Rules of Procedure and Evidence, 2 December 2016, ICC-01/12-01/15-194, at para. 2.

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The growing acknowledgment of the universal value of cultural property and essential need of its conservation may help to make the traditional bilateral approach adopted by international law more flexible. As an example, Article 45 ASR providing for the waiver or acquiescence of the right to invoke State responsibility of the injured State or the States enjoying such right under Article 48 may be interpreted in different manners according to the peculiarities of the situations in which this article applies. In particular, the recognition of the special character of the obligations concerning cultural property may raise the question whether or not the waiver or acquiescence is admissible when the breach of these obligations is at issue. Again, the applicability of these types of norms varies according to the diverse content of the obligations relating to cultural property. Similar to the operation of consent as circumstance precluding wrongfulness, a valid waiver is only envisaged when the State renouncing to claim responsibility is the only entitled person. If the breach also affects the interests of other States or the international community, a single State cannot waive the invocation of such breach. In addition, the State directly entitled to claim responsibility might waive its right because of its weakness and subjection with respect to the wrongdoer State even in the case of serious breaches affecting its cultural property. In these circumstances, States other than the injured State do not only appear to have the right to invoke the responsibility of the wrongdoer State for the violation of obligations owed to the international community, as a whole. Consistent with the global interest in conserving cultural property of outstanding value and in line with the spirit of the R2P theory, States other than the injured one should also recognise (so far only by means of proclamations of political character) the obligation of advocating the rights of the directly entitled State and the entire humanity that have been heavily trampled. Thus, although international norms on State responsibility, particularly the ASR, provide a coherent legal system for the ascertainment of States entitled to invoke responsibility, these norms do not seem to fit completely the need to supply the international community the proper instruments to stand against the breaches of the obligations that are aimed at protecting cultural property as a global interest.

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C. Reparation for Damage to the Cultural Property

The norms dealing with the implementation of the invocation of State responsibility, namely the rules relating to reparation and countermeasures, also show some lacuna in particular with regard to the reparation of damage to cultural property of universal value. This is due to the fact that international norms on State responsibility primarily have a reparatory nature, which is based on the abovementioned bilateral approach. Conversely, the most serious breaches of the obligations affecting cultural property would require punitive consequences, in particular, when these breaches are the result of an intentional action.153 Nevertheless, with the exception of the Convention on the Prevention and Punishment of the Crime of Genocide, which, by recognising ICJ’s jurisdiction as primary dispute settlement means,154 allows sentencing States parties for the breach of its substantive norms, such as in the aforementioned Genocide case, and apart from the treaties that States may adopt to resolve some specific disputes, such as the agreement, concluded between Eritrea and Ethiopia, establishing the Claims Commission that dealt with the abovementioned Stela of Matara case,155 no international legal instruments have been so far provided to hold States accountable in the same manner in which individuals are prosecuted before international criminal tribunals. This punitive task has been left to the Charter of the UN and, particularly, to Chapter VII the application of which is notoriously not very effective.156 The only consequence of State responsibility that apparently has a punitive character under general international law is satisfaction since it requires the wrongdoer State to recognise its responsibility and to apologise. However, satisfaction cannot be considered as a sufficient remedy for the breaches of the obligations affecting 153

See, among others, Dupuy, supra note 63, at 1097 and Nollkaemper, supra note 92, at 622.

See Art. IX Convention on the Prevention and Punishment of the Crime of Genocide 1948, 78 UNTS 277. 154

See Article 5 Eritrea-Ethiopia Agreement. Agreement between the Government of the Federal Democratic Republic of Ethiopia and the Government of the State of Eritrea, 12 December 2000, available at https://pcacases.com/web/sendAttach/786. This agreement was concluded in the framework and under the auspices of both the Organisation of African Unity and the UN in order to cease the armed conflict occurring between Ethiopia and Eritrea. 155

156

626.

Charter of the United Nations 1945, 15 UNCIO 335. See also Nollkaemper, supra note 92, at

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cultural property. First, according to Article 37 ASR, satisfaction only entails some expression of regret that, as the ICJ affirmed in the LaGrand case, cannot be regarded as a suitable remedy in cases of violations of fundamental interests.157 Second, satisfaction embodies a consequence of residual character with respect to restitution and compensation. For this reason, in the abovementioned Stela of Matara case, in spite of the request of Eritrea for official apologies as a consequence of the recognition of the responsibility of Ethiopia for the destruction of the obelisk, the Eritrea-Ethiopia Claims Commission did not consider apologies as a sufficient remedy for this type of violation and, thus, established monetary compensation. Actually, in this case, the amount of the compensation corresponded to the costs of restoration of the Stela. For this reason, some scholar believes that this monetary compensation should be considered as a form of restitution.158 Thus, severe and inescapable consequences of punitive character should be ensured in cases of the serious breach of the obligations affecting cultural property in order to reaffirm the prominence of these obligations. The same rigorous approach should be adopted to establish other forms of reparation in cases of offences against cultural property. For example, under Article 35(b) ASR, restitution is not due if it involves ‘a burden out of proportion to the benefit deriving from restitution instead of compensation’. When cultural properties are at issue, the assessment of this proportion should accord significant priority to restitution with respect to compensation due to the special nature of the objects involved and the inherent link of these objects with the historical, spiritual, or religious heritage of a State and its population.159 This preference for the return of illicitly removed cultural property as a form of reparation has been embraced in international 157 See ICJ, LaGrand (Germany v. United States of America), Judgment, 27 June 2001, ICJ Reports 2001, at para. 123. For the view that satisfaction may have the form of an authoritative declaration of an international court with the purpose of reinforcing international obligations see ICJ, the Nuclear Tests (Australia v. France), Judgement, 20 December 1974, ICJ Reports 1974, at para. 27 and ICJ, Corfu Channel Case (UK v. Albania), Judgement, 9 April 1949, ibid., 1949, 36. 158

502.

See Stela of Matara case, supra note 68, at para. 114. For this view see O’Keefe, supra note 46, at

A legal author defines, as ‘juridical restitution’, the re-establishment of the previous legal order as a consequence of the breach of either an international obligation that has not entailed material damage or an obligation affecting the collective interest of States other than the injured State. Among collective obligations, due diligence obligations relating to the conservation of goods of common concern, such as the environment and cultural heritage, are noteworthy. For this view see Fasoli, supra note 112, at 118. 159

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practice.160 A first example was provided by the Temple case, in which the ICJ upheld that the recognition of Cambodia’s sovereignty over the territory in which the Temple was located implicitly entailed the right to the restitution of cultural objects belonging to the Temple that Thailand might have removed during its military occupation of the area.161 Most recently, UN Security Council Resolution 1483 (2003) concerning the aftermath of the 2003 military intervention in Iraq, urged UN member States to return any cultural objects that had been illicitly removed from Iraq.162 Similar to the rigorous approach adopted with regard to the restitution of cultural property, compensation should be also determined according to the relevance of the interests at issue.163 This approach has been applied by the ICC in its order establishing reparation in the Al Mahdi case where the interest of the international community was taken into account to determine both material and moral damage.164 According to a legal author’s view,165 the recognition of moral damage emphasises the human dimension of the need to protect cultural property and helps to categorise the destruction of the historic buildings in Timbuktu as a crime against humanity rather than a

160 For the view that since WWI State practice has recognised the duty to return cultural property illicitly removed see O’Keefe, supra note 46, at 502. In addition, the recognition of the special nature of cultural property may also be inferred from the international rules regulating war reparations. For example, Art. I(3) First Protocol to the Hague Convention states that ‘[s]uch property shall never be retained as war reparations’. Thus, the link between a population and its cultural heritage can never be discontinued even in tragic historic moments, such as the end of an armed conflict. 161

Temple case, supra note 95, at 36.

UNSC Res. 1483 (2003) concerning the military intervention in Iraq and establishing the obligation to return cultural heritage that had been illicitly removed, at para. 7. 162

163 The destruction of cultural property entails both economic and non-economic losses. In particular, non-economic losses are, on the one hand, due to the fact that the violation of the collective interest of the international community in the protection of cultural property does not have an economic value in itself. On the other hand, material damages to cultural property cannot be economically quantified with ease due to the inestimable value of cultural objects. For an analysis of the issue of non-economic losses deriving from the damage to common goods, such as biodiversity and cultural heritage, see Fasoli, supra note 112, at 108.

See Al Mahdi case, Reparations Order, supra note 60, at paras. 53 and 129. For the recognition of the right of the international community to the symbolic compensation of the damage arising from the destruction of Timbuktu’s cultural heritage in the Al Mahdi Reparations Order see Pineschi, supra note 67, at 25. 164

165 See Ann Marie Thake, ‘The Intentional Destruction of Cultural Heritage as a Genocidal Act and a Crime against Humanity’, in 10 European Society of International Law Conference Paper Series n. 5, 1, at 18.

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crime against property. We can only hope that this approach will be consistently applied to cases in which States perpetrate serious breaches against cultural property. An analogous approach recognising the need for a special consideration of cultural property may be identified in international practice with regard to the topic of the immunity of State property from execution. Article 21(1)(d) and (e) UN Convention on Jurisdictional Immunities of States and their Property166 establishes that property forming part of a State’s cultural heritage must be considered as non-commercial property and, thus, cannot be subject to measures of constraint, such as execution. According to this rule, which entails a norm of customary character, in the Jurisdictional Immunities case, the ICJ upheld that objects devoted to culture are governmental property and, thus, immune from execution.167 The application of this rule is indisputable as long as it is aimed at preserving the integrity of the cultural heritage of a State. Nevertheless, execution seems to be still possible when it points to return cultural property, which has been illicitly expropriated by the State claiming immunity, to the legitimate owner. As a US District court affirmed in the Chabad case,168 the recognition of the immunity of the State concerned, or better to say of the State’s property, would have entailed the violation of the rights of the legitimate owner that was also the genuine guardian of the cultural property at issue.169 Thus, both international norms on State immunity and State responsibility seem to recognise that cultural property has a special value and significance as such, and that the serious breaches that may be perpetrated by States against such property must entail different consequences with respect to ordinary violations. Actually, according to Article 41 ASR, serious breaches of international law may entail different consequences with respect to ordinary violations. Nevertheless, the category of serious breaches that is identified in this article is limited to the violations of peremptory norms. So far, even the intentional destruction of cultural property does not seem to have been included in this category. Although Article 41 is appar166 UN Convention on Jurisdictional Immunities of States and their Property 2004; UNGA Res. A/ RES/59/38, 2 December 2004. 167 ICJ, Jurisdictional Immunities of the State (Germany v. Italy), Judgment, 3 February 2012, ICJ Reports 2012, paras. 118-120.

District Court, District of Columbia, Agudas Chasidei Chabad of US v. Russian Federation, 798 F. Supp. 2d 260 (D.C. 2011). For a thorough analysis of the case see Pavoni, supra note 135, at 21-22. 168

169

See also the Altmann case, supra note 135.

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ently inapplicable, as such, with respect to the violations perpetrated against cultural property, a distinction exists between serious and ordinary breaches affecting such property that necessarily entails different consequences corresponding to the diverse gravity of illicit behaviours.

D. Countermeasures as Response to State Wrongful Acts

Among the practical consequences that international law recognises as a legitimate response to States’ wrongful acts, special attention must be paid to countermeasures. Under Articles 49 and 54 ASR, these measures may be adopted both by the injured State and States entitled to invoke responsibility according to Article 48 ASR with the aim of inducing the wrongdoer State to stop its conduct. Thus, countermeasures cannot entail punitive actions.170 For example, they should not be adopted as a consequence of the destruction of cultural property because the illicit conduct no longer needs to be ended. Moreover, States other than the injured State may only adopt countermeasures in cases of breach of collective and erga omnes obligations that, as observed above, include rules safeguarding the interests of the international community as a whole.171 In short, the possibility of taking countermeasures is limited by the same Statecentric approach characterising general international norms on State responsibility. This approach in particular limits the possibility of States other than the injured State to stand for the protection of cultural property before judicial organs and dispute settlement means of bilateral character.172 Thus, new means seem to be needed to respond to State responsibility arising from the breach of the obligations affecting cultural property when the interest of the international community as a whole is at issue.

170 For the view that countermeasures may be adopted to compel States to comply with the obligations relating to the protection and conservation of cultural heritage see Francioni and Lenzerini, supra note 35, at 629. For the temporary nature of countermeasures see Gianelli, supra note 90, 1052. 171

See Sassòli, supra note 3, at 433.

For a thorough analysis concerning dispute settlement means see Alessandro Chechi, The Settlement of International Cultural Heritage Disputes (2014). 172

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VI. Conclusions Existing international norms on State responsibility, such as the ILC ASR, do not completely resolve the lacunae that cultural property treaties and international criminal and humanitarian law conventions have so far left with regard to the violations, perpetrated by States, of the obligations relating to the conservation of cultural property. However, these norms at least provide some general principles that can help to determine, according to the scope of the illicit conducts affecting cultural property, how these conducts may be attributed to States, which States and persons are entitled to invoke State responsibility, and, finally, which legal and practical consequences may arise from this invocation. First of all, the determination of the scope of the illicit conducts entailing the destruction of cultural property has emphasised the need to make a distinction between ordinary and serious breaches of law. In this regard, some substantive elements, such as the psychological element, damage, and the peculiarities of the objects that are under protection, may help to draw this distinction. Although no peremptory norms so far seem to have emerged with regard to cultural property, some violations have been already categorised by international tribunals and domestic courts173 as serious breaches of international law, in accordance with the special status that has been recognised to cultural property as an international public good the protection of which must be carried out in the interest of the international community as a whole and, in particular, of humankind. Second, the analysis of the issue of attribution has highlighted that, the illicit destruction of cultural property may be only attributed to a State on the basis of the examination of the concrete elements inherent to such conduct, such as, on the one hand, the form of direct control that a State exercises over the individuals acting in its name both as official and de facto organs and, on the other hand, the different types of contribution that diverse States make with respect to the perpetration of the same illicit conduct. While the control of a State over private actors may take different forms according to the varying intensity of the relationship occurring between the State and these actors, the responsibility of States for the same conduct must be 173 See Sub-section IV.B. of this article and the abovementioned Strugar case, supra note 53, Stela of Matara case, supra note 68, and Al Mahdi case, supra note 60.

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assessed with regard to the concrete capability of each State of determining its own actions. Therefore, while State sovereignty appears to be the governing principle for the identification of the State that is accountable for the protection of cultural property, the evaluation of the concrete circumstances and characteristics of a conduct may reveal other responsible States. In view of the complexity of the relations, both between States and States and private actors, the recognition of some forms of shared responsibilities seems to be the best solution to respond the perpetration of breaches against cultural property, in particular, when these breaches entail international crimes. In light of this special status of cultural property, the regulation of both issues concerning the invocation of State responsibility and the consequences arising from such invocation should set aside the traditional bilateral and State-centric approach that has been adopted by the ILC in the ASR. As the R2P doctrine emphasises, a State is not only accountable towards other States, but also vis-à-vis its population and the international community as a whole when fundamental interests are at issue, such as the conservation of cultural property. Thus, new multilateral systems could be developed to permit the effective enforcement of State responsibility in cases of offences against cultural property. International treaties safeguarding cultural heritage, such as the conventions adopted within the UNESCO framework, already establish predetermined standards regulating the conduct of States. Nevertheless, these treaties rarely set up analogous enforcing mechanisms so as to prevent harms with respect to essential interests. To sum up, in consideration of the serious breaches that have affected cultural property in the last decades, effective instruments both of control and repression are required in order to compel States to grant the protection of cultural property in the interest of the international community as a whole.

Regulating the Baltic Sea – A Showcase of Normative Pluralism VILJAM ENGSTRÖM(

ABSTRACT: The Baltic Sea Region (BSR) faces several challenges, not the least in respect of the poor state of the sea itself. The regulatory framework governing the BSR is complex, displaying a multi-layered structure with up to five regulatory levels. The regulatory scene is also characterised by many features that could be assumed under the umbrella of post-national rulemaking. This article discusses features of the pluralisation of BSR regulation. The BSR regulatory framework is on the one hand rich with regulatory initiatives at the fringes of both ‘actorness’ and ‘ruleness’. On the other hand, the framework is characterised by cross-fertilisation between regulatory layers. Such interaction can add to the regulatory impact of normatively soft acts, but can also come with drawbacks. In any case, the article claims, a complete picture of BSR regulation can only be attained through an appreciation of normative pluralism. KEYWORDS: Baltic Sea, Post-National Rulemaking, European Union, Soft-Law, Framework Instruments, Pluralism, Helcom

I. The Baltic Sea Region Regulatory Scene The Baltic Sea Region (BSR) consists primarily of nine coastal States, united by the common sea area. When focusing on BSR regulation, interest is commonly turned to environmental issues. There is good reason for this as the Baltic Sea has been considered one of the most polluted seas in the world at least since the 1970s.1 Cooperation in the BSR does however also cover policy areas beyond the environment. The EuroThe article builds upon research done within the Academy of Finland funded Baltreg-research project, at Åbo Akademi University (2015-2018). I am grateful to project participants for insightful comments along the way, as well as to the anonymous reviewers of this journal for helping to improve the text. (

A working group of the International Council for the Exploration of the Sea (ICES), documented severe environmental problems in the Baltic Sea in a report that was issued in 1970, which led to the adoption of the Helsinki Convention for the Protection of the Marine Environment of the Baltic Sea Area (Helsinki Convention) 1974, 1507 UNTS 166. See Ragnar Elmgren, Thorsten Blenckner, and Agneta Andersson, ‘Baltic Sea management: Successes and Failures’, 44 Ambio (2015) 335. 1

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pean Union Strategy for the Baltic Sea Region (EUSBSR),2 and the accompanying Action Plan3 identify 13 priority/policy areas and four horizontal cross-cutting actions. The focus of the strategy thereby transcends both the sea as such, as well as environmental issues. The scope of the activity of institutions active in the BSR also transcend environmental concerns. The BSR is governed by regulatory acts on multiple levels: globally, regionally, subregionally, at the national level, and locally. This article focuses on international regulation of the BSR, covering global, regional, and sub-regional regulatory action. The role of the European Union (EU) has increased significantly over time, making the BSR today almost an EU-internal area. As a consequence, the EU has become the main actor for developing the BSR regulatory framework. Besides an Europeanisation of the BSR, the regulatory environment is also characterised by other buzzwords such as macro-regionalisation, and multilevel governance/regulation. The multi-layered structure of BSR regulation shows great variation according to different policy-areas. Marine governance especially in the fields of fisheries, eutrophication, and biodiversity is essentially multi-layered, whereas Baltic Sea shipping is more hierarchically structured.4 A multi-layered structure can work well,5 whereas on other occasions it can result in overlap and a ‘disorder of normative orders’.6 A characterising feature of this disorder is the pluralism of regulatory initiatives, fragmenting BSR regulation and begging for better coordination.7 The aim of the present article is not to map the multi-layered structure of BSR environmental regulation as such (a task undertaken elsewhere).8 Instead, the article 2

Commission Communication of 10 June 2009, COM(2009) 248 final.

3

Commission Staff Working Document of 20 March 2017, SWD(2017) 118 final.

Björn Hassler, ‘Oil Spills from Shipping: A Case Study of the Governance of Accidental Hazards and Intentional Pollution in the Baltic Sea’, in Michael Gilek et al. (eds.), Environmental Governance of the Baltic Sea (2016) 125, at 143. 4

See e.g. the ‘russian doll’ example in Henrik Ringbom and Marko Joas, ‘Concluding Remarks: Regulatory Gaps and Broader Governance Patterns in the Baltic Sea’, in Henrik Ringbom (ed.), Regulatory Gaps in Baltic Sea Governance (2018) 195. 5

To paraphrase Neil Walker, ‘Beyond boundary disputes and basic grids: Mapping the global disorder of normative orders’, 6 International Journal of Constitutional Law (2008) 373. 6

7

These notions are defined further in Chapter II.

8

Viljam Engström, ‘Complexities of the Baltic Sea regulatory framework’, 98 Marine Policy (2018)

191.

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looks at BSR regulatory features through the frame of post-national rulemaking, in order to illustrate the normative variety of BSR regulation. In this respect the article assumes as a point of departure, that in order to fully appreciate the BSR regulatory framework, it is necessary to operate with a broad conception of regulation. Legally binding rules are in this sense only one aspect of the regulatory framework, although the most constraining and rigid form. ‘Regulation’ in this sense refers to all rules, standards or principles that govern conduct by public and/or private actors.9 The BSR regulatory framework, as the article shows, raises questions both concerning ‘actorness’ and ‘ruleness’ for much of the regulatory action taking place. In fact, it is not the occasional difficulty to capture regulatory features through models of formal law-making that characterise the BSR. To the contrary, an overly formal image of law fails to account for much of BSR-specific initiatives. Looking at the pluralisation of normative processes and outcomes in a geographically confined area, provides the opportunity not only to identify regulatory features, but also to note the impact of institutional interaction. By way of delimitation, the present article confines itself to discussing institutions with a BSR-wide focus. For this reason for example institutions of Nordic and Baltic cooperation are not studied in-depth. It should also be added, that while environmental regulation is the point of departure for illustrating BSR regulatory features, the EUSBSR takes a substantively broader approach. This warrants the highlighting also of features of EU law and governance that transcend the environment.

II. On Post-National Rulemaking The ‘post-national condition’ is characterised by legal pluralism, on the one hand, and by the emergence of new forms of politics on the other, leading to an emergence of new political arenas, which the constitution has a hard time exercising its traditional organisational hegemony over. In extension, the pluralisation of regulatory authority and proliferation of new forms of law and politics also suggest that politics Nupur Chowdhury and Ramses A. Wessel, ‘Conceptualising Multilevel Regulation in the EU: A Legal Translation of Multilevel Governance?’, 18 European Law Journal (ELJ) (2012) 335, at 337-338, and Joost Pauwelyn, ‘Informal International Law-making: Framing the Concept and Research Questions’, in Joost Pauwelyn, Ramses A. Wessel, and Jan Wouters (eds.), Informal International Lawmaking (2012) 13. ‘Normativity’ will in the consequent discussions refer mainly to legal norms/rules. 9

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is no longer made solely within the territorial structure of the nation State.10 To study the post-national, is therefore first of all about capturing elements of change, sometimes even referred to as a methodology for studying shifts in actors, norms, and processes.11 Whereas such change has attracted the interest of governance research for some time,12 legal scholars are beginning to follow suit. As will be seen, in the BSR, regulation not only escapes the nation State because of the Europeanisation. In addition, a number of less formal institutions are embraced in regulatory acts, enter into formal relations with traditional legal subjects, and have even become essential actors in the implementation process. The pluralisation of actors also has a bearing on the law-making process in terms of the content of legal rules.13 BSR regulation hereby illustrates how informal regulatory action can conceal institutional structures for rule-making and implementation.14 Both well-established legal actors as well as less formal institutions produce instruments, the normative impact of which can be difficult to square with formal doctrines of international law, raising a number of concerns.15 Notably, while rulemaking is increasingly escaping the realm of traditional intergovernmental organisations, also those organisations produce acts which, rather than enhancing systemic coherence, fragment and diffuse the regulatory landscape. Established organisations not only adopt recommendations, the generic label of which can conceal various normative acts, but also use other steering instruments, the normative status of which may be uncertain. The EU, as will be seen, is both the principal source of ‘hard law’ for the BSR, as well as a prime source of pluralisation of the regulatory environment. However, also conventions concluded between States especially in the environmental field, Damian Chalmers, ‘Post-nationalism and the Quest for Constitutional Substitutes’, 27 Journal of Law and Society (2000) 178, at 180. 10

11 Elaine Fahey, ‘Introduction: Framing the actors of postnational rule-making’, in Elaine Fahey (ed.), The Actors of Postnational Rule-Making: Contemporary Challenges of European and International Law (2016) 1, at 3. 12 For one example, see Stefan Gänzle and Kristine Kern (eds.), A ‘Macro-regional’ Europe in the Making: Theoretical Approaches and Empirical Evidence (2016).

For the general point, Jean d’Aspremont, ‘Introduction: Non-state actors in international law: oscillating between concepts and dynamics’, in Jean d’Aspremont (ed.), Participants in the International Legal System: Multiple perspectives on no-state actors in international law (2011) 1, at 5. 13

14

Nico Krisch, ‘The Decay of Consent’, 108 American Journal of International Law (AJIL) (2014) 1.

As discussed by Richard Collins, The Institutional Problem in Modern International Law (2016), at 225-228. 15

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frequently allow or even require further implementing measures. As this invites variation in implementation, it adds to regulatory complexity.

III. ‘Actorness’ in the BSR A. General

At the global level the BSR is governed through conventions such as the United Nations Convention on the Law of the Sea (UNCLOS),16 the International Convention for the Prevention of Pollution from Ships (MARPOL)17, and other environmental agreements. Global actors entail primarily the International Maritime Organization (IMO) and the United Nations Environment Programme (UNEP). At the regional level the Helsinki Convention for the Protection of the Marine Environment of the Baltic Sea Area (Helsinki Convention) and its Baltic Marine Environment Protection Commission (HELCOM), and the Council of the Baltic Sea States (CBSS) enter the picture as institutions in which all BSR States cooperate. Sub-regionally the EU has turned into the principal legislative source, but excludes the Russian Federation. In addition, there are sub-regional organisations such as the Nordic Council of Ministers (NCM)/Nordic Council and the Baltic Council of Ministers (BCM)/Baltic Assembly, with a small number of BSR States as members, nevertheless assuming a role in BSR governance. Out of these, legal obligations are established for BSR States through the UNCLOS, IMO conventions (such as MARPOL), and environmental agreements to which BSR States are parties. At the regional level the Helsinki Convention and its annexes create a regulatory framework explicitly regulating environmental issues in the BSR. At the subregional level EU legislative acts and NCM and BCM decisions also create legal obligations, the latter two however only covering a small amount of BSR states. While HELCOM recommendations and decisions of the CBSS do address all BSR States, they are not legally binding.

16

United Nations Convention on the Law of the Sea (UNCLOS) 1982, 1833 UNTS 3.

International Convention for the Prevention of Pollution from Ships (MARPOL) 1973, 1340 UNTS 184. 17

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In terms of BSR focus, MARPOL acknowledges the BSR as a special area, and UNEP takes the BSR into account through its Regional Seas Programme, for which HELCOM is considered the administrative body. The Helsinki Convention and HELCOM address the BSR exclusively. Also the EU has a particular BSR focus mainly through the EUSBSR, which is not however a legislative act. Whereas UNCLOS, MARPOL, and the Helsinki Convention (with the Baltic Sea Action Plan (BSAP) and HELCOM recommendations) regulate environmental issues, the EUSBSR addresses a multitude of policy areas. The NCM, BCM, and the CBSS are also not restricted to the environment. Apart from the EU, HELCOM and the CBSS, core actors in the BSR with a governmental dimension would also include Vision and Strategies Around the Baltic Sea (VASAB), Baltic Pilotage Authorities Commission (BPAC), Ars Baltica, and NordicBaltic Eight (NB8). These institutions do not however qualify as intergovernmental organisations, capable of possessing rights and obligations at the international level.18 A thickening ‘regulatory’ or ‘governance’ layer has been noted to be emerging, developed through institutional regimes, atop the constitutional and legislative layer.19 Evidence of this can be found globally, the Preamble of the Rio Declaration20 setting ‘the goal of establishing new and equitable global partnership through the creation of new levels of cooperation among States, key sectors of societies and people’, and Agenda 2121 stating that these global partnerships are intended to be inclusive of all thinkable non-State actors.22 In the BSR, the emergence of such a layer is in fact institutionally driven. The main regulatory source for the BSR – the EU – addresses regions mainly through macro-regional strategies. It lies at the heart of such strategies to work within existing funds, institutions, and legislation, and instead to think ‘more strategically and imaginatively about the available means’.23 In other 18 As defined by the International Court of Justice (ICJ), Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, 11 December 1948, ICJ Reports 1949, 174. 19

Collins, supra note 15, at 235.

Rio Declaration on Environment and Development (1992), UN Doc. A/CONF.151/26 (vol. I), 12 August 1992. 20

21 Agenda 21 – Sustainable Development Knowledge Platform, Adopted at the United Nations Conference on Environment & Development, Rio de Janerio, Brazil, 3 to 14 June 1992, available at https://sustainabledevelopment.un.org/content/documents/Agenda21.pdf. 22 For several other examples, see Makane Moïse Mbengue, ‘Non-State Actors in International Environmental Law: A Rousseauist Perspective’, in: Jean D’Aspremont (ed.), Participants in the International Legal System, supra note 13, 372. 23

Commission Report of 27 June 2013, COM (2013) 468 final, at 2.

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words, an element of thinking innovatively about the normative framework is built into the EU approach to regions.

B. Global Actors

In the context of environmental protection, a broad range of global actors are accounted for. The World Bank, for example, has assumed a role in the protection of the global environment through the Global Environmental Facility, whereas United Nations (UN) specialised agencies such as the World Meteorological Organisation has become an important source of technical expertise to the UNFCCC (as well as being its funding member, along with UNEP). Besides international environmental governance, also the law of the sea has become more cognisant of the transboundary nature of ocean issues, with a corresponding emergence of a multi-layered institutional framework for oceans governance. With this development the range of actors that feed into standard-setting is constantly broadened.24 As to actors of special interest for the BSR, global agreements addressing different forms of polluting activities and maritime safety have mostly been developed by the IMO. The primary task of the organisation is to develop rules for international shipping, maritime safety, prevention of marine pollution, and maritime security.25 As an intergovernmental organisation and a UN specialised agency, the IMO assumes a regulatory role in BSR regulation through the negotiation of conventions and the adoption of implementing decisions. As to different forms of polluting activities, IMO conventions, and in particular the area-based management approach of the MARPOL, is brought into focus.26 As the Baltic Sea contains no high seas, but consists entirely of Exclusive Economic Zone areas (in addition to internal and territorial waters), adoption of laws and regulations concerning vessel source pollution require consultation of the IMO.27 The Baltic Sea is also established as a special area 24 See Björn Hassler, Magnus Boström, and Sam Grönholm, ‘Towards an ecosystem approach to management in regional marine governance? A case study of HELCOM BSAP and ICES in a Baltic Sea context’, 15 Journal of Environmental Policy & Planning (2013) 225. 25 For a full list of conventions, see International Maritime Organization (IMO), Introduction, available at http://www.imo.org/en/About/Conventions/. 26 Protocol of 1978 relating to MARPOL (1978), 1340 UNTS 61, 1341 UNTS 3, Annexes I and II, Annex VI. 27

Art. 211(6) UNCLOS.

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in MARPOL, Annexes I, II, IV, and V enabling the adoption of special mandatory measures.28 In 2005 the IMO further recognised the vulnerability of the Baltic Sea by granting it the status of a Particularly Sensitive Sea Area (PSSA), requiring special measures to control maritime activities (such as routing measures, and strict application of discharge and equipment requirements) through action by the IMO. Notably, a PSSA status constitutes a management tool that allows available marine environmental protection regimes under international conventions to be brought together under one banner.29 While that status does not confer additional jurisdictional competence on the IMO, it does provide coastal States with the opportunity to adopt associated protective measures. The PSSA regime has also been seen as a potential path to strengthened BSR protection.30 The United Nations Development Programme (UNEP) is a subsidiary organ of the UN General Assembly, which at the UN Conference on Environment and Development in Rio de Janeiro was given lead responsibility for the development of international environmental law. This confirmed its mandate (and broadened it) but did not strengthen the organisation in terms of competence. Its impact rather derives from the promotion of conventions and the secretarial functions it provides for environmental agreements.31 UNEP launched a special regional seas programme in 1974, with the aim of addressing marine environmental degradation through engaging States that share marine regions. The regional seas programme is partnered with key global conventions such as the Convention on Biological Diversity,32 the Convention on the Conservation of Migratory Species of Wild Animals,33 and UNCLOS. Regional seas programmes operate through action plans which are often given a legal

28

Annex I, Regulation 1 UNCLOS.

Revised guidelines for the identification and designation of Particularly Sensitive Sea Areas (PSSAs), IMO Assembly Res. A 24/Res.982, 6 February 2006. Also see Alina Prylipko, PSSA in the Baltic Sea: Protection on Paper or Potential Progress?, World Maritime University, Project Reports, May 2014, at 35. 29

30

Ibid., at 38.

Robin R Churchill and Geir Ulfstein, ‘Autonomous Institutional Arrangements in Multilateral Environmental Agreements: A Little-Noticed Phenomenon in International Law’, 94 AJIL (2000) 623, at 627. 31

32

Convention on Biological Diversity 1992, 1760 UNTS 79.

33

Convention on the Conservation of Migratory Species of Wild Animals 1979, 1651 UNTS 333.

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form through regional conventions. The HELCOM is by UNEP considered the administrative body for the regional seas programme for the Baltic Sea.34 While regional seas programmes and action plans are not in themselves legislative instruments, UNEP is a good example of a mainly technical actor, the resolutions and drafts of which have nevertheless transformed into both conventions and UN General Assembly resolutions. The development of the UNEP is in itself a reaction to the fragmentation of environmental protection, and the corresponding need for coordination.35 Although the regional seas programme for the Baltic Sea has not been established under UNEP, it constitutes the framework for all regional seas programmes. As such, HELCOM action is designed in accordance with UNEP guidelines, and UNEP can also serve as a source of financing.36 With this in mind, a discussion on developing the role of UNEP is of some interest also from a BSR perspective. Facilitation of drafting processes are one notable way through which organisations have a law-making impact. Both the IMO and UNEP have a track record to this effect. When it comes to the designation of PSSAs or the establishment of regional seas programmes and action plans, the normative impact of such acts cannot be derived from the sources of law doctrine. That impact is rather something that emerges in extension.37 As has been noted by Alvarez, the legal significance of the work products of international organisations, and their effectiveness in terms of inducing compliance, is not a simple matter of determining whether or not they are legally binding sources of international law. Instead, the expansion of global regulation often comes in other forms than formal law.38

34

Donald R. Rothwell and Tim Stephens, The International Law of the Sea (2010), at 482.

Ved P. Nanda, ‘Mounting Environmental Challenges, The United Nations Environment Programme, and the Reform of the International Environmental Governance Regime’, 35 University of Hawaii Law Review (2013) 539; Karen N. Scott, ‘International Environmental Governance: Managing Fragmentation through Institutional Connection’, 12 Melbourne Journal of International Law (2011) 177. 35

36 See e.g. Baltic Marine Environment Protection Commission (HELCOM), Assessment of the Marine Litter Problem in the Baltic Region and Priorities for Response, May 2007, available at http:// archive.iwlearn.net/helcom.fi/stc/files/shipping/Assessment%20of%20the%20marine%20litter%20 problem%20in%20the%20Baltic%202007.pdf. 37 Strictly speaking, international law even lacks the means of determining when normative phenomena turn into law. Jan Klabbers, International Law (2013), at 37-38.

José E. Alvarez, The Impact of International Organizations on International Law (2017), at 351352 and footnote 19 with examples. 38

356 GERMAN YEARBOOK OF INTERNATIONAL LAW 61 @ 2018 C. Regional Actors

In terms of institutions to which all BSR States are parties, focus is on HELCOM and the CBSS, making them the core macro-regional institutions of the region. Whereas the Helsinki Convention and HELCOM address the entire BSR, but are focused on the marine environment, the CBSS has a substantively broader purpose. HELCOM consists of representatives of all contracting parties of the Helsinki Convention. Its task is to monitor the implementation of the Convention, to make recommendations, to define criteria and objectives, and to promote cooperation with other bodies (Article 20 Helsinki Convention). The role of State reporting and HELCOM assessment is to follow up on the compliance of State parties with the Helsinki Convention and HELCOM recommendations (Article 16 Helsinki Convention). The difficulty with distinguishing intergovernmental organisations and ‘soft organisations’, as well as the potential issues arising from an uncertain international legal status, have been extensively explored in the context of Organisation for Security and Co-operation in Europe and concern for example issues of responsibility.39 In many respects HELCOM stands out as an intergovernmental organisation, although it is restricted jurisdictionally to function as the governing body of the Helsinki Convention. It is based on an international agreement, has concluded a headquarters agreement with Finland, and is established under international law. When it comes to the requirement of possessing at least one organ with a will of its own, it should however be noted that decisions at HELCOM are made at annual meetings. Although it does have a secretariat, such bodies are by their nature not supposed to have a ‘will’, but rather take care of administrative matters.40 HELCOM recommendations, following the sources of law doctrine, do not as a point of departure create legal obligations. However, it is notable that amendments to the Helsinki Convention Annexes (which in themselves are binding), can be made through recommendations.41 This places HELCOM recommendations normatively in two different categories. Moreover, as will be seen below, also other than amending See e.g. Jan Klabbers, ‘Institutional Ambivalence by Design: Soft Organizations in International Law’, 70 Nordic Journal of International Law (2001) 403. 39

40 On formal criteria defining an intergovernmental organisation, see Henry G. Schermers and Niels M. Blokker, International Institutional Law: Unity Within Diversity (5th ed., 2011). 41

Art. 32 Helsinki Convention.

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recommendations can have a regulatory impact, and even transfer into binding legislation through institutional interaction. For practical purposes, then, the formal status as an international legal subject, or the formal categorisation of acts, can fail to capture the normative role of HELCOM. The members of the CBSS are the 11 States of the Baltic Sea region as well as the European Commission. The CBSS started as a lose framework in 1992, but established a permanent secretariat in 1998. By gradually widening its scope of action, CBSS cooperation now covers almost every field of governmental activity.42 Given this broad focus, the participation of the Russian Federation makes the CBSS an important forum. However, as with HELCOM, also the nature of the CBSS as an international organisation is somewhat uncertain. The CBSS was established by the region’s Foreign Ministers in Copenhagen in 1992 through the adoption of a declaration, and it displays many features of intergovernmental organisations. Notably, the requirement under international law that an organisation should be based on an international agreement does not mean that an international treaty basis is a prerequisite.43 Even if the institutional structures of the CBSS are quite loose, it does have a permanent secretariat, with legal personality, the capacity to contract, and the right to acquire and possess property and to participate in legal proceedings. The CBSS itself addresses its participants as ‘member states’.44 Yet, as Koivurova and Rosas have noted, the soft status does give rise to some concerns. For one, the soft status limits the possibility of the CBSS to act as overall BSR coordinator.45 The CBSS council communiques and heads of State summit declarations or statements are political commitments. The CBSS has also refrained from sponsoring legal 7th Baltic Sea States Summit, Riga, Latvia, 4 June 2008, Chairman’s Conclusions, available at https://www.mfa.gov.lv/en/latvian-presidency-in-the-council-of-the-baltic-sea-states-2007-2008/7thbaltic-sea-states-summit/chairman-s-conclusions-7th-baltic-sea-states-summit-riga-latvia-4-june-2008. 42

43 Similarly, the Nordic Council was originally established by parallel decisions of the parliaments of the Nordic States and the Baltic Council of Ministers was originally established by a ‘Declaration on Unity and Cooperation’ in 1990 by Estonia, Latvia, and Lithuania. 44 Terms of Reference of the Secretariat of the Council of the Baltic Sea States, Estonia, 21 June 2004, Revised in April 2009, available at http://www.cbss.org/wp-content/uploads/2012/09/CBSSSecretariat-Terms-of-Reference-2009.pdf. The Council of the Baltic Sea States (CBSS) has also been granted privileges and immunities in its host State (Sweden) through the Host Country Agreement. See Marc Cogen, An Introduction to European Intergovernmental Organizations (2016), at 184-186. 45 Timo Koivurova and Allan Rosas, ‘The CBSS as a Vehicle for Institutionalised Governance in the Baltic Sea Area, in comparison with Its Two Sister Organisations in the North’, 98 Marine Policy (2018) 211.

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instruments. The CBSS is nevertheless an important actor for the implementation of the EUSBSR (and granted status as coordinator for policy area ‘Secure’, ‘Climate’, and ‘Neighbours’ (jointly)). However, whereas HELCOM recommendations, although formally non-binding, are subject to reporting and monitoring procedures, no such mechanisms are established for CBSS declarations and statements. This could be taken to indicate a difference in the expectation of compliance. There is also a notable difference in the substantive outcomes of the two institutions, CBSS documents being more programmatic, whereas HELCOM recommendations define explicit thresholds for States to reach. This also means that the normative impact of CBSS acts is more difficult to identify. While any immediate regulatory effect is unlikely, the CBSS may nevertheless perform important practical tasks, enhancing BSR cooperation.46 Through CBSS focus areas such as the Baltic Sea Region Border Control Cooperation, the organisation is brought into close cooperation with EU agencies such as Frontex. A similar linkage can be found in respect of the Baltic Sea Task Force against Organized Crime, where officials from Interpol, Europol, and the EU Council have the status of observers. Such cooperation networks are illustrative not only of the nature of CBSS cooperation, but also of external dimensions of the activities of EU agencies. While EU agencies will be returned to below, it needs to be emphasised that as agencies have become producers of soft-law at the EU level, such cooperation patterns also extend the reach of that soft-law beyond the EU context. When turning to the BPAC, VASAB, and NB8, the institutional set-up changes markedly. What unites these actors is an element of ‘publicness’ of their acts and decisions, a feature underlined for example by the Global Administrative Law initiative.47 However, their status as international legal actors is even more diffuse than that of the CBSS. NB8 is best characterised as a cooperation and coordination structure or network in a variety of sectors. Even if participants in the NB8 annual meetings are prime and foreign ministers, the cooperation as such has no separate structure or organisation. Participants in the BPAC are domestic pilotage authorities. Yet, the institution has adopted recommendations on pilotage that guide domestic authorities.

46

Ibid. More generally Churchill and Ulfstein, supra note 31.

Benedict Kingsbury, ‘The Concept of ‘Law’ in Global Administrative Law’, 20 European Journal of International Law (EJIL) (2009) 23. 47

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VASAB, as a co-operation platform in spatial planning and development of 11 countries of the Baltic Sea Region, is essentially intergovernmental as far as declarations are adopted by the Ministerial Conference. VASAB also has a secretariat to support its functions, and is in the EUSBSR designated (together with HELCOM) the role as Horizontal Action coordinator for Spatial Planning. This could be seen to position VASAB at the fringes of the EU regulatory process. After all, the EUSBSR and its Action Plan are means for implementing existing EU law in the BSR.

D. The EU as a BSR Actor

While the EU has become the main legislative actor in the BSR, EU involvement in regulating the BSR varies between EUSBSR policy areas and the corresponding level of integration. The only BSR cooperation area where the EU exercises exclusive competence, concerns the conservation of marine biological resources. In relation to most EUSBSR priority areas the EU shares competence with the member States.48 Apart from creating a de facto hierarchy among international legal sources governing the BSR,49 EU domination also means that BSR regulation becomes characterised by the governance approach of the EU. In this respect it is notable, that a ‘turn to governance’ is a development particularly visible in the EU context. The EU has become something of a paradigm example of the dual development of international law, by on the one hand being the paramount example of a constitutionalisation process, whereas EU law on the other hand is in itself subject to deformalisation and fragmentation. Regions have access to the EU mainly through the Committee of the Regions (or indirectly through their governmental representation in the Council of the EU). The Lisbon Treaty50 elevated ‘territorial cohesion’ to one of the main aims of the EU (Arti-

48

For an overview, see table 1 in Engström, supra note 8.

International agreements to which the EU is a party, precede EU secondary legislation. In respect of shared competence, when EU law only sets minimum standards, members are free to adopt more strict obligations as long as they are compatible with secondary EU law, are proportional and not arbitrarily discriminatory in their effects on trade between the member States. See e.g. Geert de Baere, ‘EU External Action’, in Catherine Barnard and Steve Peers, European Union Law (2014), 704. 49

Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community 2007, OJ 2007 C 306. 50

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cle 3 Treaty on European Union (TEU)).51 European territorial cooperation (Interreg) is one of the goals of cohesion policy and provides a framework for the implementation of joint actions and policy exchanges between national, regional, and local actors from different Member States. Macro-regional strategies are a tool in the development of territorial cooperation.52 A distinguishing feature of macro-regional strategies is the rule of ‘three Nos’. This rule states that no additional new legislation is envisaged for developing and implementing macro regional strategies, there is no own budget, and that instead of creating new institutions, the macro regional strategies are to be supported by a multi-level and multi-actor governance approach.53 It lies at the very heart of EU macro-regional strategies to think “more strategically and imaginatively about the available means”.54 As a consequence, macro-regions lack a distinct institutional, legislative, and financial presence. As strategies aim at improving horizontal and vertical coordination among a wide range of actors, and seek to integrate policy sectors that influence one another, they envisage a multi-layered structure of regional governance. The growing presence of networks and agencies in EU law-making has been seen to weaken the privileged position of the Commission as the sole initiator of EU law.55 Perhaps as a reaction to this, the EUSBSR grants the Commission a role that ‘should go beyond monitoring the implementation of funding programmes and the transposition of Directives […] [to] fulfil the need for an independent, multi-sector body that can guarantee the necessary co-ordination, monitoring and follow-up of the action plan, as well as a regular updating of the plan and strategy as necessary’.56 The EUSBSR in other words puts the Commission in a position as a spokesperson with the right to

51

Treaty on European Union 2002, OJ 2012 C 326/13.

See Committee of the Regions Opinion of 11 January 2012, OJ 2012 C 9/8, at para. 3; and European Parliament, Study on the new role of macro-regions in European Territorial Cooperation (2015), available at http://www.europarl.europa.eu/RegData/etudes/STUD/2015/540349/IPOL_STU(2015) 540349_EN.pdf, at 23. 52

53

European Commission, supra note 23, at 10.

54

Ibid., at 2.

Ton van den Brink and Linda Senden, Checks and Balances of Soft EU Rule-Making, Policy Department C: Citizens’ Rights and Constitutional Affairs, 19 April 2012, available at https://papers.ssrn. com/sol3/papers.cfm?abstract_id=2042480, at 8. 55

56

European Commission, supra note 2.

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define the interests and priorities of the BSR.57 The concept of European macroregions has even been labelled one of the most radical innovations of European territorial management in respect of degree of EU ownership. Such a characterisation refers mainly to the elevation of the position of the European Commission. Further, although the Commission has been a member of regional bodies for long, the EUSBSR grants the Commission significant influence inside those organisations through its role as policy coordinator across sectors, as well as through its monitoring.58 The elevated role of the Commission is of interest, given that the Commission itself is a major source of informal rule-making and criticised for this way adding an element of non-transparency to EU decision-making.59 The non-transparency of Commission non-binding acts is all the more serious, given that there are sectorspecific actors of interest from a BSR perspective, such as the Baltic Sea Advisory Council (BSAC) in the field of fisheries that feed into the work of the Commission.60 The BSAC serves to advise the European Commission and member States on matters relating to management of fisheries in the Baltic Sea.61 It consists of institutions representing industry and other interest groups affected by the EU Common Fisheries Policy. Regional Advisory Councils such as BSAC have a degree of procedural independence and can adopt delegated acts.62 As a matter of international law, they do not however constitute international organisations. The Commission itself has noted in particular in respect of Regional Advisory Councils in the Common Fisheries Policy that although they improve dialogue and information flows, they also give Jonathan Metzger and Peter Schmitt, ‘When soft spaces harden: the EU strategy for the Baltic Sea Region’, 44 Environment and Planning (2012) 263, at 272. 57

Stefan Gänzle, ‘The European Union’s Strategy for the Baltic Sea Region (EUSBSR): Improving multilevel governance in Baltic Sea cooperation?’, 48 Journal of Baltic Studies (2017) 407. 58

59 Matthias Ruffert, ‘The Many Faces of Rule-Making in the EU’, in Elaine Fahey (ed.), The Actors of Postnational Rule-Making: Contemporary Challenges of European and International Law (2016) 47, at 61-62. 60 Council Decision of 19 July 2004, OJ 2004 L 256/17. Also see Marion Dreyer and Piet Sellke, ‘The Regional Advisory Councils in European Fisheries: An Appropriate Approach to Stakeholder Involvement in an EU Integrated Marine Governance?’, in Michael Gilek and Kristine Kern (eds.), Governing Europe’s Marine Environment: Europeanization of Regional Seas or Regionalization of EU Policies? (2015) 121. 61

European Parliament and Council Regulation of 11 December 2013, OJ 2013 L 354/22.

Ronán Long, ‘The Role of Regional Advisory Councils in the European Common Fisheries Policy: Legal Constraints and Future Options’, 25 The International Journal of Marine and Coastal Law 25 (2010) 289. 62

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rise to concerns of participation of environmental and development interests. This has also led to an overemphasis on short-term technical issues instead of long-term policy objectives.63 Various agencies such as the Fisheries Control Agency, Maritime Safety Agency, or the European Environment Agency, also assist both EU institutions as well as EU member States in the development and implementation of EU policies. There is no formal definition of a European agency.64 What can be said in general terms is that they differ from treaty-based institutions due to being set up by secondary legislation. They are also distinct from other institutional arrangements due to the possession of legal personality. However, agencies are basically unelected, non-majoritarian bodies.65 Their role in the formal decision-making process and relationship to core political actors differs between agencies, as does the source of the delegation of powers. Some agencies such as the European Chemicals Agency can adopt individual decisions which are legally binding on third parties, whereas others, such as the Maritime Safety Agency and the European Fisheries Control Agency perform operational tasks. Overall, however, agencies have become major producers of EU soft law, with policy-making significance. The ways in which agencies develop, create new modes of governance, and expand the de facto competence of the EU has been seen to position agencies as new sources of authority at the EU level, which, being an additional governance layer in between the member State and the EU, transforms the classical understanding of the boundaries of executive and administrative power.66

63

Commission Communication of 17 June 2008, COM(2008) 364 final, at 9.

See Commission Communication of 11 March 2008, COM(2008) 135 final; European Parliament, the Council of the EU, and the European Commission, Joint Statement on decentralized agencies (2012), available at https://europa.eu/european-union/sites/europaeu/files/docs/body/joint_statement_ and_common_approach_2012_en.pdf; European Parliament, the Council of the EU, and the European Commission, Roadmap on the follow-up to the Common Approach on EU decentralised agencies (2012), available at https://europa.eu/european-union/sites/europaeu/files/docs/body/2012-12-18_roadmap_ on_the_follow_up_to_the_common_approach_on_eu_decentralised_agencies_en.pdf. 64

65 Deirdre Curtin, Executive Power of the European Union: Law Practices, and the Living Constitution (2009), at 135.

Elspeth Guild et al., Implementation of the EU Charter of Fundamental Rights and its Impact on EU Home Affairs Agencies: Frontex, Europol and the European Asylum Support Office (2011), Report to the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs, available at http:// www.europarl.europa.eu/meetdocs/2009_2014/documents/libe/dv/02_study_fundamental_rights_/ 02_study_fundamental_rights_en.pdf, at 89-91. 66

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Even if the Commission has held that: ‘The main advantage of using the agencies is that their decisions are based on purely technical evaluations of very high quality and are not influenced by political or contingent considerations’,67 their impact cannot always be reduced to mere technicalities. Instead, agencies have become informal rule-makers through the issuing of recommendations, guidelines, and alike. Consequently, the input of agencies should not be overlooked in tracking the BSR normative landscape. As Ringbom demonstrates in respect of the Maritime Safety Agency, it has had an impact not only on information collection and monitoring, but is also well placed to collaborate with other organisations. Its very creation may also have tempered unilateral tendencies in the Union in maritime safety and environmental matters.68 However, the agencification phenomenon has also given rise to concerns of participation and accountability. As basically technical expert bodies, they can also disguise political disagreement.69 These concerns have been discussed in particular in respect of Frontex and Europol, both of which are explicitly engaged in the EUSBSR Action Plan, which under PA Security emphasises the stepping up of border security and efforts for combatting serious crime.70 However, the concerns attached to the agencification phenomenon at large, transcend these two institutions.

IV. Legislative Acts A. Variations in ‘Softness’

Much of the analytical work on the pluralisation of law has emphasised the functional benefits of informality; greater speed and flexibility; lower sovereignty costs; and availability to a greater range of actors. Informal acts can also slowly become more law-like.71 The complexity of environmental challenges such as climate change has 67 Commission Communication of 11 December 2002, COM(2002) 718 final, at 5. See also Herwig C. H. Hofmann and Alessandro Morini, ‘Constitutional aspects of the pluralisation of the EU executive through “agencification”’, 37 European Law Review (2012) 419, at 421. 68 Henrik Ringbom, ‘Regulation of Ship-Source Pollution in the Baltic Sea’, 98 Marine Policy (2018) 246. 69

Ruffert, supra note 59.

70

Guild et al., supra note 66, at 8.

71

Krisch, supra note 14, discusses the issue elaborately.

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made international environmental law in particular adopt more flexible and informal shapes. Formal standard-setting processes are not seen to allow for the necessary width of participation in complex problem solving, nor for smooth adjustment in light of changing circumstances.72 Formally binding law, as one author puts it, now ‘orchestrates’ rather than ‘regulates’ international action.73 The rule of law is in this light, rather than being concerned only with ensuring compliance or limiting authority, best understood as enabling and constraining justification and contestation.74 Regulatory informality or ‘softness’ comes in different forms. Soft law may first of all refer to the use of an instrument other than a formal treaty or a binding acts. Hence, HELCOM recommendations already by the choice of instrument indicate a legally non-binding nature. This, of course, is not the same as claiming that the parties would not have committed themselves to certain behaviour, but rather that they have decided not to include that commitment in a legally binding form. As noted by Alvarez, the normatively authoritative quality of much of international law, is in the age of international organisations best understood along a spectrum of bindingness.75 As legal effects may be produced anywhere along this spectrum, any such act can also qualify as international law.76 ‘Softness’ may also characterise an act which is legally binding, if the content of that act is ‘softened’, leaving room for interpretation, perhaps even to a degree warranting the question whether actual obligations emerge from it. Still a third form of softness can be found in agreements that are not self-sufficient, but require complementary acts in order to define their scope. Framework conventions such as UNCLOS are a case in point, as far as they leave particular aspects of the application Jutta Brunnée, ‘The Rule of International (Environmental) Law and Complex Problems’, in Heike Krieger, Georg Nolte, and Andreas Zimmermann (eds.), The International Rule of Law: Rise or Decline? (forthcoming, available at https://ssrn.com/abstract=3080458). 72

Matthew Hoffmann, International Law and Climate Change: Post-Paris Challenges, 5 April 2016, available at http://www.ccil-ccdi.ca/single-post/2016/03/30/International-Law-and-Climate-ChangePostParis-Challenges. 73

Heike Krieger and Georg Nolte, The International Rule of Law – Rise or Decline? Points of Departure, KFG Working Paper Series, No. 1, October 2016, available at http://kfg-intlaw.de/PDF-ftpOrdner/KFG%20Working%20Paper%20No.%201.pdf. 74

75

Alvarez, supra note 38, at 359.

Jean d’Aspremont, ‘Softness in International Law: A Self-Serving Quest for New Legal Materials’, 19 EJIL (2008) 1075, at 1082. 76

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to be determined by State parties.77 Soft law has emerged as a normative response in its own right, enacting an array of standard setting processes that do not necessarily aim at formal bindingness. ‘Soft’ instruments can nevertheless have a regulatory effect. This can enter in various ways: soft instruments can ‘harden’, be enforceable, and subject to supervisory and reporting procedures, hereby indicating a rather strong expectation of compliance.78 Turning further from normative character to State compliance, legally non-binding instruments can turn out equally effective.79

B. HELCOM Recommendations and Monitoring

The revised Helsinki Convention entered into force on 17 January 2000. The EU, along with all BSR coastal States, is a party to the Helsinki Convention (ratified by the European Community in 1994). The Helsinki Convention is in the BSR a way for States to fulfil UNCLOS requirements to co-operate in formulating and elaborating international rules for the protection and preservation of the marine environment. The Helsinki Convention covers the entire Baltic Sea, including internal waters. It also establishes eco-political principles that partly go beyond UNCLOS.80 The Helsinki Convention, including its annexes, are binding upon State parties (Article 32). The Convention incorporates several environmental law principles, but also contains more technical Annexes, which for example ban the discharge of a number of substances (Annex I, Part 2). The Convention requires State parties to report regularly to HELCOM on legal and other measures taken (Article 16). HELCOM is also the forum within which environmental standards not set in the Convention or its Annexes are negotiated.

Ibid., at 1084-1087 using the 1995 Council of Europe Framework Convention on the Protection of National Minorities as an example of the former in that it does not define the concept of minorities. 77

See Patricia Birnie, Alan Boyle, and Catherine Redgwell, International Law & the Environment (3rd ed., 2009), at 36, with examples in environmental law. 78

79 For a classical discussion, Abram Chayes and Antonia Handler Chayes, The New Sovereignty. Compliance with International Regulatory Agreements (1998).

For a more detailed account, see Peter N. Ehlers, ‘Marine Environment Protection – The Baltic Sea Example’, in Peter N. Ehlers et al. (eds.), Marine Issues: From a Scientific, Political and Legal Perspective (2002), 93, at 95. 80

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As to compliance with recommendations, evidence is mixed. On the one hand, HELCOM reports that by 2016, about 60% of the agreed joint regional actions had been carried out, and 126 HELCOM recommendations are implemented.81 The European Court of Auditors has on its part recently noted that HELCOM recommendations for example in the field of waste water treatment and agriculture that go beyond the requirements of EU directives, had not been incorporated by all States reviewed.82 This echoes earlier HELCOM assessments indicating that only few recommendations were fully implemented.83 This strengthens a concern that the growing impact of EU law in the BSR, could result in EU member States choosing not to comply with stricter, but legally non-binding, HELCOM recommendations. As is well-known from the context of international human rights law, also monitoring can have a normative impact. Article 16 Helsinki Convention sets forth a reporting obligation for contracting parties to report to the Commission at regular intervals on the legal, regulatory, or other implementation measures taken, on the effectiveness of the measures taken, as well as on problems encountered. As a system of compliance review, HELCOM monitoring does not provide means for sanctioning non-compliance (rather the ‘gentle reminder’ is the method applied).84 Nevertheless, monitoring enacts State internal processes and is in essence a process of knowledge production, which feeds into the legislative process.85 While the role of State reporting and consequent assessment is to follow up on the compliance of State parties with the Helsinki Convention and HELCOM recommendations, reporting 81 HELCOM, First version of the ‘State of the Baltic Sea’ report, June 2017, available at http://state ofthebalticsea.helcom.fi.

European Court of Auditors, Special report no 03/2016: Combating eutrophication in the Baltic Sea: further and more effective action needed, available at https://www.eca.europa.eu/Lists/ECADocuments/ SR16_03/SR_BALTIC_EN.pdf, at19 et seq. 82

83 Compliance with the requirements of the Convention and HELCOM Recommendations, HELCOM, 24th Meeting, Bremen, Germany 2003, Document 24/2003, available at http://archive. iwlearn.net/helcom.fi/stc/files/Recommendations/Compliance_with_recs.pdf. 84 As characterised by Malgosia Fitzmaurice, ‘Compliance with the 1992 Convention on the Protection of the Environment of the Baltic Sea Area (the “Helsinki Convention”)’, in Ulrich Beyerlin, PeterTobias Stoll, and Rüdiger Wolfrum (eds.), Ensuring Compliance With Multilateral Environmental Agreements: A Dialogue between Practitioners and Academia (2006) 115, at 123.

Daniel Bodansky, ‘The Role of Reporting in International Environmental Treaties: Lessons for Human Rights Supervision’, in Philip Alston and James Crawford (eds.), The Future of UN Human Rights Treaty Monitoring (2000) 361, at 365-366. 85

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also serves the purpose of data production, and to display gaps in the framework.86 Building on experiences from human rights treaty-monitoring, it is even possible to regard State reporting as the most efficient means for inducing change as it adopts a broader societal approach to the situation of a country.87 While there certainly are differences between environmental protection and international human rights law, these differences only serve to underline the important role of reporting in environmental law.88 In a situation where only non-confrontational means of implementation are politically attainable, monitoring can also be considered a way of dealing with noncompliance.89 This ‘managerial perspective’ is arguably a soft approach to obligations, where unsatisfactory performance is regarded as a problem to be solved through negotiation, rather than as an offense to be punished. For the benefits to enter, the reporting obligation must also be complied with. Adversarial mechanisms can on the other hand be counter-productive, if sanctioning leads to alienation and polarisation of member States.90 The HELCOM Monitoring and Assessment Strategy states as one of its objectives the production of assessment products for region-specific management purposes by also making use of data and information produced by Contracting Parties for other fora such as EU Directives (Marine Strategy Framework Directive, European Parliament and Council Directive of 17 June 2008, OJ 2008 L 164/19; Water Framework Directive (WFD), European Parliament and Council Directive of 23 October 2000, OJ 2000 L 327/1; Urban Wastewater Treatment Directive, European Council Directive of 21 May 1991, OJ 1991 L 135/40; Nitrates Directive, Council Directive of 12 December 1991, OJ 1991 L 375/ 1; Habitats Directive, Council Directive of 21 May 1992, OJ 1992 L 206/7; Birds Directive, European Parliament and Council Directive of 30 November 2009, OJ 2010 L 20/7; Dangerous Substances Directive, Council Directive of 27 June 1967, OJ 1967 L 196/1; and Integrated Pollution Prevention and Control Directive, European Parliament and Council Directive of 15 January 2008, OJ 2008 L 24/8), the European Environment Agency, International Atomic Energy Agency, International Council for the Exploration of the Sea, Organization for Economic Cooperation and Development, and UNEP. Furthermore, the aim is also to produce data and information that can be used to fulfil other international requirements, in particular by those contracting parties that are also EU member States. The Strategy also facilitates collaboration with other organisations in the field of environmental monitoring and assessment. 86

Something that O’Flaherty characterises as ‘diplomatic’ activity: Michael O’Flaherty, ‘The United Nations Human Rights Treaty Bodies as Diplomatic Actors’, in Michael O’Flaherty et al. (eds.), Human Rights Diplomacy: Contemporary Perspectives (2011) 155. 87

88 In environmental regimes reporting assumes a more reciprocal role, addresses the acts of a broader range of actors, takes a more clearly political approach to compliance, and contributes to producing scientific knowledge. Bodansky, supra note 85. Also Churchill/Ulfstein, supra note 31, at 655-656. 89

Churchill/Ulfstein, supra note 31, at 644-645.

George W. Downs, Kyle W. Danish, and Peter N. Barsoom, ‘The Transformational Model of International Regime Design: Triumph of Hope or Experience’, 87 Columbia Journal of Transnational Law (2000) 465, at 482-485. 90

368 GERMAN YEARBOOK OF INTERNATIONAL LAW 61 @ 2018 C. Normative Impact Through Institutional Interaction

There are multiple interconnections between BSR institutions. To begin with, it should be noted that the EU cannot currently become a member of the IMO, nor a party to IMO negotiated agreements.91 BSR States therefore implement IMO agreements individually, which can potentially lead to regulatory gaps.92 In practice, however, the EU has adopted a broad range of IMO rules through legislative acts.93 The extent to which international rules are adopted through EU law is of some importance, as regulatory action at the EU level ensures that all EU member States are bound, enacts monitoring of implementation, and introduces the possibility of enforcement by the Court of Justice of the European Union (CJEU). Enforcement of agreements through the EU has even been characterised as a constitutionalisation of international rules, as far as the transformation into EU law endow those rules with supremacy and direct effect.94 Apart from international rules, EU law can also have an impact on international soft-law. In the BSR context this concerns HELCOM recommendations in particular. The close links between the HELCOM and the EU follow from the Union being a contracting party to the Helsinki Convention. The EU Marine Strategy Framework Directive (MSFD) is considered to contribute to the fulfilment of Helsinki Convention obligations.95 Through the growing impact of the EU in the BSR, a claim has even been made that the Helsinki Convention/HELCOM would be replaced by the EU as the most important actor in the region.96 However, this does not mean that HELCOM would have lost its role in BSR governance.

91

IMO membership, as well as ratification of IMO adopted agreements, is only open to States.

Jan Wouters, Anna-Louise Chané, and Jed Odermatt, ‘The European Union: A shadowy global actor? The UN system as an example’, in Elaine Fahey (ed.), The Actors of Postnational Rule-Making: Contemporary Challenges of European and International Law (2016) 163, at 183. 92

93 For a more detailed discussion, see Allan Rosas, ‘The Status in EU Law of International Agreements Concluded by EU Member States’, 34 Fordham International Law Journal (2011) 1304.

Mario Mendez, The Legal Effects of EU Agreements: Maximalist Treaty Enforcement and Judicial Avoidance Techniques (2013), at xix. 94

95

Marine Strategy Framework Directive, supra note 86, at para. 19.

Nina Tynkkynen et al., ‘The Governance of the Mitigation of the Baltic Sea Eutrophication: Exploring the Challenges of the Formal Governing System’, 43 AMBIO (2014) 105. 96

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The Baltic Sea Action Plan, adopted in 2007, constitutes the cornerstone of HELCOM’s activities. The BSAP aims to reduce pollution to the Baltic Sea and reverse its degradation by 2021. In the BSAP States agree to provide national implementation plans and status reports, as well as to monitor and evaluate implementation through specific indicators, HELCOM thematic assessments, indicator fact sheets, and other information. As to the legal status of the BSAP, it is notable that all HELCOM parties have made written statements explicitly endorsing it. The language used often refers to an agreement between States, suggesting a rather strong normative status for the Action Plan. Whether the BSAP actually can be considered a treaty between States is nevertheless uncertain. The decisive criteria would seem to be whether there was an initial intention to create a legally binding act.97 In this respect, it is notable that the BSAP preamble makes an explicit distinction between the Action Plan and international agreements.98 Despite its normative softness, the BSAP is indicated in various ways in EU law. The BSAP is for example presented as the regional implementation of the MSFD, for which the BSAP was heralded as a pilot project. As the overall aim of the EUSBSR ‘Save the Sea’ objective is to achieve good environmental status by 2020, this is to be achieved inter alia through taking into account the targets set in the BSAP. Notably, due to interaction with the EU legislative process (and the MSFD in particular), HELCOM recommendations could even transform into legally binding obligations under EU law.99 The CJEU has recognised the value of, and directly relied upon, scientific information produced by committees the decisions of which per se are not legally binding.100 The CJEU has also explicitly noted the status of the EU as signatory to the Helsinki Convention, and through that status, indicated that the BSAP sets the standard for determining whether nitrogen discharges from the inland and 97

Anthony Aust, Modern Treaty law and Practice (2013), at 29-30.

The Preamble reads: “WITHOUT PREJUDICE TO international agreements and legislation of the European Community;”, HELCOM, Baltic Sea Action Plan, adopted on 15 November 2007 in Krakow, Poland by the HELCOM Extraordinary Ministerial Meeting, available at http://www.helcom. fi/baltic-sea-action-plan/action-plan/. 98

99 Sara Söderström and Kristine Kern, ‘The Ecosystem Approach to Management in Marine Environmental Governance: Institutional interplay in the Baltic Sea Region’, 27 Environmental Policy and Governance (2017), 619. 100 See e.g. European Court of Justice (EJC), Commission of the European Communities v. Republic of Finland, Case C-344/03, Judgment, 15 December 2005, ECLI:EU:C:2005:770.

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coastal waters of Finland and Sweden into the Bothnian Bay contribute to eutrophication of the Bothnian Sea.101 While this testifies to the scientific status of HELCOM data, it also demonstrates how the targets set by HELCOM can have an impact beyond the compliance regime of the Helsinki Convention itself.102

D. Legislating Through Framework Instruments

The 1982 UNCLOS constitutes the backbone of the BSR international regulatory setting. The EU, all EU member States, and the Russian Federation are parties to the convention. UNCLOS hereby sets the jurisdictional frame for activities in the Baltic Sea area. In addition to defining rights and duties in maritime areas, UNCLOS imposes substantive obligations on States concerning the protection of the marine environment and management of its living resources. UNCLOS can be characterised (at least partially) as a framework convention. This means that many of its provisions set general obligations, which need to be implemented through more specific international arrangements. UNCLOS provisions thereby also leave room for implementation to the State parties. Framework conventions come in different shapes. They may range from procedural frameworks to treaties that contain rights and obligations, leaving only specific questions to further regulation. The qualification as a framework convention does not bear any consequences under the law of treaties. A framework agreement is a legally binding treaty of international law. A common characteristic is nevertheless that questions that are relevant for achieving the objectives of the agreement are delegated to parallel or subsequent regulation.103 Framework conventions are opted for in order to attract participants, through accepting compromises in respect of regulatory detail. Although such conventions 101 ECJ, Commission of the European Communities v. Republic of Finland, Case C-335/07, Judgment, 6 October 2009, ECLI:EU:C:2009:612, and ECJ, Commission of the European Communities v. Kingdom of Sweden, Case C-438/07, Judgment, 6 October 2009, ECLI:EU:C:2009:613. 102 For another example of HELCOM/EU interplay, see Mikael Karlsson and Michael Gilek, ‘Governance of Chemicals in the Baltic Sea Region: A Study of Three Generations of Hazardous Substances’, in Gilek et al. (eds.), supra note 4, 97, at 107-108. 103 Nele Matz-Lück, ‘Framework Conventions as a Regulatory Tool’, 1 Göttingen Journal of International Law (2009) 439.

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may be shallow, they can generate a deepening of the regulatory regime through subsequent instruments. They can also promote normative consensus.104 However, past experience does not seem to support that such benefits always enter. Incremental regime development or transformationalism, may not be suitable for all circumstances (and in some cases may even be counterproductive).105 It is notable that in Intertanko, the CJEU concluded that the ‘nature and the broad logic of UNCLOS’ and the fact that it ‘does not establish rules intended to apply directly and immediately to individuals and to confer upon them rights or freedoms capable of being relied upon against States’, prevented the Court from assessing the validity of a Community measure in the light of that Convention.106 Such features can thereby prevent the ‘constitutional’ impact of EU law from entering.107 The framework format is not only a feature of environmental law conventions but is also a characteristic of EU environmental legislation. Framework directives characteristically set fairly general standards for environmental protection such as the attainment of ‘good environmental status’ (MSFD), or ‘good ecological status’ (Water Framework Directive (WFD)). Such directives define the main objectives to be reached and establish a procedure by which to work towards that goal, but leaves discretion for States to implement the directive.108 The use of framework directives has been noted to have some strengths, not the least through offering a tool for systemic change. However, member States have also found framework directives difficult to implement.109 Use of framework directives can also have a bearing on the possibility of enforcement. The more a framework directive is open to interpretation, the more likely there 104 The idea being that through framework conventions the law-making process takes on a momentum of its own. Daniel Bodansky, The Art and Craft of International Environmental Law (2010), at 186-187. 105

Downs, Danish, and Barsoom, supra note 90, at 506-509.

ECJ, International Association of Independent Tanker Owners (Intertanko) and Others v. Secretary of State for Transport, Case C-308/06, Judgment, 3 June 2008, ECLI:EU:C:2008:312, at paras. 64-65. 106

107 A similar conclusion has been reached by the court in a number of other cases, see e.g. Paul Craig and Gráinne de Búrca, EU Law: Text, Cases, and Materials (2015), at 368-369.

ECJ, Bund für Umwelt und Naturschutz Deutschland e.V. v. Bundesrepublik Deutschland, Case C-461/13, Judgment, 1 July 2015, ECLI:EU:C:2015:433, at para. 34. 108

Nikolaos Voulvoulis, Karl Dominic Arpon, and Theodoros Giakoumis, ‘The EU Water Framework Directive: From great expectations to problems with implementation’, 575 Science of the Total Environment (2017) 358. Also see European Court of Auditors, supra note 82. 109

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will be differing views as to its content.110 Disagreement on the exact content of the obligation undertaken may also affect the direct effect of the directive (and with that, the possibility of enforcement through domestic and European courts).111 Challenges against a State for failing to properly implement a framework directive are also likely to concern procedural issues rather than the quality of the marine environment as such. This depends, of course, on the exact content of the framework directive invoked. For example in the Weser case the CJEU did find that that the WFD does establish quantifiable and binding environmental objectives.112 The need for further implementing action can also open up for technocratisation. In the case of the WFD, for example, the implementation has been entrusted to a network of national and transnational authorities; the Common Implementation Strategy (CIS). The goal of the CIS is to reach a common understanding and develop soft-law guidelines for the implementation of the WFD. Korkea-aho notes that the creation of a soft law-based implementation regime can both endorse and water down the process of judicial enforcement. She notes that the CIS seemed initially to diminish the need for litigation (especially if compared to waste rulings).113 Notably, however, some of the most high profile environmental cases in recent years have concerned the interpretation of the WFD. Above all, even when successful, the settlement of implementation issues in a strongly technocratic environment may serve to hide political controversies from sight.114 Korkea-aho mentions Court of Justice of the European Union case law on waste regulation is an example: Emilia Korkea-aho, ‘Watering Down the Court of Justice? The Dynamics between Network Implementation and Article 258 TFEU Litigation’, 20 ELJ (2014) 649, at 655. 110

See e.g. ECJ, Gert Folk v. Unabhängiger Verwaltungssenat für die Steiermark, Case C-529/15, Opinion of Advocate General Bobek, 1 June 2017, ECLI:EU:C:2017:419, at paras. 56-57, claiming that Art. 4(7) WFD is not directly applicable, due to being subordinated to several further implementing steps and qualitative verifications in which member States enjoy considerable discretion. Also see e.g. Martin Hedemann-Robinson, Enforcement of European Union Environmental Law: Legal Issues and Challenges (2015), at 271 et seq. It should be noted, however, that for example the WFD does establish procedural requirements that steers the discretion, Elisa Morgera, ‘Environmental Law’, in Catherine Bernard and Steve Peers (eds.), European Union Law (2017) 657, at 668-670. 111

ECJ, Bund für Umwelt und Naturschutz Deutschland e.V. v. Bundesrepublik Deutschland, supra note 108, at para. 43. 112

113

Korkea-aho, supra note 110, at 664.

Blandine Boeuf, Oliver Fritsch, and J. Martin-Ortega, ‘Undermining European Environmental Policy Goals? The EU Water Framework Directive and the Politics of Exemptions’, 8 Water (2016) 388. 114

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E. Implementation Through Strategic Planning

The catalogue of decision-making instruments available to EU actors is open. Acts other than those mentioned in Article 288 TEU include, for example, inter-institutional agreements, sui generis decisions (decisions without a recipient), conclusions, incentive measures, guidelines and guiding directives, internal opinions, or rules of procedure. Other instruments, such as declarations, deliberations, resolutions, communications, codes of conduct, timetables, conclusions, and green and white papers, have emerged in practice.115 EU legislation, as a point of departure, is of general applicability.116 When this is the case, tailoring of EU law to regions requires intermediary mechanisms, such as the EUSBSR and its Action Plan. As stated above, the EUSBSR sets priorities, highlights actors and cooperation patterns, and gives the Commission a notable role in governing the EU BSR policies. As a device for regional implementation of EU legislation, it is both an example and generator of, multilevel governance/regulation. As to the legal status of the Strategy itself, it was approved by the European Council in 2009 following a Commission communication.117 Commission communications have almost unrestricted functions. Characteristically, they are not legally binding.118 The point of departure also in respect of the European Council, as stated in Article 15(1) TEU, is that it ‘shall not exercise legislative functions’. As a consequence European Council conclusions are categorised as soft law instruments. While this characterisation may be formally true, it does however downplay their regulatory significance. European Council conclusions do in fact have legal consequences even though their impact primarily is political. Council conclusions entail a political acceptance of starting points for action, which either already have been, or are about to be, specified in action plans.119 Also the Commission can 115 Eva Kassoti, ‘The EU and the Challenge of Informal International Law-Making: The CJEU’s Contribution to the Doctrine of International Law-Making’, Geneva Jean Monnet Working Papers 06/ 2017, available at http://www.ceje.ch/files/3615/1748/7746/kassoti_6-2017.pdf. 116

Art. 288 Treaty on the Functioning of the European Union 2007, OJ 2012 C 326/47.

Commission, Council, European Economic and Social Committee, and Committee of the Regions Communication of 10 June 2009, COM(2009) 248. 117

Herwig C. H. Hofmann, Gerard C. Rowe, and Alexander H. Türk, Administrative Law and Policy of the European Union (2011), at 509 et seq. 118

119

Linda Senden, Soft Law in European Community Law (2004), at 206.

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feel obliged to follow up on decisions expressed by the European Council. For this reason, the European Council has been labelled an informal pre-initiator of legislation.120 The CJEU has also referred to European Council conclusions when interpreting the meaning of treaty provisions.121 Also macro-regional strategies have been noted to influence both the implementation of EU policies, legislation and existing BSR institutions. The defined Priority Areas have an institutional presence, enabling cooperation with other BSR organisations. As strategies highlight interconnections between actors, and identify some as central for the cooperation, strategies also set priorities.122 Turning to the EUSBSR Action Plan, it is adopted by the Commission as a staff working document.123 Staff working documents are atypical acts which also adopt a pre-regulatory function through indicating steps to be taken. By defining measures to be pursued as a response to identified challenges, as in Green Papers, staff working documents serve to communicate views in favour of certain measures of the interested parties in a specific field.124 At the same time action plans (or action programmes/ general programmes) are more formalised than Green and White Papers, in that they set an agenda and list concrete action to be pursued. They are commonly adopted with a view to provide the basis for the development of future law and policy. As with Council conclusions, plans/programmes can hereby have a regulatory effect upon EU institutions.125 This indirect effect is not just an incidental by-product but can also be the very reason behind reliance on soft law acts.126 There are nevertheless some downsides as well, one being that the complexity generated through macro-regional strategies does not allow for the identification with any precision where responsibility for On the symbiotic relationship, see Frederic Eggermont, The Changing Role of the European Council in the Institutional Framework of the European Union: Consequences for the European Integration Process (2012), at 347-351. 120

121

at 148.

See ECJ, Commission v. Council, Case C-27/04, Judgment, 13 July 2004, ECLI:EU:C:2004:436,

122 Commission Report of 22 June 2011, COM(2011) 381 final, at 8. Kai Böhme, ‘Added value of macro regional strategies: a governance perspective’, in Commission Staff Working Document of 27 June 2013, SWD(2013) 233 final, 9, at 20. 123

European Commission, supra note 3.

124

Kassoti, supra note 115.

125

Senden, supra note 119, at 128-131.

126

Kassoti, supra note 115.

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the implementation of a given regional policy lies. Coordinating acts of any sort may also shortcut political discussion.127 Procedural flexibility may decrease the representativity of decision-making. Also the legal basis and addressees of informal acts may be unclear.128 Such concerns have also been raised in respect of the EUSBSR.129

V. Conclusion The complex regulatory structure of the BSR makes it a showcase of regulatory pluralism. BSR environmental cooperation is characterised by a multitude of actors, ranging from supranational and intergovernmental organisations, to institutions less formally structured. While the EU and multilateral conventions are the primary sources of BSR regulation, a multitude of actors shape BSR governance through acts of normative regulatory nature. The aim of the present article has been to highlight aspects of this complexity, to demonstrate the normative pluralism present in BSR regulatory initiatives, and to illustrate how acts and actors that do not meet the formal categories of sources and subjects of international law, nevertheless can have a regulatory role in this specific context. The examples provided in the article by no means exhaust the extent to which institutional interaction can provide non-binding instruments with regulatory impact. There are certainly also further dimensions to explore of EU ‘constitutionalisation’ of BSR regulation. It should also be remembered that institutional interaction may have multiple side-effects. Although EU endorsement of HELCOM non-binding recommendations may provide normative force to those decisions, such a development can also affect the political willingness to cooperate within HELCOM.130 HELCOM, along with the CBSS, play an important role for BSR governance through the incluEuropean Commission, supra note 23. European Court of Auditors, supra note 82, at para. 105. See Ruffert, supra note 59, at 62, and Simona Piattoni, ‘Exploring European Union Macro-regional Strategies through the Lens of Multilevel Governance’, in Gänzle and Kern (eds.), supra note 12, 75, at 90-94. 127

128 Henning Grosse Ruse-Khan, Thomas Jaeger, and Robert Kordic, ‘The Role of Atypical Acts in EU External Trade and Intellectual Property Policy’, 21 EJIL (2010) 901, at 909-910.

See e.g. Irene McMaster and Arno can der Zwet, ‘Macro-regions and the European Union: The Role of Cohesion Policy’, in Stefan Gänzle and Kristine Kern (eds.), supra note 12, at 47. 129

130

Söderström and Kern, supra note 99, at 627-628.

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sion of Russia. Any development that weakens this cooperation can only be detrimental to the BSR. After all, out of instruments that take the Baltic Sea specifically into account, all BSR States are only parties to the Helsinki Convention and MARPOL (including annexes).131 An overly rigid emphasis of sources of law doctrine, runs the risk of losing sight of important aspects of BSR governance. Informal and innovative solutions can secure cooperation when agreement on formal rules cannot be attained. They can be more easy to adopt and allow for involvement of a wider range of interests.132 Downsides relate to uncertainties concerning ownership, regulatory effect and compatibility, representation, accountability, and depoliticisation.133 The normative pluralism at display in the BSR demonstrates both sides of the coin.

131 It is worth noting that as most environmental law conventions are applicable also in the Baltic Sea region, they impose obligations upon those States that are parties to the conventions (unless, of course, the rule is considered to be customary). Most importantly Russia, the only non-EU Baltic Sea State, has ratified core international environmental conventions. For an overview, Christopher C. E. Hopkins, ‘Environmental Agreements and Baltic Sea Environmental Management’, in Marcus Reckermann et al. (eds.), Climate Impacts on the Baltic Sea: From Science to Policy (2012) 1. 132

See Brunnée, supra note 72, and Kassoti, supra note 115, in respect of the EU.

In general, see Michael N. Barnett and Martha Finnemore, ‘The Politics, Power, and Pathologies of International Organizations’, 53 International Organization (1999) 699, and Krisch, supra note 14. 133

Interpretation in Light of Which ‘Object and Purpose’? KATAYOUN HOSSEINNEJAD(

ABSTRACT: The object and purpose is usually perceived as referring to one notion, the purpose that a norm is aimed to serve. This paper, however, argues that for interpretation in light of the object and purpose, first, the purpose that can be relied on by adjudicative bodies should be based on principle arguments and, second, without understanding the nature of a rule, its purpose cannot be properly identified. By adhering to the idea that the nature of the rule refers to the rights and obligations that are created by a norm, while the purpose is the overall result that a norm is aimed to achieve, the paper argues that the notion of object and purpose seen through the concept of ‘not one, not two’, refers to the interplay between the object of a rule and its purpose in a way that the nature of a rule contributes to the identification of its purpose, and the purpose thus identified contributes to the redetermination of the scope of a rule. Nevertheless, as the purpose remains relatively indeterminate in regard to the new facts that emerge and the importance of principles, redetermination of the purpose makes the interplay between the object and purpose continuous. KEYWORDS: Interpretation, Object and Purpose, Treaties, Emergent Purpose, Adjudication, Principle and Policy

I. Introduction The Vienna Convention on the Law of Treaties (VCLT) refers to the notion of object and purpose a number of times. In addition to articles on interpretation, this notion has been used as a criterion to assess the legality of State’s conduct: for the obligation of the signatory State prior to treaty’s entry into force, for determining the incompatibility of a reservation, and for characterising the material breach of a treaty, to name a few.1 It is suggested by some scholars, such as Jan Klabbers, that the referUniversity Lecturer and Attorney at Law, PhD in International Law from the Graduate Institute of International and Development Studies. email: [email protected]. (

Arts. 18, 19(c), and 60(3)(b), respectively, Vienna Convention on the Law of Treaties (VCLT) 1969, 1155 UNTS 331. 1

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ence to ‘object and purpose’ in these articles is for the purpose of adding an independent substantive element to the treaty and thus, should be distinguished from the use of this term in articles on interpretation which are methodological devices.2 While it is true that the nature of the VCLT rules on interpretation is different from other substantive rules of the Convention, this does not imply that the term ‘object and purpose’ has to be defined differently in these two kinds of rules. In other words, the way the ‘object and purpose’ is identified for assessing the State’s conduct in respect of its obligations under a treaty should not be in nature different from the way the ‘object and purpose’ is identified for interpretation of those obligations. This ‘unique and versatile criterion’,3 however, is not defined in the VCLT nor is any guidance provided therein on what constitutes the ‘object and purpose’. The Harvard draft article on interpretation, which was the first formulation of interpretation in light of object and purpose,4 only talks of various sources that may be resorted to for the identification of the purpose, such as historical background, travaux préparatoires, the circumstances of the parties at the time the treaty was entered into, etc.5 The same approach is taken later by the International Law Commission (ILC) in its Guide to Practice on Reservations to Treaties, however, the priority was given to intrinsic elements, such as terms of the treaty, the title and the preamble, and preparatory work, circumstances of its conclusion and, where appro2 Jan Klabbers, Treaties, Object and Purpose, Max Planck Encyclopedia on Public International Law, December 2006, available at http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-978 0199231690-e1681, at para. 3. 3 International Law Commission (ILC), Reservation to Treaties, Tenth report on reservations to treaties by Mr. Alain Pellet, Special Rapporteur, UN Doc. A/CN.4/558 and Add.1–2*, 1, 14 and 30 June 2005, at 77.

The draft article considered it as a self-evident fact that ‘the terms of a treaty cannot be thoroughly comprehended unless read in the light of the design which prompted its conclusion’. Harvard Draft Convention on the Law of Treaties (Harvard Draft Convention) 29 American Journal of International Law, Sup 937 (1935), at 948. For further details on the evolution of this notion, see Isabelle Buffard and Karl Zemanek, ‘The “Object and Purpose” of a Treaty: An Enigma?’, 3(1) Austrian Review of International and European Law (1998) 311, at 315-316. 4

Art. 19 reads as follows: ‘(a) A treaty is to be interpreted in the light of the general purpose which it is intended to serve. The historical background of the treaty, travaux préparatoires, the circumstances of the parties at the time the treaty was entered into, the change in these circumstances sought to be effected, the subsequent conduct of the parties in applying the provisions of the treaty, and the conditions prevailing at the time interpretation is being made, are to be considered in connection with the general purpose which the treaty is intended to serve.’ Harvard Draft Convention, supra note 4, at 937. The draft article recognises a close connection between the ‘purpose’ and ‘intention’ of the parties but warns about extending the intention of the parties too much. Ibid., at 952. 5

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priate, the subsequent practice of the parties were considered as secondary elements in determining the purpose.6 Although identifying the object and purpose by using different sources may be sound, the question would arise as to whether in preferring one source over the other, an interpreter has really looked for the purpose, or the choice was made on the basis of finding the best supporting argument for the interpreter’s conceived purpose. Moreover, it is not clear how the object and purpose affect the process of interpretation, especially whether in light of the object and purpose interpreters can go beyond the literal meaning. And more importantly, this approach is silent about whether any identified purpose can be invoked in the process of interpretation of treaties. The latter is more persistent for a judicial interpretation that is ‘aimed at discovering, rather than inventing, the rights of the parties concerned’.7 If judges, by adhering to the identified purpose, create new obligations and apply them retroactively in the case before them, the losing party is punished, not because of violation of some duty it had, but rather a new duty created after the event. Having these concerns in mind, the present article focuses on the interpretation of treaties by adjudicative bodies and not the interpretation that States, as the subjects of international law, may agree on. This is because, as noted by Gleider Hernández, ‘[w]hat distinguishes the interpretation of acts by judicial institution is that these work necessarily and formally within the confines of a defined legal system’.8 The paper starts with a brief introduction to purposive interpretation in general and its reception in international law. Evaluating the current literature, consequently, the paper provides a new understanding of the notion of the object and purpose along two interrelated arguments. First, contrary to the mainstream perception among international law scholars to treat ‘object and purpose’ as denoting one single notion, the purpose that a norm is aimed to serve based on principle as well as policy arguments, it will be argued that, first, the purpose that can be relied on by adjudicative bodies should be based on principle arguments and, second, without understanding the nature of a rule, its purpose cannot be properly identified especially if the purpose is to be anchored in legal principles. Finally, the paper deals with the question whether such ILC, Guide to Practice on Reservations to Treaties 2011 (ILC Guide on Reservations), Yearbook of the International Law Commission, Vol. II, Part Two (2011), Guideline 3.1.5.1. 6

7

Ronald Dworkin, Taking Rights Seriously: New Impression with a Reply to Critics (2005), at 280.

Gleider Hernández, ‘Interpretative Authority and the International Judiciary’, in Andrea Bianchi, Daniel Peat, and Matthew Windsor (eds.), Interpretation in International Law (2015) 166, at 167. 8

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an understanding has any influence on the debated topic of ‘emergent purpose’ and whether the perspective or the reasons for paying attention to a rule and the changes in the morality of a specific community may affect the identification of purpose.

II. Reception of the Teleological Approach in International Law Contrary to the textual and intention-based interpretation, which are common to law and literature, the purposive interpretation is mainly devoted to the religious or legal text that is deemed to serve a kind of purpose within a society. For this reason, for example, Ronald Dworkin distinguishes the interpretation of a conversation from the interpretation of a social practice, because the latter aims to interpret something created by people as an entity distinct from them. He describes this as ‘constructive interpretation’, which is a matter of imposing purpose on an object or practice in order to make it the best possible example of the form or genre to which it is taken to belong.9 The proponent of purposive interpretation maintains that law’s relation to language is instrumental,10 because law, in order to achieve its purposes, has to use language. And therefore, the meaning of rules should be determined by reference to ‘the purpose of law, in general and the individual legal text as part of it, in particular.’11 According to this theory, when the meaning of a rule seems to be clear, it is not because the meaning of its constituent words is clear, rather it is because ‘we can see clearly enough what the rule “is aiming at in general”’.12 Thus, even in situations where the interpretive difficulties seem to head up in a single word, semantics of words give

9

Ronald Dworkin, Law’s Empire (1986), at 51.

Ralf Poscher, ‘Ambiguity and Vagueness in Legal Interpretation’, in Lawrence M. Solan and Peter M. Tiersma (eds.), The Oxford Handbook of Language and Law (2012) 128, at 133. 10

11

Aharon Barak and Sari Bashi, Purposive Interpretation in Law (2007), at xv.

Lon L. Fuller, ‘Positivism and Fidelity to Law: A Reply to Professor Hart’, 71(4) Harvard Law Review (1958) 630, at 663. Also see the dissenting opinion of Judge Anzilloti in Interpretation of the Convention of 1919 concerning Employment of Women during the Night as he writes: ‘Only when it is known what the Contracting Parties intended to do and the aim they had in view is it possible to say either that the natural meaning of terms used in a particular article corresponds with the real intention of the Parties, or the natural meaning of the terms used falls short of or goes further than such intention.’ Permanent Court of International Justice, Interpretation of the Convention of 1919 concerning Employment of Women during the Night, Advisory Opinion, 15 November 1932, Series A/B, No. 50, at 383. 12

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no real account of what does or should happen.13 For example, H.L.A. Hart’s famous ‘no vehicle in the park’ rule is not semantically vague as far as fire engines are concerned. Fire engines are not borderline cases of vehicles. In the case of a fire in the park, however, it is the purpose of the rule that will overrule its semantics.14 In international law, the purposive or teleological approach has been traditionally considered to be part of the principle of effectiveness, or the rule ut res magis valeat quam pereat.15 Sir Gerald Fitzmaurice maintains that the principle of effectiveness includes two concepts; the interpretation in accordance with the object and purpose, on the one hand, and the interpretation that attributes meaning to every part of the text, effet utile, on the other.16 The first draft of the VCLT articles on interpretation proposed by Sir Humphrey Waldock contained a separate article on effective interpretation17 for two reasons: its significance as the basis upon which it was justifiable to imply terms in a treaty for the purpose of giving efficacy to the intention of parties expressed in provisions of the treaty; and that in the sphere of implied terms, it would set the proper limits of the application of the principle if too wide a door was not to be opened to purely teleological interpretations.18 The proposal, however, was rejected on two grounds. First, as far as the principle stated a logical rule, ‘effet utile’, the members of the ILC believed that it was in any case implicit in the requirement of good faith and the reference to the object and purpose,19 and thus there was no need to adopt a special rule on that. Second, if the principle of 13

Fuller, supra note 12, at 663.

14

Poscher, supra note 10, at 132.

For example, Waibel describes interpretation by recourse to the object and purpose as ‘effective interpretation’. Michael Waibel, ‘International Investment Law and Treaty Interpretation’, in Rainer Hofmann and Christian J. Tams (eds.), International Investment Law and General International Law: From Clinical Isolation to Systemic Integration? (2011) 29, at 39. 15

Gerald Fitzmaurice, ‘The Law and Procedure of the International Court of Justice: Treaty Interpretation and Certain Other Treaty Points’, 28 British Year Book of International Law (1951) 1, at 8. 16

17 Art. 72 provides: ‘Effective interpretation of the terms (ut res magis valeat quam pereat): In the application of Articles 70 and 71 a term of a treaty shall be so interpreted as to give it the fullest weight and effect consistent: (a) with its natural and ordinary meaning and that of the other terms of the treaty; and (b) with the objects and purposes of the treaty’ in ILC, Third Report on the law of treaties, by Sir Humphrey Waldock, Special Rapporteur (Waldock Third Report), UN Doc. A/CN.4/167 and Add.1-3, 3 March, 9 June, 12 June, and 7 July 1964. 18

Ibid., Commentary, 61, at para. 29.

19

ILC, Summary record of the 766th meeting, UN Doc. A/CN.4/SR.766, 15 July 1964, at 119.

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effectiveness implied that tribunals should step in and modify or supplement the language of the treaty, the members believed that such a conclusion should be the result of the process of interpretation, again by consideration of the object and purpose, and thus rejected any presumption in favour of restrictive or extensive interpretation.20 Despite this, some scholars argue for the independent character of the principle of effectiveness from the process of interpretation. For instance, Orakhelashvili argues that ‘the consensual character of international law requires adopting the approach of the effectiveness of legal regulation for the sake of construing the original consent and agreement […]’.21 But without knowing the meaning of a norm how can we talk about its effectiveness? As noted by Kammerhofer, this idea will lead to ‘a vicious circle, for if the interpreter can only find effectiveness through a norm’s meaning and if a norm’s meaning is determined by what makes it effective, a norm’s meaning is a norm’s meaning’!22 On the other hand, if the principle of effectiveness means that interpretation should be carried in light of the object and purpose, the principle provides no guidance on how the purpose is identified. The dependency of the effectiveness to the process of interpretation, in general, and the nature and the purpose of a rule, in particular, is also endorsed in the practice of different international courts and tribunals.23 In its advisory opinion on Interpretation of Peace Treaties, the International Court of Justice (ICJ) emphasised that, [t]he principle of interpretation expressed in the maxim: Ut res magis valeat quam pereat, often referred to as the rule of effectiveness, cannot justify the Court in attributing to the provisions for the settlement of disputes in the Peace Treaties a meaning which, … would be contrary to their letter and spirit.24 Waldock explains this point that it depends on the ‘terms of the treaty itself whether the application of the principle led to a restrictive or to an extensive interpretation’. Ibid., at 70. 20

21 Alexander Orakhelashvili, The Interpretation of Acts and Rules in Public International Law (2008), at 583. 22 Jörg Kammerhofer, ‘Alexander Orakhelashvili. The Interpretation of Acts and Rules in Public International Law’, 20(4) European Journal of International Law (2009) 1282, at 1285.

See for example International Court of Justice (ICJ), Corfu Channel case, Judgment, ICJ Reports 1949, 4, at para. 24; ICJ, Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, ICJ Reports 1994, 6, at para. 51; and ICJ, Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, ICJ Reports 1998, 432, at para. 66, and European Court of Human Rights (ECtHR), Grand Chamber, Chassagnou and Others v. France (Chassagnou v. France), Appl. Nos. 25088/94 and 2 others, Judgment, 29 April 1999, at 100, to name a few. 23

24

ICJ, Interpretation of Peace Treaties (second phase), Advisory Opinion, ICJ Reports 1950, 221, at 229.

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These would suggest that interpretation in light of the object and purpose should be considered as a concept independent from any a priori general principle such as effectiveness, because in each instance of interpretation, it is the purpose of a rule that determines whether any alleged interpretation will deprive the rule of its effectiveness or not. Moreover, the inclusion of the criterion of the object and purpose in Article 31 VCLT, as a General Rule on Interpretation, does not imply the incorporation of the teleological approach as conceived by some legal scholars in national systems.25 Rather, the criterion of object and purpose is only one element in the ‘crucible’,26 where different elements, the text understood in the legal ‘tradition’,27 interact with each other to give the legally relevant interpretation.

III. Current Literature on the Meaning of the Object and Purpose Scholars agree in general terms that the object and purpose refer to the rationale of the treaty,28 however, they differ as to what this actually means. The first point of disagreement is whether the rationale of the treaty is only one or it can be several. Jacobs, for example, argues that the change in the final draft of the VCLT articles from the plural form of object and purpose to single form may indicate that the notion refers to ‘the principal object and purpose of a treaty’.29 In the same line, Klabbers maintains that as individual treaty provisions may serve different goals, ‘to individualize the notion of object and purpose would serve to reintroduce a plural idea’ as if a treaty For example, see Barak who argues that ‘[t]he purpose of a norm is an abstract concept, composed of both its subjective [the intention of the text’s author] and objective purpose [the intention of a reasonable author and the fundamental values of the legal system].’ Barak and Bashi, supra note 11, at 90. 25

26 ILC, Report of the International Law Commission on the work of its Eighteenth Session (ILC Draft Articles on the Law of Treaties with Commentaries), UN Doc A/CN.4/191, 4 May-19 July 1966, at 220, para. 8.

Katayoun Hosseinnejad, ‘On The Nature of Interpretation In International Law’, 4 UCL Journal of Law and Jurisprudence (2015) 225. 27

See, for example, ILC, Reservation to Treaties, supra note 3, at 77; Orakhelashvili, supra note 21, at 343; and Ulf Linderfalk, On the Interpretation of Treaties: The Modern International Law as Expressed in the 1969 Vienna Convention on the Law of Treaties (2007), at 204. 28

Francis G. Jacobs, ‘Varieties of Approach to Treaty Interpretation: With Special Reference to the Draft Convention on the Law of Treaties Before the Vienna Diplomatic Conference’, 18(2) International & Comparative Law Quarterly (1969) 318, at 387. 29

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can simultaneously have various objects and purposes.30 But treaties usually serve many various purposes, as noted by the Appellate Body of the World Trade Organization (WTO): [M]ost treaties have no single, undiluted object and purpose but rather a variety of different, and possibly conflicting, objects and purposes. This is certainly true of the WTO Agreement. Thus, while the first clause of the preamble to the WTO Agreement calls for the expansion of trade in goods and services, this same clause also recognizes that international trade and economic relations under the WTO Agreement should allow for ‘optimal use of the world’s resources in accordance with the objective of sustainable development’, and should seek ‘to protect and preserve the environment’.31

Moreover, the practice of adjudicative bodies also endorses the possibility to ascertain the object and purpose of specific treaty provisions rather than the treaty as a whole in the process of interpretation. For example, the Vienna Convention on Consular Relations is not about individual rights, and as stated in its preamble the privileges and immunities numerated in the Convention ‘is not to benefit individuals but to ensure the efficient performance of functions by consular posts on behalf of their respective States’.32 If we adhere to the idea of a single principal object and purpose, it cannot be explained how the ICJ in the LaGrand case held that Article 36(1)(b) Vienna Convention on Consular Relations has created individual rights of consular notification.33 The correct reading, as noted by Orakhelashvili, is that ‘the object and purpose of individual treaty clauses normally complements that of the entire treaty by reflecting such specific rationale or aim that is certainly conducive to […]’.34 The second point of disagreement is how to identify the object and purpose. The most common approach is that the purpose should be determined on the basis of intention of the parties. For example, Orakhelashvili argues that object and purpose ‘refers to reasons for which States-parties have adopted the relevant treaty and the

30 He further argues that the specific reference to the treaty as a whole in Art. 41 VCLT is in ‘instrumental sense’ and ‘for reminding the parties that the object and purpose ought to be construed as that of the treaty as a whole, not of its various parts.’ Klabbers, supra note 2, at 7. 31 World Trade Organization, United States – Import Prohibition of Certain Shrimp and Shrimp Products, Report of the Appellate Body, 12 October 1998, WT/DS58/AB/R, at 17. 32

Vienna Convention on Consular Relations 1963, 500 UNTS 95, preamble.

33

ICJ, LaGrand (Germany v. United States of America), Judgment, ICJ Reports 2001, 466, at para. 77.

34

Orakhelashvili, supra note 21, at 353.

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aim they desire to achieve through it’,35 and therefore considers the intention of the parties as the determining factor. In this way, he conceives the object and purpose to embodies some values or interest shared by the parties, and thus ‘giving these concepts of non-law some legal standing under the treaty’.36 By adhering to the communicative theory of interpretation,37 Linderfalk advocates for the same approach as he considers the correct interpretation to be the one that corresponds with the intention of the treaty parties.38 The overall evaluation of reliance on the intention of the parties in the process of interpretation is beyond the scope of this paper, however, the rejection of its suitability for legal interpretation, in general, and identification of the object and purpose, in particular, can be summarised by the following practical and theoretical reasons, notwithstanding the fact that the VCLT has ascribed a secondary role to the intention of the parties in the process of interpretation. The first reason is due to the diverse intentions the parties may have in drafting treaties. The intentions of the parties during the negotiation can be so diverse and different that if attention is placed on retrieving their intentions, the value of what is agreed on, the text, will be demolished. The second ground for rejecting the subjective school is that it equates the adoption of rules as an act of ‘communication’, neglecting the law’s social function. The interpretation of a social practice within a community, as Dworkin argues, is in its nature different from interpreting the conversations among members of that community. The interpretation of a social practice aims to interpret something created by people as an entity distinct from them, because it has value; it serves some interest or

35

Ibid., at 343.

36

Ibid.

The communicative theory, which forms the foundation of intention-based theory, is mainly associated with Paul Grice, who explains meaning in terms of the communicative intentions of language users. The basic idea of his sophisticated theory can be summarised as explaining the timeless conventional meaning of a sentence type in terms of what those sentences meant when they were produced. In turn, sentence token meaning was to be understood in terms of what speakers intended when producing those sentence tokens. Richard E. Grandy and Richard Warner, ‘Paul Grice’, in Edward N. Zalta (ed.), The Stanford Encyclopedia of Philosophy (2014). See also Paul Grice, Studies in the Way of Words (1991), in particular at 41. 37

38

Linderfalk, supra note 28, at 34.

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purpose or enforces some principles.39 But the subjective approach, to use the words of Greenberg, ‘moves from an understanding of what the legislature communicated to a thesis about a statute’s contribution to the content of the law.’40 However, the content of the law ‘consists of the legal obligations (powers, privileges, and the like) that obtain in a legal system at a given time,’41 and that cannot be captured by communicative theory. Philosophy of language, and in particular the communicative theory, does not illuminate the nature and character of legal obligations. The final reason for rejecting the subjective approach, which relates to its foundation, is that ‘we regain the concepts of a historical past in such a way that they also include our own comprehension of them’.42 That is why, as Koskeneimi says ‘it is virtually impossible to ascertain real, subjective party intent’;43 rather, the intention is always mediated by our own knowledge, and therefore constructed. Even if, for the sake of argument, we set aside the impossibility of ascertaining the real intention of the parties and imagine that the interpreters are able to find the intention of the parties, the difference between the real intention and the presumed intention still remains. The difference between the actual intention of the author and the hypothetical intention is manifest in the ICJ decision about the Greek reservation in the Aegean Sea case, in which the Court, relying on the presumed intention,44 held that although the concept of the continental shelf did not exist at the time of the reservation, the Greek government, nevertheless, should have intended it at the time of making the reservation. This variation implies that the interpreter has to construct the presumed intention on the basis of some elements that are not indicating the ‘real’ intention of the parties. Exactly due to this reason, Bjorge defines intention as a construct to be derived from the articulation of the means of interpretation admissible

39

Dworkin, supra note 9, at 47-50.

Mark Greenberg, ‘Legislation as Communication? Legal Interpretation and the Study of Linguistic Communication’, in Andrei Marmor and Scott Soames (eds.), Philosophical Foundations of Language in the Law (2011) 217, at 219. 40

41

Ibid.

42

Hans-Georg Gadamer, Joel Weinsheimer, and Donald G. Marshall, Truth and Method (2004), at

367.

Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (2005), at 335-336. 43

44

ICJ, Aegean Sea Continental Shelf, Judgment, ICJ Reports 1978, 3, at 77.

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under Articles 31 and 32 VCLT and not ‘a separately identifiable original will’ on the basis of preparatory work.45 The problem of giving such a broad definition of intention is not only that it diminishes the value of the real intention and thus vanishes the main appeal of intentionalism. But also, by giving such a broad definition, it confuses two very distinct concepts: the reason for interpreting law with the way law is to be interpreted. Raz provides the most eloquent elaboration of this point. He explains that the question ‘why we interpret law’ is distinct, and should not be confused with the question ‘how should we interpret?’46 Thus, the ‘authoritative intention thesis’ is crucial, as Raz argues, only for the legitimation of rules, but it has no use as an independent method of interpretation.47 In light of these problems, Isabelle Buffard and Karl Zemanek propose a two-stage process for identification of purpose: a prima facie assumption of the object and purpose of a treaty by having recourse to the title, preamble and, if available, programmatic articles of the treaty and then testing this assumption, as the second stage, against the text of the treaty and all other available material.48 However, as noted by the authors, the method suggested provides an objective determination only in respect of a specially structured convention,49 and therefore cannot be generalised. In light of this, the authors suggest third party decisions for its objective implementation.50 Considering these problems in mind, and ‘[g]iven the great variety of situations and their susceptibility to change over time’,51 Alain Pellet argues that it is the VCLT article on interpretation that should be applied when seeking to determine the object and purpose of a treaty.52 Based on this view, he defines the object and purpose 45

Eirik Bjorge, The Evolutionary Interpretation of Treaties (2014), at 191.

He elaborates this point further that the authority of the law requires interpretation to be done on the basis of ‘the law as laid down by authority’ and the continuity necessitates legal decisions to be binding even when their authors no longer have authority. Joseph Raz, ‘Why Interpret?’, 9(4) Ratio Juris (1996) 349, at 360-361. 46

47

Joseph Raz, Between Authority and Interpretation (2009), at 288-289.

48

Buffard and Zemanek, supra note 4, at 333.

49

Ibid., at 342.

50

Ibid.

51

ILC, Reservation to Treaties, supra note 3, at 86.

52

Ibid.

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to mean the essential provisions of the treaty, which constitute its raison d’être.53 The problem of this approach is that it says nothing about how the ‘object and purpose’ of reference can be identified in the first place! Nevertheless, its importance lies in the fact that it avoids providing a single set of methods for determining the object and purpose of a treaty, accepting its relative change considering the perspective or the reasons for paying attention to a rule.54 Moreover, instead of relying on a counterfactual concept of intention of the parties, it aims to determine the object and purpose through a process considering not only the text, but also the relevant ‘articles that determines [the treaty’s] basic structure.’55 These features lay the foundations of the approach that is advanced in this paper for the identification of the object and purpose, while avoiding the circularity of application of the VCLT articles for its identification. Law as a purposive faculty aims to achieve some objectives by the norms that it creates. In other words, the purpose is a result, which is achieved through the created norms. The interconnection between the purpose and the norm, thus, suggests that the starting point for identification of the purpose should be analysing the legal nature of the norm.

IV. Object and Purpose; Reconsidered The VCLT system of interpretation is based on making a distinction between elements of interpretation that have an authentic and binding character in themselves from those which lack that quality, such as preparatory work and the circumstances of conclusion. The elements, listed in Article 31, establish the primary criteria for interpreting a treaty because they all have ‘obligatory character’.56 Because of its nonbinding character, even the clear intention of the parties recorded in the preparatory work is considered under Article 32 as the supplementary means of interpretation. This suggests that not every purpose that can be identified through the well-known sources can be invoked in the process of interpretation because interpretation of terms of the treaty in light of the ‘object and purpose’ that is not anchored in the legal 53

ILC, Reservation to Treaties, supra note 3, at 89.

54

Ibid.

55

Ibid.

56

ILC Draft Articles on the Law of Treaties with Commentaries, supra note 26, at 220.

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system will abolish the underlying rationale of the whole system of interpretation. This aspect is more important for judicial interpretation, which is aimed at discovering rights and obligations rather than inventing them.

A. Anchoring Purpose in Principle Arguments

The famous debate between Hart and Dworkin on, inter alia, the concept of law and discretion may shed light on how adjudicative bodies can decide within the realm of law. Like other positivists, Hart argues for the discretion of judges when there is no rule to regulate a case. Dworkin, however, maintains that positivism’s acceptance of discretion means that a new rule created by a judge is applied to the parties in the case, which is ‘ex post facto legislation, not the enforcement of an existing obligation.’57 Dworkin’s theory on principle is developed by criticising positivism’s basic tenet that holds that ‘a legal obligation exists when (and only when) an established rule of law imposes such an obligation.’58 By abandoning this doctrine, Dworkin treats principles as law and raises the possibility that a legal obligation might be imposed by a constellation of principles as well as by an established rule.59 In this way, Dworkin argues that even when no settled rule disposes of the case, ‘one party may nevertheless have a right to win.’60 The difference between legal principles and legal rules, according to Dworkin, is ‘a logical distinction’, in a way that while both sets of standards ‘point to particular decisions about legal obligation in particular circumstance […] they differ in the character of the direction they give.’61 Dworkin considers rules as an ‘all-or-nothing’62 standard, so that when a valid rule applies in a given case, it is con-

57

Ronald Dworkin, ‘The Model of Rules’, 35(1) University of Chicago Law Review (1967) 14, at 45.

Ibid. It is worth mentioning that Hart, in the postscript, writes that his lack of emphasis on the ‘non-conclusive force’ of principle is not meant that ‘legal systems comprise only ‘all or nothing’ standards or near conclusive rules.’, H.L.A. Hart, The Concept of Law (1994), at 263. 58

59

Dworkin, supra note 57, at 45.

60

Dworkin, supra note 7, at 81.

61

Dworkin, supra note 57, at 25.

62

Ibid.

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clusive. Due to this reason, Dworkin maintains that rules cannot conflict, because if they do, one of them cannot be a valid rule.63 By contrast, principles ‘do not set out legal consequences that follow automatically when the conditions provided are met.’64 Moreover, they do not even set out ‘conditions that make its application necessary’, rather they provide ‘reason that argues in one direction, but does not necessitate a particular decision.’65 Therefore, it is possible to have two conflicting principles providing different reasons while both are valid. Dworkin gives the example of a principle like ‘[n]o man may profit from his own wrong’ that says nothing about the necessary conditions of its application. However, if a man has or is about to receive something, as a direct result of something illegal he did to get it, then the reason that is provided by this principle will be taken into account in deciding whether he should keep it.66 Policies may also provide reasons in one direction without necessitating a particular decision and thus in this respect are similar to principles. However, the reasons that a legal principle provides are different from the reasons that policy offers. Policy arguments, according to Dworkin, justify a political decision by showing that the decision advances or protects some collective goal of the community as a whole, but arguments of principle justify a decision by showing that the decision not only respects or secures some individual or group rights,67 but also ‘it is a requirement of justice or fairness or some other dimension of morality.’68 Thus, while a legislature does not need reasons of principles to justify the rules it enacts, and it can justify its decision to create new rights for the future by showing how these will contribute, as a matter of sound policy, to the overall good of the community as a whole,69 judges are in a very different position from legislators:

Thus, Dworkin continues that ‘The decision as to which is valid, and which must be abandoned or recast, must be made by appealing to considerations beyond the rules themselves.’ Ibid., at 27. 63

64

Ibid., at 25.

65

Ibid., at 26.

66

Ibid.

67

Dworkin, supra note 7, at 82-84.

68

Dworkin, supra note 57, at 23.

69

Dworkin, supra note 9, at 243.

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It does not fit the character of a community of principle that a judge should have authority to hold people liable […] for acting in a way he concede they had no legal duty not to act … Judges must make their […] decisions on grounds or principle, not policy: they must deploy arguments why the parties actually had the ‘novel’ legal rights and duties they enforce at the time the parties acted or at some other pertinent time in the past.70

Recourse to general policies for determining the meaning of rules is ignoring the distinction between adjudication and law-making. Adjudicative bodies cannot put themselves into the shoes of the State parties and create new laws on the basis of policy considerations. Judges cannot act arbitrarily in any way by deciding cases according to their own personal preferences, but that their duty is and remains to apply the law and ‘to act on the reasons provided by the law and not on reasons excluded by judicial duty or the law’s standards.’71 They have to discover the rights and obligations of the parties by reference to legal rules and principles, and, therefore, respect the crucial distinction between the decisions of legislators and adjudicators. By adhering to the idea that law provides reasons for actions and exclude consideration of other reasons, the legitimacy of interpretation depends on respect for the reasons provided by law.72 This would suggest that only principle arguments should be invoked in the process of interpretation, in general, and determining the object and purpose, in particular. The question, however, remains as to how the purpose within the legal realm can be identified. This part is an effort to provide an answer to such a demand along two interrelated arguments. First, contrary to the mainstream perception among international law scholars to treat ‘object and purpose’ as denoting one single notion, it will be argued that the nature of a rule, or its object, is an important element in determining the purpose that it aims to serve. In talking about the object of a rule, however, our reflection has to go beyond the mere subject matter of a rule because such a categorisation will be misleading. A treaty on, say, maritime transport of chemicals, relates at least to the law of the sea, environmental law, trade law, and the law of maritime transport. Privileging subject matter gives rise to a problem of what is

70

Ibid., at 244.

71

Steven J. Burton, Judging in Good Faith (1992), at 36-37.

72

Ibid., at xii.

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described by Julian Arato as ‘branding’.73 The deeper problem of limiting the object to subject-matter is that it ultimately cannot capture much of the legal significance of a norm and provides us with a little help in determining the purpose within legal principles. Second, it will be argued that the perspective or the reasons for paying attention to a rule and the subsequent question that will be posed give a specific vantage point that may affect the identification of purpose. The determination of purpose is relative to what we can predict, what we believe and the situation we find ourselves in. This limitation of our predictive faculty not only explains why determining the object and purpose of a treaty in general seems difficult, but also why we need to adhere to the notion of ‘emergent purpose’.

B. ‘Not One, Not Two’

The title of this part is derived from Japanese Zen philosophy, which, in cherishing simplicity and straightforwardness in grasping reality, maintains a stance of ‘not one’ and ‘not two’. In this philosophy ‘not two’ signals a negation of the stance that divides the whole into two parts, i.e., dualism, while ‘not one’ designates a negation of this stance when one dwells in the whole as one, i.e., non-dualism. It is believed that free and bilateral movement between ‘not one’ and ‘not two’ is the necessary element to achieve a third perspective that cannot, however, be confined to either dualism or non-dualism.74 It will be argued that the nature of the object and purpose can be better explained if we look at this concept through the insight of ‘not one, not two’; to see that the nature of a rule is important for knowing its purpose, and the purpose of the rule also has a role to play in knowing the nature of the rule. Such an understanding explains better why these terms are usually used together. Richard Gardiner, in his book on Treaty Interpretation, argues that the difficulty in English to distinguish between ‘object’ and ‘purpose’ may be the reason why ‘these words are commonly treated as a composite item when referring to their use in the Vienna rules’.75 A similar idea is advocated by Linderfalk, who argues that determin73 Julian Arato, ‘Accounting for Difference in Treaty Interpretation Over Time’, in Andrea Bianchi, Daniel Peat, and Matthew Windsor (eds.), Interpretation in International Law (2015) 205, at 211.

Shigenori Nagatomo, ‘Japanese Zen Buddhist Philosophy’, in Edward N. Zalta (ed.), The Stanford Encyclopedia of Philosophy (2016). 74

75

Richard Gardiner, Treaty Interpretation (2015), at 191.

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ing the content of these two terms is ‘purely semantic’, notwithstanding the fact that reading different articles in the VCLT, such as Article 60, implies that ‘object and purpose are two different things’.76 This practical standpoint needs to be contrasted with the approach taken by some French-speaking scholars who regard the object and purpose as two distinctive notions. The most elaborated treatment of this distinction can be found in the approach proposed by Jean Paul Jacqué stating that: L’objet d’un acte réside dans les droits et obligations auxquels il donne naissance. L’objet d’un acte c’est donc la norme qu’il crée. Lorsque la Cour veut définir l’objet d’un traité, elle analyse le contenu de celui-ci, c’est à dire les obligations qu’il crée à la charge des parties et les droits qu’il leur confère. Si l’objet d’un acte est toujours une norme, chaque acte se caractérise par le contenu de la norme qu’il crée. Cependant les droits et obligations crées par l’acte ne constituent pas une fin en eux-mêmes. Ils ne sont que le moyen d’atteindre un résultat donné. Et c’est le résultat qui forme, pour le ou les auteurs de l’acte, le but recherché.77

In this way, the term ‘object’ refers to the rights and obligations that are created by a norm, while the purpose is the overall result that a norm is aimed to achieve. The object is at the service of the purpose pursued, and therefore, its scope and meaning may be changed by the purpose identified. On the other hand, the purpose is a result which can only be achieved through the created norms, and, thus, the nature of the norm affects the purpose. As ‘the interpretation of “object” will necessarily affect that of “purpose”, and reverse’, Maarten Bos maintains that the expression ‘the object and purpose’ should be considered ‘as a unitary one reflecting two closely interrelated aspects of a single idea.’78 This is true to some extent, but to adhere to the idea of ‘not one, not two’ can better explain the interplay between the object and purpose. Alain Pellet rejects such a distinction on two bases. First, as quoting Gérard Teboul, he conceives that ‘th[is] question cannot be settled by reference to international jurisprudence’.79 And second, he considers this approach incapable of reflecting the theory of emergent purpose, since neither the object nor the purpose remains im76

Linderfalk, supra note 28, at 208-210.

Jean-Paul Jacqué, Éléments pour une théorie de l’acte juridique en droit international public (1972), at 142; mentioned by Buffard and Zemanek, supra note 4, at 326. 77

Maarten Bos, ‘Theory and Practice of Treaty Interpretation’, 27(2) Netherlands International Law Review (1980) 135, at 150. 78

79

ILC, reservation to Treaties, supra note 3, at 83.

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mutable over time.80 These two objections will be studied in what follows to demonstrate that, on the one hand, the interplay between the object and purpose can be tracked in the international jurisprudence; and, on the other hand, the interplay between the object and purpose creates rooms for the concept of emergent purpose.

1. International Jurisprudence While a thorough analysis of the nature of rules goes beyond the scope of this paper,81 reviewing the interpretive practice of the adjudicative bodies demonstrates the important role such analysis has played in the interpretive outcome. For example, the ICJ in the Frontier Dispute between El Salvador and Honduras had to decide whether the existence of a valid link of jurisdiction between the would-be intervener, Nicaragua, and the parties to a case is a requirement for the success of the application. To answer this question, the Court analyses the legal nature and the purpose of intervention. As an incidental proceeding to an on-going case, the Court holds that intervention cannot transform that case into a different case with different parties.82 This incidental proceeding is for the purpose of protecting a State’s ‘interest of a legal nature’ that may be affected by a decision in an existing case already established between other States, and ‘not to enable a third State to take on a new case, to become a new party, and so have its own claims adjudicated by the Court.’83 In light of these analyses the Court concludes: It thus follows also from the juridical nature and from the purposes of intervention that the existence of a valid link of jurisdiction between the would-be intervener and the parties is not a requirement for the success of the application. On the contrary, the procedure of

80

Ibid.

For example, norms can be studied by consideration of their ‘form’ using the Hohfeldian analytical system determining whether rights are a privilege, a claim, power, or immunity; or they can be studied by their ‘normative force’ to determine whether the norms are first-order reasons, exclusionary reasons or serve as conclusive reasons. See Leif Wenar, ‘Rights’, in Edward N. Zalta (ed.), The Stanford Encyclopedia of Philosophy (2015). 81

ICJ, Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Application by Nicaragua for permission to intervene, Judgment, 13 September 1990, ICJ Reports 1990, 92, at 98. 82

83

Ibid., at 97.

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intervention is to ensure that a State with possibly affected interests may be permitted to intervene even though there is no jurisdictional link and it therefore cannot become a party.84

Likewise, in the Golder case, the European Court of Human Rights (ECtHR) determined the implications of the right to a fair trial first by determining the nature of the right,85 and then its purpose, which was to crystalise the rule of law.86 Determining the content of the ‘rule of law’ through general principles of law,87 subsequently, affected the scope of the rule. The Court’s conclusion that the right of access to courts constitutes an element which was inherent in the right stated by Article 6(1) and that such an interpretation was not an extensive interpretation forcing new obligations on the contracting States,88 was nothing but the result of the interplay between the object and the purpose of the rule. The nature of the rule provides the proper grounds for identification of the purpose within legal principles, and the purpose shed light on the object of the rule. Interestingly, the only dissenting opinion raised against the judgment was based on policy arguments. Sir Gerald Fitzmaurice argued that the European Convention has a special character, unlike any other treaty in the same field, because it is ‘making heavy inroads on some of the most cherished preserves of governments in the sphere of their domestic jurisdiction or domaine réservé’, through its enforcement mechanism. The enforcement of the Convention, however, according to him, depends largely on ‘the agreement – and indeed the continuing support – of governments’.89 For Fitzmaurice considerations like hesitations of governments to become parties to the European Convention, or accepting the compulsory jurisdiction of the Court, or even their delays in subscribing to the right of individual petition,90 demanded, […] a cautious and conservative interpretation, particularly as regards any provisions the meaning of which may be uncertain, and where extensive constructions might have the

84

Ibid., at 100.

ECtHR, Chamber, Golder v. the United Kingdom, Appl. No. 4451/70, Judgment, 21 February 1975, at 28. 85

86

Ibid., at 34.

87

Ibid., at 35.

88

Ibid., at 36.

89

Ibid., Separate Opinion of Sir Gerald Fitzmaurice, at 38.

90

Ibid.

396 GERMAN YEARBOOK OF INTERNATIONAL LAW 61 @ 2018 effect of imposing upon the contracting States obligations they had not really meant to assume, or would not have understood themselves to be assuming.91

Fitzmaurice described the lack of explicit reference to the right to access to courts as ‘what it would not be unfair to call a deliberate policy on the part of governments of avoiding coming to grips with the question of access [to courts]’.92 But even if such a policy exists, it cannot be invoked to determine the rights and obligations of the parties to a particular dispute. Policy arguments often rest on assumptions about the nature and intensity of the different demands and concerns distributed throughout the community. These assumptions may make the interpretive approach to systematically favor the interests of one of the disputing parties. On the contrary, as Dworkin has emphasised: […] an argument of principle fixes on some intersect presented by the proponent of the right it describes, an interest alleged to be of such character as to make irrelevant the fine discriminations of any argument of policy that might oppose it.93

The interplay between the object and purpose can be also seen in the Belgian Linguistic94 case decided by the ECtHR in order to determine, inter alia, whether Article 2 1952 Protocol to the Convention imposed positive obligations on member States in regard to the right to education. For this purpose, the Court initially determined the nature of the norm provided by Article 2 and held that although the phrase ‘no person shall be denied the right to education’ was formulated in negative terms, however, the purpose of the Protocol left no doubt that Article 2 ‘does enshrine a right’, and as a right, ‘it is secured, by virtue of Article 1 […] of the Convention, to everyone within the jurisdiction of a Contracting State.’95 The Court, then, started to analyse the content and the scope of this right in light of its purpose. Noting that all member States at the time of the opening of the Protocol to their signature possessed a general and official educational system, the Court held that in this context the objective of such a right was not to require ‘each State to establish such a system but merely of guaranteeing to persons subject to the jurisdiction of the Contracting Parties 91

Ibid., at 39.

92

Ibid., at 45.

93

Dworkin, supra note 7, at 85.

ECtHR, Case relating to certain aspects of the laws on the use of languages in education in Belgium, Appl. No. 1474/62 et al., Merits, Judgment, 23 July 1968. 94

95

Ibid., 27, at para. 3.

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397

the right, in principle, to avail themselves of the means of instruction existing at a given time.’96 The right of access to educational institutions existing at a given time, however, in the opinion of the Court, is only a part of the right to education, because, For the ‘right to education’ to be effective, it is further necessary that, inter alia, the individual who is the beneficiary should have the possibility of drawing profit from the education received, that is to say, the right to obtain, in conformity with the rules in force in each State, and in one form or another, official recognition of the studies which he has completed.97

The Court, by relying on the purpose of the Convention, held that although the very nature of a right to education calls for regulation by the states, ‘such regulation must never injure the substance of the right to education nor conflict with other rights enshrined in the Convention’:98 The Court considers that the general aim set for themselves by the Contracting Parties through the medium of the European Convention on Human Rights, was to provide effective protection of fundamental human rights, and this, without doubt not only because of the historical context in which the Convention was concluded, but also of the social and technical developments in our age which offer to States considerable possibilities for regulating the exercise of these rights. The Convention therefore implies a just balance between the protection of the general interest of the Community and the respect due to fundamental human rights while attaching particular importance to the latter.99

As can be seen here, the object, or in other words the rights and obligations that are created by the norm, is at the service of the purpose pursued, and therefore its scope and meaning may be changed by the purpose identified. On the other hand, the purpose is a result which can only be achieved through the created norms, and, thus, the nature of the norm contributes to the identification and the scope of the purpose. And this is why we need to consider the object and purpose as ‘not one, not two’.

2. The Emergent Purpose As discussed earlier, in the absence of any guidance on how to determine the purpose in the VCLT, the international law scholars have mainly focused on different 96

Ibid., 28, at para. 3.

97

Ibid., 28, at para. 4.

98

Ibid., 28, at para. 5.

99

Ibid.

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sources that may help interpreters in inferring the purpose, such as the terms of the treaty, the title and the preamble, the subsequent practice of the parties, the preparatory work, and the circumstances of its conclusion.100 While the value of sources in the process of identification of the purpose should not be underestimated, without consideration of the question that has arisen from the new facts that call for interpretation, the purpose remains indeterminate. This is because the reasons for paying attention to a text provide a perspective through which the identification of purpose becomes possible. In other words, the question that is raised by a new case provides a vantage point for determining or re-determining the purpose of a rule. Such a determination, however, remains relative to the perspective arisen from the case and the knowledge of interpreters in a given time; to put it another way, it will be relative to the situation the interpreters are in. The recognition of the interaction between new facts and the purpose is nothing new in international law. The first formulation of the possible changes in the initial purpose of a treaty can be found in the Harvard draft rules on the law of treaties. For this purpose, first, the commentary on the draft rule on interpretation rejects the possibility of absolute reliance on the intention of the parties to determine the purpose of a treaty, because: The problem which often gives rise to disputes as to the application and interpretation of a treaty is the very one which was not foreseen by the parties when they drafted the instrument, or which, if it was foreseen, was in effect left unsolved because no definite solution could be mutually agreed upon. In such cases it is patently artificial to refer to a particular solution as embodying the ‘intention of the parties’ […].101

The draft article envisages that in these cases, accounts should be taken of other elements than any specific intent of the parties, among which,102 are the conditions prevailing at the time the interpretation is being made, and its impact on the purpose of a treaty. In this regard, the draft article emphasises that: […] the task of the interpreter is to give a treaty the interpretation which will effectuate the purpose thereof under current conditions. If, for example, the purpose of a treaty is to prevent smuggling across the border, it may well be that an interpretation thereof which would achieve that purpose in 1800 would not do so in 1934 with the now existing means 100

ILC Guide on Reservations, supra note 6, Part Two, Guideline 3.1.5.1.

101

Harvard Draft Convention, supra note 4, Art. 19(a), at 953.

These considerations include: The historical background of the treaty, travaux préparatoires, the circumstances of the parties at the time the treaty was entered into, and the change in these circumstances sought to be effected. Ibid. 102

INTERPRETATION IN LIGHT OF WHICH ‘OBJECT AND PURPOSE’?

399

of rapid transportation, aerial travel, etc. This is not, of course, to imply that the interpreter is authorized to alter a treaty to meet new and changed conditions; it does mean, however, that the interpreter must consider the effect which his interpretation will produce under current conditions and decide if that effect will be harmonious with the purpose behind the treaty.103

This approach is further developed by Fitzmaurice who maintains that ‘the notion of object and purpose is itself not a fixed and static one, but is liable to change or rather to develop as experience is gained in the operation and working of the convention.’104 These new objectives, which Fitzmaurice calls ‘emergent purpose’, will supersede or override the intentions of the original framers ‘in order to give effect to the “true” purpose.’105 Likewise, Judge Azevedo, in his dissenting opinion in the case of Competence of the General Assembly, held that ‘[t]he Charter is a means and not an end. To comply with its aims one must seek the methods of interpretation most likely to serve the natural evolution of the needs of mankind’.106 Because of statements like this, Jacobs believes that the objects and purposes, which determine the true interpretation of a treaty, may be those which can be found to exist at the time of interpretation, not at the time of its conclusion.107 Most scholars, however, accept a limited form of emergent purpose. For example, Orakhelashvili criticises the doctrine of ‘emergent purpose’ as the extreme form of the teleological school, because it may assign a different purpose to a treaty than what may be presumed to be the original purpose.108 Nevertheless, he accepts changes in the purpose if it is not shown that State-parties had intended to have the object and purpose of their treaty fixed in time.109 Linderfalk follows the same approach and writes that ‘provided it can be shown that the thing interpreted is a generic referring expression with a referent assumed by the parties to be alterable’, the purpose of a treaty is determined based upon the intentions held by the parties at the time of 103

Ibid., at 970.

104

Gerald Fitzmaurice, The Law and Procedure of the International Court of Justice (1993), at 208.

105

Ibid., at 8, footnote 2.

ICJ, Competence of Assembly regarding admission to the United Nations, Advisory Opinion, 3 March 1950, ICJ Reports 1950, 4, Dissenting Opinion of M. Azevedo, at 23. 106

107

Jacobs, supra note 29, at 320.

108

Orakhelashvili, supra note 21, at 343.

109

Ibid., at 344.

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interpretation.110 But what is presumed to be the original purpose is nothing but the construction of the purpose by an interpreter through consideration of the relevant factors at a specific time. Norms usually serve different purposes and choosing one purpose among others cannot be done without consideration of the questions arising from the facts. Our inability to predict what will happen in future, to predict in advance all the scenarios to which the norm will be applied, were among reasons that caused the Special Rapporteur on reservation to treaties, to make in the draft article on determination of object and purpose, an explicit reference to the subsequent practice of the parties for emphasising on ‘the possibility that the object and purpose of the treaty will evolve over time.’111 The emergent purpose can be also justified relying on Dworkin’s theory on principles. As principles provide reasons for making certain decisions, but are not necessarily conclusive, it is possible to have two conflicting principles providing different reasons while both are valid. This is due to the second difference between principles and rules. Dworkin argues that principles have the dimension of ‘weight or importance’, and in case of conflict, one who must resolve the conflict has to take into account ‘the relative weight of each.’112 This weight or importance originates from the fact that the validity of principles does not derive from a decision of some legislature or court, rather ‘[t]he origin of these as legal principles lies […] in a sense of appropriateness developed in the profession and the public over time.’113 Thus, the importance of a principle may change over time, as he explains: Their continued power depends upon this sense being sustained. If it no longer seemed unfair to allow people to profit by their wrongs, or fair to place special burdens upon oligopolies that manufacture potentially dangerous machines, these principles would no longer play much role in new cases, even if they had never been overruled or repealed.114

110

Linderfalk, supra note 28, at 228. Rule 15 (4).

111

ILC, Reservation to Treaties, supra note 3, at 91-92.

Dworkin, supra note 57, at 27. For further discussion on this issue, see Scott J. Shapiro, ‘The “Hart-Dworkin” Debate: A Short Guide for the Perplexed’, in Arthur Ripstein (ed.), Ronald Dworkin (2012) 22. 112

113

Dworkin, supra note 57, at 40.

114

Ibid.

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401

V. Conclusion This article aims to provide a new understanding of the notion of ‘object and purpose’ on the basis of theory and practice in order to overcome some challenges and inconsistencies that exists in interpretive practice. It argues that without understanding the nature of a rule, its purpose cannot be properly identified, especially if the purpose is to be anchored in legal principles. It is argued that the concept of object and purpose is not referring to one or two separate concepts. Rather, there is a continuous interplay between the object of a rule and its purpose in a way that the nature of a rule contributes to the identification of its purpose, and the purpose thus identified contributes to the redetermination of the scope of a rule. Of course, rules serve many different purposes but the judges, in line with their duty to act within the framework of law, can rely upon only those purposes that are based on principle arguments.115 The judicial duty to uphold the law will remain even when the law is indeterminate because ‘[judges] are legally constrained even then to weight the legal reasons and only the legal reasons.’116 Moreover, such a duty requires the judges to respect the law as providing ‘exclusionary reasons’117 and to limit their reasons to those provided by law including legal principles and standards. This is what the ICS Inspection Tribunal emphasised: The Tribunal cannot therefore create exceptions to treaty rules [of interpretation] where these are merely based upon as assessment of the wisdom of the policy in question, having no basis in either the treaty text or in any supplementary interpretative source, however desirable such policy consideration might be seen to be in the abstract.118

115

Burton, supra note 71, at xii.

Ibid., at 36-37. These legal reasons, according to Burton, not only comprises different rules, but also legal principles, and all other relevant standards that are capable of generating legal reasons should be considered and weighted by judges. Ibid., at 80. 116

The nature of reasons that a rule provides has been examined thoroughly by Joseph Raz in his important work on Practical Reason and Norms. Raz argues that rules are not only first-order reasons prescribing action, but since the rules require that their subjects perform the prescribed act, disregarding other relevant considerations, they are also exclusionary reasons, meaning that they do not have to compete with most of other reasons, otherwise, ‘these rules would not serve their purpose’, Joseph Raz, Practical Reason and Norms (1990), in particular at 62 and 79. 117

Permanent Court of Arbitration (PCA), ICS Inspection and Control Services Limited (United Kingdom) v. The Republic of Argentina, Award on Jurisdiction, 10 February 2012, PCA Case No. 201009, 88, at para. 267. 118

Protection of Peacekeepers Resorting to Armed Force – A Current Dilemma SOPHIE PAPADILERIS(

ABSTRACT: The protection of peacekeepers and their classification in the categories of international humanitarian law has been a matter of controversy for years. To give peacekeepers some protection, the Safety Convention was established in 1994 and specific protection regulations were included in the Rome Statute of the International Criminal Court in 1998. Nevertheless, neither attacks on peacekeepers nor their (active) involvement in military conflicts have decreased. Therefore, a highly topical dilemma currently occupies the legal department of the United Nations. There are various tasks of peacekeeping operations that are difficult to reconcile. On the one hand, peacekeeping is traditionally achieved through a simple presence in which peacekeepers are not involved in combat operations and are protected as civilians. On the other hand, where peace enforcement involves military coercive means, it may be difficult not to regard the personnel as combatants. The boundaries between these types of mission are fluid. Due to increasingly robust peacekeeping mandates, the question of protection and its legal limits, with regard to possible participation in hostilities, is more acute than ever. KEYWORDS: Peacekeeping Operations, Protection, Safety Convention, Article 8 ICC Statute, Direct Participation in Hostilities, Aggressive Mandate, Self-Defence, Cruz Report

I. Dilemma of Peace Missions in Today's Conflicts For some time now, the news has been regularly flooded with reports of malicious acts on peacekeeping forces. Especially in unstable parts of Africa like Central African Republic, Mali, or Democratic Republic of Congo, violence against United Nations (UN) peacekeeping forces seems to be commonplace.1 In order to improve the The author is legal trainee at the Regional Court Frankfurt am Main. Sincere thanks for his support and extremely helpful remarks go to Prof. Dr. Michael Bothe. (

1 Rick Gladstone, U.N. Peacekeepers Must ‘Not Fear to Use Force’ to Foil Attacks, Report Says, 22 January 2018, available at https://www.nytimes.com/2018/01/22/world/africa/un-peacekeepers-fatalities. html.

404 GERMAN YEARBOOK OF INTERNATIONAL LAW 61 @ 2018

security of UN peacekeepers after a so-called most lethal five-year period for peacekeepers, Lieutenant General (Retired) Carlos Alberto dos Santos Cruz, developed an action plan.2 The Cruz report inter alia recommends improving capacity by equipping and training personnel to operate in today’s high-threat environments and states in an unusually blunt manner that ‘peacekeepers must not fear to use force’ to foil attacks.3 But is that true with regard to the legal protection granted to members of UN peace actions? At first glance, the question of legal protection of peacekeepers especially by international humanitarian law (IHL) seem to be outdated because it has already been the subject of extensive debate with the introduction of the first specific legal framework for prosecuting and condemning attacks on UN personnel, namely the 1994 Convention on the Safety of United Nations and Associated Personnel (Safety Convention)4 and special provisions5 in the Rome Statute of the International Criminal Court (ICC) (ICC Statute).6 However, the issue is highly topical and concerns the legal department of the UN intensively.7 With regard to the Cruz report, the issue is more acute than ever: if the action plan is going to be adopted, a new paradigm shift towards even more robust, even more aggressive peacekeeping is likely. Moreover, the report could significantly increase the use of deadly force by UN peacekeepers.8 The imminent change in peace missions makes it necessary to re-examine the limitations of the special protection regime in the event of (possible) participation in hostilities. 2 Dos Santos Cruz, Improving Security of United Nations Peacekeepers: We need to change the way we are doing our business, 19 December 2017, available at https://peacekeeping.un.org/sites/default/files/ improving_security_of_ united_nations_peacekeepers_report.pdf, at 10. 3

Ibid., Gladstone, supra note 1.

4

Convention on the Safety of United Nations (UN) and Associated Personnel 1994, 2052 UNTS

363.

5 Art. 8(2)(b)(iii), Art. 8(2)(e)(iii) Rome Statute of the International Criminal Court 1998, 2187 UNTS 3 (ICC Statute). 6 Siobhán Wills, ‘The Need for Effective Protection of United Nations Peacekeepers: The Convention on the Safety of United Nations and Associated Personnel’, 10 Human Rights Brief (2003) 26, at 26.

Miguel de Serpa Soares, ‘Keynote Address’, in Fausto Pocar (ed.) The Additional Protocols 40 Years Later: New Conflicts, New Actors New Perspectives, 40th Round Table on Current issues of International Humanitarian Law (Sanremo 7th-9th September 2017) (2018) 26. 7

Gladstone, supra note 1; Marina E. Henke, Robust Mandates and Malicious Acts: Examining the Deadly Link, 21 February 2018, available at https://theglobalobservatory.org/2018/02/mandatesmalicious-acts-examining-deadly-link/. 8

PROTECTION OF PEACEKEEPERS RESORTING TO ARMED FORCE

405

For this purpose, after briefly describing the transformation process of UN peace actions and the linking of the special protection regulations to the protection regime of IHL (I.); the scope of protection as well as existing limitations of these regulations are identified under the focus of the consequences of a possible participation in hostilities (II.). The legal effects of a renewed paradigm shift are analysed by largely isolating political and actual effects, assuming that a paradigm shift leads to increased participation in hostilities and that the peacekeepers’ right to self-defence remains unaffected. It turns out, that it is possible and even probable that a renewed transformation towards aggressive peacekeeping will lead to a loss of protection at the legal level and thus counteract the desired goal of improving actual protection (III.).

A. Conflicts and Peace Actions in Transition

Peacekeeping operations as an element of post-conflict peacebuilding are a particularly important means in a complex system of differentiated, multilateral crisis management.9 With the ongoing change in the character of conflicts, UN peace missions have undergone continuous change.10 Until the end of the 1980’s, peace operations were characterised by the deployment of unarmed military observers or lightly armed blue helmets to secure a fragile peace or ceasefire.11 The peacekeeping forces should – usually with the agreement of the conflict parties – form a neutral buffer between the parties through their presence.12 Since then, peace operations have changed quantitatively and qualitatively.13 Peacekeeping measures are combined with peace Department of Peacekeeping Operations (DPKO), United Nations Peacekeeping Operations, Principles and Guidelines (2008), available at http://www.un.org/en/peacekeeping/documents/capstone_ eng.pdf, at 19; Michael Bothe, ‘Friedenssicherung und Kriegsrecht’ in Wolfgang Graf Vitzthum and Alexander Proelß (eds.), Völkerrecht (7th ed., 2016) 591, at paras. 34, 36. 9

Silja Vöneky and Rüdiger Wolfrum, ‘Die Reform der Friedensmissionen der Vereinten Nationen und ihre Umsetzung nach deutschem Verfassungsrecht’, 62 Heidelberg Journal of International Law (2002) 569, at 574; Michaela Schneider-Enk, Der völkerrechtliche Schutz humanitärer Helfer in bewaffneten Konflikten: Die Sicherheit des Hilfspersonals und die „neuen“ Konflikte (2008), at 17. 10

Michael Bothe, ‘Peace-Keeping’, in Bruno Simma (ed.) The Charter of the United Nations, A Commentary (3rd ed. 2012) 1171, at paras. 21 et seq. 11

12

Ibid.

With an overview of the peacekeeping ‘generations’, see Zentrum für Internationale Friedenseinsätze, Glossar Friedenseinsätze (2nd ed. 2014), available at http://www.zif-berlin.org/fileadmin/uploads/ analyse/ dokumente/veroeffentlichungen/ZIF_Glossar.pdf, at 19. 13

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consolidation measures to form complex missions which are constantly extended by new measures.14 Since 1990, the granting of robust mandates has become a regular practice.15 The use of armed force (in the sense of active self-defence) may also be used to defend the mandate.16 Even the complete temporary takeover of an administration area can be included in the mandate.17 The continuous expansion of functions is also accompanied by an increase in the use of armed force. In classical missions, arms were only carried for self-defence in the narrower sense.18 With the extensive interpretation of the active right of self-defence in the context of robust mandates,19 the boundaries between peace-building, peacekeeping and peace enforcement are blurred.20 This is being illustrated by the operations in the Democratic Republic of Congo and Mali, known under the acronyms MONUSCO (Mission de l'Organisation des Nations unies pour la stabilisation en République démocratique du Congo) and MINUSMA (United Nations Multidimensional Integrated Stabilization Mission in Mali), in which intervention brigades were added to a blue helmet mission for the first time.21

B. Interlinking of Protection Rules with IHL

Due to the risky interaction in complex and dangerous environments, attacks on peacekeepers as well as their (active) involvement in military conflicts have increased.22 While in traditional situations it was appropriate and sufficient to grant the blue helmets the status of civilians and thus protect them, in times of robust or even 14

Vöneky and Wolfrum, supra note 10, at 575.

Dieter Fleck, ‘The Legal Status of Personnel involved in United Nations Peace Operations’, 95 International Review of the Red Cross (IRRC) (2013) 613, at 626. 15

16 UN Security Council (UNSC), UN General Assembly (UNGA), UN Doc. A/55/305-S/2000/ 809, 21 August 2000, at paras. 48-64; DPKO, supra note 9, at 34. 17

Bothe, Friedenssicherung, supra note 9, at para. 37.

Daniel Sigloch, Auslandseinsätze der Bundeswehr, Verfassungsrechtliche Möglichkeiten und Grenzen (2006), at 259. 18

Christopher Greenwood, ‘Protection of Peacekeepers: The Legal Regime’, 7 Duke Journal of Comparative & International Law (DJIL) (1996) 185, at 198. 19

20

DPKO, supra note 9, at 18.

21

Andreas von Arnauld, Völkerrecht (3rd ed. 2016), at para. 1059.

22

Dos Santos Cruz, supra note 2, at 1, 9.

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‘aggressive’ mandates it is increasingly difficult not to regard them as combatants. This dilemma is reflected in the scope of protection of the specific protective provisions and can only be adequately analysed by understanding the relationship between the regulations. The protection provided by the Safety Convention and the ICC Statute is largely dependent on whether peacekeepers are entitled to protection given to civilians or whether they have to be qualified as combatants.23 The applicability of these rules and the scope of their protection are therefore significantly determined by the peacekeepers’ status according to IHL. Apart from that, the protective provisions themselves provide new benchmarks in the ongoing debate on the classification of peacekeepers into the categories of IHL.

1. General Applicability of IHL to UN Personnel Although the approach to third and fourth generation peacekeeping operations has raised new questions about the use of force by blue helmets and has sparked a debate on the applicability of IHL to peacekeeping missions,24 it ought to be clear that IHL is in principle also applicable to UN personnel. Yet unlike the UN, the International Committee of the Red Cross (ICRC) has demanded the applicability of IHL since the first Peacekeeping Operation as soon as troops used armed force.25 According to the UN, the personnel must only respect ‘the principles and spirit’ of IHL.26 Later, the ‘fundamental principles and rules’ of IHL were said to be applicable.27 Although the UN itself is not a member of IHL treaties, relevant rules of international law nevertheless bind and entitle the organisation as a subject of inter23 Evan T. Bloom, ‘Protecting Peacekeepers: The Convention on the Safety of United Nations and Associated Personnel’, 89 The American Journal of International Law (1995) 621, at 624; Ola Engdahl, ‘Prosecution of Attacks against Peacekeepers in International Courts and Tribunals’, 51 Military Law and the Law of War Review (2012) 249, at 252. 24 Ben F. Klappe, ‘The Law of International Peace Operations’ in Dieter Fleck (ed.), The Handbook of International Humanitarian Law (3rd ed. 2013) 611, at para. 1308.

E.g. Antoine Bouvier, ‘“Convention on the Safety of United Nations and Associated Personnel”: Presentation and analysis’, 77 IRRC (1995) 638, at 651. 25

26 Model Agreement between the United Nations and Member States Contributing Personnel and Equipment to United Nations Peace-Keeping Operations, UN Doc. A/46/185, 23 May 1991, at para. 28. 27 UN Secretary General, Model Agreement between the United Nations and Member States Contributing Personnel and Equipment to United Nations Peacekeeping Operations, Report of the Secretary General, UN Doc. ST/SGB/1999/13, 6 August 1999, at para. 1.1.

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national law.28 As UN bodies, the peacekeeping forces must observe, and can only rely on, the customary IHL.29

2. Protection of Peacekeepers Through IHL – General Status Qualification As IHL can also yield protective effects for UN troops, there is the question how the status of UN peacekeeping personnel pursuant to IHL is to be evaluated in principle. In international armed conflicts IHL distinguishes between combatants and civilians (leaving aside the non-combatant members of armed forces).30 Combatants may be targeted by attacks, but they have the right to perform acts harmful to the enemy and to become prisoners of war in the case of their capture.31 The protection of the civilian population is a central principle of IHL and the prohibition of attacks against the civilian population pursuant to Article 51 Additional Protocol I (AP I)32 is customary law.33 This protection against targeted attacks is lost if and as long as a civilian takes directly part in hostilities.34

International Court of Justice (ICJ), Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, 11 April 1949, ICJ Reports 1949, 174, at 180; Bothe, Friedenssicherung, supra note 9, at para. 38. 28

Christopher Greenwood, ‘International Humanitarian Law and United Nations Military Operations’, 1 Yearbook of International Humanitarian Law (1998) 3, at 16; Michael Bothe and Thomas Dörschel ‘The UN Peacekeeping Experience’, in Dieter Fleck (ed.), The Handbook of the Law of Visiting Forces (2001) 487, at 500. 29

30

E.g. Knut Ipsen, Völkerrecht (6th ed. 2014), at 1210 et seq.

31

Bothe, Friedenssicherung, supra note 9, at para. 66.

Protocol I to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of international armed conflict (Protocol I) (AP I) 1977, 1125 UNTS 3. 32

33

E.g. Stephan Hobe, Einführung in das Völkerrecht (10th ed. 2014), at 545.

Common Art. 3(1) Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field 1949, 75 UNTS 31; Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea 1949, 75 UNTS 85; Geneva Convention Relative to the Treatment of Prisoners of War 1949, 75 UNTS 135; Geneva Convention Relative to the Protection of Civilian Persons in Time of War 1949, 75 UNTS 287; Art. 51(3) AP I; Art. 13(3) Protocol II to the Geneva Conventions of 12 August 1949 and relating to the protection of victims of non-international armed conflicts (Protocol II) 1977, 1125 UNTS 609. 34

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The qualification of UN personnel under these categories has been debated for years and has already preoccupied various courts. For instance, the Special Court for Sierra Leone (SCSL) apparently classified peacekeeping personnel as civilians in the RUF case.35 The judges found that an intentional attack on peacekeepers constituted a crime under customary international law, a concretisation of the general and fundamental IHL prohibition of attacking civilians and civilian property.36 The International Criminal Tribunal for Rwanda (ICTR) also dealt with the status of UN Blue Helmets in the Bagosora case, in which ten Belgian peacekeepers of the UN Assistance Mission Rwanda (UNAMIR) were captured and killed during the genocide in Rwanda.37 The Court found that UNAMIR troops, as part of a neutral mission, were unarmed during the course of the attack, so they could not be considered combatants.38 The fact that UN personnel were then able to obtain weapons during the course of the attack in order to defend themselves could not alter their status.39 To support this conclusion, reference was made to the Martić case.40 In this case the defence argued that the term civilian does not include persons hors de combat. However, it affirmed that crimes against humanity can also be committed against persons hors de combat.41 While the ICTR did not explicitly address the question of whether peacekeepers are to be regarded as persons hors de combat, the reference to the Martić case raises the question to what extent the Court believes the Belgian soldiers were combatants before they were disarmed.42 However, the Court found that the peacekeepers retained their status as non-combatants because they were taking no active part in the hostilities43 and condemned the crimes as crimes against humanity. The 35 Alice Gadler, ‘The Protection of Peacekeepers and International Criminal Law: Legal Challenges and Broader Protection’, 11 German Law Journal (2010) 585, at 600.

Special Court for Sierra Leone (SCSL), Trial Chamber I, Prosecutor v. Sesay, Kallon, Gbao, Judgement, 2 May 2009, Case No. SCSL-04-15-T, at paras. 68, 215, 218. 36

37

Gadler, supra note 35, at 598.

International Criminal Tribunal for Rwanda (ICTR), Trial Chamber I, Prosecutor v. Bagosora et al., Judgement, 18 December 2008, Case No. ICTR-98-41-T, at paras. 2175 et seq. 38

39

Ibid., at para. 2175.

40

Ibid.

International Criminal Tribunal for the former Yugoslavia (ICTY), Appeals Chamber, Prosecutor v. Martić, Judgement, 8 October 2008, Case No. IT-95-11-A, at paras. 302, 313. 41

42

Engdahl, Prosecution, supra note 23, at 255.

43

ICTR, Prosecutor v. Bagosora et al., supra note 38, at paras. 2239 et seq.

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International Criminal Tribunal for the former Yugoslavia also ruled in the case Karadzić, relating to over 200 military members of the UN Protection Force being taken hostage, that the personnel had not actively participated in hostilities and therefore were protected by common Article 3 Geneva Conventions.44 In addition to these judgments of different courts, the wording of Article 8 ICC Statute contains a decisive argument. If an intentional attack on personnel is a war crime as long as it is entitled to the protection given to civilians under the law of armed conflict, then it clearly indicates that peacekeepers are in principle granted civilian status.45 The ICRC Customary Law Study also uses this phrase in Rule 33.46 Therefore it seems to be recognised that UN peacekeeping units, including military components,47 are as a rule entitled to the general protection of civilians.48 If IHL is applicable to UN personnel, it is the protective aspect of IHL which is relevant in this connection: peacekeepers in armed conflicts deserve to be treated as civilians under IHL and are therefore protected against hostile acts.49 However, more aggressive missions shed doubt on this classification of peacekeepers. They fit less and less into the strict dichotomy of IHL.50 The question of when and under what circumstances UN personnel lose protection as civilians according to IHL or even obtain combatant status especially in robust missions, must therefore be considered anew in the light of the Safety Convention and the ICC Statute.

ICTY, Appeals Chamber, Prosecutor v. Karadzić, Judgement, 24 March 2016, Case No. ICTY95-5/18-T, at para. 5943; de Serpa Soares, supra note 7, at 27. 44

45

Schneider-Enk, supra note 10, at 178.

Jean-Marie Henckaerts and Louise Doswald-Beck, International Committee of the Red Cross, Customary International Humanitarian Law, Volume I: Rules (2009), at 112. 46

Michael Bothe, ‘War Crimes’, in Antonio Cassese (ed.), The Rome Statute of the International Criminal Court: A commentary, Vol. I (2002) 379, at 411; different: Robert Kolb, Gabriele Porretto, and Sylvain Vité, L’application du droit International humanitaire et des droits de l’homme aux organisations internationals: Forces de paix at et administration civiles transitoires (2005), at 182. 47

Greenwood, Regime, supra note 19, at 191; Gadler, supra note 35, at 590; Ola Engdahl, Protection of Personnel in Peace Operations, The Role of the ‘Savety Convention’ against the Background of General International Law (2007), at 117; de Serpa Soares, supra note 7, at 28. 48

49

Gadler, supra note 35, at 590.

Magdalena Pacholska, ‘(Il)Legality of Killing Peacekeepers, The Crime of Attacking Peacekeepers in the Jurisprudence of International Criminal Tribunals’, 13 Journal of International Criminal Justice (2015) 43, at 53. 50

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II. Protection and Legal Restrictions of the ‘Special Protection Rules’ A. Safety Convention

The Safety Convention stipulates that member States shall take all appropriate measures to ensure the safety of UN personnel. It prohibits deliberate attacks on UN and associated personnel and requires State parties to criminalise and prosecute such attacks in their national laws.51 According to the basic idea, the provisions of the Safety Convention and those of IHL should be mutually exclusive.52 The aim was to prevent the Safety Convention from undermining the Geneva Conventions, which, in contradistinction to the Safety Convention, apply equally to all parties to an armed conflict.53 Therefore, the applicability of the Safety Convention is excluded pursuant to Article 2(2) if the operation is a UN operation authorized by the Security Council as an enforcement action under Chapter VII of the Charter of the United Nations in which any of the personnel are engaged as combatants against organized armed forces and to which the law of international armed conflict is applicable.

This exclusion clause, which is a key element in limiting protection in the event of possible participation in hostilities, still poses considerable difficulties in interpretation.

1. Enforcement Action Under Chapter VII UN Charter The exclusion applies to an operation approved by the Security Council in accordance with Chapter VII Charter of the UN (UN Charter)54. Multidimensional measures with peace enforcement elements below the threshold of military force and robust mandates are covered by the clause because they are authorised under Chapter VII UN Charter. In contrast, traditional operations based on Chapter VI or ‘VI ½’ UN Charter, as well as Chapter VIII UN Charter missions, are not excluded from 51

de Serpa Soares, supra note 7, at 29 et seq.

52

Wills, supra note 6, at 28.

53

Ibid.

54

Charter of the United Nations 1945, 15 UNCIO 335.

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the scope of the Convention. In these cases, a parallel applicability of the Convention and of IHL seems possible.55 The term ‘enforcement action’ is neither defined in the Convention nor used uniformly by the UN.56 In principle, ‘enforcement actions’ according to Chapter VII UN Charter can be divided into non-military and military coercive measures.57 The most severe enforcement actions are those that include the use of force.58 Looking at the other characteristics – combatant status and applicability of the law of international armed conflicts – it seems reasonable to conclude that only military measures involving the use of armed force are excluded from the scope of the Safety Convention.59 Both robust mandates and peace enforcement operations include at least by implication the authorisation to use armed force.60 Along with the robust mandate UN operations are permitted to use all necessary means at their disposal including deadly force, to pre-empt, prevent, deter, and/or respond to attacks on civilians within their areas of deployment.61 Since not only peace enforcement but also other peace missions are in practice mandated according to Chapter VII UN Charter, other than merely formal criteria of differentiation must be found.62 Peacekeeping is traditionally based on a concept of consensus and cooperation.63 Even after the expansion of the use of armed force, the three principles – prior consent of all parties involved in the armed conflict, impartiality of the peacekeeping operation and use of force only 55

Schneider-Enk, supra note 10, at 182.

Bloom, supra note 23, at 625; Walter Garry Sharp, ‘Protecting the Avatars of International Peace and Security’, 7 DJIL (1996) 93, at 149; ibid., at 183. 56

57 Tania Bolaños-Enriquez, Anwendung des humanitären Völkerrechts auf militärische Interventionen der Vereinten Nationen in internen bewaffneten Konflikten (2011), at 25 et seq.

Secretary General, An Agenda for Peace, Preventive diplomacy, peacemaking and peacekeeping, Report of the Secretary-General pursuant to the statement adopted by the Summit Meeting of the Security Council on 31 January 1992, UN Doc. A/47/277-S24111, 17 June 1992, at para. 42. 58

59 Daphna Shraga, ‘The Applicability of International Humanitarian Law to United Nations Operations’, in Claude Emanuelli (ed.), Les Casques bleus: policiers ou combattants?/Blue helmets: policemen or combatants? (1997) 17, at 21; Schneider-Enk, supra note 10, at 183. 60

Bolaños-Enriquez, supra note 57, at 27.

Mona Ali Khalil, The world needs robust peacekeeping not aggressive peacekeeping, 15 May 2018, available at http://blogs.icrc.org/law-and-policy/2018/05/15/world-needs-robust-peacekeeping-notaggressive-peacekeep ing/#_ftn3. 61

62 Secretary-General, UNGA, Follow-up to the outcome of the Millennium Summit, UN Doc. A/ 59/565, 2 December 2004, at paras. 211 et seq. 63

Bothe, Friedenssicherung, supra note 9, at para. 39.

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for self-defence – are maintained.64 While robust peacekeeping involves the use of force at a tactical level with the consent of the host country and/or the main parties to the conflict, peace enforcement missions include the authorisation to use armed force at a strategic level.65 An authorisation to use armed force in the sense of a coercive measure therefore only exists in peace enforcement operations. This difficult distinction is made more complicated by the fact that peacekeeping operations are dynamic rather than static. Thus, in the course of changing conflicts, traditional operations have turned into peace enforcement missions,66 while others have developed into hybrid missions67 with peacekeeping and enforcement elements.68 Even if, on a theoretical level, only peace enforcement operations are authorised to use armed force, the distinction is – in view of the ambiguous mandates of the individual missions – hardly possible. The closer peacekeeping approaches peace enforcement in practice, the more likely it is that the protection of the Safety Convention will be lost.

2. Combatant Status of UN Personnel: the ‘Key Restriction Element’ The exclusion clause only applies to personnel ‘engaged as combatants’. The debate on the applicability of IHL to UN peacekeeping operations is being pursued particularly from this point of view of a combatant status. Combatants are members of the armed forces who are entitled to participate directly in hostilities.69 This can only be the case where the UN force acts as a party to the conflict.70 Some argue that it is not 64

DPKO, supra note 9, at 31.

65

Ibid., at 18 et seq.

E.g. operations in Somalia, which developed from UN Operation in Somalia (UNOSOM) I, UNSC Res. 751, 24 April 1992, over Unified Task Force, UNSC Res. 794, 3 December 1992 to UNOSOM II, UNSC Res. 814, 26 March 1993. 66

67 E.g. the permanent expansion of operations in the former Yugoslavia, UN Protection Force, UNSC Res. 743, 21 February 1992. 68

Schneider-Enk, supra note 10, at 178.

69

E.g. Art. 43(2) AP I.

Steven J. Lepper, ‘The Legal Status of Military Personnel in United Nations Peace Operations: One Delegate`s Analysis’, 18 Houston Journal of International Law (1995) 359, at 399; Greenwood, 70

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possible to classify the UN as a conflict party and its personnel as combatants.71 The combatants’ task would be ‘to fight the enemy’. Even if UN personnel were involved in hostilities, this task does not apply to peace units because the UN would face States which are its own members and such States could in no way be regarded as enemies. As representatives and executors of the will of the international community, UN operations should therefore not be deemed parties to a conflict.72 However, there are no rules in IHL that exclude peace units from becoming a party to a conflict from the outset.73 The argument that multinational units cannot become a conflict party must be rejected simply because it would blur the well-established distinction between ius in bello and ius contra bellum.74 The characterisation of UN operations as agents of the international community amounts to a ius ad bellum argument, while the application of IHL is a ius in bello problem. Thus, peace units can in principle become parties to a conflict. Since the term ‘party to the conflict’ is not defined in the treaties, the question arises as to how to determine this status. The formal mandate under Chapter VII UN Charter is in any case neither sufficient nor able to create such status. Even if the risk of the use of armed force is relatively high in these missions, such use does not inevitably occur, nor does it necessarily reach the intensity of an armed conflict. Thus, UN personnel are not automatically turned into combatants.75 A complete exclusion of all Chapter VII UN Charter missions with peace enforcement elements from the protection of the Safety Convention would be illogical, as it would exclude UN personnel

Regime, supra note 19, at 189; others focus on the support of one conflict party, see Geert-Jan Alexander Knoops, ‘The Transposition of Inter-State Selfdefense and the Use of Force onto Operational Mandates for Peace Support Operations’, in Roberta Arnold (ed.), Law Enforcement within the Framework of Peace Support Operations Peace Operations (2008) 3, at 10. 71 Hans-Peter Gasser, ‘Humanitäres Völkerrecht und militärische Operationen der Vereinten Nationen zur Sicherung oder Schaffung des Friedens’, 8 Humanitäres Völkerrecht: Informationsschriften (1995) 72, at 76; Sharp, supra note 56, at 157 et seq.

Willibald Hermsdörfer, ‘Zur Anwendbarkeit des humanitären Völkerrechts bei Einsätzen von Friedenstruppen der Vereinten Nationen’, 40 Neue Zeitschrift für Wehrrecht (1998) 100, at 108. 72

Tristan Ferraro, ‘The applicability and application of international and humanitarian law to multinational forces’, 95 ICRC (2013) 561, at 564. 73

74

Ibid.

75

Lepper, supra note 70, at 399; Knoops, supra note 70, at 7.

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below the threshold of combatant status from the scope of the Convention.76 By contrast, peacekeeping units may be involved in hostilities with another armed force, even if this was not expected at the time of its establishment. Missions that were initially mandated under Chapter VI UN Charter can also become parties to the conflict over time through a dynamic mission transformation as a result of new circumstances.77

a) Actual Use of Force and its Required Intensity In order to be qualifiable as a conflict party, the UN mission must take violent actions against an opponent.78 It is argued that IHL is applicable when UN units are actively engaged in an armed conflict,79 participate in an armed conflict, or become involved in hostilities,80 or in general, as soon as actual armed force is used.81 Although these objective criteria appear similar at first glance, the requirements for the use of force must be examined in more detail, because there are different types and consequences of the use of armed force. Since peace enforcement missions have the authority to use armed force offensively, mission members are to be qualified as combatants whenever they resort to the use of force.82 The quality of the use of armed force which leads to a qualification of a peacekeeping mission as conflict party is, however, much more difficult to determine. First of all, according to the criteria formulated in the Tadić case, a low threshold of violence could already be sufficient for qualifying a situation as an armed conflict.

76

Fleck, ICRC, supra note 15, at 625.

77

Ferraro, Applicability, supra note 73, at 565.

78

Bolaños-Enriquez, supra note 57, at 125.

Shraga, supra note 59, at 30; Brian D. Tittemore, ‘Belligerents in Blue Helmets: Applying International Humanitarian Law to United Nations Peace Operations’, 33 Stanford Journal of International Law (1997) 61, at 109. 79

80

Bothe, War Crimes, supra note 47, at 411; Bothe, Friedenssicherung, supra note 9, at para. 38.

81

Schneider-Enk, supra note 10, at 185.

Otto Triffterer and Kai Ambos (eds.), Rome Statute of the International Criminal Court: a commentary (3rd ed. 2016), Art. 8, at para. 229; Bothe, Friedenssicherung, supra note 9, at para. 38; different: Lepper, supra note 70, at 404; Hermsdörfer, supra note 72, at 108. 82

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Accordingly, an armed conflict exists whenever there is a resort to armed force.83 Thus, IHL would always be applicable when UN units are deployed in armed conflict.84 It is argued that if a higher threshold was adopted, UN units would have a significant military advantage over the parties involved in the conflict. Mission personnel would be allowed to attack members of other armed forces or organised armed groups at any time, while the UN units themselves would only be legitimate targets if they use force more intensively.85 This distinction could undermine the combatants’ privilege and thus the rules of IHL.86 Moreover it is argued that UN units must be actively engaged in an armed conflict in order to justify the applicability of IHL.87 This implies that a higher threshold of the use of force would apply for recognising the status of a conflict party to peace operations.88 For example, this would only be the case if participation in hostilities reached the level of peace enforcement.89 This is supported by the fact that the Safety Convention would lose any scope of application if the ‘Tadić criteria’ were applied. The role of the UN as a representative of the international community and the political desire to keep operations impartial also support this interpretation.90 No similar threshold criterion exists to determine the existence of an armed conflict according to the Geneva Conventions.91 Rather, they apply even in case of a very low level of conflict. In addition, troops may use armed force for self-defence. In such cases, this does not per se mean that the personnel obtain combatant status.92 As Arti83 ICTY, Appeals Chamber, Prosecutor v. Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, Case No. IT-94-I-AR72, at para. 70. 84 Richard Glick, ‘Lip Service to the Laws of War, Humanitarian Law and the United Nations Armed Forces’, 17 Michigan Journal of International Law (1995) 53, at 59, 93. 85

Bolaños-Enriquez, supra note 57, at 127.

86

Glick, supra note 84, at 93.

Shraga, supra note 59, at 30; Tittemore, supra note 79, at 109; Secretary-General‘s Bulletin, Observance by United Nations forces of international humanitarian law, UN Doc. ST/SGB/1999/13, 6 August 1999, at para. 1.1. 87

88 Marten Coenraad Zwanenburg, Accountability under International Humanitarian Law for United Nations and North Atlantik Treaty Organization Peace Support Operations (2004), at 201. 89

Greenwood, Military Operations, supra note 29, at 25.

90

Zwanenburg, supra note 88, at 201.

91

Engdahl, Protection, supra note 48, at 101.

92

Ibid., at 98.

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cle 21 Safety Convention specifically states, ‘nothing in the Convention should be construed so as to derogate from the right to act in self-defence.’ b) Threshold of Permissible Self-Defence Focusing on a purely objective level of force leads to the paradoxical result that the attackers could legalise their attacks against peacekeepers by increasing the size and intensity of their offences. Merciless and relentless attacks could force the personnel to defend themselves with greater use of force.93 However, the concept of self-defence is greatly broadened.94 Whereas classical peacekeeping missions involve the use of force exclusively in self-defence, the use of force is widened in robust peacekeeping and used for both, self-defence and the protection of civilians. In aggressive peacekeeping the use of force is primarily for strategic or political objectives.95 This complicates the distinction between self-defence and a use of force which transforms the peacekeeping operation into combatants. In order to draw the line of distinction and to decide whether or not the UN personnel benefits from the protection given to civilians under IHL, the facts on the ground are decisive.96 Some argue that the intention behind the use of force should play a role besides merely objective criteria.97 Others simply state that IHL should always be applicable when personnel use armed force in the context of self-defence.98 However, selfdefence – even within the framework of robust mandates – against sporadic attacks does not necessarily lead to a situation in which the UN mission becomes a party to the conflict.99 If attacks remain below a certain level of violence, the peacekeepers’ 93

Sharp, supra note 56, at 150.

94

Greenwood, Regime, supra note 19, at 198.

95

Ali Khalil, supra note 61.

Engdahl, Protection, supra note 48, at 102; Sandesh Sivakumaran, ‘War Crimes before the Special Court of Sierra Leone, Child Soldiers, Hostages, Peacekeepers and Collective Punishment’, 8 Journal of International Criminal Justice (2010) 1009, at 1029; Ferraro, Applicability, supra note 73, at 565. 96

97

Engdahl, Protection, supra note 48, at 102.

98

Shraga, supra note 59, at 30.

Robert Kolb, ‘Applicability of international humanitarian law to forces under the command of an international organization’, in ICRC (ed.), Expert Meeting on Multinational Peace Operations. Applicability of International Humanitarian Law and International Human Rights Law to UN Mandated Forces, Geneva, 10-11 December 2003 (2004) 61, at 68. 99

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response is unlikely to reach the threshold of combatant status. The line is crossed where self-defence becomes a general pattern and the units carry out military operations on their own initiative in response to hostilities conducted by the opponent.100 Others want to draw the line where the use of armed force can no longer be considered legitimate under human rights standards.101 To sum up, at some undefined point the actual use of armed force beyond the right of personal self-defence turns the peacekeeping units into parties to the conflict and thus their members into combatants. It seems that the determination is conditioned both by an objective criterion (facts on the ground) and to a certain extent by a subjective criterion.102 The former may include the duration and level of the use of force in the context of the intensity of the conflict.103 The personnel should be allowed to react to attacks with limited force without losing their protected status; however, the right of self-defence must not be used to escape the applicability of IHL.104 If a peace operation is deployed in the context of an armed conflict, specific problems arise. On the one hand, the IHL system requires that all parties to an armed conflict be treated equally. The notion is based on a horizontal relationship between all parties to the conflict. On the other hand, UN units operate on the basis of mandates of the Security Council, which entails a vertical relationship with other subjects of international law.105 Therefore, there is a tension between the requirements of IHL and the ‘police’ functions of military units operating on the basis of UN mandates.106 With regard to the exclusion clause, the Safety Convention remains applicable, if no effective use of armed force happens even where there is a mandate for a coercive measure in accordance with Chapter VII UN Charter. It also remains applicable in the case of the use of armed force in self-defence. If the threshold to a combatant status is exceeded within this framework, the Convention and IHL will apply in parallel.107 100

Ibid.

101

Engdahl, Protection, supra note 48, at 102.

102

Ibid., at 102 et seq.; Zwanenburg, supra note 88, at 201 et seq.

103

Engdahl, Protection, supra note 48, at 103.

104

Ibid., at 102 et seq.

105

Glick, supra note 84, at 59.

106

Engdahl, Protection, supra note 48, at 99.

107

Schneider-Enk, supra note 10, at 186.

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c) Loss of Protection on a Collective Basis Pursuant to the wording of the exclusion clause, the Convention does not apply if any of the personnel act as a combatant. In the event that only part of the operation meets the cumulative requirements, all members of the operation are excluded from protection under the Convention.108 This leads to serious consequences. If only members of the military component become combatants, the applicability of the Safety Convention to all members of the peace operation is ruled out.109 Thus, the civilian members110 of the operation, the associated personnel,111 as well as soldiers, who carry out traditional peacekeeping activities,112 lose the protection of the Convention.113 Until the end of the conflict or at least that of the UN’s involvement in it, only IHL is applicable.114 This requires the UN and the troop contributing States to continuously monitor and evaluate every aspect of the mission in order to become aware of changes in the status of its personnel.115

3. Applicability in Non-International Armed Conflicts As the exclusion clause requires the application of the ‘law of international armed conflict’, the Safety Convention remains applicable if the law of non-international armed conflicts applies.116 The classification of armed conflicts involving multina108

Wills, supra note 6, at 28.

Tracy Fisher, ‘At Risk in No-Man’s Land: United States Peacekeepers, Prisoners of ‘War’, and the Convention on the Safety of United Nations and Associated Personnel’, 85 Minnesota Law Review (2000) 663, at 690. 109

110 M.-Christine Bourloyannis-Vrailas, ‘The Convention on the Safety of United Nations and Associated Personnel’, 44 International and Comparative Law Quarterly (1995) 560, at 568. 111

Fisher, supra note 109, at 690.

Mahnoush Arsanjani, ‘Defending the blue helmets: protection of United Nations personnel’, in Luigi Condorelli (ed.), Les Nations Unies et le droit international humanitaire (1996) 115, at 145 et seq. 112

113

Schneider-Enk, supra note 10, at 185.

114

Lepper, supra note 70, at 410; ibid., at 185.

115

Fisher, supra note 109, at 690 et seq.

Arsanjani, supra note 112, at 143; Greenwood, Regime, supra note 19, at 199; Shraga, supra note 59, at 28; Schneider-Enk, supra note 10, at 187; Engdahl, Protection, supra note 48, at 237. 116

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tional peacekeeping operations and the determination of the rules of IHL has been the subject of much controversy. If multinational peacekeeping missions face government troops, the international character of the conflict is obvious.117 Where the UN is engaged in hostilities in support of the government side against non-State actors the influence on the nature of the conflict is less clear. The Secretary General’s Bulletin can be read as an indication that UN participation always ‘internationalises’ an armed conflict irrespective of the character of the opponent.118 Based on the international character of peacekeeping missions, resulting from international policy and mandates, some authors argue that conflicts between UN personnel and local forces always trigger the application of the law of international armed conflict.119 This position does not consider the non-State component of the conflict and thus disregards the fact that the legal classification of armed conflicts is primarily decided on the categorisation of the other side, i.e. whether an operation is confronted with State (i.e. forces of the government in place) or with local actors.120 The mere involvement of peacekeeping missions does not per se internationalise the conflict.121 State practice indicates that at least the relationship between a State and a non-State party to a conflict is to be regarded as a non-international conflict even if the conflict between the two is conducted on the territory of a third State.122 The need to distinguish between the categories, however, decreased due to the fact that large parts of the law of international armed conflicts are also applicable in non117 Eric David and Ola Engdahl, ‘How does the involvement of a multinational peacekeeping force affect the classification of a situation?’, 95 IRRC (2013) 659, at 664. 118 Hans-Peter Gasser, ‘Die Anwendbarkeit des humanitären Völkerrechts auf militärische Operationen der Vereinten Nationen’, 4 Swiss Review of International and European Law (1994) 443, at 465.

Kolb, supra note 99, at 62. Moreover, this consideration is said to have been decisive for the adoption of the actual text, since it was assumed that the law of international armed conflict would always apply in the event of violent intervention of UN personnel, see Philippe Kirsch, ‘The Convention on the Safety of United Nations and Associated Personnel’, 2 International Peacekeeping (1995) 102, at 105. 119

Tittemore, supra note 79, at 110; David and Engdahl, supra note 117, at 666, 672; Tristan Ferraro, ‘The ICRC’s legal position on the notion of armed conflict involving foreign intervention and on determining the IHL applicable to this type of conflict’, 97 IRRC (2015) 1227, at 1244. 120

Robert Siekmann, ‘The Convention on the Safety of United Nations and Associated Personnel: its Scope of Application’, in Eric Denters and Nico Schrijver (eds.), Reflections on International Law from the Low Countries in Honour of Paul de Waart (1998) 315, at 322. 121

Ferraro, Intervention, supra note 120, at 1224; The Hamdan decision reads as if the Supreme Court judged the deployment of US forces against Al Qaeda fighters in Afghanistan as a non-international armed conflict, see US Supreme Court, Hamdan v. Rumsfeld, 542 U.S. 557 (2006). 122

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international armed conflicts.123 Nevertheless, the combatant privilege is not yet recognised in non-international conflicts.124 Against this background the Safety Convention may be interpreted as recognising the need to provide UN personnel with some specific protection in non-international conflicts. However, the exclusion clauses’ purpose is to regulate situations when UN personnel become part of an armed conflict.125 There is a strong indication that the criterion of the applicability of the law of international armed conflict merely clarifies that the Safety Convention must not apply when a peacekeeping mission becomes a party of an armed conflict,126 even if the UN operation was initially involved in the context of a non-international armed conflict. The scope of application remains extremely unclear at this point, so it needs to be seen whether practice will be able to clarify this characteristic in the future.

4. Achievements and Weaknesses of the Safety Convention Overall, the adoption of the Safety Convention has not significantly improved the protection of peacekeepers. It is, however, the first international agreement to stipulate that captured peacekeepers enjoy the protection of the ‘principles and spirit’ of the Geneva Conventions.127 It sets out the duties of protection by the host States128 and manifests the importance and necessity of protecting UN personnel. However, this cannot conceal the fact that the Convention suffers from deficits and a lack of adequate implementation mechanisms.129 The scope of applicability is unclear in many respects. This is especially true when the transformation of traditional peace operations to aggressive missions is considered. The extended use of force by peacekeepers increases the risk of being covered by the exclusion clause. Although the aim was to achieve a clear separation between the Safety Convention and IHL, there may 123

Kolb, supra note 99, at 68.

124

David and Engdahl, supra note 117, at 673.

125

Engdahl, Protection, supra note 48, at 289.

As soon as any of the personnel act as combatants, IHR shall be applicable instead of the Convention, see Schneider-Enk, supra note 10, at 186 et seq. 126

127

Fisher, supra note 109, at 684.

Michael Bothe, ‘Peacekeeping and international humanitarian law: friends or foes’, 3 International Peacekeeping (1996) 91, at 95. 128

129

Fisher, supra note 109, at 688 et seq.; Fleck, ICRC, supra note 15, at 621.

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indeed be situations in which the scope of application of both regimes is opened up. Thus, the scope of protection for personnel participating in combat operations is in some cases broader than that provided by IHL, depending on the peacekeepers behaviour in the specific scenario.130 Although the simultaneous application of the Convention and IHL might blur the strict separation between ius in bello and ius ad bellum, the practical significance of such situations may not be overestimated.131 Firstly, the applicability of the Convention is excluded, for example, where any of the personnel acts as a combatant. And secondly, even after about two decades, not even nearly all troop contributing States have ratified the Safety Convention. Its practical relevance and effectiveness are therefore strongly limited.132 B. Article 8(2)(b)(iii) ICC Statute

Article 8(2)(b)(iii) ICC Statute explicitly includes attacks on peace missions in the catalogue of war crimes, however under certain conditions. Intentional attacks against personnel ‘involved in a peacekeeping mission in accordance with the UNC, as long as they are entitled to the protection given to civilians under the international law of armed conflict’, are categorised as war crimes.

1. The Safety Convention’s Impact on the Scope of Application of Article 8 ICC-Statute The scope of protection of the ICC Statute varies according to the interpretation of the single respective elements of the crime, depending on how much influence is attributed to the Safety Convention. This can be demonstrated by the characteristics ‘attack’ and ‘peacekeeping mission’, which are not defined in Article 8 ICC Statute. The term ‘attack’, on the one hand, may be interpreted in the context of IHL.133 In connection with the protection of civilians, attacks are defined as the offensive or 130

Gadler, supra note 35, at 591.

131

Ferraro, Applicability, supra note 73, at 565.

132

Greenwood, Regime, supra note 19, at 186; Fleck, ICRC, supra note 15, at 621, 635.

Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources and commentary (2004), at 156; Engdahl, Protection, supra note 48, at 302. 133

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defensive acts of violence against the adversary (Article 49(1) AP I). This is supported by a systematic interpretation of the Statute, which places the crime against peacekeepers right after crimes against civilians.134 On the other hand, the term may also be interpreted on the basis of Article 9 Safety Convention and thus include other types of use of force.135 In relation to attacks on civilians, it would thus have an autonomous scope of application.136 The travaux préparatoires indicate that the Convention served as an inspiration for the introduction of this war crime so that there is a strong case for using the Convention at least as an interpretation directive.137 This broad interpretation of attacks against peace operations may lead to situations in which an attack on peacekeepers constitutes a war crime under Articles 8(2)(b)(iii), 8(2)(e)(iii) ICC Statute, but not the war crime of attacks on civilians pursuant to subparagraphs (b) (ii) or (e)(i).138 There is also a controversy over the meaning of ‘peacekeeping mission’. A narrow interpretation that only covers traditional peacekeeping measures seems unsuitable in light of the extended right to ‘self-defence’. Following a dynamic interpretation, robust operations could also be protected by the ICC Statute. The extension of the UN definition of peacekeeping is often recognised, if only the three basic principles – consent of the parties to the conflict, impartiality and non-use of force except for selfdefence and defence of the mandate – are maintained.139 Considering the fluid boundaries of the concepts of other operations, it is not clear whether or not e.g. ‘factfinding’ or ‘peacebuilding’ should also be covered by the protection of the ICC Statute.140 A systematic approach in which the focus is placed on peacekeeping personnel as representatives of the international community, irrespective of their mandate,141 Andrea Spagnolo, ‘The crime of attacking peacekeepers’, in Fausto Pocar, Marco Pedrazzi, and Micaela Frulli (eds.), War Crimes and the Conduct of Hostilities – Challenges to Adjudication and Investigation (2013) 153, at 165. 134

135 Bothe, War Crimes, supra note 47, at 410; Sivakumaran, supra note 96, at 1025; SCSL, Prosecutor v. Sesay, Kallon, Gbao, supra note 36, at para. 1884. 136

Spagnolo, supra note 134, at 169.

137

Gadler, supra note 35, at 596.

138

Ibid.

UNSC, UNGA, UN Doc. A/55/305-S/2000/809, 21 August 2000, at para. 48; DPKO, supra note 9, at 31. 139

140

Triffterer and Ambos, supra note 82, at 231; Engdahl, Prosecution, supra note 23, at 272.

141

Engdahl, Prosecution, supra note 23, at 273.

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would be consistent with the Safety Convention, but would introduce a new undefined term. Overall, the terms remain extremely imprecise.

2. Analysis of Jurisprudence: Determining Loss of Protection in the Event of Participation in Hostilities by ‘Continuous Evaluation of the Overall Circumstances’ Protection against attacks is only granted to personnel of peacekeeping missions ‘as long as’ they are entitled to the protection given to civilians under the international law of armed conflict. At first glance, this seems to be identical with the previous question at what point peacekeepers become combatants. As it has been shown, this is when the UN operation becomes a party to the conflict because it uses armed force of a certain (undefined) intensity. However, civilians are entitled to the protection of IHL ‘if and as long as’ they do not actively participate in hostilities. They lose their protection as civilians, but do not automatically become combatants.142 Although there are overlaps between the two regimes, the issues to be dealt with are different.143 When personnel take part in hostilities, it has to be asked whether and how long they enjoy the protection of civilian status, whether the protection is lost on an individual or collective basis and whether it can be regained. This is a different perspective. The ‘double as long as clause’ indicates that the threshold for the loss of protection is different to that applicable to ‘real’ civilians. To determine whether or not UN personnel are entitled to the protection given to civilians, the existing case law relating to Article 8 ICC Statute, which mirrors Article 4(b) Statute of the Special Court for Sierra Leone,144 analyses the totality of the circumstances at the time of the alleged offence.145 The SCSL applied this method in the RUF case concerning more than 100 participants of the UN Assistance Mission in Sierra Leone (UNAMSIL) which had become 142

Pacholska, supra note 50, at 55.

143

Different: Knoops, supra note 70, at 9.

144

Statute of the Special Court for Sierra Leone 2000, UNSC Res. 1315, 14 August 2000.

SCSL, Prosecutor v. Sesay, Kallon, Gbao, supra note 36, at para. 234; ICC, Pre-Trial Chamber I, Prosecutor v. Bahar Idriss Abu Garda, Decision on the Confirmation of Charges, Public redacted Version, 8 February 2010, Case No. ICC-02/05-02/09, at para. 82. 145

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targets of a series of attacks in the summer of 2000.146 The Court cited the specific operational mandates, the role and practices adopted by the mission during a particular conflict, the interaction between the peacekeeping force and the parties involved, the nature of the arms used as well as the nature and frequency of the use of force, and the conduct of the alleged victim institutions and their members.147 The SCSL emphasised that the possibility of using force in individual self-defence, even in self-defence in the discharge of their mandate would not alter or diminish the right of protection granted to peacekeepers.148 In the specific case of UNAMSIL, the SCSL found that, although the mission was originally mandated according to Chapter VI UN Charter, it was subsequently expanded into a mission according to Chapter VII UN Charter. Despite this fact, the legal nature of the peacekeeping mission was not altered, and the personnel were by the mandate prohibited from engaging in hostilities.149 Acts of violence were all considered as a response in self-defence to the RUF’s attacks.150 Using almost the same arguments, the Court stated that the peacekeepers retained their status as civilians because they were not actively taking part in hostilities.151 In the Abu Garda case, the ICC ruled on the criminal liability for attacks and killings against twelve members of the African Union Mission in Sudan (AMIS).152 With regard to the question whether or not these personnel were entitled to the protection of civilians, the majority referred to Article 13(2) Additional Protocol II and stated that civilians enjoy the protection of IHL as long as, and to the extent that, they do not directly participate in hostilities.153 To specify this term, the Court referred to the Lubanga case, in which the Chamber stated that active participation in hostilities means not only direct participation in hostilities but also covers active participation in combat-related activities.154 This includes, for instance, using or taking 146

SCSL, Prosecutor v. Sesay, Kallon, Gbao, supra note 36, at paras. 234, 1784-1883.

147

Ibid., at para. 234.

148

Ibid., at para. 233.

149

Ibid., at paras. 1907-1917.

150

Ibid., at para. 1937.

151

Ibid., at para. 1941.

152

ICC, Prosecutor v. Bahar Idriss Abu Garda, supra note 145.

153

Ibid., at paras. 78, 79.

Ibid., at para. 83; ICC, Pre-Trial Chamber I, Prosecutor v. Lubanga, Decision, 29 January 2007, Case No. ICC-01/04-01/06-803, at para. 261. 154

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up arms, participating in military or hostile acts or operations, armed combat or fighting, or participating in attacks against enemy personnel.155 The judges found that there was no evidence to suggest that AMIS personnel in this sense participated directly in hostilities or used force beyond self-defence.156 In the Banda and Jerbo case, the defendants were also accused of war crimes under Article 8 ICC Statute. In its reasoning, the Court largely referred to the arguments in the Abu Garda case, thereby confirming its reasoning.157 Considering these rulings, three circumstances lead to a loss of protection: (1) direct participation in hostilities; (2) active participation in combat-related activities; and (3) use of force beyond self-defence.158 While the first case is identical with the loss of protection for civilians, the other two reasons seem to be specific possibilities of the loss of protection for peacekeepers. But the judgments do not really clarify what is meant by direct participation in hostilities, especially in the case of peace operations.159 As the legal basis is insufficiently defined,160 an extensive debate on the criteria for direct participation in hostilities has been sparked in recent years.161 Two interpretative tendencies have emerged; one is guided by the Targeted Killing judgement of the Israeli High Court of Justice,162 the other by the ICRC Interpretive Guidance.163 The interpretations differ particularly in the timeframe within which civilians may be made targets of military action.164 The ICRC guidance states that in internal armed conflict there is a separate ICTY, Appeals Chamber, Prosecutor v. Pavle Strugar, Judgement, 17 July 2008, Case No. IT-0142-A, at para. 177. 155

156

ICC, Prosecutor v. Bahar Idriss Abu Garda, supra note 145, at paras. 131, 132.

ICC, Pre-Trial Chamber I, Prosecutor v. Banda and Jerbo, PTC Decision on the Confirmation of Charges, 7 March 2011, Case No. ICC-02/05-03/09, at paras. 61, 163. 157

158

Engdahl, Prosecution, supra note 23, at 277.

159

Pacholska, supra note 50, at 55.

160

Spagnolo, supra note 134, at 160.

161

Pacholska, supra note 50, at 56.

High Court of Justice (HCJ), Public Committee against Torture in Israel et al. v. The Government of Israel et al., 11 December 2005, HCJ 769/02. 162

163 Nils Melzer, ICRC Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (2009), at 70 et seq. 164

217.

Nina Kapaun, Völkerrechtliche Bewertung gezielter Tötungen nicht-staatlicher Akteure (2014), at

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category of members of non-State armed forces with a continuous combat function distinguished from civilians.165 They are different from civilians in the sense that they not only lose their protection temporarily, for the duration of their participation in hostilities, but lose their entire civilian status due to their membership in the armed forces.166 It must be admitted that the concept of continuous combat function, which is based on the membership to an armed organised group, bears similarities with the nature of robust peacekeeping operations.167 However, the ICRC interpretation was introduced to take account of the ‘revolving door’168 phenomenon concerning terrorists. The assumption of a continuous combat function is therefore incompatible with the protection courts are willing to grant to peacekeepers because of their role.169 Anyway, the strict dichotomy of the law of armed conflicts between fighters/combatants and civilians is a strong argument against the introduction of a third category, which enjoys neither the privileges of combatant status nor the immunity of civilians.170 Even leaving aside the concept of the continuous combat function, the ICC’s extension of loss of protection because of direct participation in hostilities or of combat-related activities is not in line with the ICRC Interpretative Guidance.171 It is thus a specific instance of the loss of protection for peacekeeping missions developed by the ICC. Moreover, the courts missed the opportunity to clarify when exceeding the right of self-defence leads to a loss of protection.172 On the one hand, the language of the SCSL could be interpreted as meaning that the use of force in self-defence does not turn a peacekeeper into a combatant, even if it is performed in defence of the mandate. The explanation could alternatively be interpreted within the meaning that the use of arms in defence of the mandate does not lead to the loss of protection pursuant

165

Melzer, supra note 163, at 70 et seq.

166

Kapaun, supra note 164, at 217.

167

Pacholska, supra note 50, at 57.

‘Revolving Door’ describes the process in which terrorists lose and regain their protection while participating in hostilities, see Melzer, supra note 163, at 70. 168

169

Pacholska, supra note 50, at 59.

170

Antonio Cassese, International Law (2005), at 410.

171

Engdahl, Prosecution, supra note 23, at 277.

172

Spagnolo, supra note 134, at 170.

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to Article 8 ICC Statute.173 The reliance on Article 7 Safety Convention, according to which personnel may not be made the object of actions that prevent them from effectively exercising their mandate, supports the latter position.174 However, the use of force in aggressive peacekeeping missions goes far beyond individual self-defence. It is likely to increase the eventuality of constant or intense engagement in hostilities. Consequently, there is a heightened risk of becoming a party to the conflict when using force proactively and robustly in self-defence or for the protection of civilians.175 It seems like peacekeepers can, to some extent, use armed force in self-defence and actively participate in hostilities at the same time before they become a party to the conflict at some undefined point.176 In order to maintain the credibility of IHL,177 it is therefore necessary to examine in detail whether or not the peacekeeping operations have become a party to the conflict, its personnel thereby obtaining combatant status, and consequently being excluded from protection as civilians. Otherwise there is an inherent risk of applying a double standard in which UN units lawfully use offensive even lethal force to defend the mandate, whereas an opponents’ response would be categorised as a crime.178 If, for example, rebel forces attack the intervention brigade as part of MONUSCO, it would be difficult for the ICC to argue that the peacekeepers attacked are protected as civilians.179

3. Remaining Uncertainties Concerning the ‘Double as long as Clause’ Besides the aforementioned difficulties and shortcomings in interpretation, the ‘double as long as clause’ causes remaining uncertainties when it comes to participation in hostilities. On the one hand the courts method of continuously evaluating the 173

Sivakumaran, supra note 96, at 1027.

174

Ibid., at 1028.

175

Ali Khalil, supra note 61.

176

Sivakumaran, supra note 96, at 1028.

177

Ibid.

178

Pacholska, supra note 50, at 59.

Peter Rudolf, VN-Friedensmissionen und der Einsatz militärischer Gewalt, SWP Studie, Stiftung Wissenschaft und Politik, September 2017, available at https://www.swp-berlin.org/fileadmin/contents/ products/studien/2017 S18_rdf.pdf, at 17. 179

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overall circumstances has disadvantages, on the other hand the personal and the temporal scope of the protection loss remains unclear. If the overall circumstances are used as a benchmark for determining the scope of protection or loss thereof, this requires the continuous evaluation of all aspects of the mission. It is positive that current changes in the legal nature of the mission, especially the potential dynamic transformation of today’s peace operations, can be considered in a flexible way. At the same time, it is only a descriptive method for determining the borderline of protected status. In the absence of an appropriate ‘supervisory authority’ or monitoring institution on the ground, the real status of the mission can only be determined ex post. The assessment of the situation is left to the courts. Ex ante, neither the attackers nor the mission personnel can clearly determine the scope of protection to which the parties are entitled. This may have less serious implications for the attackers, since Article 8 ICC Statute requires intentional action which includes the knowledge of the protected status of mission personnel. An erroneous qualification of the situation may exclude criminal intent. However, peacekeepers who often fail to recognise or misjudge the transformation of their mission in a due course must at any time be prepared for the loss of protection as civilians. For reasons of legal certainty, the requirement of continuous evaluation, which may lead to different results at different times, is not without problems. With regard to the personal protection scope it remains unclear whether the entire mission personnel lose the protection civilians are entitled to under IHL as a collective, or whether the loss only applies to individuals who participate directly in hostilities. In the Abu Garda and Jerbo cases, the Court stated that mission personnel were protected from attacks, except for the period of direct participation in hostilities or combat-related activities.180 The terminology used by the Court indicates that only the individuals actually involved lose protection, while non-participating personnel continue to benefit from this protection.181 This is also supported by a systematic interpretation of the Statute, which places the war crime of attacks on peacekeepers immediately after the crime against civilians.

ICC, Prosecutor v. Bahar Idriss Abu Garda, supra note 145, at para. 83; ICC, Prosecutor v. Banda and Jerbo, supra note 157, at para. 61. 180

181

de Serpa Soares, supra note 7, at 3.

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By contrast, active participation in hostilities by some members of the UN mission could lead to a loss of protection for the entire personnel. If only a part of the mission participates in hostilities, opponents’ confidence in the impartiality of the operation may be substantially weakened and therefore lead to a collective loss of protection.182 The impact of the Safety Convention on the establishment and interpretation of the ICC Statute could also justify this assumption.183 If any of the personnel participates in hostilities, the protection of the Convention would not apply to the entire mission. Although the Convention may serve as an interpretative guideline in light of the travaux préparatoires,184 it seems that the ICC Statute is really different from the complex conditions of the Safety Convention’s exception clause.185 Thus, in contrast to the Safety Convention, the ICC Statute recognises that attacks on civilian personnel of a peacekeeping mission are still a war crime even if the military units take part in hostilities.186 Even recognising the possibilities of the loss of protection as civilians just described, a generalised view is not appropriate. A differentiating approach, based on the manner the line between protected and unprotected status is crossed, is necessary. If the line was overstepped through ‘regular’ direct participation in hostilities, this would result in an individual loss of protection of those personnel who actually participated. However, if the line was overstepped by exceeding the right of self-defence in a systematic manner and if the mission thus becomes a party to the conflict, only a collective loss of the guarantees of Article 8 ICC Statute seems appropriate. If the threshold was crossed by participation in combat-related activities, an unsatisfactory grey area remains. It seems that the answer to this question depends to a large extent on whether or not peacekeepers are to be treated as ‘real’ civilians or only as persons having an equivalent status. This leads to the question whether the prohibition of attacks on peacekeepers is just a concretisation of the IHL protection of civilians or whether or not a wholly new category of crime has been introduced by the Safety Convention.187 As long as these 182

Triffterer and Ambos, supra note 82, at 241.

183

Ibid.

184

Gadler, supra note 35, at 596.

185

Engdahl, Protection, supra note 48, at 303.

186

Ibid.

Sara Wharton, ‘The Evolution of International Criminal Law: Prosecuting ‘New’ Crimes before the Special Court for Sierra Leone’, 11 International Criminal Law Review (2011) 217; Pacholska, supra note 50, at 45. 187

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issues are still outstanding, only Article 50(3)(2) AP I, as a provision relating to cases of doubt, remains as a legal guideline. Similar difficulties arise with regard to the temporal scope of the protection loss, where two main effects have to be distinguished: A civilian who actively participates in hostilities loses protection under the ICC Statute only temporarily for the duration of the fighting. Combatants, on the contrary, remain combatants until the end of the conflict.188 Again, it seems appropriate to differentiate between the various ways in which the line may be crossed. While ‘regular’ participation in hostilities can probably only lead to a temporary suspension of protection, the fact that a peace operation becomes a party to the conflict, with the accompanying combatant status of its members, should lead to a loss of protection until the end of the conflict. The Secretary General’s Bulletin on the observance by UN forces of international humanitarian law, however, follows a different approach when it states that the principles and rules of IHL are applicable ‘to the extent and for the duration’ of the involvement of peacekeepers as combatants.189 This wording implies that members of UN operations can be combatants in one moment and non-combatants in the other.190 An approach in which the protection of peacekeepers is only suspended for the concrete duration of participation in hostilities would heed the need to protect the representatives of the community.191 However, categorising uniformed, armed and organised military force as civilians who temporarily participate in hostilities and subsequently regain protection as civilians is somewhat at odds with the IHL system.192 The grey area cannot be eliminated at this point either.

C. Achievements and Weaknesses of the ICC Statute Compared to the Safety Convention

As it turned out, determining the limits of protection in case of potential participation in hostilities is not easy. Article 8 ICC Statute is a significant improvement com188

Engdahl, Prosecution, supra note 23, at 279.

Secretary-General’s Bulletin, Observance by United Nations forces of international humanitarian law, UN Doc. ST/SGB/1999/13, 6 August 1999, at para. 1.1. 189

190

Zwanenburg, supra note 88, at 200.

191

Engdahl, Prosecution, supra note 23, at 279.

192

Ibid.; Pacholska, supra note 50, at 57.

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pared to the shortcomings of the Safety Convention. It protects humanitarian personnel regardless of the organisation to which it belongs and the relevant operation does not need to be conducted under UN authority and control.193 Moreover, the Statute stipulates that intentional attacks on peacekeeping units may constitute a war crime in both international and non-international armed conflict. This reduces the ambiguities of the Safety Convention in case of non-international armed conflicts.194 Unfortunately, the courts have failed to clarify the impact of self-defence and defence of the mandate on the status of peacekeepers under IHL and to resolve the inconsistencies between the Safety Convention and the Secretary-General’s Bulletin in this respect.195 It seems that the ICC Statute requires a higher minimum threshold for crimes than that required by the Safety Convention, so the Conventions’ scope of protection is wider in principle.196 For instance, in contrast to the Convention, war crimes under the ICC Statute are limited to times of armed conflict. While the protection of the ICC Statute ceases as soon as UN personnel are no longer entitled to the protection given to civilians, personnel are covered by the protection of the Safety Convention as long as they do not have combatant status.197 As it has been shown, there may even be situations in which the Safety Convention remains applicable despite the combatant status of protected personnel. However, only the ICC Statute leads to peacekeepers losing protection on an individual basis with a corresponding, merely temporary suspension of protection. What remains is the difficulty of determining the moment in which peacekeepers become combatants or no longer enjoy the protection as civilians.198 The numerous controversies surrounding this issue, the wide range of interpretative approaches, the lack of consistency between the definitions of the Safety Convention, the ICC Statute, and the Secretary-General’s heavily criticised Bulletin are evidence of the high complexity of this issue.199 The problem is rooted in the fact that aggressive peacekeeping cannot be clearly categorised in the dichotomy of combatants and civilians. The relation between peacekeep193

Engdahl, Protection, supra note 48, at 303 et seq.

194

Ferraro, Applicability, supra note 73, at 572.

195

Spagnolo, supra note 134, at 170.

196

Wills, supra note 6, at 26; Engdahl, Protection, supra note 48, at 302 et seq.

197

Ferraro, Applicability, supra note 73, at 571.

198

Engdahl, Protection, supra note 48, at 303.

199

Ibid., at 322.

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ing missions and IHL is therefore problematic in many respects. For the UN, as well as for the parties to the conflict, it is extremely difficult to determine which protective regime, if any, applies to them at a given moment, in a given situation. Inadequate regulation and interpretative uncertainties might cause a decline in respect for the necessary protection for peacekeepers and thus endanger the security of UN personnel to an extent that hinders the effective execution of the mandate.200

III. The Revers Synergy Effect and the Future of the Protection of Personnel of UN Peace Operations Classifying peacekeepers into one of the two categories – civilians or combatants – has always been a challenge. The change in the character of conflicts and the altered operating conditions of UN peacekeeping operations have been accompanied by the need to clarify the legal protection of their personnel. The proactive use of military force by peacekeepers may be necessary in many missions to protect civilians, but a mere expansion of the authorisation to use force increases the ambiguity of the status of mission personnel. (Perhaps unintended) negative effects on peacekeepers legal protection can hardly be denied.201 With increased use of force, especially with the use of weapons, the risk of a loss of legal protection provided by the Safety Convention and Article 8 ICC Statute increases tremendously. The reason for this is that the protection regulations examined are most fragile where mission personnel are actively participating in hostilities. Where peacekeepers use armed force only in self-defence and otherwise in principle do not participate in hostilities, they deserve protection like civilians. With the broadening of mandates, however, this argument loses strength. It is difficult to justify granting protection of civilians to heavily armed military units authorised to use offensive force.202 But even in these situations, the peacekeeping units need protection. Because the mission personnel are subject to restrictions regarding the use of 200

Engdahl, Protection, supra note 48, at 322; Fleck, ICRC, supra note 15, at 634.

Pointing to negative effects on a factual basis, such as loss of credibility, see Charles T. Hunt, Protecting Peacekeepers Requires Better Politics, Not More Force, 14 February 2018, available at https://the globalobservatory.org/2018/02/protecting-peacekeepers-better-politics/. 201

202

Bothe, War Crimes, supra note 47, at 411.

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force even in case of robust mandates, they are to be distinguished from regular combatants. However, the principle of distinction being a fundamental rule of IHL, the introduction of a hybrid category with a double standard for peacekeepers should be avoided.203 The difficulties could be mitigated to some extent if peacekeeping missions more clearly signalled which parts of an operation act offensively and which ones only act defensively. Thus, clear mandates and the introduction of visual differentiating features are required.204 For example, MONUSCO has undoubtedly become a party to the conflict.205 If the entire mission is regarded as a homogeneous entity, the protection provided by the Safety Convention and international criminal law would consequently have to be denied. A functional approach, which reflects the internal structure of the mission by granting different protection to parts of a peacekeeping operation having different functions, could achieve more balanced results.206 Civilian personnel would (with the exception of the period of direct participation in hostilities) be immune from attacks, while members of the intervention brigades would represent legitimate targets as combatants for the period of their deployment.207 Unfortunately, even with this approach, the military personnel could remain in the grey area, so that the totality of the relevant circumstances at the time of the attack could only be considered ex post.208 Due to the current doubts about protection, UN personnel must rely on strict policy rules that demonstrate their impartiality.209 Once again, the importance of Status of Forces Agreements, Status of Mission Agreements and Rules of Engagement to determine the status of the personnel and the applicable protection regime is evident. An independent monitoring authority, which assesses the situation on the 203

Pacholska, supra note 50, at 59, 71.

204

The individual mission components are all wearing blue helmets and UN emblems so far, see ibid.

205

Rudolf, supra note 179, at 17.

Pacholska, supra note 50, at 68; The idea of a classification according to functional units was already proposed in the debate on the applicability of international humanitarian law to personnel in peace operations, e.g. Hugh M. Kindred, ‘The Protection of Peacekeepers’, 33 Canadian Yearbook of International Law (1995) 257; Greenwood, Regime, supra note 19, at 189. 206

207

Pacholska, supra note 50, at 69 et seq.

208

Ibid.

209

Fleck, ICRC, supra note 15, at 635.

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ground and reports it to the relevant authorities, could make the legal scope of protection ex ante more predictable. The current protection system should be further improved in the interests of both the individual peacekeepers and the effectiveness of the missions. Existing shortcomings ought to be an incentive for legal innovation.

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The Activation of the International Criminal Court’s Jurisdiction over the Crime of Aggression: The Edifice is Completed GUIDO HILDNER(

I. Introduction In the night from 14 to 15 December 2017 in New York, the Assembly of States Parties (ASP) to the Rome Statute decided to activate, with effect from 17 July 2018,1 the jurisdiction of the International Criminal Court (ICC) over the crime of aggression.2 For Germany this represented the last stone needed to complete the edifice of international criminal justice designed by the architects of Rome. At the Review Conference of the Rome Statute of the International Criminal Court (Rome Statute) in Kampala in 2010 it had been agreed that the Court’s jurisdiction over the crime of aggression would not be activated until the States parties took a decision thereon at some date after 1 January 2017. While the envisaged decision was not controversial with regard to a Security Council referral,3 an intense and heated dispute with regard to State referrals and proprio motu investigations4 was ( Federal Foreign Office Berlin, Director, International Law. The article only reflects the author’s personal views. 1 This date marks the 20th anniversary of the adoption of the Rome Statute of the International Criminal Court (Rome Statute) 1998, 2187 UNTS 90. The choosing of this date symbolically recalls that the activation decision completes the task given to the States parties by the drafters of the Statute in Art. 5(2). 2 Assembly of States Parties to the Rome Statute of the International Criminal Court (ICC ASP), Resolution ICC-ASP/16/Res.5, ICC-ASP/16/Res.5, 14 December 2017, at 35.

Activation decision required by Art. 15ter(3) of the Amendments on the crime of aggression to the Rome Statute of the International Criminal Court, 8 May 2013, available at http://treaties.un.org as document A-38544-08000002802a6182.pdf. 3

4 Activation decision required by Art. 15bis(3) of the Amendments on the crime of aggression to the Rome Statute of the International Criminal Court 2010. Ibid.

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conducted over the years following the Kampala Conference. As a result the required activation decision was almost as contested, the debate’s outcome as unpredictable and its settling as dramatic as had been the case in Rome in 1998 when the Rome Statute was adopted and in Kampala in 2010 when the resolution on the crime of aggression was passed. However, the practical implications of this controversy were limited in comparison to the issues at stake in Rome and Kampala. In essence, the question in New York was whether a State party that had not ratified5 the Kampala amendment on the crime of aggression and that did not want to be subject to the Court’s jurisdiction with regard to this crime had to expressly declare its non-acceptance of such jurisdiction vis-à-vis the Court’s Registrar or not. The emotions that this question, nevertheless, aroused in some delegates and the passion that marked many interventions in the debate showed the importance that issues of international criminal justice continue to have for States and their diplomatic representatives.

II. Background The question was unfinished business from the 2010 Review Conference in Kampala. Or, to be more precise, disagreement existed as to whether this was unfinished business or whether the issue had been resolved in Kampala. The origin of the dispute lies in the Rome Statute itself. Article 5(1) and Article 12(1) seem to give the Court jurisdiction with regard to the crime of aggression over all States parties independently of any additional ratification of an amendment. However, Article 5(2) requires further agreement on the definition and the conditions for the exercise of jurisdiction. With regard to the incorporation of such future agreement into the Statute it refers to the general amendment procedure in Article 121. It is stipulated in Article 121(5) that in case of an amendment to Article 5 the Court shall not have jurisdiction over a State party which has not accepted the amendment.

5 For the purpose of this paper the terms ‘ratify’ and ‘ratification’ should be read to include all forms of State action taken to effect the entry into force of an amendment: ‘ratify’/‘ratification’ and ‘accept’/‘acceptance’; cf. Art. 121(4) and (5) Rome Statute.

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How best to overcome this difficulty was one of the controversial topics in Kampala. While other contentious points were clarified,6 the Conference ended without any explicit resolution of this issue. It was clear that the Court would always have jurisdiction in the case of Security Council referrals, including over non-States parties and, of course, over non-ratifying States parties. With regard to State referrals and proprio motu investigations Kampala decided not to give the Court jurisdiction over non-States parties. Article 15bis(5) of the Kampala amendment deviates as lex specialis concerning the crime of aggression from the general rule in Article 12(2) Rome Statute. No corresponding provision was adopted in Kampala with regard to nonratifying States parties. What conclusion should be drawn from that? Does it mean that the Court would have jurisdiction in the case of a State referral or a proprio motu investigation over a crime of aggression committed by a national of a non-ratifying State party on the territory of a ratifying State party? Some commentators seek to derive an affirmative answer from the negotiation history of the Kampala compromise.7 Their main argument is based on the Kampala amendment provision Article 15bis(4), according to which a State party may declare vis-à-vis the Registrar that it does not accept the Court’s jurisdiction with regard to the crime of aggression.8 They argue that this so-called ‘opt-out’ provision only makes sense if it applies to States parties that have not ratified the amendment. States parties that ratify the amendment are assumed not to opt-out. Why would they ratify if they did not want to accept jurisdiction? From this they further follow that States that have not ratified the amendment and also have not opted-out must be subject to the Court’s jurisdiction. Otherwise the opt-out instrument would be unnecessary as the legal situation of a non-ratifying State would be the same, whether it opts-out or not. In both cases it would not fall under the Court’s jurisdiction. E.g., the Court is not bound by Security Council determinations: Art. 15bis(9) and Art. 15ter(4) Rome Statute. 6

Cf. Stefan Barriga and Niels Blokker, ‘Conditions for the Exercise of Jurisdiction Based on State Referrals and Proprio Motu Investigations’, in Claus Kreß and Stefan Barriga (eds.), The Crime of Aggression: A Commentary (2017) 652, at 653. 7

8 Art. 15bis(4) Rome Statute reads as follows: ‘The Court may, in accordance with article 12, exercise jurisdiction over a crime of aggression, arising from an act of aggression committed by a State Party, unless that State party has previously declared that it does not accept such jurisdiction by lodging a declaration with the Registrar. The withdrawal of such a declaration may be effected at any time and shall be considered by the State Party within three years.’

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However, this interpretation already met with opposition during the Kampala meeting itself. The central counter-argument was that this view was based on the provisions of a treaty amendment, which could only have an effect on those States that had ratified the amendment. But, even supposing States did ratify the amendment, this argument was not felt to be conclusive. Some delegates said that their Governments would think about ratifying the amendment because they supported the ICC’s jurisdiction in the event of a Security Council referral, even though they did not consider a State referral or proprio motu investigation appropriate for the crime of aggression and would thus most probably opt-out if they did ratify the amendment.9 Furthermore, there was the precedent of Article 124 Rome Statute. This article gives a State, upon becoming a party to the Statute, the option to declare that it does not accept the Court’s jurisdiction with respect to war crimes for a period of seven years.10 Thus, the Rome Statute itself had already demonstrated the usefulness of an opt-out option for a ratifying State. The Kampala Review Conference explicitly decided to retain this provision until further review.11 Finally, the censorious explanations of their positions provided by some States parties upon the adoption of the resolution at the final meeting of the Review Conference made it clear that the consensus did not go beyond what was explicitly spelt out in the text of the amendment.12 Indeed, the opt-out is a creative provision. But, so are other elements of the Kampala outcome, such as the need for 30 ratifications before the Court may exercise its jurisdiction, enshrined in Article 15bis(2) and Article 15ter(2) Rome Statute, and the requirement that the ASP take a decision on activation sometime after 1 January 2017, 9 They explained that this approach was justified in order to reach the quorum of 30 ratifications required for the exercise of jurisdiction by Art. 15ter(2), and would also be rational after 30 ratifications had been reached since it would be considered a political message.

Art. 124 Rome Statute reads as follows: ‘Notwithstanding article 12, paragraphs 1 and 2, a State, on becoming a party to this Statute, may declare that, for a period of seven years after the entry into force of this Statute for the State concerned, it does not accept the jurisdiction of the Court with respect to the category of crimes referred to in article 8 when a crime is alleged to have been committed by its nationals or on its territory. A declaration under this article may be withdrawn at any time. The provisions of this article shall be reviewed at the Review Conference convened in accordance with article 123, paragraph 1.’ 10

11

ICC ASP, Resolution RC/Res.4, RC/Res.4, 10 June 2010, at 12.

See in particular the statements of Japan before and after the adoption of the resolution in Kampala, and also the statements of France, Norway, and the United Kingdom. ICC ASP, statements by States Parties in explanation of position before the adoption of resolution RC/Res.6, on the crime of aggression, RC/11, Annex VII, at 121; ICC ASP, statements by States Parties in explanation of position after the adoption of resolution RC/Res.6 on the crime of aggression, RC/11, Annex VIII, at 122-124. 12

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as laid down in Article 15bis(3) and Article 15ter(3) Rome Statute. In the end, the text adopted in Kampala is a compromise package, and, like all compromises, contains an element of ambiguity. During the negotiations, considerable efforts were made to word the provisions more clearly. This was not possible. Consensus could only be reached on a text ambiguous enough to allow all States the interpretation they needed to be able to consent. Benjamin Ferencz concluded: ‘Whether non-ratifying States Parties may be bound by the aggression amendments remains contentious.’13 This was the price for consensus in Kampala.

III. Germany’s Position From the outset in Rome, Germany has always been a staunch and unwavering supporter of the Court’s jurisdiction over the crime of aggression.14 Germany feels a special responsibility in this regard due to its history. The crime of aggression, at the time called a ‘crime against peace’, was among the crimes ruled on by the International Military Tribunal in Nuremberg after the Second World War. Because of this, Germany felt strongly that jurisdiction over this crime was an essential and indispensable element of any permanent international criminal justice system that might be established. Therefore, the aim of all German delegations from Rome to Kampala and New York was to make such jurisdiction possible.15 In light of the political importance and the legal complexity of this issue, it was clear that this could only be achieved through compromise. In view of this ultimate aim, the German delegation decided not to take a position on this controversy at Kampala. The members of the delegation discussed the question, but it was felt that given the uncertainty of achieving a successful outcome at the conference and the danger that insisting on greater clarity could break the consensus, Benjamin B. Ferencz, ‘Epilogue. The Long Journey to Kampala: A Personal Memoir’, in Claus Kreß and Stefan Barriga (eds.), The Crime of Aggression: A Commentary (2017) 1501, at 1510. 13

14 Cf. Susanne Wasum-Rainer, ‘Germany’, in Claus Kreß and Stefan Barriga (eds.), The Crime of Aggression: A Commentary (2017) 1149.

See Claus Kreß, ‘Germany and the Crime of Aggression’, in Suzannah Linton, Gerry Simpson, and William A. Schabas (eds.), For the Sake of Present and Future Generations, Essays on International Law, Crime and Justice in Honour of Roger S. Clark (2015) 31, at 36 et seq. 15

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it was better to live with the ambiguity, especially since this ambiguity was not relevant for Germany’s national position. Germany could accommodate either interpretation since it was determined to ratify the Kampala amendment and not to opt-out. In consequence, this meant that Germany left the decision to the Court. Germany was of the opinion that the text of the Kampala amendment did not settle the issue and that, thus, ratification of the amendment would not constitute a legally binding endorsement of either interpretation.16 This understanding was the basis for the Government’s presentation of the Kampala amendment to the German Bundestag for ratification.17 The Bundestag approved swiftly, unanimously and without controversy.18 Following the Kampala Conference there was an intensive debate on the significance, the meaning and even the legality of the amendment. The dispute among scholars was as lively and fierce as the one among State representatives. Some even argued that the amendment procedure was unlawful and violated the Rome Statute and general rules of treaty law.19 On the whole, it appears that international treaty law experts tended to support the narrow interpretation of jurisdiction20 while international criminal law experts seemed to find the broad interpretation more convincing.21 Andreas Zimmermann presents a different view in ‘A Victory for International Rule of Law? Or: All’s Well that Ends Well?’, 16 Journal of International Criminal Justice (JICJ) (2018) 19, at 25 et seq. 16

17 German Parliament (Deutscher Bundestag), 15 October 2012, Bundestagsdrucksachen (BT-Drs.) 17/10975, at 18 et seq. 18 Act regarding the Amendments of 10 and 11 June 2010 to the Rome Statute of the International Criminal Court of 17 July 1998 (Gesetz zu den Änderungen vom 10. und 11. Juni 2010 des Römischen Statuts des Internationalen Strafgerichtshofs vom 17. Juli 1998), 20 February 2013, Bundesgesetzblatt (BGBl.) 2013 II, 1042. 19 Cf. Andreas Zimmermann, ‘Amending the Amendment Provisions of the Rome Statute’, 10 JICJ (2012) 209. 20 E.g., Dapo Akande, ‘Prosecuting Aggression: The Consent Problem and the Role of the Security Council’, 10 Oxford Legal Studies Research Paper (2011); Sean D. Murphy, ‘The Crime of Aggression at the International Criminal Court’, in Marc Weller (ed.), The Oxford Handbook of the Use of Force in International Law (2015) 533; Zimmermann, ‘Amending the Amendment Provisions of the Rome Statute’, supra note 19. 21 E.g., Kai Ambos, ‘Das Verbrechen der Aggression nach Kampala’, Zeitschrift für Internationale Strafrechtsdogmatik (ZIS) 5 (2010) 649; Claus Kreß and Leonie von Holtzendorff, ‘The Kampala Compromise on the Crime of Aggression’, 8 JICJ (2010) 1179; Astrid Reisinger Coracini, ‘The International Criminal Court’s Exercise of Jurisdiction over the Crime of Aggression’, 2 Göttingen Journal of International Law (2010) 745.

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Germany followed this discussion but did not see a reason to change its position and maintained it.

IV. The New York Meeting The activation decision was the key issue at the December 2017 ASP meeting.22 Would it prove possible to settle the question that had remained contentious since Kampala? And if not, what would be the consequence? Would States be willing to activate the Court’s jurisdiction without a clarification, thus leaving the answer to the Court? This issue overshadowed the meeting and worried many States, including Germany. Since the previous ASP meeting in 2016 had been marked by the African criticism of the Court and the first withdrawals from the Rome Statute, Germany felt it highly important that States parties send out a strong message of support and commitment. This could only be done by adopting an activation decision by consensus. If the vote were split, it would be uncertain whether the required majority would be found. And even if it was, the split would be a manifestation of the States parties’ division on a crucial issue of international criminal justice. Postponing the decision would bear the risk of shelving it indefinitely since a lack of time was not the problem, and it was to be expected that the political pressure to reach an agreement would weaken over time. In order to test the ground for a potential solution the States parties established a facilitation process23 that was led by Austria and started its work in March 2017. At the beginning of the ASP meeting the facilitation process had confirmed the established positions. No common ground was in sight.24 Three papers submitted by delThe number of 30 ratifications required by Art. 15bis(2) and by Art. 15ter(2) had been reached in 2016. At the time of the ASP meeting in December 2017 35 States parties had ratified the Kampala amendment on the crime of aggression; see the depositary’s website accessed on 5 September 2018, available at http://treaties.un.org under https://treaties.un.org/Pages/ViewDetails.aspx?src=IND& mtdsg_no=XVIII-10-b&chapter=18&clang=_en. 22

ICC ASP, Resolution ICC-ASP/15/Res.5, Annex I, ICC-ASP/15/20, 24 November 2016, at para. 18(b). 23

Cf. Report on the facilitation on the activation of the jurisdiction of the International Criminal Court over the crime of aggression, ICC-ASP/16/24, 27 November 2017, at para. 31(d). 24

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egations illustrate the differences between the two camps. Canada, Colombia, France, Japan, Norway, and the United Kingdom put forward arguments why the Court should have no jurisdiction over non-ratifying States parties in a paper.25 The opposite view was presented in two papers, one submitted by Liechtenstein,26 the other by Argentina, Botswana, Samoa, Slovenia, and Switzerland.27 The States parties remained divided, although a large number of them did not take the floor during the deliberations, thus indicating flexibility with regard to the outcome. What made States take one view or the other? It is probably fair to say that neutral and smaller States which do not participate in military activities abroad were more inclined to side with the camp that advocated the Court’s jurisdiction over non-ratifying States parties, while States parties that participate in military operations abroad, in particular in coalitions with non-States parties, were more attracted to the position that the Court does not have jurisdiction over non-ratifying States parties. The facilitation process continued during the ASP meeting, virtually until the last minute. Even though the facilitation process itself was not able to bridge the gap, it prepared the necessary ground for the final and successful proposal made by the two Vice-Presidents of the ASP. The discussion was intense and sometimes harsh. It focused on the opt-out clause. The main idea was to find a way that would make it possible for each camp to interpret the result in line with its own understanding.28 It was, for example, suggested that a statement made by a State in the ASP that it held that non-ratifying States did not fall under the Court’s jurisdiction was to be classified as an opt-out.29 At the end of the day all these attempts failed, even though they did offer some protection to the States concerned. There were, above all, two reasons for this failure. Firstly, States felt that legal ambiguity would continue. The desired clarity would not be established. Secondly and more importantly, some States sensed that any such construction would mean an implicit recognition of the interpretation that gave the 25

Ibid., at Annex II.A.

26

Ibid., at Annex II.B.

27

Ibid., at Annex II.C.

Cf. Claus Kreß, ‘On the Activation of ICC Jurisdiction over the Crime of Aggression’, 16 JICJ (2018) 1, at 9 et seq. 28

This statement would have to be transmitted to the Court’s Registrar. Different ideas were suggested in this regard. 29

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Court jurisdiction over non-ratifying States parties, since all such constructions required some kind of action by the State that wanted to avoid the Court’s jurisdiction. This was not acceptable to States which held that no legal obligation to act, and no legal effect in the case of non-action, could derive from a treaty amendment that had not been ratified by the State in question. For those delegations it was a binary choice, an either-or. There was no possible middle ground. The most determined and outspoken delegations taking this view were those from France and the United Kingdom, the only permanent Security Council members among the States parties to the Rome Statute. Their persistence and intransigence certainly have to be seen on the basis of their special responsibility with regard to the Security Council and its role with respect to the maintenance of international peace and the determination of acts of aggression. With achieving a consensual activation as its overall objective, Germany was prepared to accept any outcome of the discussion, be it an endorsement of either understanding or a mere activation leaving the decision to the Court. The German delegation actively participated in the debate, consulted closely with the main actors and sounded out possibilities for compromise by informally testing wording, thus supporting the efforts of the Austrian facilitator. It refrained from officially tabling drafts since it felt that this could only further complicate matters in light of the great number of suggestions submitted. As in Rome and Kampala, it was unclear in New York until the very last moment whether a consensual solution would be reached. The final ‘take-it-or-leave-it’ proposal by the two Vice-Presidents of the ASP forced delegations to give priority to grasping the historic opportunity for activation. The resolution was ultimately adopted by consensus in the early hours of 15 December 201730 and contains wording that endorses the view denying the Court’s jurisdiction over non-ratifying States parties. After deciding to activate the Court’s jurisdiction in operative paragraph 1 of the resolution, the ASP in operative paragraph 2 confirmed that, in accordance with the Rome Statute, the amendments to the Statute regarding the crime of aggression adopted at the Kampala Review Conference enter into force for those States Parties which have accepted the amendments one year after the deposit of their instruments of ratification or acceptance and that in the case of a State referral or propio motu 30

The conference clock had been stopped at midnight.

448 GERMAN YEARBOOK OF INTERNATIONAL LAW 61 @ 2018 investigation the Court shall not exercise its jurisdiction regarding a crime of aggression when committed by a national or on the territory of a State Party that has not ratified or accepted these amendments.31

The resolution continues in operative paragraph 3 with a reaffirmation of Article 40(1) and of Article 119(1) Rome Statute in relation to the judicial independence of the judges of the Court. The substance of this paragraph cannot honestly be contested, since it is just a reference to the Rome Statute. Yet the fact that of all the provisions of the Rome Statute these specific rules on the judges’ independence were particularly highlighted by dedicating a special operative paragraph to them gave rise to some discussion in the ASP.32 Some delegations worried that this paragraph would qualify the clarification they wanted to achieve by paragraph 2. In the end, the proposal put forward by the two Vice-Presidents prevailed. The large majority of delegations saw this paragraph as a kind of conciliatory gesture towards the supporters of the broad jurisdiction view. Paragraph 3 is also a nod to those States that would have preferred a simple activation decision without any legal clarification,33 thus leaving the decision entirely to the Court. This approach did not find enough support. Some delegations recalled experiences of international tribunals, which seemed inclined to interpret their competence and jurisdiction extensively. Thus, these delegations did not feel comfortable about failing to provide the clarification they considered necessary. Finally, the resolution ends by calling upon all States parties to ratify the Kampala amendment on the crime of aggression. The consensual outcome was possible due to delegations’ recognition that the historic step of activating the Court’s jurisdiction over the crime of aggression was paramount. Germany shares this feeling and considers the result to be an encouraging success.

31

ICC ASP, Resolution ICC-ASP/16/Res.5, ICC-ASP/16/Res.5, 14 December 2017, at 35.

32

Some delegations suggested deleting the paragraph or moving it to the resolution’s preamble.

Among them were Belgium, Costa Rica, the Czech Republic, Finland, and Mexico. See ICC ASP, Statements concerning the adoption of the resolution on activation of the jurisdiction of the Court over the crime of aggression to the Assembly at its 13th plenary meeting, on 14 December 2017, ICC-ASP/ 16/20, Annex VII, at 80-90. 33

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V. Outlook Has the controversy between the two camps been settled by the ASP resolution? In their statements immediately following the adoption of the resolution a large number of delegations answered in the affirmative. For them the question has been answered by denying the Court’s jurisdiction over non-ratifying States parties.34 However, there were also a number of dissenting voices in the chorus. One delegation explicitly disagreed with the legal view expressed in the resolution,35 another still felt uncertain as to whether the outcome was clear.36 Some delegations reserved in general terms their legal positions as expressed before37 or underlined the competence of the Court to take the final binding decision.38 Indeed, eventually the Court will have to decide. Yet, the resolution contains very clear wording and it is difficult to imagine that the Court will ignore this. As regards the legal qualification and, thus, effect of the ASP resolution, the discussion started at the ASP meeting and has continued ever since. Different options have been suggested; among them inclusion in the binding force of the treaty since the activation decision was required by the treaty amendment itself,39 subsequent agreement or practice according to Article 31(3)(a) or (b) Vienna Convention on the Law of Treaties (VCLT),40 supplementary means of interpretation in the sense of Article 32 VCLT, or settlement of a dispute between States parties by the ASP in accordance with Article 119(2) Rome Statute.41

34 See the statements of Australia, Bangladesh, Brazil, Canada, Colombia, France, Japan, Madagascar, New Zealand, Republic of Korea, Serbia, the United Kingdom, and Venezuela, ibid., at 80-90. 35

See Statement by Switzerland after adoption, ibid., at 89.

36

See Statement by Guatemala after adoption, ibid., at 84.

See Statement by Argentina after adoption, ibid., at 80; Statement by Slovenia after adoption, ibid., at 87-88; Statement by Spain after adoption, ibid., at 88. 37

38

See Statement by Liechtenstein after adoption, ibid., at 85.

This view is supported by the third paragraph of the preamble of the resolution, which recalls that the activation is subject to a decision according to Art. 15bis(3) and Art. 15ter(3) Rome Statute. 39

Cf. Darin Clearwater, ‘When (and How) Will the Crime of Aggression Amendments Enter into Force?’, 16 JICJ (2018) 31. 40

41

Cf. Statement by France after adoption, ICC ASP, ICC-ASP/16/20, supra note 33, at 83, para. 5.

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It is Germany’s view that the activation decision completes the building phase with respect to the Court’s jurisdiction. This is a success in itself, regardless of whether or when the Court will have cases regarding this crime, because it underscores the conviction that impunity is not to be tolerated. The challenge ahead at this stage is to consolidate the Court’s work. Many of the events and activities commemorating the 20th anniversary of the Rome Statute took stock of achievements and problems. For instance, the German Bundestag passed a resolution stressing, on the one hand, its continuous support for the Court while identifying, on the other hand, the need to reduce the length of time taken to process its cases.42 More problems can be added.43 Germany believes that now it is time to address these problems and to consolidate what has been achieved. For example, Germany is concerned about fragmentation and the drive further to expand the Court’s jurisdiction by adding new crimes to the list of Article 5 Rome Statute. For this reason, Germany was sceptical44 about Belgian proposals for new war crimes at the 2017 ASP.45 This concern is supported by the low number of ratifications of the previous Belgian proposal on this matter adopted in 2010 in Kampala.46 Only 36 ofthe 123 States parties have ratified this older amendment so far,47 including Germany. The ASP activation decision comes full circle and writes history. It expresses the ongoing need for an international criminal justice system and the continuing commitment of the States parties to the Rome Statute. 42

Deutscher Bundestag, 26 June 2018, BT-Drs. 19/2983.

The Court’s relationship with its African constituency is strained with the debate about withdrawal from the Rome Statute continuing. The appeal judgment in the case of Jean-Pierre Bemba illustrates the extent to which the law relating to international criminal proceedings remains in an early stage of development. Governance issues need to be addressed in a transparent and principled way. 43

44 See Explanation of Position by Germany, ICC-ASP/16/22/Add.2, 13 December 2017. Similar concerns were voiced by France and Australia in their statements made on the occasion of the adoption of the ASP resolution. See Statements concerning the adoption of the resolution on amendments to article 8 of the Rome Statute to the Assembly at its 12th plenary meeting, on 14 December 2017, ICCASP/16/20, Annex VI, at 77-79. 45

Adopted in ICC ASP, Resolution ICC-ASP/16/Res.4, ICC-ASP/16/Res.4, 14 December 2017.

46

ICC ASP, Resolution RC/Res.5, RC/Res.5, 10 June 2010.

Amendment to article 8 of the Rome Statute of the International Criminal Court, 26 September 2012, available at http://treaties.un.org under https://treaties.un.org/Pages/ViewDetails.aspx?src=IND &mtdsg_no=XVIII-10-a&chapter=18&clang=_en. 47

German Practice With Regard to the Use of Force in Syria HELMUT PHILIPP AUST AND MEHRDAD PAYANDEH(

I. Introduction In 2019, the Syrian conflict has entered its seventh year. It has evolved from peaceful protests over an outright civil war into a region-wide conflict involving not just domestic actors but a number of States which are intervening on different sides. The Federal Republic of Germany is not among the central actors in this conflict, at least if understood in a military sense. Nonetheless, Germany has been participating with its armed forces in the alliance against the Islamic State. Beyond that aspect, it has also commented on several uses of force by other States pertaining to the Syrian conflict. This brief contribution assesses the German practice in this respect with a focus on governmental and parliamentarian statements. It does so not only with a view to evaluating the practice and statements of Germany against the standard of international law as it stands today, but also and primarily with regard to the significance that this practice and these statements can potentially have for the development of the rules on the use of force in the international legal system. The content, range, and the exceptions to the prohibition of the use of force as set forth by Article 2(4) Charter of the United Nations (UN Charter)1 and customary international law seem to be more uncertain today than they have for quite some time. Debates about the use of force in self-defence against non-State actors, particuHelmut Philipp Aust is Professor of Public Law and the Internationalisation of the Legal Order at Freie Universität Berlin. Mehrdad Payandeh is Professor of International Law, European Law, and Public Law at Bucerius Law School Hamburg. This note is based on an article by the authors titled ‘Praxis und Protest im Völkerrecht’, published in German in 73 Juristenzeitung (2018) 633. For valuable support with the translation as well as the style of this paper, the authors wish to thank Erna Cassarà and Jakob Dürr. (

1

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

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larly when a territorial State seems to be ‘unwilling or unable’ to prevent the activities of terrorist actors, and recent attempts by some States to put forward what could amount to a doctrine of ‘humanitarian reprisals’ are the most conspicuous signs of a growing sense of legal uncertainty in this area. Especially the Syrian conflict has nourished the impression that ever fewer States feel restrained by the fundamental norm of the prohibition of the use of force. At the same time, many States as well as scholars of international law insist that there has not been much change with respect to the interpretation of the prohibition of the use of force and its exceptions. It is contested, in particular, that the unwilling or unable doctrine has met with enough support in the international community to change the contours of the right to self-defence.2 Against this background, it is more important than ever to carefully scrutinise how States position themselves with respect to the interpretation of the prohibition of the use of force and its exceptions. This brief note contributes to this endeavour by highlighting salient aspects of German practice since the end of 2015 in the context of the Syrian conflict. In this regard, one can distinguish between explanatory statements regarding Germany’s own involvement against the Islamic State on the one hand, and the reactions to military actions of other States on the other. In the following, we will consider both statements of the Federal Government, as the actor traditionally understood to be central for the conduct of foreign relations, as well as by other political actors, especially the Bundestag, the German Parliament, as they can potentially influence the international norm-creating process as well.3 We focus on three instances, first the German participation in the alliance against the Islamic State (Section II.), second the reaction with respect to the military strikes of the United States in April 2017 which were effected after a reported use of chemical weapons by the Syrian Government (Section III.), and finally the reaction to the similarly motivated strikes by the United States, France, and the United Kingdom in April 2018 (Section IV.). A brief conclusion follows (Section V.).

For a recent overview over the debate see Jutta Brunnée and Stephen J. Toope, ‘Self-Defence against Non-State Actors: Are Powerful States Willing but Unable to Change International Law?’, 67 International & Comparative Law Quarterly (ICLQ) (2018) 263 et seq. 2

See International Law Commission (ILC), Second Report on identification of customary international law, UN Doc. A/CN.4/672, 22 May 2014, at para. 34. 3

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II. The German Participation in the Alliance Against the Islamic State In December 2015, the German Government and Parliament decided that Germany would participate in the military intervention against the so-called Islamic State in Syria.4 The mandate was extended and prolonged several times afterwards.5 The legitimacy as well as the legality of the mandate both under German constitutional law and international law are subject to dispute.6 With regard to the potential impact of this incident on the development of the international legal rules on the use of force, the particular line of reasoning of the German State organs deserves attention.

A. The Position of the German Government

The primary reasoning for the German participation follows from the letter by the German Government to the United Nations Security Council according to Article 51 UN Charter7 as well as from the documentation the Government has used for German Parliament (Bundestag), Einsatz bewaffneter deutscher Streitkräfte zur Verhütung und Unterbindung terroristischer Handlungen durch die Terrororganisation IS auf Grundlage von Artikel 51 der Satzung der Vereinten Nationen in Verbindung mit Artikel 42 Absatz 7 des Vertrages über die Europäische Union sowie den Resolutionen 2170 (2014), 2199 (2015), 2249 (2015) des Sicherheitsrates der Vereinten Nationen, 1 December 2015, Bundestagsdrucksachen (BT-Drs.) 18/6866. 4

Bundestag, Fortsetzung und Ergänzung des Einsatzes bewaffneter deutscher Streitkräfte zur Verhütung und Unterbindung terroristischer Handlungen durch die Terrororganisation IS auf Grundlage von Artikel 51 der Charta der Vereinten Nationen in Verbindung mit Artikel 42 Absatz 7 des Vertrages über die Europäische Union und den Resolutionen 2170 (2014), 2199 (2015), 2249 (2015) des Sicherheitsrates der Vereinten Nationen sowie des Beschlusses der Staats- und Regierungschefs vom NATOGipfel am 8./9. Juli 2016, 13 October 2016, BT-Drs. 18/9960; Bundestag, Fortsetzung des Einsatzes bewaffneter deutscher Streitkräfte zur Verhütung und Unterbindung terroristischer Handlungen durch die Terrororganisation IS auf Grundlage von Artikel 51 der Charta der Vereinten Nationen in Verbindung mit Artikel 42 Absatz 7 des Vertrages über die Europäische Union und den Resolutionen 2170 (2014), 2199 (2015), 2249 (2015) des Sicherheitsrates der Vereinten Nationen sowie des Beschlusses der Staats- und Regierungschefs vom NATO-Gipfel am 8./9. Juli 2016 und konkretisierenden Folgebeschlüssen des Nordatlantikrats, 25 October 2017, BT-Drs. 19/23; Bundestag, Einsatz bewaffneter deutscher Streitkräfte zur nachhaltigen Bekämpfung des IS-Terrors und zur umfassenden Stabilisierung Iraks, 7 March 2018, BT-Drs. 19/1093. 5

See Mehrdad Payandeh and Heiko Sauer, ‘Die Beteiligung der Bundeswehr am Antiterroreinsatz in Syrien, Völker- und verfassungsrechtliche Rahmenbedingungen’, 49 Zeitschrift für Rechtspolitik (2016) 34. 6

7 United Nations Security Council, Letter dated 10 December 2015 from the Chargé d’affaires a.i. of the Permanent Mission of Germany to the United Nations addressed to the President of the Security Council, UN Doc. S/2015/946, 10 December 2015.

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the purpose of obtaining parliamentary consent for the use of the German Armed Forces.8 The German Government justifies its participation in the operation against the forces of the Islamic State on the basis of the right to collective self-defence according to Article 51 UN Charter and refers to different Security Council Resolutions as well as to the Mutual Assistance Clause under Article 42(7) Treaty on the European Union (TEU).9 In its letter to the Security Council, the Government states that the armed attacks by the Islamic State were launched from parts of the Syrian territory over which the Syrian Government has no effective control. In the application to Parliament, the Government further mentions, although in a rather passing way, that ‘the Syrian Government is unable and/or unwilling’ to prevent the attacks emanating from its territory.10 Setting aside the question of whether and how the reasoning of the Government may justify the intervention in Syria, its position is problematic with regard to the development of international norms in two respects: firstly, it conflates two different approaches to justification. Contrary to the conception of the UN Charter, namely that self-defence and decisions of the Security Council regarding the use of force are construed as alternatives to each other,11 the justification of the German intervention tries to combine both sources of legitimacy for the use of armed force. This approach is understandable in so far as there is no explicit authorisation for military force by the Security Council.12 The reference to the right to self-defence 8 Bundestag, Einsatz bewaffneter deutscher Streitkräfte zur Verhütung und Unterbindung terroristischer Handlungen durch die Terrororganisation IS auf Grundlage von Artikel 51 der Satzung der Vereinten Nationen in Verbindung mit Artikel 42 Absatz 7 des Vertrages über die Europäische Union sowie den Resolutionen 2170 (2014), 2199 (2015), 2249 (2015) des Sicherheitsrates der Vereinten Nationen, 1 December 2015, BT-Drs. 18/6866. 9 10

Treaty on the European Union (TEU) 2002, OJ 2012 C 326/13. Bundestag, supra note 8, at 2.

See Sebastian Graf von Kielmansegg, ‘An der Nahtstelle der Friedensordnung – Bedeutung und Grenzen des Selbstverteidigungsrechts im System kollektiver Sicherheit’, 50 Archiv des Völkerrechts (2012) 285, at 295 et seq.; Christine Gray, International Law and the Use of Force (3rd ed., 2008), at 124 et seq. 11

Carl-Wendelin Neubert, ‘Dilemmata der Völkerrechtsordnung – Zu dem bewaffneten Auslandseinsatz der Bundeswehr in Syrien’, 52 Recht und Politik (2016) 100, at 100 et seq.; Holger Kremser, ‘Der bewaffnete Einsatz der Bundeswehr gegen die Terrororganisation “Islamischer Staat” im Lichte des Staats-, Europa- und Völkerrechts’, 131 Deutsches Verwaltungsblatt (2016) 881, at 883 et seq.; Karine Bannelier-Christakis, ‘Military Interventions Against ISIL in Iraq, Syria and Libya and the Legal Basis of Consent’‚ 29 Leiden Journal of International Law (LJIL) (2016) 743, at 774; Nicholas Tsagouris, ‘Self-Defence against Non-State Actors: The Interaction between Self-Defence as a Primary Rule and Self-Defence as a Secondary Rule’, 29 LJIL (2016) 801, at 805. 12

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is, however, problematic as well, not solely because the existence of an armed attack by the Islamic State and, in particular, its imminence are highly doubtful.13 In fact, it is controversial as such to what extend the threat flowing from the Islamic State can justify military action on Syrian territory.14 The reasoning of the German Federal Government therefore constitutes an attempt – neither convincing, nor appropriate15 – to combine two on their own not conclusive approaches in order to construct a legal ground for intervention under international law, complemented by a reference to the European Mutual Assistance Clause which is, however, irrelevant for the purposes of Article 51 UN Charter and for an evaluation of the legality of military force under international law in general. The German approach seems problematic with regard to the development of the jus ad bellum in so far as it replaces the requirement of a clear, unequivocal justification for a military intervention with a mere reference to various strands of (potential) legitimacy in order to form an (alleged) authorisation. Secondly, the specific reference to the right to self-defence has to be viewed in the context of the debate about self-defence against non-State actors, which has become relevant especially after 11 September 2001. The line of argument of the German Federal Government touches upon the unwilling or unable doctrine, which is especially advocated in the legal within the United States discourse.16 The German Government chooses a more narrow point of reference, stating that the Syrian Government has no effective control over the areas in which the Islamic State is active. In its communication to Parliament, the Government then uses a clear reference to the unwilling or unable doctrine. Such an indecisive positioning by the Government is open to various interpretations within the international legal discourse which shows the danger of such ambiguities: By some, the German position is interpreted as explicit

See Stefan Talmon, ‘Ohne Angriff keine Verteidigung’, Frankfurter Allgemeine Zeitung, Einspruch Magazin, 10 January 2018, available at https://www.jura.uni-bonn.de/fileadmin/Fachbereich_ Rechtswissenschaft/Einrichtungen/Institute/Voelkerrecht/Dokumente_fuer_Webseite/2018/Talmon _Ohne_Angriff_keine_Verteidigung_FAZ_Einspruch_10.01.2018.pdf. 13

14 See Paulina Starski, ‘Right to Self-Defense, Attribution and the Non-State Actor’, 75 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (2015) 455, 469 et seq. 15

See Andreas von Arnauld, Völkerrecht (3rd. ed., 2016), at para. 1120.

See in particular Ashley Deeks, ‘“Unwilling or Unable”: Towards a Normative Framework for Extraterritorial Self-Defense’, 52 Virginia Journal of International Law (2012) 483, at 547. 16

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support for the unwilling or unable doctrine.17 Others view it as an affirmation of a specific German approach, independent from the unwilling or unable doctrine.18 Finally, the German position is understood as an argumentation closely adapted to the peculiarities of the Islamic State and the situation in Syria.19 The rather pragmatic approach of the German Government therefore holds the inherent danger of being relied on as State practice in the development of international law, as support for vastly different legal positions, without the possibility for the Government to further control this process.

B. The Debate Within the German Parliament

The debates held within the German Parliament on the occasion of the decision concerning the deployment of the German Armed Forces do not clarify the German position. During the questioning of the Government by the Parliament, two days before the mandate was decided upon, the Minister of Defence and the Minister of Foreign Affairs basically reiterated the arguments mentioned in the Government’s application, without going further into the details.20 Critical questions concerning the applicability of the right to self-defence were countered by the Minister of Foreign Affairs, stating that Parliament was ‘not a seminar’21, thereby implying that any critical questions regarding the international legal implications lacked a proper sense of political judgment or even that Parliament was not the appropriate forum to discuss questions of international legality at all.

17 See e.g. Tom Ruys and Luca Ferro, Divergent Views on the Content and Relevance of the Jus Ad Bellum in Europe and in the United States? The Case of the U.S.-Led Military Coalition against “Islamic State”, 10 February 2016, available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2731597, at 19; Elena Chachko and Ashley Deeks, ‘Who is on Board with “Unwilling and Unable”?’, Lawfare, 10 October 2016, available at https://www.lawfareblog.com/who-board-unwilling-or-unable.

See e.g. Jutta Brunnée and Stephen J. Toope, ‘Self-Defence against Non-State Actors: Are Powerful States Willing but Unable to Change International Law?’, 67 ICLQ (2018) 263, at 273. 18

19 See e.g. Jochen von Bernstorff, ‘Drone Strikes, Terrorism and the Zombie: On the Construction of an Administrative Law of Transnational Executions’, 5(7) ESIL Reflections, 11 July 2016, available at http://esil-sedi.eu/?p=1369.

Bundestag, Stenografischer Bericht 142. Sitzung, 2 December 2015, Plenary Protocol No. 18/142, at 13875 et seq. 20

21

Ibid., at 13879.

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Nonetheless, the compliance of the deployment of the armed forces with international law was subject to debate during the parliamentary session.22 While some Members of Parliament belonging to the opposition parties criticised the illegality of the operation under international law, emphasising that the right to self-defence was not applicable and that there was no authorisation by the Security Council,23 members of the parties supporting the Government invoked and supported the reasoning of the Government, emphasising the legitimation by the Security Council.24 A questionable attitude towards approach to international law is furthermore expressed in comments of Members of Parliament dismissing critical questions concerning the conformity under international law as ‘political strategy’25 and as an ‘abuse’ of international law for the purpose of ‘protecting terrorism’.26 While it is comprehensible that political considerations are at the centre of a parliamentary debate, it is as questionable as it is dangerous to downplay or completely dismiss questions of international law.

22 Bundestag, Stenografischer Bericht 144. Sitzung, 4 December 2015, Plenary Protocol No. 18/144, at 14105 et seq.

See e.g. the statements of Sahra Wagenknecht (ibid., at 14119), Alexander S. Neu (ibid., at 14117), and Katja Keul (ibid., at 14121), extensive reason Katja Keul, Maria Klein-Schmeink, and Irene Mihalic (ibid., at 14194 et seq.), again Sabine Leidig (ibid., at 14233), Nina Scheer (ibid., at 14249), Sonja Steffen (ibid., at 14256), and Hans-Christian Ströbele (ibid., at 14256). Doubts about the compliance with to international law where expressed by the Members of Parliament Anton Hofreiter (ibid., at 14119), Annalena Baerbock (ibid., at 14199), and Swen Schulz (ibid., at 14254). Also members of the governmental fraction expressed doubts about the compliance with international law, see e.g. the statements of Marco Bülow and Cansel Kiziltepe (ibid., at 14189 et seq.) Rita Hagl-Kehl and Hilde Mattheis (ibid., at 14190 et seq.) as well as Lothar Binding (ibid., at 14204). 23

24 See e.g. the statement of the delegate Rolf Mützenich (ibid., at 14190 et seq.). Also members of the opposition groups accepted the application and approved the conformity under international law, see e.g. the statement of the delegates Tom Koenigs, Manuel Sarrazin, and Kordula Schulz-Asche (ibid., at 14196); see also the report by the Research Service of the German Parliament (Wissenschaftliche Dienste des Deutschen Bundestages), Staatliche Selbstverteidigung gegen Terroristen, Völkerrechtliche Bewertung der Terroranschläge von Paris vom 13. November 2015, 30 November 2015, WD 2 – 300 – 203/15. 25

Member of Parliament Rainer Arnold, Bundestag, supra note 22, at 14121.

26

Member of Parliament Norbert Röttgen (ibid., at 14116).

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III. Germany’s Reaction to the Military Strike Against Syria in April 2017 On 7 April 2017, the United States launched a military strike with cruise missiles on the military airfield asch-Scha’irat. The operation occurred as a reaction to the alleged previous use of chemical weapons which was attributed to the Syrian regime. According to most commentators, the operation constitutes a breach of the prohibition of the use of force under Article 2(4) UN Charter.27 Nonetheless, both the German Chancellor and the Minister of Foreign Affairs characterised the military strikes as ‘understandable’. They referred to the use of chemical weapons as potential war crimes, to the suffering of innocent people, and to the political blockade within the Security Council.28 The intentionally and decidedly neutral characterisation of the strikes as ‘understandable’ avoids making a clear statement with regard to the lawfulness of the operation. Even a breach of international law can be ‘understandable’. Similarly vague is the joint statement of the German Chancellor and the French President, stating that the responsibility for the development lies solely with the Syrian President, and that his crimes against his own population had required a form of sanctioning.29 Although the German Government avoids a clear positioning, its reaction can be construed as a form of political support for the military operation. Yet, the meaning of this statement for the development of the rules of international law on the use of force should not be overestimated, especially as it is not clear on which grounds the United States based the military operation and to which (alleged) international rule this practice relates. Nonetheless, there is a risk that a benevolently agreeing state27 See e.g. Marko Milanovic, ‘The Clearly Illegal US Missile Strike in Syria’, EJIL: Talk!, 7 April 2017, available at https://www.ejiltalk.org/the-clearly-illegal-us-missile-strike-in-syria/.

German Federal Government (Bundesregierung), Nach Militäreinsatz in Syrien: “Assad trägt alleinige Verantwortung”, 7 April 2017, available at https://www.bundesregierung.de/Content/DE/Artikel/2017/ 04/2017-04-05-giftgas-in-syrien.html. 28

29

Bundesregierung, Gemeinsame Erklärung von Bundeskanzlerin Merkel und Frankreichs Präsident Hollande nach den Luftschlägen in Syrien, Press Release No 125, 7 April 2017, available at https://www. bundesregierung.de/breg-de/aktuelles/gemeinsame-erklaerung-von-bundeskanzlerin-merkel-undfrankreichs-praesident-hollande-nach-den-luftschlaegen-in-syrien-481840; see also Bundesregierung, Government Press Conference on 7 April 2017, 7 April 2017, available at https://www.bundesregierung.de/ Content/DE/Mitschrift/Pressekonferenz/2017/04/2017-04-07-regpk.html.

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ment, that expresses no doubts as to the compliance with international law, can be relied on in future law-making processes when evidence for State practice based on a legal conviction is looked for. In addition to relativising the prohibition of the use force through the avoidance of clearly designating a breach of the law, the positioning of the German Government might be construed as evidence for a development of the law permitting the use of military force under simplified requirements, again without the German Government evoking a clear position on these requirements.

IV. Germany’s Reaction to the Military Strike Against Syria in April 2018 The reactions to the military strike on 13 April 2018, carried out by the United States, France, and the United Kingdom, are more complex than the statements voiced in April 2017. According to most commentators, these strikes were also in violation of international law.30 Among the intervening States, only the United Kingdom put forward a genuine justification under international law, invoking, as it had done previously,31 ‘humanitarian intervention’ as a ground for the use of force.32 In contrast, the reasoning of the United States and France consists primarily of political and moral considerations. The United States strongly emphasise the notion of retaliation, while also advancing a humanitarian rhetoric in the form of a ‘humanitarian countermeasure’ as a reaction to the alleged use of chemical weapons by the Syrian regime. See e.g. Marko Milanovic, ‘The Syria Strikes: Still Clearly Illegal’, EJIL:Talk!, 15 April 2018, available at https://www.ejiltalk.org/the-syria-strikes-still-clearly-illegal/; Helmut Philipp Aust, ‘Völkerrechtswidrigkeit benennen: Warum die Bundesregierung ihre Verbündeten für die Syrien-Luftangriff kritisieren sollte’, Verfassungsblog, 16 April 2018, available at https://verfassungsblog.de/voelkerrechtswidrigkeitbenennen-warum-die-bundesregierung-ihre-verbuendeten-fuer-den-syrien-luftangriff-kritisieren-sollte/; Christian Walter, ‘Das Gewaltverbot droht Schaden zu nehmen’, Tagesspiegel, 18 April 2018, available at https://www.tagesspiegel.de/politik/nach-dem-militaerschlag-in-syrien-das-gewaltverbot-drohtschaden-zu-nehmen/21185438.html; see also Wissenschaftliche Dienste des Deutschen Bundestages, Völkerrechtliche Implikationen des amerikanisch-britisch-französischen Militärschlags vom 14. April 2018 gegen Chemiewaffeneinrichtungen in Syrien, 18 April 2018, WD 2 – 3000 – 048/18. 30

31 Prime Minister’s Office, 10 Downing Street, Policy paper: Chemical weapon use by Syrian regime: UK government legal position, 29 August 2013, available at https://www.gov.uk/government/ publications/chemical-weapon-use-by-syrian-regime-uk-government-legal-position/chemical-weapon-useby-syrian-regime-uk-government-legal-position-html-version. 32 Prime Minister’s Office, Policy paper: Syria action – UK government legal position, 14 April 2018, available at https://www.gov.uk/government/publications/syria-action-uk-government-legalposition/syria-action-uk-government-legal-position.

460 GERMAN YEARBOOK OF INTERNATIONAL LAW 61 @ 2018 A. The Position of the German Government

Even before the military strikes, the German Chancellor had categorically excluded any form of direct military participation of Germany, but avoided any statement regarding the legal requirements for a military reaction following the use of chemical weapons, which was attributed by many sources to the Syrian regime.33 After the military strike, the Chancellor referred to the (alleged) responsibility of the Syrian regime for the use of chemical weapons and emphasised, again, the political blockade among the members of the Security Council. She then expressed ‘support’ for the approach of the allied States and described the air strikes as ‘necessary and appropriate to safeguard the effectiveness of the condemnation of the use of chemical weapons and to warn the Syrian Regime against further infringements’.34 The Federal Defence Minister also described the action by the United States, France, and the United Kingdom as ‘right’ and ‘proportionate and necessary’.35 The Minister for Foreign Affairs commented in a similar manner.36 The German Government again avoids a clear-cut positioning on the question of the conformity of the military operation under international law. It however expresses approval of the intervention more clearly than in April 2017. The military course of action is not only implicitly tolerated but explicitly endorsed. With the reference to criteria of proportionality, the statements move towards a more genuinely legal line of argument: While compliance with the principle of proportionality can not by itself justify the use of force under international law, it nonetheless constitutes a threshold Bundesregierung, Bürgerkrieg in Syrien: Einsatz von Chemiewaffen inakzeptabel, 13 April 2018, available at https://bundesregierung.de/Content/DE/Artikel/2018/04/2018-04-09-syrien-giftgasanschlag. html. 33

34 Bundesregierung, Bundeskanzlerin Merkel zu den Militärschlägen der USA, Großbritanniens und Frankreichs in Syrien, Press Release No 112, 14 April 2018, available at https://www.bundesregierung. de/breg-de/aktuelles/bundeskanzlerin-merkel-zu-den-militaerschlaegen-der-usa-grossbritanniens-undfrankreichs-in-syrien-1006908.

Federal Ministry of Defence (Bundesministerium der Verteidigung), Stellungnahme der Ministerin zur Lage in Syrien, 14 April 2018, available at https://www.bmvg.de/de/aktuelles/ministerin-zur-lagein-syrien-23682. 35

36 Federal Foreign Office (Auswärtiges Amt), Außenminister Maas zu Syrien, Press Release, 14 April 2018, available at https://www.auswaertiges-amt.de/de/newsroom/bm-zu-syrien/1991100; see also the statement by the Heads of State and Government of the G7: Bundesregierung, Erklärung der Staats- und Regierungschefs der G7 zu Syrien, Press Release No 115, 16 April 2018, available at https://www. bundesregierung.de/breg-de/aktuelles/erklaerung-der-staats-und-regierungschefs-der-g7-zu-syrien1006916.

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to the exercise of military force with regard to the right to self-defence37 and to countermeasures38. Again, it is not entirely clear which legal position the German Government supports: The acceptance of the military strike could potentially be understood as an affirmation of a humanitarian intervention as advanced by the United Kingdom. It could also be understood as recognition of a new understanding of the doctrine of countermeasures, which, under certain conditions – namely a breach of significant humanitarian obligations under international law, proportionality, and the futility of diplomatic solutions and particularly Security Council action – would then allow military action beyond the system of the UN Charter. In any case, the Government leaves considerable room for interpretation. Again, this approach risks that the primarily politically motivated governmental acceptance of the military strike might be used as evidence for a legal development towards the acceptance of concepts such as humanitarian intervention or humanitarian countermeasures.

B. The Debate in the German Parliament

During a debate in the German Parliament on 18 April 2018, the Government as well as Members of Parliament supporting the Government continued to avoid taking a clear legal position.39 The Minister of Foreign Affairs repeated the Government’s position without touching upon the legal concerns.40 Parliamentarians of the opposition parties criticised the military action politically and characterised it as incompatible with international law.41 By contrast, parliamentarians supporting the Gov37 See International Court of Justice (ICJ), Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, 27 June 1986, ICJ Reports 1986, 14, at 94; ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, ICJ Reports 1996, 226, at 245.

See ICJ, Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Judgment, 25 September 1997, ICJ Reports 1997, 7, at 55; ILC, Responsibility of States for Internationally Wrongful Acts, 2 Yearbook of the International Law Commission (2001) 31, at Art. 51. 38

39

et seq. 40

Bundestag, Stenografischer Bericht 25. Sitzung, 18 April 2018, Plenary Protocol No 19/25, 2266 Ibid., at 2266 et seq.

See e.g. Delegates Alexander Gauland (ibid., at 2268), Sahra Wagenknecht (ibid., at 2271), Omid Nouripour (ibid., at 2272), and Tobias Pflüger (ibid., at 2279). 41

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ernment referred to the breach of international law by the Syrian regime42 as well as to various resolutions by the Security Council.43 They moreover accused the critical members of the opposition of defending the Assad regime, and regarded their critique as ‘inappropriate’ since the intervening States were Germany’s allies.44 Some proponents of the military intervention mentioned a development of the international legal rules in connection with the strikes, without, however, explaining which international legal norm should have developed in what way.45 They categorically rejected any accusation of the operation as being contrary to international law and tried to ridicule and delegitimise the critical voices by calling them ‘Winkeladvokaten’46 – implying an inappropriate insistence on legal forms in the light of seemingly more significant political or moral considerations.

V. Concluding Remarks German State practice regarding the conflict in Syria, especially the practice of the German Government, turns out to be problematic as it might contribute to a further erosion of the prohibition of the use of force. Official statements play down what is identified by most commentators as clear breaches of the international rules on the use of force. Because of the ambiguous phrasing of many governmental statements there is the risk that the – highly ambiguous and at times vague – position of the German Government can also be relied on for further developments of the law, without the Government being in a position to control these developments, at least until it does not take a more explicit and clearer stance on these issues. Finally, the German Government position also contributes to a blurring between legal and polit42 See e.g. statements by Members of Parliament Johann David Wadephul (ibid., at 2269) and Nils Schmid (ibid., at 2276).

See e.g. statements by Members of Parliament Johann David Wadephul (ibid., at 2269) and Alexander Graf Lambsdorff (ibid., at 2270). 43

See e.g. statements by Members of Parliament Johann Wadephul (ibid., at 2269), Christian Schmidt (ibid., at 2274), and Norbert Röttgen (ibid., at 2277). 44

45 See e.g. statements by Members of Parliament Christian Schmidt (ibid., at 2274) and Norbert Röttgen (ibid., at 2278).

See in the statement of Member of Parliament Christian Schmidt (ibid., at 2274); see also ibid., at 2275 (pointing out that the debate takes place in parliament and ‘not in a district court’). 46

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ical arguments and conflates various legal arguments in a questionable manner. Thereby, the Government risks further diluting the normativity of international law. All this is to be criticised, especially in the light of the often-made assertion that Germany is a rule-abiding country, highly supportive of the proverbial ‘rules-based international legal order’. As an elected member of the United Nations Security Council for the 2019/2020 term, the German Government should be more careful in formulating its policy towards the evolution of the prohibition of the use of force and its exceptions. It is of course legitimate to support new ways of interpreting Article 2(4) and Article 51 UN Charter. But such support should be based upon a clearly formulated and articulated political position, in order not to further the already existing legal uncertainty with respect to rules which are central for the international legal order in general and the collective security system of the United Nations.

Ban on Strike Action for Civil Servants is Constitutional: The Judgment of the Federal Constitutional Court of 12 June 2018 SARA JÖTTEN AND FELIX MACHTS(

I. Introduction In its long-awaited judgment on 12 June 2018,1 the German Federal Constitutional Court (Bundesverfassungsgericht, FCC) upheld the constitutionality of the German ban on strike action for civil servants (Beamte).2 In its judgment the court also considered the interpretation of the European Court of Human Rights (ECtHR) with regard to the freedom of association and came to the conclusion that the German ban on strike actions for civil servants complies with the principle of the German Basic Law’s (Grundgesetz, BL)3 openness to public international law.

Dr. Sara Jötten is a civil servant of the Free and Hanseatic City of Hamburg. Felix Machts works as a lawyer in Hamburg, specialised in public and administrative law. The views presented in this article are those of the authors and are not necessarily shared by the City of Hamburg. (

1 Federal Constitutional Court (Bundesverfassungsgericht) (FCC), 2 BvR 1738/12, 2 BvR 646/15, 2 BvR 1068/14, 2 BvR 1395/13 of 12 June 2018. For an English press release issued after the judgment, see FCC, Ban on strike action for civil servants is constitutional: Press Release No. 46/2018 of 12 June 2018, 12 June 2018, available at https://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/ EN/2018/bvg18-046.html. 2 The wording complies with the translation of the term ‘Beamter’ used by the FCC in its English press release.

German Basic Law (Grundgesetz für die Bundesrepublik Deutschland), 23 May 1949, BGBl. 1949, 1, as amended on 13 July 2017, BGBl. I, 2347. 3

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II. Case History This judgment marks the preliminary end of the corresponding German jurisdiction. Stirred by two judgments of the ECtHR rendered in 2007 and 2008, the traditionally established German ban on strike action for civil servants, existing since the Weimar Republic, had been called into question. The ECtHR had decided in those judgments against Turkey, inter alia, that Article 11 of the European Convention on Human Rights4 (ECHR) encompasses the right to participate in strike,5 that this right applies in principle to all ‘employees’ of the State,6 and that the restriction in Article 11(2) cl. 2 ECHR, including the term ‘members of the administration’, has to meet certain criteria which exceed the test of arbitrariness.7 One criterion being that the term ‘members of the administration of the State’ does not encompass all civil servants but only those civil servants ‘engaged in the administration of the State as such’.8 Drawing on this jurisdiction, German teachers had achieved judgments in their favour by two Administrative Courts (Verwaltungsgerichte) in 2010 and 2011 with the support of the German Education Union (Gewerkschaft Erziehung und Wissenschaft, GEW). In Germany, most teachers are civil servants (Beamte). A significant number of teachers, however, are public employees (Angestellte im öffentlichen Dienst), enjoying a considerably different labour regime. While it is beyond dispute that German teachers with the status of public employees enjoy, i.e., the right to strike, civil servants traditionally do not. The GEW for some time supported the claim of those teachers who have the status of civil servants to participate in strike action.

4

221.

Convention for the Protection of Human Rights and Fundamental Freedoms 1950, 213 UNTS

ECtHR, Chamber, Enerji Yapi-Yol Sen v. Turkey, Appl. Nr. 68959/01, Merits and Just Satisfaction, Judgment, 21 April 2009, at para. 32. 5

ECtHR, Grand Chamber, Demir and Baykara v. Turkey, Appl. Nr. 34503/97, Merits and Just Satisfaction, Judgment, 12 November 2008, at para. 96. 6

7

Ibid., at para. 97.

Ibid. See also ECtHR, Enerji Yapi-Yol Sen v. Turkey, supra note 5, at para. 32: ‘[...] si l’interdiction du droit de grève peut concerner certaines catégories de fonctionnaires [...], elle ne peut pas s’étendre aux fonctionnaires en general’ in the authentic French version. 8

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In the judgments in 2010 and 2011, the two Administrative Courts referred to the ECHR and the recent judgments of the ECtHR with respect to the freedom of association. The Administrative Court of Düsseldorf (Verwaltungsgericht Düsseldorf) found that the defendant was prevented from enacting a disciplinary order by the ECHR and the jurisprudence of the ECtHR.9 The Administrative Court of Kassel (Verwaltungsgericht Kassel) held in two judgments of 27 July 2011 that the German denial of the right to strike does not apply to all civil servants but to a limited group of civil servants, at most.10 These judgments were presented by Sara Jötten and Jule Siegfried in the German Practice Section of the German Yearbook of International Law in 2011,11 concluding with the forecast that judgments by the FCC as well as the ECtHR in these cases might be possible one day. In the meantime the case decided by the Administrative Court of Düsseldorf made its way to the Higher Administrative Court of North Rhine-Westphalia (Oberverwaltungsgericht Nordrhein-Westfalen), which ruled in 2012 that the German ban on strike action persists despite the ECHR and the recent judgments with regard to Turkey and the freedom of association.12 The appeal with regard to the judgment of the Administrative Court of Kassel has been suspended in light of the ongoing proceedings inter alia in North Rhine-Westphalia.

III. Judgment by the Federal Administrative Court of 27 February 2014 The case decided in 2010 by the Administrative Court of Düsseldorf and in 2012 by the Higher Administrative Court of North Rhine-Westphalia reached the court 9 Administrative Court of Düsseldorf (Verwaltungsgericht Düsseldorf), 31 K 3904/10.O of 15 December 2010. 10 Administrative Court of Kassel (Verwaltungsgericht Kassel), 28 K 574/10.KS.D and 28 K 1208/10.KS.D of 27 July 2011.

Sara Jötten and Jule Siegfried, ‘The German Strike Ban for Public Officials in Light of the Jurisprudence of the European Court of Human Rights: The Judgments of the Administrative Court of Düsseldorf of December 2010 and the Administrative Court of Kassel of July 2011’, 54 German Yearbook of International Law (2011) 731. 11

12 Higher Administrative Court of North Rhine-Westphalia (Oberverwaltungsgericht für das Land Nordrhein-Westfalen), 3d A 317/11.O, 7 March 2012.

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of last resort, the Federal Administrative Court (Bundesverwaltungsgericht, FAC), which held in its judgment of 27 February 201413 that the German ban on strike action as applied to all civil servants is not compatible with Article 11 ECHR and called on the German legislature to change the current legal situation. The FAC interpreted the jurisdiction of the ECtHR as requiring a functional differentiation as opposed to the German differentiation based on the status of the public servants (Beschäftigte im öffentlichen Dienst) as either civil servants (Beamte) or public employees (Angestellte im öffentlichen Dienst).14 Nonetheless, the claimant lost the case because the FAC found that it had no authority to solve the conflict between the BL and the ECHR via interpretation, and the ECHR provisions could not override the BL.

IV. Judgment by the Federal Constitutional Court of 12 June 2018 Again supported by the GEW, the claimant who started by winning before the Administrative Court of Düsseldorf filed a constitutional complaint before the FCC. The case was joined together with the comparable cases of three other claimants – all of them teachers and civil servants. The FCC dedicates much of its reasoning15 to the ECHR and the relevant jurisdiction of the ECtHR, interlinking these deliberations with the principle of the BL’s openness to public international law. The Court first describes, inter alia, the already mentioned decisions by the ECtHR in the cases Demir and Baykara in 2008 and in Enerji Yapi-Yol Sen in 2009. Concerning the case of Demir and Baykara, the Court in particular stresses the concurring opinion of judge Spielmann, who supports the idea that States must be able to retain a certain freedom of choice with regard to the extent to which civil servants must be granted the right to collective bargaining. Secondly, the FCC comes to the conclusion that the current legal situation in Germany is in compliance with the ECHR. Therefore, the Court states, it has not to 13

Federal Administrative Court (Bundesverwaltungsgericht), 2 C 1.13 of 27 February 2014.

14

Ibid., at para. 40.

15

FCC, supra note 1, at paras. 163-187.

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be decided whether the German ban on strike as one of the ‘traditional principles of the professional civil service’ (Article 33(5) BL – hergebrachte Grundsätze des Berufsbeamtentums) must be considered a primary principle of the BL and consequently not subject to interpretation. However, the Court hints that this may well be the case.16 The main argument of the FCC against the statement of the ECtHR in the Enerji Yapi-Yol Sen Case that restrictions of the right of association may not apply to all civil servants (‘fonctionnaires’ in the French original decision of the ECtHR)17 derives from the concept of contextualisation (Kontextualisierung), established by the FCC in this judgment for the first time. According to this concept, the guiding function of ECtHR decisions beyond Article 46 ECHR (Leit- und Orientierungswirkung) in interpreting national fundamental rights presupposes a degree of comparability between the national case and the judgment of the ECtHR. The more comparability identified, the more weight shall be given to the ECtHR’s reasoning. In order to assess comparability, judgments of the ECtHR have to be interpreted as decisions in an individual, concrete case and against the background of the relevant national legal system. Conceptual similarities should not mislead or neglect existing differences which derive from the national legal systems. Even if no parallel situation exists, the decision of the ECtHR provides direction and guidance (Leit- und Orientierungswirkung), requiring an examination of the national legal system and compliance with the fundamental assessments of the ECtHR. The FCC only very briefly states that the German legal system does not contradict the ECtHR’s assessment that the right to strike is just one possibility of a union to achieve its objectives. The FCC points out that the German legal system provides for a different compensatory measure in that the unions are being involved in the legislative procedures. Thirdly, the FCC reasons that the German ban on strike is justified under Article 11(2) cl. 1 and cl. 2 ECHR, respectively, based on the particularities of the German system of the professional civil service.18 It is prescribed by law and necessary for the prevention of disorder. Furthermore, the ban on strike is also ‘necessary in a democratic society’ in the sense of Article 11 (2) cl. 1 ECHR, meaning that the interference can only be justified by a pressing social need and the restrictions must be 16

Ibid., at para. 172.

17

Ibid., at para. 173.

18

Ibid., at para. 176.

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proportionate.19 As the right to strike is not part of the core of the right of association, the margin of appreciation is wider and the interference is more likely to be proportionate.20 The FCC finds as decisive that in the system of the German civil service law, the status of civil servants entails interrelated rights and duties; expansions or restrictions of one right or duty generally also result in changes to the other rights or duties. In particular, granting a right to strike would be incompatible with upholding fundamental principles of civil service law which are granted by the BL. This would mainly concern civil servants’ duty of loyalty, the principle of lifetime employment, and the principle of alimentation, which includes remuneration regulated by law. The German civil service law system is a national particularity. In balancing the interests in the case at hand, the FCC noted that the ban on strike action for teachers serving as civil servants serves to safeguard the right to education. Furthermore, the German civil service system includes compensatory measures for denying the right to strike, such as the involvement of unions in legislative procedures and the possibility of judicial review for the remuneration of individual civil servants.21 In addition, the interference is justified with regard to Article 11(2) cl. 2 ECHR because teachers with civil servant status are – as the Court states without much elaboration – ‘members [...] of the administration of the State’.

V. Evaluation The judgments by the Administrative Courts of Kassel and Düsseldorf in 2010 and 2011 raised the question of whether the courts correctly interpreted the jurisprudence of the ECtHR regarding the German denial of the civil servants’ right to strike, in violation of Article 11 ECHR. While an analysis of the relevant ECtHR jurisprudence supported the assessment that the German ban on strike violates the ECHR,22 the FCC comes to the conclusion that no conflict exists.23 However, the FCC’s 19

Ibid., at para. 179.

Ibid., at para. 180 with reference to ECtHR, Chamber, National Union of Rail, Maritime and Transport Workers v United Kingdom, Appl. No. 31045/10, Merits and Just Satisfaction, Judgment, 8 April 2014. 20

21

FCC, supra note 1, at paras. 182, 183.

22

For this conclusion see Jötten and Siegfried, supra note 11, at 735 et seq.

23

FCC, supra note 1, at paras. 164, 172 et seq.

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reasoning, which draws primarily on the aspect of contextualisation, appears rather thin.24 Although the FCC’s starting point – emphasising that the specific circumstances of each case must be carefully considered when the case-law provides direction and guidance, beyond the scope of Article 46 ECHR – is valid, the conclusion reached in this particular case seems far-fetched. The FCC does not pay sufficient regard to the vital reasoning of the ECtHR to make a functional differentiation of public servants and not one merely based on their status. The ECtHR had charged the Turkish Government with failing ‘to show how the nature of the duties performed by the applicants, as municipal civil servants, requires them to be regarded as “members of the administration of the State”’25. The nature of the duties performed by those German teachers with the status of civil servants and those German teachers who are public employees is, however, identical. It is precisely the status that distinguished the two, not their duties and functions. Furthermore, in its assessment that irrespective of the question of an interference with Article 11(1) ECHR, any interference would in any case be justified under Article 11(2) ECHR, the FCC only repeats its own arguments already used for its conclusion that no conflict exists between the German legal situation and the ECHR. However, this seems to follow as a logical consequence, as a conflict would not exist if the interference into a Convention’s right were justified. It does not add any additional weight to the FCC’s thin and unpersuasive reasoning. In its examination the FCC rightfully regards Article 11(2) cl. 2 ECHR not as a singular ground of justification but as a supplement to Article 11(2) cl. 1 ECHR.26 The following assessment of the FCC, though, that teachers with the status of civil servants are ‘members of the administration of the State’27 is far-fetched in light of the jurisprudence of the ECtHR. On the contrary, the jurisprudence of the ECtHR supports the assessment

For a similar assessment see Mike Wienbracke, EuZW 2018, at 637 and 654. Martin Stuttmann, NVwZ 2018, 1121, at 1138 also criticises the reasoning of the FCC as short (‘schmallippig’). 24

25

ECtHR, Demir and Baykara, supra note 6, at para. 107.

FCC, supra note 1, at para. 184 with reference inter alia to ECtHR, Demir and Baykara, supra note 6, at paras. 97, 107. 26

27

FCC, supra note 1, at para. 187.

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that the term is to be interpreted narrowly and that teachers are not exercising sovereign powers as such.28 By denying that a conflict exists, the FCC avoids testing the limits of the BL`s openness to public international law. Had it decided differently, it would have to state openly that the fundamental principles of civil service law, which are guaranteed by the BL, might prevent the German legislature from complying with public international law.29 The German legislature would, however, still be able to change aspects of the German civil service system within the boundaries of the BL: It would, as the FAC stated,30 be possible to comply with the ECHR in the future by only placing public employees and not civil servants in positions which are not part of the ‘administration of the state’ in the sense of Article 11(2) cl. 2 ECHR in light of the jurisprudence of the ECtHR. With regard to teachers, however, the FAC noted that they – whether as civil servants or public employees – are not part of the administration as such because they do not perform genuinely sovereign functions.31 This view has been supported by the FCC in the past to justify the practice of employing teachers not only as civil servants, but also as public employees, with the argument that teachers do not perform genuinely sovereign functions which generally require the protection of a status of civil servant.32

For this conclusion see Jötten and Siegfried, supra note 11, at 736. Critical also Wienbracke, supra note 24, at 654. 28

29

See the assessment of Wienbracke, supra note 24, at 654.

30

FAC, supra note 13, at paras. 62 et seq.

Ibid., at para. 46. The FCC, elaborating on this argument (FCC, supra note 1, at para. 161), notwithstanding its own prior assessment tending in the direction of the FAC (see FCC, 2 C 1/13 of 27 February 2014, BVerwGE, 149, 117, at 134 et seq.), assumes insurmountable problems to differentiate properly and divide civil servants into groups that have or do not have the right to strike based on their different functions. The FCC points out that such a distinction would entail difficulties that are connected to the concept of public authority, i.e. whether a specific official act involves the exercise of public authority, to make a distinction in cases where the specific official act is not the determining factor, and whether a particular civil servant performs different functions (partly public authority functions, partly non-public authority functions) as a result of a delegation, reassignment, or transfer. 31

32

See FCC, 2 BvF 3/02 of 19 September 2007, BVerfGE 119, 247, at 267.

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VI. Concluding Remarks The forecast given in 2011 by Jötten and Siegfried still holds true: A judgment by the FCC has been rendered, a judgment of the ECtHR is to be expected in the future, and a clarification of the German legal situation is highly desirable. A judgment by the ECtHR would clarify the legal situation with regard to the right to strike of German teachers as civil servants and the differences in this regard between the FAC and the FCC. The GEW has publicly announced its intention to take the cases to Strasbourg.33 A binding judgment against Germany by means of Article 46 ECHR would create an entirely different legal situation as exists today. Beyond the scope of Article 46 ECHR, the FCC rightfully stated that the case law of the ECtHR (only) provides direction and guidance in the interpretation of the BL to avoid future rulings against Germany by the ECtHR.34 It remains questionable if this assessment holds true in this particular case. It needs to be seen whether the particularities of the German civil service system, to which the FCC often refers, are deemed sufficient by the ECtHR to explain why the ban on strike action for civil servants not ‘engaged in the administration of the State as such’ is a violation of a human right in Turkey while, at the same time, the ban on strike action is not supposed to violate the identical human right of those teachers who have the status of civil servants in Germany.35 Hope remains that the answer may be given one day in Strasbourg, and regardless of the outcome, it will provide a way to stabilise or change the German civil service system once and for all.

See Gewerkschaft Erziehung und Wissenschaft, Streikrecht für Beamte: Elf Kläger ziehen vor den Europäischen Gerichtshof für Menschenrechte, 20 November 2018, available at https://www.gew.de/ presse/pressemitteilungen/detailseite/neuigkeiten/streikrecht-fuer-beamte-elf-klaeger-ziehen-vor-deneuropaeischen-gerichtshof-fuer-menschenrechte/. 33

34

FCC, supra note 1, at paras. 130, 131.

35

Critical also Stuttmann, supra note 24, at 1138.

Turkish Politicians’ Political Campaigns in Germany – The Legality of Public Appearances Under German Law LIV CHRISTIANSEN(

I. Introduction Over the course of the last three years Turkish politicians have been campaigning throughout Europe to advertise a popular referendum and elections. At a first glance that does not seem to be unusual, in fact it is rather common that politicians campaign abroad to reach as many expats entitled to vote as possible, e.g. Barack Obama visited Berlin in 2008 during his presidential election campaign1 and Recep Tayyip Erdoğan (albeit as Prime Minister at that time) visited Germany to advertise the next election in 2008.2 However, in more recent years European States started to react differently to campaigning abroad, especially of Turkish politicians. If someone had to pin point the starting point of this controversy, it would probably be in 2016 when Erdoğan planned to give a live streamed speech in Cologne and the local police denied the usage of the screen for the live broadcast, due to security reasons.3 The issue became even more prominent in light of the constitutional referendum held in Turkey on ( Dipl. Jur., Doctoral Candidate and Research Associate at the Walther Schücking Institute for International Law, University of Kiel. 1 See, for example, Andy Eckhard, Barack Obama Returns to Berlin, Scene of Iconic 2008 Speech, NBC News, 16 November 2016, available at https://www.nbcnews.com/news/world/barack-obamareturns-berlin-scene-iconic-2008-speech-n684066. 2 See, for example, Spiegel Online, Erdogan's Visit Leaves German Conservatives Fuming, 12 February 2008, available at http://www.spiegel.de/international/germany/the-world-from-berlin-erdogan-svisit-leaves-german-conservatives-fuming-a-534724.html.

For the factual background and a detailed legal assessment, see David Jungbluth, ‘Die “ErdoğanEntscheidung” - Oder: Die Deutsche Justiz als Affirmationsorgan der politisch-medialen Mehrheitsmeinung’, 36 Neue Zeitschrift für Verwaltungsrecht (NVwZ) (2017) 604, at 604. 3

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16 April 2017. New tension was created in the wake of the Turkish elections in June 2018 and the subsequent entry into force of the constitutional amendment. As a result, European States tried to prevent campaigning on their territory. Measures taken against politicians carrying out these campaigns include, inter alia the refusal to enter the State where a campaign has been planned, the refusal to carry out a planned campaign event in its entirety, due to security reasons or fire safety, and the issuing of administrative restrictions or conditions to carry out an event in a certain way.4 What the European States with communities of Turkish citizens tried to prevent with these measures, in the light of the highly disputed referendum and the subsequent election, was not the voting of the Turkish diaspora in general but the public events prior to the main voting or election process. This article will give an introduction as to why the momentary tension exists in the first part. In the second part the focus lies on the competence of the Federal Government to decide whether or not campaigning in Germany is allowed in general and the competence of the Federal states. The third part will discuss how decisions taken by the Government may be of relevance to the fundamental rights and freedoms guaranteed by the German Constitution, the so called ‘Basic Law’ (Grundgesetz).5 Not part of this article is the question whether or not campaigning abroad should be allowed in general under public international law, as well as the possible problems arising from diplomatic and consular law.6

4 For a factual background, see Francesca Capone and Andrea de Guttry, ‘An Analysis of the Diplomatic Crisis between Turkey and the Netherlands in Light of the Existing International Legal Framework governing Diplomatic and Consular Relations’, 10 European Journal of Legal Studies (2017) 61, at 64.

Basic Law for the Federal Republic of Germany (Grundgesetz für die Bundesrepublik Deutschland), 23 May 1949, Bundesgesetzblatt (BGBl.) I, 1, as amended on 20 July 2017, BGBl. I, 2346. 5

6 For an overview of these topics, see Andrea de Guttry, ‘The Right of Aliens to Vote and to Carry Out Political Activities’, 78 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (2018)933, at 933.

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II. Factual Background Currently there are 2.8 million people of Turkish origins living in Germany.7 1.4 million of these Turkish citizens are entitled to vote in Turkish elections as well as referenda.8 The problem is not the referendum or the voting of the Turkish diaspora as such, the crux lies with the content of the amendments of the constitution and the general tension between the European Union (EU) and/or Germany and Turkey. To explain this tension and why the content of this particular referendum lead to difficulties, it is necessary to start off in the past. On 15 July 2016 part of the Turkish military launched a planned coup to overturn the Government and thereby unseat the Turkish President Tayyip Erdoğan. The coup failed and the state of emergency had been declared only a couple of days later.9 In the wake of the failed coup, Erdoğan eliminated the opposition. EU member States condemned these harsh actions and the relationship between the EU and Turkey deteriorated immensely.10 On 21 January 2017 the Turkish Grand National Assembly then proposed constitutional amendments which were submitted to the April 2017 referendum for approval.11 The constitutional amendments were subsequently adopted through the referendum and led, inter alia, to a change from a parliamentary to a presidential system.12

Federal Office for Migration and Refugees (Bundesamt für Migration und Flüchtlinge), Migrationsbericht der Bundesregierung 2016/2017, 233. 7

Tagesschau, Votum über Präsidialsystem, Türkei-Referendum beginnt (2017), available at https:// www.tagesschau.de/inland/tuerkei-referendum-103.html. 8

9 European Commission for Democracy through Law (Venice Commission), Opinion on the Amendments to the Constitution adopted by the Grand National Assembly on 21 January 2017 and to be submitted to a national Referendum on 16 April 2017, Opinion No. 875/2017, 13 March 2017, at para. 9. 10

Capone and de Guttry, supra note 4, at 62.

Christian Rumpf, Die Verfassungsänderung 2017, 14 September 2018, available at http://tuerkeirecht.de/downloads/Verfassungsaenderung.pdf, at 3. 11

12 Organization for Security and Co-operation in Europe/Office for Democratic Institutions and Human Rights (OSCE/ODIHR), Republic of Turkey – Early Presidential and Parliamentary Elections, International Election Obeservation Mission Final Report, 24 June 2018, available at https://www.osce. org/odihr/elections/turkey/397046?download=true, at 5.

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Although it is recognised that every State has the sovereign right to choose its own political system,13 Turkey is part of the Council of Europe14 and has been trying to become a member State of the EU.15 Thus, the values of the EU and the Council of Europe have to be regarded when analysing the situation. First, Article 2 Treaty on European Union explicitly mentions the separation of powers as one of the fundamental values of the EU.16 Second, the Council of Europe established an advisory body on constitutional matters. This advisory body, the European Commission for Democracy through Law, also called Venice Commission, plays a leading role in the adoption of constitutions that conform to the standards of Europe’s constitutional heritage. According to this Commission, the separation of powers is one of the fundamental principles that safeguards democracy and the constitutional heritage of Europe.17 In conclusion, two major concerns were raised by the EU and its member States and the Council of Europe in regard to the content of the amendments. The first concern was raised in respect to the chosen political system. Whenever a presidential system is chosen, the principles of the separation of powers and of the rule of law must be respected and therefore a system of checks and balances must be part of the chosen system.18 A concentration of power in the hands of one person consequently raises concern.19 In the case of Turkey, this is exactly what has been changed by the amendments of the Turkish Constitution. The amendment led to a change from a parliamentary to a presidential system, where the President would gain a number of new powers. Additionally, this ‘Turkish-style’ presidential system does not inVenice Commission, supra note 9, at para. 124; European Commission, Joint Statement by High Representative/Vice-President Federica Mogherini and Commissioner Johannes Hahn on the Venice Commission’s Opinion on the amendments to the Constitution of Turkey and recent events, Brussels, 13 March 2017, Statement 17/588. 13

14 See Council of Europe, Turkey//47 States, one Europe, available at https://www.coe.int/en/web/ portal/turkey. 15 Franz C. Mayer and Imke Stanik, ‘European Union, Historical Evolution’, in Rüdiger Wolfrum (ed.), Max Planck Encyclopedia of Public International Law Vol III (2012) 1000, at 1007. 16

Art. 2 Treaty on European Union 2007, OJ C 326, 13.

Helmut Steinberger, ‘Venice Commission’, in Rüdiger Wolfrum (ed.), Max Planck Encyclopedia of Public International Law Vol X (2012) 640, at 641. 17

18

Venice Commission, supra note 9, at para. 124.

Ibid., at para. 127; OSCE/ODIHR, Republic of Turkey, Constitutional Referendum, Limited Referendum Observation Mission Final Report, 22 June 2017, available at http://www.osce.org/odihr/ elections/turkey/324816?download=true, at 4. 19

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clude a system of checks and balances between different elected or appointed institutions. The offices of the head of State, the head of government, and the head of the ruling party are concentrated within one person.20 The new powers include, but are not limited to, the following:21 the President will be able to exercise executive power alone and has the unsupervised power to appoint and dismiss ministers. Further, the President will be given the power to dissolve the parliament by any given reason, which the Venice Commission describes as ‘fundamentally alien to democratic presidential systems’.22 The second concern was raised in respect of the timing of the amendments. Five days after the failed coup in 2016 the state of emergency was declared in Turkey and had been extended to the date of the referendum. During the state of emergency significant limitations on the freedom of expression and assembly are in force and thereby impede inclusive democratic referendum campaigns.23 The Venice Commission stated that ‘the timing is most unfortunate and is itself cause of concern: the current state of emergency does not provide for the due democratic setting for a constitutional referendum.’24 Despite these concerns, the Turkish population voted in favour of the constitutional amendments on 16 April 2017.25 These amendments, adopted through the referendum, came into force after the early presidential and parliamentary elections on 24 June 2018, introducing a change from a parliamentary to a presidential system, thus giving the president extensive authority and at the same time reduce parliamentary oversight and the independence of the judiciary.26

20 Seda Gurkan, EU-Turkey relations in the aftermath of Turkey’s constitutional referendum (2017), available at http://www.iee-ulb.eu/en/news/2017/04/eu-turkey-relations-in-the-aftermath-of-turkey-sconstitutional-referendum.

For an extensive list of concerns raised by the Venice Commission, see Venice Commission, supra note 9, at para. 127. 21

22

Ibid., at para. 127.

Venice Commission, supra note 9, at paras. 7, 132; OSCE/ODIHR, Limited Referendum Observation Mission Final Report, supra note 19, at 5. 23

24

Venice Commission, supra note 9, at para. 133.

25

OSCE/ODIHR, Limited Referendum Observation Mission Final Report, supra note 19, at 21.

26

OSCE/ODIHR, Early Presidential and Parliamentary Elections Final Report, supra note 12, at 5.

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III. Legal Assessment of Restrictive Measures Against Turkish Politicians In light of the referendum and the elections, different measures have been taken against Turkish politicians. Most of them within Germany but some in other European States, inter alia the Netherlands. The main part of this article focuses on the measures taken against the persons carrying out the campaigns. This contains in particular the decisions if a person is allowed to enter Germany and if the person is allowed to carry out a campaign in Germany and under what kind of obligations this might be the case. Additionally, they might be affected in their official position as politicians or foreign government officials or as a private person, however this is often difficult to distinguish. The following assessments have mostly been made in reaction to the campaigning for the popular referendum. However, it is assumed that the same legal rules apply to campaigning for an election.

A. The Competence of the Federal Government

The most important decision in this whole jungle of measures and decisions taken by different German institutions is probably the one whether or not a foreign national is allowed to enter a country to carry out campaigns, whether for a popular referendum or a general election. When the Turkish Minister of Foreign Affairs Mevlüt Çavuşoğlu was barred from entering the Netherlands to carry out a campaign to advertise the referendum, the question arose whether or not Germany could do the same and who would be responsible for a decision like this.27 According to the Federal Constitutional Court (Bundesverfassungsgericht) (FCC) the question if campaigning of foreign politicians is allowed on German territory lies within the competence of the German Federal Government, as it is part of their com27 See, e.g., Sebastian Steuer, ‘Bitte nicht reden! Auftritte ausländischer Regierungsmitglieder in Deutschland’, 4 March 2017, Verfassungsblog, available at http://verfassungsblog.de/bitte-nicht-redenauftritte-auslaendischer-regierungsmitglieder-in-deutschland/; Shalene Edwards, ‘Erdogan live? – Entscheidungsbefugnis der Bundesregierung’, 3 Zeitschrift für Rechtspolitik (2017) 91.

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petence for foreign affairs in accordance with Article 32 Basic Law.28 Article 32 Basic Law states ‘Relations with foreign states shall be conducted by the Federation.’29 The FCC further decided that no legal claim of foreign heads of State and members of foreign governments to enter Germany exists under the German Constitution or under general rules of public international law. Neither a claim to exercise official functions within Germany,30 including election campaigning exists. Campaigning abroad in this context means that members of a foreign government attend assemblies in their official function, in order to comment on political questions and debates.31 The competence of a State to decide on political appearances of foreign politicians on its own territory corresponds with international law as well as with general political customs.32 Thus, Turkish politicians need the explicit or implied consent of the German Government to hold campaigns, whether for a popular election or a referendum, within Germany.33 The consent or rather permission in regard to the Turkish referendum was given in a verbal note to the Turkish Government in March 2017.34 As stated in a press conference the German Federal Government not only gave its permission to carry out the referendum in Germany and thereby allowing Turkish citizens who are living in

Federal Constitutional Court (Bundesverfassungsgericht) (FCC), 2 BvR 483/17 of 8 March 2017, at para. 3. 28

Translation by Christian Tomuschat and David P. Currie, available at https://www.gesetze-iminternet.de/englisch_gg/. 29

30

FCC, supra note 28, at para. 3.

Research Services of the German Bundestag (Wissenschaftliche Dienste), Aktueller Begriff Nr. 13/ 17, Verfassungs- und einfachrechtliche Rahmenbedingungen für “ausländische Wahlkampfauftritte, 29 March 2017, available at https://www.bundestag.de/blob/501168/c3814ffff376a063bd2b7f37acc9 8d4/auslaendische-wahlkampfauftritte-data.pdf, at 1. 31

Research Services of the German Bundestag, Sachstand, Wahlkampfauftritte türkischer Regierungsvertreter in Deutschland und in den Niederlanden im Lichte des Völkerrechts, 23 March 2017, available at https://www.bundestag.de/resource/blob/501258/572022f44597dacdf3652b4cbff9aeec/wd-2035-17-pdf-data.pdf, at 5. 32

33

FCC, supra note 28, at para. 3.

German Federal Government (Bundesregierung), Mitschrift Pressekonferenz im Wortlaut, Regierungspressekonferenz, 15 March 2017, available at https://www.bundesregierung.de/Content/DE/Mitschrift/ Pressekonferenzen/2017/03/2017-03-15-regpk.html. 34

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Germany to vote, but also to carry out all campaigns related to the referendum within Germany.35 As a reaction to the decision of the FCC, Matthias Goldmann asked in his article on Verfassungsblog36 why the FCC came to this conclusion in the first place. The decision relates to a constitutional complaint of a German citizen that tried to prevent campaigning of Turkish politicians, which has been rejected as inadmissible as the the complainant, a third party not participating in the demonstration, lacked the necessary right of appeal.37 This decision could have possibly been established without reference to Article 32 Basic Law. Goldmann came to the conclusion that this obiter dictum was given due to the particular value of it for the ongoing political debate at that time.38 It is safe to say that the decision of the FCC led to some clarification in the ongoing dispute.

1. The Question Whether or Not the Legal Assessment Would Change if the Politician Wants to Enter the State as a Private Person But what if a member of the Turkish Government wants to enter Germany and carry out a campaign while not acting in his official capacity but rather as a private person? One answer would be that the legal assessment would not change to prevent distinction problems.39 It would be difficult to distinguish whether the person wants to appear within his or her official function or as a private person.40 This conclusion is supported by a decision of the European Court of Justice (ECJ) in regard to the free movement of persons within the EU. The ECJ came to the con35

Ibid.

Matthias Goldmann, ‘Le gouvernement de soi et des autres: Zu Auftrittsverboten für türkische Regierungsmitglieder’, 14 March 2017, Verfassungsblog, available at https://verfassungsblog.de/le-gouverne ment-de-soi-et-des-autres-zu-auftrittsverboten-fuer-tuerkische-regierungsmitglieder/. 36

37

FCC, supra note 28, at para. 4.

38

Goldmann, supra note 36.

39

Research Services of the German Bundestag, Sachstand, supra note 32, at footnote 9.

40

For a comparable case with similar distinction problems, see FCC, BVerfGE 138, 102.

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clusion that Slovakia was permitted to deny the Hungarian President entry into Slovakia, although he wanted to enter the country as a private individual to visit an opening ceremony of a monument in remembrance of a Hungarian national saint. The Court observed, that the freedom of movement of persons has to be interpreted in light of the particular status of the head of State under international law, which entails, inter alia, privileges and immunities and, thus, a head of State is not subject to the same conditions as those applicable to other EU citizens. The special status of the head of State justifies a limitation of the right of movement.41 It remains questionable if this judgement is really comparable to the case at hand. First, the Federal Government made its decision not only in regard to the head of State Erdoğan, but also in regard to several ministers. Second, in the case at hand the purpose of the visit of the members of the Turkish Government is very different to that of the Hungarian head of State, campaigning for a popular referendum or a general election is closely connected to human rights and the fundamental rights of the citizens entitled to vote. Third, this would lead to the assumption that an appearance at a political event of a politician would always be an official appearance in their official function as a member of government.42 The FCC did not take this question into account. It thus remains unclear if the legal assessment would change if a foreign politician wants carry out a campaign as a private person.

2. The Possibility to Tie the Permission to Carry Out Campaigns to Certain Conditions According to a press release of the German Federal Government, the need for transparency of the planned campaign events was stressed by the Government and therefore the German Foreign Minister and his Turkish counterpart agreed on a confidential list regarding the planned events in Germany and informed the involved Federal states. The list was not conclusive, but a subsequent registration of more European Court of Justice, Hungary v. Slovakia, European Commission intervening, Case C364/10, Judgement, 16 October 2012, ECLI:EU:C:2012:630. See also Court of Justice of the European Union, Press Release No. 131/12, Slovakia did not breach EU law by refusing entry into its territory to the President of Hungary, 16 October 2012, available at http://europa.eu/rapid/press-release_CJE-12131_en.htm. 41

42

Goldmann, supra note 36.

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events has been tied to clear conditions. These conditions have been formally disclosed to the Turkish Government: First, the Turkish Government has to give due notice about journeys of its members including information about their destination; second, the exact location of the planned event must be named; and, third, its purpose must be provided.43 Fourth, these events must be carried out within the framework of the German legal system, the right of assembly, and in conformity with the German Constitution.44 If these conditions are not met, the Federal Government reserves its right to review the permissions that have already been given to the Turkish Government.45 These reservations made by the German Government reflect the content of Section 47 German Residence Act46 (Gesetz über den Aufenthalt, die Erwerbstätigkeit und die Integration von Ausländern im Bundesgebiet).47 Thus, unsurprisingly the possibility to evoke Section 47 Residence Act to prohibit campaigning has been raised,48 according to which the political activities of foreigners can be prohibited if they, among other reasons, ‘impair or endanger the peaceful coexistence of different groups of foreigners in the Federal territory, public security and order or otherwise significant interests of the Federal Republic’ (Section 47(1) No. 1 Residence Act)49 or if the political activities are in ‘conflict with the foreign policy interests or obligations under international law of the Federal Republic of Germany’ (Section 47(1) No. 2 Residence Act).50 However, it appears to be doubtful that the object and purpose of Section 47 Residence Act is to serve as a legal basis for measures of the competent authority of the Federal State taken against foreign heads of State or government members, 43

German Federal Government, Mitschrift Pressekonferenz, supra note 34.

44

Research Services of the German Bundestag, Sachstand, supra note 32, at 5.

45

German Federal Government, Mitschrift Pressekonferenz, supra note 34.

Residence Act (Gesetz über den Aufenthalt, die Erwerbstätigkeit und die Integration von Ausländern im Bundesgebiet), 25 February 2008, BGBl. I, 162, as amended on 12 April 2011, BGBl. I, 610. 46

Research Services of the German Bundestag, Sachstand, supra note 32, at 6; Edwards, supra note 27, at 91. 47

For example, the City of Hannover denied the Turkish politician Eker any political activities, based on Section 47 Residence Act; see also Peter Jacob, ‘Türkische Wahlen und türkischer Wahlkampf in Deutschland’, 16 Neue Zeitschrift für Verwaltungsrecht – Extra (NVwZ – Extra) (2017) 1, at 7. 48

49

Translation by the author.

50

Translation by the author.

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especially when they appear in their official function.51 And as Sebastian Steuer said in his article on the Verfassungsblog: ‘Rather, the provision is intended to protect the foreign policy relations of the Federal Republic, and not to put them to the test’.52 Thus it is possible to tie the permission to carry out campaigns to certain conditions, however Section 47 Residence Act does not seem to be the appropriate solution to enforce these conditions.

3. The Current Rule Governing Campgaings of Foreign Politicians On 30 June 2017 a new rule was issued by the Federal Foreign Office, which states as follows: Appearances by foreign politicians at events in Germany that are aimed at the electorate of the foreign country require the approval of the German Government. Such approval must be requested via a Note Verbale to the Federal Foreign Office at least ten days before the event. Approval will be granted in the light of foreign relations; it thus does not replace the necessary permits under the law of public order. Appearances must comply with the principles of the Basic Law and the German legal system, particularly as regards the right of assembly. They may not pose a threat to public security and order. As a general rule, approval is not granted if the speech is to be given in a period of less than three months before the date of the election or referendum; this rule does not apply to European Union Member States.53

The new rule seems to be a reaction to the disputes over Turkish officials leads to legal security in questions relating to campaigning of foreign politicians in Germany.

51

Research Services of the German Bundestag, Sachstand, supra note 32, at 6; Steuer, supra note 27.

52

Ibid. Translation by the author.

Federal Foreign Office (Auswärtiges Amt), Circular note on election rallies by foreign politicians in Germany, Press Release of 30 June 2017, available at https://www.auswaertiges-amt.de/en/newsroom/ news/170630-rundnote-wahlkampfauftritte/291082. 53

486 GERMAN YEARBOOK OF INTERNATIONAL LAW 61 @ 2018 B. The Competence of the Federal States

However, the competence of the Federal Government described above does not rule out further responsibilities of the authorities of the Federal states. Measures taken under the laws that govern the right to assembly, as well as in accordance with general police and ordinal laws of the Federal states can restrict the organisation of public events.54 As a consequence campaign events may be prohibited or only be allowed under certain conditions determined by the competent authority of the Federal states. Measures against a public assembly may only be taken in case of threats to public security.55 In such cases an assembly may be prohibited or cancelled, however it has to be considered that any measures taken by the competent authority have to be proportionate, including the question of whether or not the measures taken are necessary or if less restrictive measures could be applied. Nevertheless, this will ultimately be a question of the particular cases.56 However, it has to be taken into account that the appearance of a foreign member of the government concerns the Federal Republic as a whole and thus the competence to decide on a general prohibition only lies with the Federal Government. Accordingly, municipalities or Federal states cannot resort to ordinal law (under the presumption that no real security concerns exist) in order to justify a prohibition of an appearance.57 It could be argued on the contrary that this conclusion is not in accordance with the Federal states’ right to self-government in accordance with Article 28(2) Basic Law, since the municipalities have no possibility to regulate a matter of the local community itself.58

54 Research Services of the German Bundestag, Aktueller Begriff, supra note 31, at 2; for a different perspective, see Edwards, supra note 27, at 92.

Wolfgang Hoffmann-Riem, ‘§ 106 Versammlungsfreiheit’, in Detlef Marten and Hans-Jürgen Papier (eds.), Handbuch der Grundrechte, Band IV Grundrechte in Deutschland: Einzelgrundrechte I (2011) 1117, at 1186 et seq. 55

German Federal Government, Mitschrift Pressekonferenz, supra note 34; Research Services of the German Bundestag, Aktueller Begriff, supra note 31, at 2. 56

57

Ibid.; see also Steuer, supra note 27.

58

Edwards, supra note 27, at 92.

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IV. The Relevance to the Fundamental Rights of the Basic Law Lastly, it has to be determined how the fundamental rights of the German Constitution are of relevance to the before mentioned issues. Again, differentiation is needed. It is necessary to determine whether the action is directed against the speaker or against the organiser. If the action is taken against the speaker, it is assumed that the foreign politicians appear in their official function and not as a private person.

A. The Fundamental Rights of Foreign State Representatives

If campaigning in general or single events are prohibited it may be questioned if the fundamental rights of the foreign State representatives are affected. However, the FCC clearly stated that ‘a refusal of consent would not be a decision of the German Sovereign vis-à-vis a foreign citizen, but a decision in the range of foreign affairs whereby the German and Turkish Governments would encounter each other on the principles of sovereign equality of states’.59 The fundamental rights and freedoms of the German Constitution are first and foremost defence rights of the citizens and other residents on German territory against the State. While the foreign government member or head of State is politically active on the soil of the Federal Republic, they assumingly do so in their official function and probably do not act as a private, foreign citizen. It therefore lacks the subordination ratio necessary for the application of fundamental rights. And while the decision might have a restrictive effect on foreign politicians, they are affected in their function as members of the government and not as private persons.60 Therefore, the fundamental rights of the foreign State representatives are not affected as long as they appear in their official function.61 Additionally, the Research Services of the German Bundestag concluded that promoting the referendum in Turkey within Germany, on the condition that they are‘based on the principles of the Basic Law’ is of particular relevance when taking 59

FCC, supra note 28, at para. 3. Translation by the author.

60

Ibid.

61

Research Services of the German Bundestag, Aktueller Begriff, supra note 31, at 2.

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into account Article 18 Basic Law. Article 18 expresses the idea of a ‘defensive democracy’, according to which the freedom of expression enshrined in Article 5 Basic Law, or the freedom of assembly enshrined in Article 8 Basic Law cannot be invoked, by someone who abuses the fundamental rights ‘to fight the free democratic basic order’. By referring to the liberal-democratic basic order, it is implied that Germany is committed to the values of democracy, the rule of law, the independence of the courts, the multi-party system, and the protection of inalienable fundamental rights. In the case of the popular referendum, carrying out a campaign for an authoritarian State, even if it is to be implemented abroad, is contrary to the values of the Basic Law and thus might lead to the forfeiture of these rights.62

B. The Fundamental Rights of the Organisers of a Campaign Event

Although the fundamental rights of the foreign State representatives might not be of relevance, it is now to be determined how the fundamental rights, enshrined in the German Constitution, of the organisers of campaign events might be affected. The Higher Administrative Court of North-Rhine-Westphalia came to the conclusion that neither the freedom of assembly of Article 8(1) Basic Law nor other fundamental rights – such as the freedom of expression under Article 5(1) sentence 1 Basic Law or the general freedom of action under Article 2(1) Basic Law was violated of the organiser of a political event where Erdoğan was supposed to appear via a live stream. The decision was based on the fact that the opportunity of foreign heads of State or government members to speak on political issues in the Federal Republic of Germany, in the context of public appearances in their official function, does not fall within the protective scope of any of the mentioned fundamental rights.63 In reaction to this decision,64 it has been argued that this is not a question of the protective scope of the relevant fundamental rights, but rather one of justification, as 62

Research Services of the German Bundestag, Sachstand, supra note 32, at 5.

Higher Administrative Court North-Rhine-Westphalia (Oberverwaltungsgericht NordrheinWestfalen), Decision of 29 July 2016, reprinted in 36 NVwZ 9 (2017) 648, at 649. 63

64 For a more detailed legal assessment (in German) of the different fundamental rights in regard to this particular decision, see Jungbluth, supra note 3, at 604.

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the protective scope at least includes the right to choose a specific speaker.65 A justification would then require a legal basis and a factual reason for the limitation of the fundamental rights of the organisers of such events.66 The factual reason might be seen in the fact that public appearances of the foreign government member in Germany are subject to restrictions.67 A legal basis for the restriction might be seen in Article 32 Basic Law, however it remains questionable if Article 32 Basic Law really suffices as a legal basis or if a more concrete legal basis would be needed to limit the fundamental freedoms.68

V. Conclusion Although the prohibition of campaigning in Germany might be motivated by a political purpose, the legal framework is (by now) rather clear. At least in regard to the fact that the Federal Government has the competence to decide whether or not campaigning should be allowed in general. Additionally, it seems to be the general understanding, that international law does not contain the right of a State to campaign abroad, neither in diplomatic, nor in human rights law. In the case of the recent Turkish referendum, which – as far as the content of the amendments to the Constitution is concerned – is not in accordance with European values, it is not surprising that the Federal Government and Federal states used existing legal possibilities to prevent events on their territory. However, what remains unclear is first the question whether or not a foreign State representative could carry out campaigns as a private person. Even the current legal rule issued by the Federal Foreign Office does not address this issue, as it only refers to foreign politicians but does not take into account the fact that they could appear as 65

See Steuer, supra note 27; Goldmann, supra note 36.

Steuer, supra note 27; Niels Petersen, ‘Verbot von türkischen Wahlkampfauftritten in Deutschland: Erdoğan und die Versammlungsfreiheit’, 3 March 2017, Legal Tribune Online, available at https:// www.lto.de/recht/hintergruende/h/erdogan-wahlkampf-auftritt-deutschland-versammlungsfreiheit/. 66

67

Ibid.

68

Steuer, supra note 27; Goldmann, supra note 36; Petersen, supra note 66.

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private persons. Second the relevance of the fundamental rights under the Basic Law of the organisers of planned events that have been prohibited or where subject to certain conditions seems to be unclear. Third, the fundamental rights of possible visitors to these events haven’t been discussed or taken into account at all.

Much Ado About Nothing vs. the Opening of Pandora’s Box? – Some (Normative) Aspects of the Migration Compact Regarding its Impact on Germany HENNING BÜTTNER(

I. Introduction On 10 December 2018, 164 States came together in Marrakech, Morocco, to adopt the Global Compact for Safe, Orderly and Regular Migration (Migration Compact)1.2 It is the first intergovernmentally negotiated document under the auspices of the United Nations that intends to enhance cooperation on international migration in all its dimensions. The need for such a document has been evident even before Europe faced a steady rise in migration. As of today, there are 258 million people worldwide qualifying as migrants.3 Since 2000, 60,000 migrants died on the move and many migrants still face devastating working and living conditions in their countries of destination.4 Thus, it seems highly desirable to regulate migration comprehensively. Yet, there have ( Henning Büttner is a Student Assistant at the Chair of Prof. Dr. Andreas von Arnauld at the Walther Schücking Institute for International Law, Kiel University. 1 United Nations (UN) General Assembly (UNGA), Intergovernmental Conference to Adopt the Global Compact for Safe, Orderly and Regular Migration – Draft Outcome Document of the Conference (Migration Compact), UN Doc. A/CONF.231/3, 30 July 2018, at 2-31 (Annex: Global Compact for Safe, Orderly and Regular Migration).

United Nations Blog, Historic Global Compact for Migration Adopted, 10 December 2018, available at https://blogs.un.org/blog/2018/12/10/historic-global-compact-for-migration-adopted/. 2

United Nations Department of Economic and Social Affairs, International Migration Report 2017, UN Doc. ST/ESA/SER.A/404 (2017), at 3. 3

4 United Nations Secretary General, Remarks at Intergovernmental Conference to Adopt the Global Compact for Migration (speech by António Guterres), 10 December 2018, available at https://www. un.org/sg/en/content/sg/speeches/2018-12-10/remarks-intergovernmental-conference-adopt-theglobal-compact-for-migration; Joan Benach et al., ‘Migration and “Low-Skilled” Workers in Destination Countries’, 8 PLOS Medicine (2011), available at https://www.journals.plos.org/plosmedicine/article? id=10.1371/journal.pmed.1001043.

492 GERMAN YEARBOOK OF INTERNATIONAL LAW 61 @ 2018

been massive protests against the Migration Compact in Germany. With its motion5 to reject the adoption of the Migration Compact, the right-wing party Alternative für Deutschland (AfD) initiated heated debates on this topic in the German Federal Parliament. The other parties responded with opposing motions supporting the Migration Compact.6 Finally, at the end of November 2018, 372 parliamentarians voted in favour7 of the pro-Migration Compact motion of the coalition parties, the Christlich Demokratische Union Deutschlands (CDU)/Christlich Soziale Union in Bayern (CSU) and the Sozialdemokratische Partei Deutschlands (SPD).8 While 114 abstained from voting, 153 representatives chose to vote against it.9 These results vividly illustrate the politicians’ dissent on the delicate topic. Likewise, the parliamentary debates were accompanied by ongoing protests in the population.10 Even scholars and academics could not agree on a uniform opinion. But what is it that makes the Migration Compact such a highly contested issue? Is the adoption of the Migration Compact comparable to the opening of Pandora’s Box – will its adoption lead to an increase of international migration and will it bear unforeseeable legal consequences for Germany? In other words: Are the critics of the Migration Compact right or are their statements testaments of hysteria, i.e. is it all much ado about nothing? These questions can be answered best examining the (normative) implications of the Migration Compact on Germany.

German Parliament (Bundestag), Antrag – Kein Beitritt zum Global Compact for Migration durch die Bundesrepublik Deutschland, 7 November 2018, Bundestagsdrucksachen (BT-Drs.) 19/5530. 5

6 For a list, see Bundestag, Koalitionsantrag zum Globalen Migrationspakt angenommen, available at https://www.bundestag.de/dokumente/textarchiv/2018/kw48-de-migrationspakt/580712.

For the voting results and the parliament debate, see Bundestag, Plenarprotokoll 19/68 (Stenografischer Bericht), 29 November 2018, 7733, at 7761. 7

8

Bundestag, Antrag der Fraktionen der CDU/CSU und SPD, 27 November 2018, BT-Drs. 19/6056.

9

Bundestag, supra note 7, at 7761.

Rundfunk Berlin-Brandenburg (rbb), Aufruf von Rechtspopulisten – Tausend Menschen protestieren gegen Migrationspakt, 1 December 2018, available at https://www.rbb24.de/politik/beitrag/2018/12/ berlin-demonstration-gegen-migrationspakt.html. Nearly 108,000 people signed a petition against the Migration Compact: Bundestag, Petition 85565, available at https://epetitionen.bundestag.de/petitionen/ _2018/_11/_01/Petition_85565.nc.html. 10

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II. The History of the Migration Compact Two years ago, in September 2016, the United Nations General Assembly laid the foundation of the Migration Compact with the adoption of a resolution known as the New York Declaration for Refugees and Migrants (New York Declaration).11 In this resolution, the States expressed their political will to negotiate two intergovernmental Compacts – one framework regarding migration and the other framework relating to the status of refugees.12 The New York Declaration can be seen as the logical step following the Agenda 2030 for Sustainable Development,13 in which migration was recognised as a multi-dimensional reality.14 The first phase to prepare the draft of the Migration Compact was initiated in April 2017 with a series of informal thematic sessions and consultations.15 These were followed by a stocktaking phase, which led to intergovernmental negotiations and eventually the final agreed outcome of 13 July 2018. The latter became known and was discussed as the Migration Compact before 164 States adopted it on 10 December 201816 at the intergovernmental conference in Marrakech. Germany was represented by Chancellor Angela Merkel, who, in her speech highlighted the Compact’s clear commitment to multilateralism and the positive aspects of regulated migration, such as the safeguarding of human rights on the one and economic growth on the other hand.17 11

UNGA Res. A/RES/71/1, 19 September 2016.

Ibid., at Annex I and II. For the Compact on the Status of Refugees, see UNGA, Report of the United Nations High Commissioner for Refugees, UN Doc. A/73/12 (Part II), 13 September 2018. 12

13 UNGA, Transforming our World: the 2030 Agenda for Sustainable Development, Res. A/RES/ 70/1, 25 September 2015 (Agenda 2030). 14

Ibid., at para. 29.

For an overview of the phases, see United Nations Refugees and Migrants, Global Compact for Migration, available at https://refugeesmigrants.un.org/consultation-phase. 15

This date is not chosen arbitrarily. As a matter of fact, it is very symbolic: 70 years ago, on 10 December 1948, the UN adopted the Universal Declaration of Human Rights. Universal Declaration of Human Rights (UDHR) 1947, UNGA Res. A/RES/3/217 A (III), 10 December 1948. 16

17 Permanent Mission of the Federal Republic of Germany to the United Nations (Ständige Vertretung der Bundesrepublik Deutschland bei den Vereinten Nationen), Speech by Federal Chancellor Dr Angela Merkel at the Intergovernmental Conference to Adopt the Global Compact for Safe, Orderly and Regular Migration, 10 December 2018, available at https://new-york-un.diplo.de/un-en/news-corner/ 20181210-merkel-migration-pact/2169938.

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In the aftermath of the conference, the United Nations General Assembly formally endorsed the Compact on 19 December 2019 with 152 votes in favour of the resolution.18 While 12 States abstained, five States voted against it (Czech Republic, Hungary, Israel, Poland, United States). Germany again decided to support the Migration Compact and voted in favour.

III. A Brief Overview of the Migration Compact A. Aim, Structure, and Content of the Migration Compact

The Migration Compact’s aim can be derived directly from the title itself: it is to deal with the conditions of safe, orderly, and regular migration. The overarching concern of the framework is to enhance bilateral, regional, and multilateral cooperation and improve the governance on migration. Its drafters divided the Compact into five parts: the first part, the ‘Preamble’,19 is followed by ‘Vision and Guiding Principles.’20 The third and main part is called ‘Objectives and Commitments’21 and the Compact’s content is completed with parts four and five concerning ‘Implementation’22 and ‘Follow-up and Review.’23 Among the Guiding Principles are international cooperation, national sovereignty, rule of law and due process, as well as sustainable development and human rights.24 Most of these principles are already codified or at least well established in public international law.25 18 UNGA Res. A/RES/73/195, 19 December 2018; United Nations Meetings Coverage and Press Releases, General Assembly Endorses First-Ever Global Compact on Migration, Urging Cooperation among Member States in Protecting Migrants, UN Doc. GA/12113, 19 December 2018, available at https://www.un.org/press/en/2018/ga12113.doc.htm. 19

Migration Compact, supra note 1, at paras. 1 et seq.

20

Ibid., at paras. 8 et seq.

21

Ibid., at paras. 16 et seq.

22

Ibid., at paras. 40 et seq.

23

Ibid., at paras. 48 et seq.

24

Ibid., at para. 15.

Anne Peters, ‘The Global Compact for Migration: To Sign or Not to Sign?’, EJIL: Talk!, 21 November 2018, available at http://www.ejiltalk.org/the-global-compact-for-migration-to-sign-or-not-tosign/. 25

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The main section of the Migration Compact is composed of 23 Objectives and Commitments guiding States regarding implementation and application of their national migration polices. They include for example Objectives regarding the minimisation of factors that compel people to leave their country of origin (2),26 the protection of lives (8),27 the prevention and combating of smuggling and trafficking (9+10),28 border management (11),29 the integration of migrants (15-20, 22),30 and Objective concerning cooperation in order to facilitate safe and dignified returns and readmissions, as well as sustainable reintegration of migrants (21).31 Each Objective contains a Commitment, followed by a range of actions considered to be relevant policy instruments and best practices.32 In the last two parts of the Migration Compact, the States agreed upon the establishment of a capacity-building mechanism within the United Nations that shall provide technical, financial, and human resources in order to strengthen implementation of the best practices and policy instruments as well as to foster multilateral cooperation.33 Furthermore, in the realms of the International Migration Review Forum, States can voluntarily review the progress made in implementing the Migration Compact.34 These two last aspects once again emphasise the cooperative approach of the Migration Compact.35

26

Migration Compact, supra note 1, at para. 18.

27

Ibid., at para. 24

28

Ibid., at paras. 25-26

29

Ibid., at para. 27.

30

Ibid., at paras. 31-36, 38

31

Ibid., at para. 37.

32

Compare ibid., at para. 16.

33

Ibid., at para. 43.

34

Ibid., at paras. 48-49.

Steffen Angenendt and Anne Koch regard the capacity-building mechanism and the review mechanism as the main achievements of the Migration Compact: Steffen Angenendt and Anne Koch, ‘Der Globale Migrationspakt im Kreuzfeuer – Trifft die Kritik zu?’, 69 Stiftung Wissenschaft und Politik Aktuell (2018) 1, at 4. Indeed, the involvement of the International Organisation for Migration as coordinator and secretariat of the yet to be established United Nations Network on Migration (Migration Compact, supra note 1, at para. 45) can be considered positively. This way, there is a chance to ensure effective support for implementation and review of the Migration Compact. 35

496 GERMAN YEARBOOK OF INTERNATIONAL LAW 61 @ 2018 B. The Understanding of (International) Migration in the Migration Compact

As the title of the Migration Compact already suggests, this framework deals with (international) ‘migration’. This is of importance regarding the fact that refugees terminologically constitute a sub-category of migrants,36 yet, a very specific category governed by international law, notably the 1951 Convention Relating to the Status of Refugees (1951 Convention).37 Article 1 A(2) 1951 Convention defines ‘refugees’ as persons, who are outside their country of origin for reasons of feared persecution, conflict, generalised violence, or other circumstances that have seriously disturbed public order and, as a result, require international protection. In its Preamble, the Migration Compact explicitly clarifies that migrants and refugees are subject to different legal regimes.38 This is true regarding international law as well as for example Germany’s domestic legal system. Additionally, the mere existence of the second Compact regarding the status of refugees reflects this understanding. Yet, other than for the term ‘refugee’ there is no uniform international definition of the legal term ‘migrant’.39 Against this backdrop, it is all the more surprising that the States did not attempt to explicitly define the term in the Migration Compact either. In absence of a uniform definition, one could make an approach of defining the notion ‘migrant’ negatively and set it in relation to the definition of ‘refugees’. ‘Migrants’ could therefore be defined as persons, who change their country of usual residence, irrespective of the reason for migrating or their legal status – yet not qualifying as ‘refugees’.40 However, the question concerning the specific understanding of migration in the Migration Compact still remains. According to the Preamble, the framework aims to address ‘migration in all its dimensions.’41 Regarding the adverse drivers and struc36 International Organization for Migration (IOM), Key Migration Terms, ‘Migration’, available at http://www.iom.int/key-migration-terms. 37

Convention Relating to the Status of Refugees 1951, 189 UNTS 137.

38

Migration Compact, supra note 1, at para. 4.

United Nations Department of Economic and Social Affairs, Definitions, available at https:// refugeesmigrants.un.org/definitions. 39

40

Similarly ibid.

41

Migration Compact, supra note 1, at para. 4.

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tural factors that compel people to leave their country of origin, Objective 2 explicitly highlights the severe impacts of natural disasters, climate change, and environmental degradation on human migration movements.42 This is, however, the only in-depth description of an adverse factor compelling people to leave their country of origin. Others, such as poverty, health, education, infrastructure, gender equality, as well as violence and non-discrimination are briefly named and addressed but not elaborated on in a similar comprehensive manner.43 This way, the relation of the term ‘migrant’ to the notion of ‘refugee’ remains vague and the Migration Compact misses the chance to give a detailed definition of the term ‘migrant’. The underlying understanding of migration of the framework does not become entirely apparent, too. Therefore, the Compact’s understanding generally covers a vast range of persons, from environmentally displaced persons, whose numbers are expected to rise to between 50 and 200 million by 2050,44 to migrant workers in the Gulf States or in most European countries, who in some instances work under devastating conditions.45 Equivalently, the framework applies to the 30,360 highly skilled professionals, who immigrated to Germany from non-European Union (EU) countries in the first six months of the year 2018 and got awarded the so-called EU-Blue Cards.46 The same understanding applies to the 634,836 European citizens who immigrated to Germany in 2017.47 Ibid., at para. 18(h)-(l). Walter Kälin considers the Migration Compact to be innovatory in this regard; Walter Kälin, ‘The Global Compact on Migration: A Ray of Hope for Disaster-Displaced Persons’, 30 International Journal of Refugee Law (2018) (forthcoming). 42

43

Compare Migration Compact, supra note 1, at para. 18(b)-(g).

University of Oxford Refugee Studies Centre, Environmentally Displaced People, available at https://www.rsc.ox.ac.uk/policy/environmentally-displaced-people. 44

Andreas Zielcke, ‘Die Kraft der Verratslegenden’ (Interview with Andreas Fischer-Lescano), Sueddeutsche Zeitung Online, 28 November 2018, available at https://www.sueddeutsche.de/kultur/unmigrationspakt-fischer-lescano-1.4230745; François Crépeau, ‘Towards a Mobile and Diverse World: “Facilitating Mobility” as a Central Objective of the Global Compact on Migration’, 30 International Journal of Refugee Law (2018) (forthcoming). 45

46 Federal Office for Migration and Refugees (Bundesamt für Migration und Flüchtlinge) (BAMF), Wanderungsmonitoring: Bildungs- und Erwerbsmigration nach Deutschland – Bericht für das erste Halbjahr 2018, 14 December 2018, available at http://www.bamf.de/SharedDocs/Anlagen/DE/ Publikationen/Broschueren/wanderungsmonitoring-halbjahr-2018.pdf?__blob=publicationFile, at 6. 47 BAMF, Freizügigkeitsmonitoring: Migration von EU-Bürgern nach Deutschland – Jahresbericht 2017, 4 October 2018, available at http://www.bamf.de/SharedDocs/Anlagen/DE/Publikationen/ Broschueren/freizuegigkeitsmonitoring-jahresbericht-2017.pdf?__blob=publicationFile, at 6, 10, and 12.

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At first sight, this fits the self-image of the framework to address migration in all its dimensions, but if one conducts a closer analysis of the Migration Compact, it becomes clear that the framework heavily takes recourse to an understanding of international migration primarily in the sense of labour migration48 – i.e. the movement of persons from one State to another for the purpose of employment.49 In this respect, one can often find references to ‘local market demands’.50 However, this narrowing down seems paradoxical regarding the broad recognition of migration factors on the one side and the highlighting of the positive aspect of migration as a ‘source of prosperity, innovation and sustainable development’51 on the other side. The vague understanding of migration does not help to resolve that contradiction. A closer reading of the text therefore upholds the impression that the document is more focused on the interests of the receiving States than creating a fair balance of interests of States of destination and States of origin.52

IV. Normative Analysis of the Migration Compact As set out in the introduction of this article, the impacts of the Migration Compact on Germany can best be examined, when determining its (normative) implications. The following section therefore addresses the question of the (legal) character of the framework on the one hand and examines the (non-)binding hybrid nature of the Migration Compact on the other hand. Finally, this section focusses on the (normative) consequences expected from the document in the future.

48 See exemplarily the instruments laid down in Objective 5 of the Migration Compact, supra note 1, at para. 21(a)-(e). 49 IOM, Key Migration Terms, ‘Labour migration’, available at http://www.iom.int/key-migrationterms. 50

See, exemplarily, Objective 5 of the Migration Compact, supra note 1, at para. 21.

51

Ibid., at para. 8.

This criticism centres, among others, around the problem of the so called ‘brain-drains’, i.e. the loss of high-skilled workers in the countries of origin. This problem is mentioned only once in the Migration Compact, supra note 1, at para. 18(f). For some criticism in this regard, see Zielcke, ‘Interview with Andreas Fischer-Lescano’, supra note 45. 52

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A. Why the Migration Compact is not an International Treaty in the Sense of Article 38(1)(a) ICJ Statute

At first sight, the structure of the Migration Compact resembles (binding) international treaties in the sense of Article 38(1)(a) Statute of the International Court of Justice (ICJ Statute).53 However, it is questionable whether this prima facie impression stands up to scrutiny. Indeed, a good deal of the stir the Compact has caused in Germany might be due to its translation into German as ‘Globaler Pakt für sichere, geordnete und reguläre Migration.’54 Incidentally, the noun ‘Pakt’ – that can be used as a synonym to the German term for (binding) treaties ‘Vertrag’55 – is the very term used as translation for ‘Covenant’ such as both, the binding International Covenant on Civil and Political Rights (ICCPR)56 or the International Covenant on Economic, Social and Cultural Rights.57 Thus, the translation of the title seems to put the Migration Compact on the same footing as the two United Nations human rights covenants.58 The English term ‘Compact’, however, is already an indication of a non-binding instrument, as can be shown regarding the non-binding framework of the United Nations Global 53

Statute of the International Court of Justice 1945, 15 UNCIO 355.

German Translation Section of the United Nations, Zwischenstaatliche Konferenz zur Annahme des Globalen Paktes für eine sichere, geordnete und reguläre Migration – Entwurf des Ergebnisdokuments der Konferenz, available at http://www.un.org/depts/german/migration/A.CONF.231.3.pdf, at 2-32 (Anlage: Globaler Pakt für eine sichere, geordnete und reguläre Migration) (emphasis added). 54

55

Duden Online, Pakt, der, available at https://www.duden.de/rechtschreibung/Pakt.

International Covenant on Civil and Political Rights (ICCPR) 1966, 999 UNTS 171 (emphasis added). 56

International Covenant on Economic, Social and Cultural Rights 1966, 993 UNTS 3 (emphasis added). 57

Among others, the Compact is labelled as ‘Vertrag’ here: Maria Fiedler et al., ‘Faktencheck: Was steht im UN-Migrationspakt – und was nicht?’, Der Tagesspiegel Online, 19 November 2018, available at https://www.tagesspiegel.de/politik/faktencheck-wozu-verpflichtet-der-migrationspakt-die-staaten/ 23628146-3.html; Thomas Thuma, ‘Was für und was gegen den UN-Migrationspakt spricht’, Handelsblatt Online, 10 December 2018, available at https://www.handelsblatt.com/politik/deutschland/ fluechtlingspolitik-was-fuer-und-was-gegen-den-un-migrationspakt-spricht/23732230.html?ticket=ST553213-ZPH1lzQdnXSvYJE2msyJ-ap5. Even legal news services were not always specific in this regard. See, exemplarily, Anon., ‘UN-Vollversammlung: Einigung auf weltweiten Migrationspakt – USA außen vor’, 38 Zeitschrift für Ausländerrechzt und Ausländerpolitik (2018) 407. On the misleading translation of the Migration Compact, see also Daniel Thym, ‘Einseitig und unpräzise formuliert’, Legal Tribune Online, 21 November 2018, available at https://www.lto.de/recht/hintergruende/h/un-migrationspaktkritik-unverbindlich-fluechtlingspakt-klimawandel-fluechtlinge-gewohnheitsrecht/. 58

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Compact.59 This is argument is notwithstanding Article 2(2) Vienna Convention on the Law of Treaties (VCLT),60 according to which the title of a document is not decisive for determining its legal status (although it might influence public opinion). The main reason why the Migration Compact does not constitute a binding treaty is that its authors clearly state that they did not intend to create a legally binding instrument. The preamble of the Migration Compact explicitly states that ‘th[e] Global Compact [constitutes] a non-legally binding, cooperative framework’ with the purpose to ‘[foster] international cooperation among all relevant actors on migration.’61 Additionally, the Migration Compact stresses the State’s national sovereignty to determine their migration policy by themselves.62 Article 2(1)(a) VCLT defines a treaty as ‘an international agreement concluded between States […] [that is] governed by international law […],’ that must be additionally concluded with the will of the States to create a legally binding relationship.63 Since this last requirement is clearly not met, the Migration Compact cannot be qualified as an international treaty in the sense of Article 38(1)(a) ICJ Statute.64 To think otherwise would be contradictory. Nonetheless, some scholars got het up65 UN Global Compact, United Nations Global Compact, available at https://www.unglobalcompact. org/what-is-gc/mission/principles. This framework deals with corporate sustainability and the responsibility of transnational enterprises. 59

60

Vienna Convention on the Law of Treaties (VCLT) 1969, 1155 UNTS 331.

61

Migration Compact, supra note 1, at para. 7.

62

Ibid., at paras. 7 and 15. In this regard, see also Zielcke, supra note 45.

Emphasis added. See generally, on this last criterion, Andreas von Arnauld, Völkerrecht (3rd ed., 2016), at paras. 188 and 192. 63

64 This appears to be the most common view. See, among others, UN Secretary General, Speech by António Guterres, supra note 4. The fact that the Migration Compact is not a treaty is also the reason why States solely adopted the text by informal acclamation and why they did not sign or ratify it (those latter mechanisms constitute the common procedure for States expressing their will to be (legally) bound by a document, c.f. Arts. 12 and 14 VCLT). Yet, media coverage in Germany was very unspecific in this regard, too. Often it was said that the Compact would be or has been signed. Exemplarily, Sonja Stössel, ‘UN-Migrationspakt: Diese Länder sind ausgestiegen – und diese zweifeln’, Welt Online, 10 December 2018, available at https://www.welt.de/politik/ausland/article184300122/UNMigrationspakt-Diese-Laender-sind-ausgestiegen-und-diese-zweifeln.html. Possibly, the States adopted the framework at an international conference to generate more attention for the Migration Compact than it would have gotten during a regular session of the UNGA. Compare Peters, supra note 25. 65 Among them Reinhard Merkel. See Jörg Münchenberg, ‘“Zustimmen – mit einer ganzen Reihe von Vorbehalten”’ (Interview with Reinhard Merkel), Deutschlandfunk, 10 Dezember 2018, available at https://www.deutschlandfunk.de/un-migrationspakt-zustimmen-mit-einer-ganzen-reihe-

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by the fact that the German version makes frequent use of the terms ‘wir verpflichten uns […]’ and ‘Verpflichtung’,66 that are commonly used language in treaties. Nonetheless, even if this German translation might, in a narrow and traditional understanding, imply the existence of legal obligations, the authentic English version does not. This is because ‘commitment’ rather translates to ‘feste Zusage’ and not to ‘Verpflichtung’.67 Especially, in the realms of the United Nations ‘commitment’ has a political notion.68 Because of the lacking interest of States to commit themselves legally with the Migration Compact, most scholars consider the document to be soft law.69

B. The Hybrid Nature of the Content of the Migration Compact

Yet, the classification of the Migration Compact as soft law is not sufficient by itself to comprehensively describe the hybrid nature of the content of this document. It is true that the framework itself is not legally binding for Germany in the way an international treaty would be. However, the 23 Objectives of the Migration Compact

von.694.de.html?dram:article_id=435468. See also Stefan Aust and Helmar Büchel, ‘“Ich würde dem Pakt so nicht zustimmen”’ (Interview with Matthias Herdegen), 47 Welt am Sonntag (2018), 25 November 2018, at 16. Both, however, acknowledge that the Migration Compact is not a treaty. 66 See, among others, Part 3 of the Migration Compact, which is labelled ‘Objectives and Commitments’ (emphasis added): Migration Compact, supra note 1, at paras. 17-39: The first sentence of each and every ‘Objective and Commitment’ contains the term ‘commit.’ 67

See, similarly Thym, supra note 58.

See, similarly Christian Tomuschat, ‘Ein globales Recht auf Migration’, Frankfurter Allgemeine Zeitung Online, 8 November 2018, available at https://www.faz.net/aktuell/politik/un-migrationspaktein-globales-recht-auf-migration-15879324.html. 68

69 See, exemplarily Ralph Janik, ‘Der Globale Migrationspakt: Zwischen Mythen und Sorgen’, Völkerrechtsblog, 14 November 2018, available at https://www.voelkerrechtsblog.org/der-globalemigrationspakt-zwischen-mythen-und-sorgen/; Peters, supra note 25; Dana Schmalz, ‘Taschenspielertricks mit der Idee demokratischer Selbstbestimmung: Der AfD-Antrag zur Ablehnung des UNMigrationspakts’, Verfassungsblog, 8 November 2018, available at https://www.verfassungsblog.de/ taschenspielertricks-mit-der-idee-demokratischer-selbstbestimmung-der-afd-antrag-zur-ablehnung-desun-migrationspakts/. Missing legal commitments are generally considered to be a classic criterion of soft law. See: Christine Chinkin, ‘Normative Development in the International Legal System’, in Dinah Shelton (ed.), Commitment and Compliance – The Role of Non-Binding Norms in the International Legal System (2000) 21, at 38-39; Anne Peters and Isabella Pagotto, ‘Soft Law as a New Mode of Governance: A Legal Perspective’, New Modes of Governance – Project 4 (Democracy & New Modes of Governance), February 2006, available at http://www.eu-newgov.org/database/deliv/d04d11_soft_law_as_a_nmglegal_perspective.pdf, at 10-11.

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repeatedly refer to already existing rules of custom or binding international treaties.70 For example, Objectives 9 and 10 suggest that States promote the ratification, accession, and implementation of the supplementing protocols to the United Nations Convention Against Transnational Organized Crime71 in light of the States’ commitment to prevent, combat, and eradicate smuggling and trafficking in persons.72 Germany is already party to the Convention and the supplementing protocols and thus already bound by its provisions.73 Another Objective referencing a variety of already existing norms of international law is Objective 21 regarding return, readmission, and sustainable reintegration of migrants.74 Among others, it references in the Commitment the prohibition of collective expulsion to which Germany is bound by as party to the ICCPR (Article 13) or the Fourth Additional Protocol to the European Convention on Human Rights (Article 4).75 These are just two of numerous examples that the framework makes reference to existing treaties and obligations contained therein. In this regard, the Migration Compact does not add substantive content for Germany. Besides the referenced treaty obligations, Germany is bound by the core commitments of some Objectives that reflect existing customary international law. Among them are for example Objective 8, which commits States to the protection of lives, i.e. the right to life,76 and Objective 12 mentioning legal certainty and predictability of (mi70 For a list of documents forming the basis of the Compact, see Migration Compact, supra note 1, at para. 2. 71 UN Convention Against Transnational Organized Crime 2000, UNGA Res. A/Res/55/25, 10 November 2000. 72

Migration Compact, supra note 1, at paras. 25(a) and 26(a).

Gesetz zu dem Übereinkommen der Vereinten Nationen vom 15. November 2000 gegen die grenzüberschreitende organisierte Kriminalität sowie zu den Zusatzprotokollen gegen den Menschenhandel und gegen die Schleusung von Migranten, 1 September 2005, Bundesgesetzblatt (BGBl.) II, 954, 956. 73

74

Migration Compact, supra note 1, at para. 37.

European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) 1950, 213 UNTS 222; Gesetz zu dem Protokoll Nr. 4 vom 16. September 1963 zur Konvention zum Schutze der Menschenrechte und Grundfreiheiten, durch das gewisse Recht und Freiheiten gewährleistet werden, die nicht bereits in der Konvention oder im ersten Zusatzprotokoll enthalten sind, 9 May 1986, BGBl. II, 422. See also, fundamentally in this regard, European Court of Human Rights (ECtHR), Grand Chamber, Hirsi Jamaa and Others v. Italy, Appl. No. 27765/09, Judgment, 23 February 2012, at paras. 168 et seq. 75

76 Art. 6 ICCPR, Art. 2(1) ECHR. Regarding the rule of custom, see Niels Petersen, ‘Life, Right to, International Protection’, Max Planck Encyclopedia of Public International Law (MPEPIL), October 2012, available at www.mpepil.com, at para. 1. See, exemplarily for the saving of lives of people on ships

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gration) procedures.77 Throughout the Objectives one can find several commitments to non-discrimination as well.78 These again are just a few of numerous examples. Thus, when it comes to legal language in the Compact, this language is a sole reflection of existing legal obligations and and does not add any substantive value.79 In its sum, the Migration Compact constitutes an amalgam of references to pertinent international legal documents or obligations (describing lex lata), as well as (legally nonbinding) best practices and policy instruments as regards migration. The elements that seem progressive at first sight, are merely extra-legally detailing these obligations as regards the content for future political bi- or multilateral cooperation. In conclusion, one can determine that the Migration Compact does not create novel legal obligations for Germany. Whilst the legal rules reflected in this framework are (already) legally-binding for Germany, the document itself is not of such nature. It is this mixture of references to binding rules already in existence and of legally non-binding best practices and policy instruments that establishes the hybrid character of the Compact’s content. An amalgam like this, the Migration Compact is comparable to the Safe Schools Declaration and the Guidelines for Protecting Schools and Universities from Military Use during Armed Conflict.80 All of these three documents reference pertinent legal in distress, Research Services of the German Federal Parliament, Informationspflichten im Rahmen internationaler Seenotrettungseinsätze, WD 2 - 3000 – 113/18, 7 August 2018, at 5-6. Kay Hailbronner and Jana Gogolin, ‘Aliens’, MPEPIL, July 2013, supra note 76, at paras. 4 and 26-27. 77

Non-discrimination is referenced several times in the Migration Compact, notably in the Guiding Principles (Migration Compact, supra note 1, at para. 15(f) or in the Objectives 2, 17, and 21, among others. For the legal basis of non-discrimination in international law, see Art. 2 UDHR and Arts. 2(1) and 26 ICCPR as accessory rights applying during the exercise of the substantive human rights; Manfred Nowak, ‘Article 2’, in Manfred Nowak (ed.), U.N. Covenant on Civil and Political Rights – CCPR Commentary (2nd ed., 2005) 27, at para. 3. Germany is also party to the International Convention on the Elimination of All Forms of Racial Discrimination 1965, 660 UNTS 195. 78

79 See, similarly, Hannah Birkenkötter and Sinthiou Buszewski, ‘Das Spiel hat gerade erst begonnen: Zur Kritik am Migrationspakt’, Verfassungsblog, 22 December 2018, available at https://www. verfassungsblog.de/das-spiel-hat-gerade-erst-begonnen-zur-kritik-am-migrationspakt/; Tomuschat, supra note 68; Zielcke, supra note 45. 80 Safe Schools Declaration 2015, available at https://www.regjeringen.no/globalassets/ departementene/ud/vedlegg/utvikling/safe_schools_declaration.pdf, and Guidelines for Protecting Schools and Universities from Military Use during Armed Conflict 2014, available at http:// protectingeducation.org/sites/default/files/documents/guidelines_en.pdf. The Safe Schools Declaration provides the opportunity for States to express their political support for the protection and continuation

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obligations and formulate policy instruments and practices without explicitly labelling which part of the Commitments or Guidelines is reflecting a legal obligation and which part is a sole a political commitment. In adopting these hybrid documents lies an inherent danger: for example, rather than the best practices becoming binding norms or being followed, this mixture of (binding) obligations and (legally non-binding) best practices bears the danger that the binding obligations might not be acknowledged as lex lata anymore. In this light, a better role model might have been the Montreux Document81 that explicitly differentiates between pertinent legal obligations and (good) practices and lists them in two separate parts.

C. The Migration Compact and the Fear of Emerging New Customary Rules of International Migration Law

In the debate surrounding the acclamation of the Migration Compact it has been argued that its content will eventually influence the emergence of (binding) rules of customary international law in the sense of Article 38(1)(b) ICJ Statute.82 Some (indirectly) expressed the fear of an emerging right to migrate from the Migration Compact.83 Among others, this might be due to the controversially discussed Objective 5 regarding the enhancement of availability and flexibility of pathways for regular mi-

of education in armed conflicts. When endorsing the declaration, States ‘pledge’ to implement the Guidelines for Protecting Schools and Universities from Military Use during Armed Conflict. Some of the Guidelines content is already manifested in obligations arising from humanitarian law and human rights law. For a brief analysis of the Safe Schools Declaration, see Stefan Talmon, ‘Endorsement of Safe Schools Declaration’, German Practice in International Law, 5 June 2018, available at https://gpil.jura.uni-bonn. de/2018/06/endorsement-safe-schools-declaration/. International Committee of the Red Cross, The Montreux Document on Private Military and Security Companies (Montreux Document), 17 September 2008, available at https://www.icrc.org/en/ publication/0996-montreux-document-private-military-and-security-companies. 81

Münchenberg, supra note 65. See also the motion of the AfD: Bundestag, Antrag – Kein Beitritt zum Global Compact for Migration durch die Bundesrepublik Deutschland, supra note 5, at 2-3. 82

83 Stefan Aust and Helmar Büchel, ‘Der Migrationspakt – eine Einladung an alle?’, Welt Online, 25 November 2018, available at https://www.welt.de/politik/deutschland/plus184409944/StefanAust-Der-Migrationspakt-eine-Einladung-an-alle.html. These authors argue that at least number of migrants will rise: Michael Geistlinger, Impacts of the Adoption of the Global Compact for Safe, Orderly and Regular Migration for Austria, 9 November 2018, available at https://www.bmoeds.gv.at/cms/site/ attachments/1/1/6/CH1669/CMS1542712326916/impactsadoptionglobcompactmigration.pdf, at 11 et seq.; Thuma, supra note 58.

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gration.84 Indeed, one could regard this as a pro migration statement.85 But that alone does not lead to the emergence of a right to migrate. António Guterres, SecretaryGeneral of the United Nations, is of the same opinion and felt obliged to answer critics of the Migration Compact by saying: ‘Myth number two: the Compact would establish a new right to migrate allowing everyone to choose where to go and when to go. False.’86 It might be a generally acknowledged function of soft law that it can serve as a catalyst for the development of customary international law.87 Yet, for the emergence of a customary right to migrate from this document, two requirements have to be met simultaneously: First, one has to prove the existence of a settled State practice of the relevant provisions (consuetudo), which, second, has to be supported by the State’s belief that its respective behaviour is based on an obligatory rule of law other than based on considerations of courtesy, convenience, or tradition (opinio iuris).88 Before considering the question whether there might be a settled State practice in the future, it should be mentioned that the legal statements contained in Objective 5 are likewise only referencing and detailing international legal obligations (most of them human rights obligations) which are already binding for Germany, such as the right to family life enshrined in Articles 17 and 23 ICCPR. Thus, if there will be proof of State practice, it will be an incentive that Germany fulfils the obligation arising from an existing treaty or norm of custom – that is referenced in the Migration Compact – itself, rather than abiding by some best practice or policy instrument detailing the respective obligation. 84

Migration Compact, supra note 1, at para. 21.

85

Peters, supra note 25.

86

United Nations Secretary General, Speech by António Guterres, supra note 4.

Briefly to the three functions of soft law (pre-law, para-law, and law-plus functions), see Peters, supra note 25. As to soft law as a means of interpretation, see Alan Boyle, ‘Soft Law in International Law-Making’, in Malcolm Evans (ed.), International Law (5th ed., 2018) 119, at 132-133; Antonio Cassese, International Law (2nd ed., 2005), at 196; Malcolm Nathan Shaw, International Law (8th ed, 2017), at 87-88. 87

International Court of Justice (ICJ), North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), Judgment, 20 February 1969, ICJ Reports 1969, 3, at para. 77; ICJ, Military and paramilitary Activities in and against Nicaragua (Nicaragua/ USA), Judgment on the Merits, 27 June 1986, ICJ Reports 1986, 14, at para. 207; ICJ, Jurisdictional Immunities of the State (Germany/Italy: Greece intervening), Judgment, 3 February 2012, ICJ Reports 2012, 99, at para. 55. 88

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Even if one could hypothetically prove a settled State practice, the Objectives and Commitments are to too imprecisely and abstractly phrased to be influential on the emergence of a legal rule of custom.89 For example, one of the actions that States are advised to draw in Objective 5 is as follows: We [the States] will […] a) Develop human rights-based and gender-responsive bilateral, regional and multilateral labour mobility agreements with sector-specific standard terms of employment in cooperation with relevant stakeholders, drawing on relevant ILO standards, guidelines and principles, in compliance with international human rights and labour law.90

Norms of custom, such as the prohibition of the use of force, do generally have a specific core content. If one applies that finding to Objective 5, the latter’s core content would be to cooperate (on the deepening of a migration governance). It is hard to imagine that a settled State practice of cooperation could lead to the emergence of a rule of custom legally obliging States to cooperate with one another in order to conclude or sign agreements regulating migration. To commit to multilateral cooperation (that might lead to the conclusion of future (binding) agreements) is a political practice and even if it would become legally mandatory due to State practice (and opinio iuris), this (hypothetical) obligation to cooperate would not ipso facto lead or contribute to the emergence of a right to migrate. Additionally, the circumstances of the Migration Compact are hardly comparable to those circumstances surrounding soft law documents that had an actual impact on the emergence of custom and future agreements. The Rio Declaration of 199291 is an example for such an influential soft law document.92 However, in the case of the Rio Declaration, the emergence of custom and agreements was and still is a lengthy and ongoing process and second, the relevant Principles contained therein are concise, precisely phrased and most of them have an insisting character – some even added new substantive value.93 Thus, due to their very nature, these Principles were suitable 89

See, similarly, Birkenkötter and Buszewski, supra note 79; Anne Peters, supra note 25.

90

Migration Compact, supra note 1, at para. 21(a).

UNGA, Report on the United Nations Conference on Environment and Development, UN Doc. A/CONF.151/26 (Vol. I), 12 August 1992. 91

92

von Arnauld, Völkerrecht, supra note 63, at para. 277.

Hannah Birkenkötter and Sinthiou Buszewski make a comparison to the Rio Declaration, too, and analyse why the case of the Migration Compact differs. See Birkenkötter and Buszewski, supra note 79. 93

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to prove State practice in this regard and to further derive legal opinions on specific commitments from them. This argument is supported by Principle 15 of the Rio Declaration that deals with the precautionary principle:94 In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.

In Objective 5 the Migration Compact does not create any comparable tangible provisions that could become or influence rules of custom. Especially, it does not contain State commitments to promote migration (not even indirectly). The purpose of Objective 5 is to solely foster States’ cooperation and it therefore (like the Migration Compact in its entirety) only formulates political strategies and a common sense for future cooperation on migration to ensure that the conditions of migration are humane – as a consequence of this cooperation, migration might even decrease.95 Concludingly, the search for State practice as regards the Commitments of the Migration Compact to emerge as legally binding rules of custom leads to a dead end. Second, the need to prove opinio iuris deals the deathblow to the question whether the commitments of the Compact will eventually influence the emergence of rules of custom. Generally speaking, soft law might provide evidence for the existence of opinio iuris.96 Nevertheless, in this case the non-binding character of the document is explicitly stressed97 and insistent statements of State officials support this view.98 The On the (disputed) customary character of this principle, see Meinhard Schröder, ‘Precautionary Approach/Principle’, MPEPIL, March 2014, supra note 76, at paras. 16 et seq. 94

95 See, similarly, Roman Lehner. Alexandra von Michel, ‘“Wer von offenen Grenzen träumt, wird damit nicht viel anfangen können”’ (Interview with Roman Lehner), Cicero Online, 22 October 2018, available at https://www.cicero.de/aussenpolitik/migrationspakt-uno-fluechtlinge-souvernaenitaet. 96 In the case of (non-binding) UNGA resolutions: ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, ICJ Reports 1996, 226, at 254-255. 97

Migration Compact, supra note 1, at para. 7.

German Federal Government (Bundesregierung), Ein globaler Pakt für sichere, geordnete und reguläre Migration, 3 November 2018, available at https://www.auswaertiges-amt.de/de/aussenpolitik/ themen/migration/globaler-migratiospakt/2157180; Bundestag, Antwort der Bundesregierung auf die Kleine Anfrage des Abgeordneten Martin Hebner und der Fraktion der AfD (Response of the Federal Government to the Brief Question by Martin Hebner, Member of Parliament, and the AfD Parliamentary Group), Bundestagsdrucksache 19/1499, 19 April 2018, BT-Drs. 19/175, 19, at 2. See also the debate in the German Parliament: Bundestag, Plenarprotokoll 19/68 (Stenografischer Bericht), supra note 7, at 7733; Hagen Straus, ‘Das ist pure Panikmache’ (Interview with German Minister of Foreign Affairs 98

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Guiding Principle 15(c) further stresses the State’s national sovereignty and the fact that every State is free to govern migration within their jurisdiction and determine whether migration is regular or irregular.99 This point is crucial: it means that every country is free to determine its interests in and needs for migration all by itself. Additionally, the mere existence of Objective and Commitment 21 regarding the facilitation of safe and dignified returns and readmission of migrants emphasises that the States do not intend to create an incentive to migrate (that applies a fortiori to the emergence of a human right to migrate). It is therefore unlikely that States – which in the year 2018 decidedly stressed their national sovereignty and only expressed their political commitment to cooperate in vaguely phrased Objectives – will in the short or long term develop an opinio iuris regarding an individual right to migrate. Consequently, where it goes beyond merely referencing the lex lata the Migration Compact will hardly serve as a basis for the emergence of new rules of international customary law in the field of migration. The least that will happen in the close future will probably occur outside the legal realm, i.e. the initiation of a strengthened multilateral process on a migration governance. Therefore, in the light of the missing legal innovations of the Migration Compact, it would as matter of fact be accurate to regard the document as a very conservative one with no incentives for the emergence of rules of customary international law.100

Heiko Maas), Saarbrückener Zeitung, 29 November 2018, available at https://www.auswaertiges-amt. de/de/newsroom/maas-un-migrationspakt-saarbruecker-zeitung/2165194. See also the official statement of the UN General Secretary: United Nations Secretary General, Speech by António Guterres, supra note 4. 99 Migration Compact, supra note 1, at para. 15(c). Still, some authors such as Michael Geistlinger are of the opinion that the Migration Compact dilutes the border between legal (regular) and illegal (irregular) migration. Geistlinger, supra note 83, at 20-23. This discussion between Reinhard Merkel, Professor of Law, and Katarina Barley, German Minister of Justice, illustrates the opposing views as regards the Compact: Daniel Brössler and Detlef Esslinger, ‘“Brandgefährlich” – “Bodenlos naiv”’ (interview by/discussion between Reinhard Merkel and Katarina Barley), Sueddeutsche Zeitung Online, 7 December 2019, available at https://www.bmjv.de/SharedDocs/Interviews/DE/2018/Print/120818_SZ.html. Also, the United States of America did not support the Migration Compact owing to the fear that their sovereignty would be infringed. See the statement of United States’ Ambassador Nikki Haley: United States Mission to the United Nations, United States Ends Participation in Global Compact on Migration, 2 December 2018, available at https://usun.state.gov/remarks/8197. 100

Daniel Thym also argues that custom will most likely not emerge. See Thym, supra note 58.

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D. The Migration Compact Influencing Decision-Making?

Some scholars make the lump sum argument that international tribunals or domestic courts might employ non-binding documents for interpreting pertinent legal obligations.101 In Germany, some think this is going to happen with the Migration Compact, too.102 They argue that the Migration Compact – even if not legally binding – could create legal effects through the back door. The German professor Reinhard Merkel is of the stark opinion that ‘German administrative courts will not get around applying the Migration Compact’s content when deciding on working permits or expulsions of migrants.’103 However, this scenario seems to be unlikely. The discussion, again, seems to be rather of an academic nature. First, as previously pointed out, the Migration Compact does not add substantive content to German regulations on migration. Least of all does it contain provisions that shall facilitate nor complicate the migration to, residence in, or expulsion from Germany.104 This is illustrated in Objective 21 that deals with the conditions of returns of migrants. Objective 21 urges States to: ‘Ensure that the return of migrants who do not have the legal right to stay on another State’s territory is safe and dignified, follows an individual assessment, is carried out by competent authorities […], and allows all applicable legal remedies to be exhausted, in compliance with due process guarantees, and other obligations under international human rights law.’105 First, this Commitment proves that expulsion is still a primary concern of States. Second, 101 As to the three functions of soft law, see supra note 87. Yet, taking recourse to non-binding soft law (and therefore awarding it legal relevance) is problematic as regards legitimacy. See Katharina Reiling, ‘Die Anwendung des Grundsatzes der Völkerrechtsfreundlichkeit auf rechtsunverbindliche internationale Standards’, 78 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (2018) 311, at 332-333 with further references. In her article, Reiling addresses the relation between the ‘commitment (or openness) towards international law of the German Constitution?’ (Völkerrechtsfreundlichkeit des Grundgesetzes) and soft law. 102 Aust and Büchel, ‘Interview with Matthias Herdegen’, supra note 65; Dietmar Hipp, ‘“Wer in Duisburg wohnt oder Berlin-Neukölln, hat auch Rechte”’ (Interview by Frank Schorkopf), Spiegel Online, 30 November 2018, available at http://www.spiegel.de/plus/uno-migrationspakt-ein-progressivmoralischer-geist-der-keinen-widerspruch-duldet-a-00000000-0002-0001-0000-000161087454; Münchenberg, supra note 65; Tomuschat, supra note 68. 103

Brössler and Esslinger, supra note 99 (translation by the author).

See, similarly,, but in greater detail, Birkenkötter and Buszewski, supra note 79. Journalist Thomas Thuma seems to be of a different opinion. See Thuma, supra note 58. 104

105

Migration Compact, supra note 1, at para. 37(e).

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this Commitment solely refers to pertinent legal obligations that are essential implications of the rule of law. Consequently, these obligations are already mandatory for Germany on a domestic and an international legal basis, as well as on the basis of European regulations. For example, German norms regulating the returns of migrants are Articles 50 et seq. Residence Act106 in conjunction with the European directive 2008/115/EC107 on common standards and procedures in member States for returning illegally staying third-country nationals. Articles 103 and 104 Basic Law for the Federal Republic of Germany (BL)108 apply in this regard, too. And these regulations as regards returns and expulsions – that are far more detailed than any of the Commitments in the Migration Compact – are not extended, not even touched, by the Migration Compact at all.109 Thus, it is unlikely that German courts will resort to the Migration Compact content-wise, as this would not bring legal benefit. There are further reasons why it is highly unlikely that German courts will turn to the Migration Compact when interpreting the relevant provisions of the Residence Act or other domestic statutes. First, German courts are generally somewhat reluctant to take recourse to international documents – and even international law.110 This has to do as much with the German legal training mainly focusing on the parochial as with the dualist approach of the German Constitution to international law. When German judges are looking for inspiration in international treaties this is mainly to clarify the drafters’ intention where a domestic statute is actually meant to implement an international obligation.111 Thus, only if the Residence Act were to be amended in order to implement certain Commitments from the Migration Compact would there 106 Residence Act (Aufenthaltsgesetz), 25 February 2008, BGBl. I, 162, as amended on 12 July 2018, BGBl. I, 1147. 107

Council Directive 2008/115/EC, OJ 2008 L 348/98-348/107.

Basic Law for the Federal Republic of Germany (Grundgesetz für die Bundesrepublik Deutschland), 23 May 1949, BGBl. I, 1, as amended on 13 July 2017, BGBl. I, 2347. 108

109 Migration Compact, supra note 1, at para. 15(c), stresses States’ sovereignty as regards regulating migration. 110 For two very detailed descriptions of the role of international law in German courts, see Andreas von Arnauld, ‘Public International Law and the Role of Federal Courts in Germany’, in Christian Tomuschat and Joe Verhoven (eds.), The Practice of International Law in France and Germany – Les pratiques comparées du droit international en France et en Allemagne (2012) 11; Birkenkötter and Buszewski, supra note 79.

von Arnauld, ‘Public International Law and the Role of Federal Courts in Germany’, supra note 110, at 12 et seq. 111

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be sufficient reason to take those Commitments into account in the first place. But this is a different issue, as a preceding parliamentary act would be required for that to happen. Occasionally, courts might venture into international treaties where such a recourse ‘can promise precision gains and help filling in open norms of domestic laws.’112 But given the far greater precision of the relevant statutes compared to the Compact’s Commitments these options can be ruled out in this case. Second, the Migration Compact is a legally non-binding document and therefore not subject to integration into domestic law (c.f. Article 59(2) BL for the procedure in light of international treaties). It is far from likely that German courts will take into account non-binding international documents (that remain outside the German legal order) when interpreting domestic statutes.113 Especially, since not even the ‘commitment (or openness) towards international law of the German Constitution’ (‘Völkerrechtsfreundlichkeit des Grundgesetzes’) is applicable to them. On one occasion, however, the German Federal Constitutional Court has ruled in its Jugendstrafvollzug judgment that the non-binding recommendations of the Committee of Ministers of the Council of Europe could be taken into account regarding question of violations of fundamental rights (although it has to be mentioned that Germany is not obliged to take them into account and the recommendations themselves might not even be decisive (‘entscheidungserheblich’)).114 One might argue that the ‘best practices’ or ‘policy instruments’ of the Migration Compact are comparable to those recommendations and thus might be taken into account by a German court. However, other than the ‘best practices’ or ‘policy instruments’ in the Migration Compact, the recommendations of the Committee of Ministers of the Council of 112

Ibid., at 19.

An argument supporting this view is made by Hannah Birkenkötter and Sinthiou Buszewski. They state that the Agenda 2030, the unbinding international document that is one of the predecessors of the Migration Compact, has never been taken into account by a German court. Chances are good that the Migration Compact will suffer the same fate. Birkenkötter and Buszewski, supra note 79. Daniel Thym explains that the ECtHR would probably not resort to the Migration Compact either since this human rights court rather takes recourse to binding international documents instead of non-binding political ones. See Thym, supra note 58. 113

Federal Constitutional Court (Bundesverfassungsgericht) (FCC), BVerfGE 116, 69, at para. 63 et seq. On the judgment of the Constitutional Court and generally on the application of soft law in judicial proceedings in Germany, see Reiling, supra note 101. 114

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Europe are tort, concise, and employ an insistent language. Additionally, they add precise substantive content to the interpretation of pertinent legal obligations. This is why the Constitutional Court considers them to be of value in judicial proceedings. Further, the Jugendstrafvollzug judgment solely exemplifies how recognised pertinent legal obligations, arising parallelly in the domestic as well as the international legal order, can be fleshed out. The case of the Migration Compact fundamentally differs from the Jugendstrafvollzug judgment and its findings as German courts would first have to discuss and establish the telos of the Migration Compact – putting aside the regulation telos, it is not evidently clear whether the document is about enhancing or reducing migration115 – and apply these findings when dealing with the domestic statutes, such as the Residence Act. In sum, the Migration Compact will most likely not have an influence on decisionmaking processes in Germany. It is highly unlikely that a German administrative court will take recourse to the Migration Compact for interpreting the Residence Act or for any other clarification of domestic or international law by interpretation as argued by Reinhard Merkel. Of course, it cannot be ruled out that one of the approximately 2,000 judges at the administrative courts in Germany116 would be so keen to rely on the Migration Compact. Nevertheless, this keenness will probably be suffocated in subsequent stages of such proceedings.

V. Questions of Policy Regarding the Migration Compact A. Why All the Fuss?

The normative analysis proved that the Migration Compact does not have the farreaching impact on Germany the critics wanted us to believe. Stefan Aust and Helmar Büchels’ scaremongering statement that the Migration Compact will have ‘even wider115

von Michel, supra note 95.

For the numbers, see Statista, Anzahl der Richter* in Deutschland nach Gerichtsart am 31. Dezember 2016, available at https://de.statista.com/statistik/daten/studie/37315/umfrage/anzahl-der-richterin-deutschland-nach-gerichtsart/. 116

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reaching effects than [Chancellor Angela] Merkel’s decision to not close the German border in 2015’117 proved to be at least an exaggeration. Nevertheless, the questions remain why the issue of the Compact has been scandalised and what caused the massive uprising of the people. The critics’ answer to the drafting and adoption of the Migration Compact appears to be an act of defiance. One can establish a causal link between the public uproar and the parliamentary debate on the one hand and the heavily criticised German refugee policy initiated by Angela Merkel’s famous words on 31 August 2015: ‘wir schaffen das’,118 on the other hand.119 The current public image populists paint of migration is obviously informed by the right-wing initiated discourse on refugees.120 The current debate hardly differentiates between migrants and refugees any more.121 It seems fair to assume that statements, such as First Deputy Leader of the CDU/CSU Group in the Bundestag Alexander Dobrindt’s ‘Anti-Abschiebe Instustrie’122 – that was defended by the Minister of the Interior Horst Seehofer123 – played a crucial role Aust and Büchel, ‘Der Migrationspakt – eine Einladung an alle?’, supra note 83 (clarifications added) (translation by the author). 117

Bundesregierung, Sommerpressekonferenz von Bundeskanzlerin Merkel, 31 August 2015, available at https://www.bundesregierung.de/breg-de/aktuelles/pressekonferenzen/sommerpressekonferenzvon-bundeskanzlerin-merkel-848300. 118

For an example of the causal link, see Hipp, supra note 102. Professor Frank Schorkopf argues that the Migration Compact is the ‘Manifesto of the Willkommenskultur’ (translation by the author). See, similarly, Stefan Aust and Helmar Büchel: Aust and Büchel, ‘Der Migrationspakt – eine Einladung an alle?’, supra note 83. 119

Fabian Löhe, ‘Wie Rechte die Propaganda gegen den Migrationspakt organisieren’, Der Tagesspiegel Online, 7 December 2018, available at https://www.tagesspiegel.de/politik/afd-und-identitaerebewegung-wie-rechte-die-propaganda-gegen-den-migrationspakt-organisieren/23729410.html. For an example of the right-wing populist discourse in this regard see the petition ‘Gemeinsame Erklärung 2018’ that was signed by publicists, journalists, scientists, artists, and other academics to stop ‘The destruction of Germany’ by a ‘mass influx of illegal migration’ allegedly caused by Angela Merkel’s refugee politics (translation by the author). Bundestag, Petition No. 79822, 17 May 2018, available at https://epetitionen. bundestag.de/petitionen/_2018/_05/_17/Petition_79822.nc.html (translation by the author). 120

In this regard, see Bundestag, Antwort der Bundesregierung auf die Kleine Anfrage des Abgeordneten Martin Hebner und der Fraktion der AfD, BT-Drs. 19/1499, supra note 98, at 3 (Question 12). 121

122 Zeit Online, ‘Dobrindt verschärft Kritik an “Anti-Abschiebe-Industrie”’, 13 May 2018, available at https://www.zeit.de/news/2018-05/13/dobrindt-verschaerft-kritik-an-anti-abschiebe-industrie180513-99-283570. 123 Spiegel Online, ‘Innenminister Seehofer verteidigt Parteifreund Dobrindt’, 7 May 2018, available at http://www.spiegel.de/politik/deutschland/horst-seehofer-innenminister-nimmt-alexanderdobrindt-in-schutz-a-1206569.html.

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in influencing the discussion on migration in an unobjective manner. It follows from an undifferentiated discourse rhetoric that the public perception of ‘migrants’ and ‘refugees’ has shifted to some extent to an understanding of migrants as ‘Sozialsystemschmarotzer’, ‘Schein-Flüchtling’, or ‘Wirtschaftsflüchtling’.124 The States’ commitment in Objective 15 to provide access to basic services for migrants triggers these images. Of course, it should go without saying that providing access to basic services for migrants is the logical consequence for States benefitting from labour migration. Even more, Objective 15 only aims to ensure that migrants can be able to exercise their human rights by accessing basic services. The Objective is among others motivated by the human right to life, that binds States as a rule of custom and additionally binds Germany as party to the ICCPR (Article 6).125 This reveals that even Objective 15 does not affect pertinent legal obligations. Indeed, its core content is enshrined in the very Article 1(1) BL, which, in conjunction with Article 20(1) BL, guarantees basic services in the sense of a minimum standard of living (Existenzminimum) to every person in Germany.126 Nonetheless, journalists Stefan 124 For a compelling analysis of the language in the migration discourse, see Sebastian Gierke, ‘Sprache im Migrationsdiskurs – Warum “Asylant” ein Killwort ist’, Sueddeutsche Zeitung Online, 11 December 2014, available at https://www.sueddeutsche.de/politik/sprache-im-migrationsdiskurswarum-asylant-ein-killwort-ist-1.2262201. See also Armin Nassehi, ‘Der Hass auf den “Wirtschaftsflüchtling”’, Frankfurter Allgemeine Zeitung (FAZ) Online, 31 August 2015, available at https://www. faz.net/aktuell/feuilleton/debatten/hass-auf-wirtschaftsfluechtlinge-in-deutschland-13776696.html. This phenomena can be witnesses in a newspaper article by Stefan Aust and Helmar Büchel: Aust and Büchel, ‘Der Migrationspakt – eine Einladung an alle?’, supra note 83. For instance, in their article they make use of the term ‘“refugee”’ (translation by the author) in quotation marks in order to imply that most of the people claiming to be refugees arrive in Germany only to abuse the social system. 125 For the implications of Art. 6 ICCPR as regards the guaranteeing of basic services confer, see Human Rights Committee, General comment No. 36 (2018) on Article 6 of the International Covenant on Civil and Political Rights, on the right to life, 30 October 2018, UN Doc. CCPR/C/GC/36, 30 October 2018, at para. 26.

Arguing for a minimum standard of living (Existenzminimum), see FCC, BVerfGE 125, 175; applying these standards to migrants, see FCC, BVerfGE 132, 134. See also Stephan Harbarth, ‘Der UNMigrationspakt ist im deutschen Interesse’, Frankfurter Allgemeine Zeitung Online, 14 November 2018, available at https://www.faz.net/aktuell/politik/inland/stephan-harbarth-zum-un-migrationspakt-1588 8990.html; von Michel, supra note 95. Already fundamentally on the Existenzminimum from a contextualised legal perspective, see Andreas von Arnauld, ‘Das Existenzminimum’, in Andreas von Arnauld and Andreas Musil (eds.), Strukturfragen des Sozialverfassungsrechts (2009) 251 (especially on the treatment of aliens at 280 et seq.). The Migration Compact can be seen – to some extent – as a reaction to the fact that some States’ practice is rather divergent as regards the protection of the rights enshrined in the UN human rights treaties granted for ‘everyone.’ A number of States provide different levels of protection to their own citizens and migrants. In this way, by endorsing the Compact, the States might aim to facilitate compliance with the existing law by generating a change in practice and behaviour. In this 126

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Aust and Helmar Büchel, as well as professor Matthias Herdegen, claim that the commitment to provide access to basic services constitutes a de facto guarantee to migrate and that it will cause the German social system to collapse.127 These statements nourish the populists discourse and the use of notions such as ‘Sozialsystemschmarotzer’ or ‘Schein-Flüchtling.’ The lip service to protect and ensure human rights to people in need, however, is not equivalent to legalising illegal migration. Unfortunately, this rational view has gradually vanished in favour of the impression of an unfair treatment of a State’s own nationals.128 This is why the acknowledgement of migration as an international phenomenon is, along with the commitment of States to cooperate on this issue, considered to be a scandal by itself. According to the statistics of the Federal Office for Migration and Refugees, Germany is mainly interested in migration of high-skilled workers and migration for the purposes of education.129 These people seldom require additional international protection and reaffirmation of their human rights. Quite the contrary: The migration of skilled people is mostly appreciated.130 This is why the purpose of the Migration Compact is to strengthen the rights and improve the conditions for migration of nonor low-skilled workers and those who are forced to migrate due to climate change and other grave circumstances. As a minority with a poor lobby in a State of destination, they are regularly in need of protection.131 regard, see Elspeth Guild, ‘The UN Global Compact for Safe, Orderly and Regular Migration: What Place for Human Rights?’, 31 International Journal of Refugee Law (2019) (forthcoming). Aust and Büchel, ‘Der Migrationspakt – eine Einladung an alle?’, supra note 83; Aust and Büchel, ‘Interview with Matthias Herdegen’, supra note 65. 127

128 Thomas Thuma calls this Bevorzugung (favouritism). See Thuma, supra note 58. See also Reinhard Merkel’s statement in this regard: Münchenberg, supra note 65.

For statistics, see BAMF, Wanderungsmonitoring: Bildungs- und Erwerbsmigration nach Deutschland Bericht für das erste Halbjahr 2018, supra note 46, at 6. 129

130 See the plans of the Federal Ministry of Health to facilitate migrants access to work in the health care sector: German Federal Ministry of Health (Bundesgesundheitsministerium), Konzertierte Aktion Pflege – für mehr Wertschätzung, bessere Arbeitsbedingungen und gerechte Bezahlung, available at https:// www.bundesgesundheitsministerium.de/themen/pflege/konzertierte-aktion-pflege.html. Also recently, see the debate surrounding the immigration act for skilled personnel in Germany (Fachkräfteeinwanderungsgesetz): Frederik von Harbou, ‘Der Schein und das Nichts: der Gesetzesentwurf für Fachkräfteeinwanderung’, Verfassungsblog, 24 December 2018, available at https://verfassungsblog.de/der-scheinund-das-nichts-der-gesetzesentwurf-fuer-fachkraefteeinwanerung/.

Birkenkötter and Buszewski, supra note 79. This article describes that the situation for migrants working in the German health care sector is worse than for German workers: Kristiana Ludwig, ‘Auslän131

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This point is often omitted in the public debate. Critics claim that the Migration Compact’s main focus on the respective rights of these people is disproportionate.132 The Compact would have to focus on the migrants’ duties/obligations towards the countries of destination and its inhabitants, too. However, this claim reveals a deliberate misunderstanding of the functionalities of public international law in general. International documents, such as human rights treaties that are numerously referenced in the Migration Compact, impose obligations on States, whereas the relation between individuals is generally alien to them. Determining the obligations of migrants is up to the States to be regulated domestically with regards to the States’ relevant human rights obligations.133 The Migration Compact indirectly addresses this by clarifying that migrants have to abide by the laws of the countries of destination.134 Yet, persuading the critics seems pointless since the discussion on the Migration Compact is not informed by an objective political and media discourse on international migration any more. Unfortunately, populists in Germany – supported by irresponsible statements of politicians, journalists, as well as professors – understood how to manipulate the discourse in a xenophobic way.135

B. Did the Government Wrongfully Omit to Involve the Parliament?

Some addressed the question whether the German Government did not adequately involve the German Parliament in the process leading to the adoption of the Migradische Pflegekräfte sind nicht willkommen’, Sueddeutsche Zeitung Online, 7 August 2018, available at https://www.sueddeutsche.de/karriere/arbeitsmarkt-auslaendische-pflegekraefte-sind-nichtwillkommen-1.4083810. Aust and Büchel, ‘Der Migrationspakt – eine Einladung an alle?’, supra note 83; Hannelore Crolly, ‘Der Faktencheck zum umstrittenen Migrationspakt’, Welt Online, 3 November 2018, available at https://www.welt.de/politik/ausland/article183220870/Umgang-mit-Fluechtlingen-DerFaktencheck-zum-umstrittenen-Migrationspakt.html. Further, the AfD claims this: AfD, Mirationspakt stopppen, available at https://www.afd.de/migrationspakt-stoppen/. 132

133 Hannah Birkenkötter and Sinthiou Buszewski address this point of criticism, too (although from a different perspective) and explain why that criticism is void. Birkenkötter and Buszewski, supra note 79. 134

Migration Compact, supra note 1, at para. 32.

The recent shifting – even of the academic – discourse to include right-wing populist and xenophobic tendencies can be witnessed in the aforementioned article by Stefan Aust and Helmar Büchel: Aust and Büchel, ‘Der Migrationspakt – eine Einladung an alle?’, supra note 83. 135

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tion Compact.136 In Germany the procedure for ratifying an international treaty would be – according to the dualistic approach enshrined in Article 59(2) BL – as follows: the Parliament or the Bundesrat (i.e. the body responsible for the content matter) have to authorise the Government of Germany (Bundesregierung) to ratify a treaty, by enacting an approving federal act. No such procedure has taken place in the time before the adoption of the Migration Compact by Germany. Nonetheless, one can question whether such an inner-State authorising procedure was legally mandatory, especially against the backdrop that soft law documents can develop extra-legal effects – in the social, political, or moral realm137 – even though a similar provision to Article 26 VCLT (pacta sunt servanda) is missing for them.138 However, the Federal Constitutional Court employs a very formalistic approach as regards the question whether the Parliament has to enact a federal law.139 The Court answers the question by exclusively examining whether the document is legally binding.140 That view was held up in the judgement of 22 November 2001 regarding the North Atlantic Treaty

Very informative in this regard: Peters, supra note 25; Tomuschat, supra note 68; Robert Uerpmann-Wittzack, ‘Lesarten des UN-Migrationspaktes und der Wert parlamentarischer Debatte’, Verfassungsblog, 11 November 2018, available at https://www.verfassungsblog.de/lesarten-des-unmigrationspaktes-und-der-wert-parlamentarischer-debatte/. 136

For that implication of soft law, see Matthias Knauff, Der Regelungsverbund, Recht und Soft Law im Mehrebenensystem (2010), at 220; Reiling, supra note 101, at 319-320. See generally, in terms of extra-legal effects of ‘soft law’, Michael Bothe, ‘Legal and Non-Legal Norms – a Meaningful Distinction in International Relations?’, 11 Netherlands Yearbook of International Law (1980) 65; Christine Chinkin, ‘The Challenge of Soft Law: Development and Change in International Law’, 38 International & Comparative Law Quarterly (1989) 850, at 865-866; Dinah Shelton, ‘Introduction – Law, Non-Law and the Problem of “Soft Law”’, in Dinah Shelton (ed.), Commitment and Compliance – The Role of Non-Binding Norms in the International Legal System (2000) 1, at 13-18; Daniel Thürer, ‘Soft Law’, MPEPIL, supra note 76, March 2009, at paras. 1-2. 137

138 For some criticism in this regard see Reinhard Merkel: Münchenberg, supra note 65. Similar to Reinhard Merkel, some authors argue – in light of an alleged positive impact of the Migration Compact on the increase of migration – that the Migration Compact could create de facto political pressure for Germany to abide by its Commitments. However, as laid down in this article, this point is not valid since the Migration Compact is primarily about cooperation to regulate the conditions of migration. As a matter of fact, it is not even clear whether the States generally intend to enforce or reduce international migration with the Migration Compact. This latter argument is made by Roman Lehner, too. See von Michel, supra note 95. 139

Uerpmann-Wittzack, supra note 137.

140

FCC, BVerfGE 90, 286, at paras. 264-265.

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Organization Strategic Concept.141 Recently, the Constitutional Court – in its Beschluss über Eilanträge (Decision on urgent requests) against the Migration Compact – confirmed the view of the Government of Germany that the Migration Compact is not a legally binding international treaty.142 Thus, the participation of the parliament was not (legally) mandatory.143 Yet, an early parliamentary debate would have been (politically) desirable to avoid misinformation and it could have helped to anticipate the intense protests of a Transatlantic Trade and Investment Partnership (TTIP)-like dimension.144 It might be true that official information on the Migration Compact was released tardily by the Government.145 Nonetheless, it has to be mentioned that the Government has asked the Parliamentary Groups of the Bundestag – including the AfD – to join the hearing during the different phases of the negotiation of the Migration Compact in New York146 and invited them to participate in meetings at the Federal Foreign Office.147 However, during the hearings in New York only one German parliamentarian attended – Sevim Dağdelen of the Left Party (Die Linke).148

141 FCC, BverfGE 104, 151. For a detailed reconstruction of the two judgments regarding the North Atlantic Treaty Organization, see Heiko Sauer, Staatsrecht III (5th ed, 2018), § 4, at paras. 33b et seq. 142 FCC, Decision of 7 December 2018, at para. 16, reprinted in: Neue Juristische Wochenschrift 72 (2009), 161.

The Government of Germany shares this view. See Bundestag, Antwort der Bundesregierung auf die Kleine Anfrage des Abgeordneten Martin Hebner und der Fraktion der AfD, BT-Drs 19/1499, supra note 98, at 2. 143

For a Transatlantic Trade and Investment Partnership (TTIP) comparison, see Peters, supra note 25. 144

The German Federal Foreign Office launched the information on its website on 3 November 2018. See German Federal Foreign Office (Auswärtiges Amt), Ein globaler Pakt für sichere, geordnete und reguläre Migration, 3 November 2018, available at https://www.auswaertiges-amt.de/de/aussenpolitik/ themen/migration/globaler-migratiospakt/2157180. For criticism, see Fiedler et al., supra note 58. 145

Auswärtiges Amt, supra note 145. The Government of Germany emphasises this view. See Bundestag, Antwort der Bundesregierung auf die Kleine Anfrage des Abgeordneten Martin Hebner und der Fraktion der AfD, BT-Drs 19/1499, supra note 98, at 2. 146

147 Welt Online, ‘Maas zum Migrationspakt: “Haben in den sozialen Medien die Verhandlungen offengelegt”’, 25 November 2018, available at https://www.welt.de/politik/deutschland/article184466 800/Maas-zum-Migrationspakt-Haben-in-den-sozialen-Medien-die-Verhandlungen-offengelegt.html. 148 Antje Hildebrandt, ‘Die Bundesregierung hat den Boden für eine Angstkampagne bereitet’ (Interview with Sevim Dagdelen), Cicero Online, 21 November 2018, available at https://www.cicero. de/aussenpolitik/un-migrationspakt-sevim-dagdelen-bundesregierung-afd-jens-spahn/plus.

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It was only after the motion of the AfD149 that there were heated debates in the Bundestag.150 It seems that the Parliament underestimated the power of the debate that followed. When the German Parliament finally decided to support the Migration Compact at the end of November 2018,151 the public debate and uproars were in full swing and the media coverage was immense. Right wing initiatives demonstrated at the Brandenburg Gate.152 By then, the populists had usurped the discourse.153 In light of this, it can be argued that the Parliament would have been the appropriate forum to accompany the development of the Migration Compact right from the beginning.154 By omitting this chance, the public debate was vulnerable to a take-over by populists. The fault lies rather with the Parliament than the Government since the parliamentarians missed the opportunity to be proactive and shed some transparency on the process.

VI. Conclusion In conclusion, it can be noted that there was really much ado about nothing in the debate on the Migration Compact. Especially, the normative analysis proved that the Compact itself will have less impact on Germany than its critics wanted us to believe. Most statements of the critics are testaments of hysteria or paranoia and symptoms of a growing populist and xenophobic discourse. If there was an opening of Pandora’s Box, it can only be seen in the fact that the Migration Compact might be another step forward in strengthening multilateral co149

Bundestag, Antrag – Kein Beitritt zum Global Compact for Migration durch die Bundesrepublik Deutschland, supra note 5. 150 Bundestag, Plenarprotokoll 19/61 (Stenografischer Bericht), 8 November 2018, at 6806 et seq.; Bundestag, Plenarprotokoll 19/68 (Stenografischer Bericht), supra note 7, at 7733 et seq. 151

Bundestag, Antrag der Fraktionen der CDU/CSU und SPD, supra note 8.

152

rbb, Aufruf von Rechtspopulisten – Tausend Menschen protestieren gegen Migrationspakt, supra note 10. On the history of this ursurpation, see Alexej Hock and Jan Lindenau, ‘Eine Kampagne, die nicht aussehen sollte wie eine Kampagne’, Welt Online, 5 Dezember 2018, available at https://www.welt.de/ politik/deutschland/article185053744/Rechte-gegen-Migrationpakt-Eine-Kampagne-die-nichtaussehen-sollte-wie-eine-Kampagne.html. 153

154

See, similarly, Uerpmann-Wittzack, supra note 137.

520 GERMAN YEARBOOK OF INTERNATIONAL LAW 61 @ 2018

operation processes regarding the creation of a comprehensive migration governance. However, this is evidently needed considering the numbers set out in the Introduction of this article. In this light, one should hope for the Migration Compact to create awareness on the often inhumane conditions of migration and compel States to close at least some loopholes regarding the protection of migrants, not least by facilitating compliance with the existing law.155 It might be regrettable that the framework is non-binding and misses out the chance to provide for a clear understanding of migration. However, this approach might just be the reason that in the end 164 States could agree on the document. To have them all come together to negotiate on migration is a significant accomplishment by itself. Should the Migration Compact really enforce an intense multilateral process in the future, Germany should take a leading role in pushing this process – especially since Angela Merkel publicly expressed interest in convincing more and more qualified workers from outside the EU to migrate to Germany.156 But other than before, future processes should be more transparent. This would require early parliamentary debates, even if not legally mandatory. Galvanising topics should be discussed in a forum that reflects society at large: Parliament. The need for the Parliament to be proactive next time is especially evident in the light of the populist discourse surrounding the Migration Compact. The mistakes committed should not be repeated. The choice to draft a hybrid document might have fostered the heated disputes, too. This is because some criticised the Migration Compact for making progressive statements when, in fact, it was only referencing existing obligations. A clear differentiation between practices, policy instruments, and pertinent legal obligations similar to that of the Montreux Document would have been helpful to prevent the populist discourse to emerge in the first place. However, to make a final point in favour of the Migration Compact: It is worth mentioning that its adoption on the 70th anniversary of the Universal Declaration of Human Rights is a strong statement against the uprising populist and right-wing xenophobic movements these days. This symbolic statement is of even greater value for 155

See, similarly, Harbarth, supra note 127.

156

Ständige Vertretung der Bundesrepublik Deutschland bei den Vereinten Nationen, supra note 17.

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Germany being a country of immigration157 with migration deeply rooted in its DNA: nearly a quarter (23.6%) of the population have a migrant background.158 Adopting the Migration Compact might be an appropriate move for Germany to finally acknowledge this reality.

A view expressed indecisively by German Chancellor Angela Merkel, too: Frankfurter Allgemeine Zeitung Online, ‘Merkel: “Deutschland ist ein Einwanderungsland”’, 1 June 2015, available at https:// www.faz.net/aktuell/politik/ausland/europa/angela-merkel-sieht-deutschland-als-einwanderungsland13623846.html. 157

German Federal Statistical Office (Statistisches Bundesamt), ‘Bevölkerung und Erwerbstätigkeit, Bevölkerung mit Migrationshintergrund – Ergebnisse des Mikrozensus 2017’, 1 August 2018, available at https://www.destatis.de/DE/Publikationen/Thematisch/Bevoelkerung/MigrationIntegration/ MigrationshintergrunM2010220177004.pdf?__blob=publicationFile, at 35. 158

The Case of the Lifeline – A German Perspective on the Dilemma of Private Sea Rescuing in the Mediterranean MAXIMILIAN JACOB AND CLEMENS J. DORSEL(

To blockade or not to blockade, that is the question: Whether ‘tis nobler in the mind to suffer The lack of sovereignty, Or to use the sharpness of the law and authority, In order to end the troubles on the sea.1

I. Introduction With regard to the ongoing refugee crisis in the Mediterranean, European countries seem to be struggling no less than Shakespeare’s Hamlet to find an equitable and proper solution. Almost every day in the last five years, international press reports include news concerning unseaworthy boats overloaded with migrants on their way from northern Africa to Europe finding themselves in distress. Often numerous people die on this risky way of trying to reach Europe. In 2016, more than 360.000 people made their way to Europe,2 most of them via the central Mediterranean Route connecting Libya and Italy.3

( Maximilian Jacob and Clemens J. Dorsel are law students at Kiel University and student assistants at the Walther-Schücking-Institute for International Law. 1

Freely adapted from Shakespeare’s play Hamlet, Act III, Scene I.

United Nations (UN) High Commissioner on Human Rights, Operational Portal Refugee Situations (2019), available at https://data2.unhcr.org/en/situations/mediterranean?id=105. 2

3 Andreas Spalinger, Ein fast unbemerkter Rekord (2017), available at https://www.nzz.ch/international/ asylantraege-steigen-rueckfuehrungen-sind-oft-unmoeglich-nach-italien-kommen-mehr-bootsfluechtlingedenn-je-ld.138262.

524 GERMAN YEARBOOK OF INTERNATIONAL LAW 61 @ 2018

The European States, and especially those bordering the Mediterranean, try to protect themselves against this kind of migration. Therefore, Italy and the European Union (EU) established several military operations to protect their borders and to address the problem of migrant smuggling. From 18 October 2013 until 31 October 2014, the Italian government’s Operation Mare Nostrum was responsible for search and rescue (SAR) in the Mediterranean Sea, particularly in the Strait of Sicily.4 Apart from this, its purpose was to stop migrant smuggling.5 After the operation’s costs became too high for a single government, the European Frontex Operation Triton superseded Mare Nostrum. The focus of the Operation Triton lay on ensuring effective EU border control in the Mediterranean region and on providing assistance to persons or vessels in distress.6 According to the EU-Commissioner Cecilia Malmström, the operation was ‘tailored to the needs and requests defined by the Italian authorities’.7 It involved the cooperation of 15 European nations and was under Italian control. Nevertheless, while Mare Nostrum was provided with €9 million per month, Operation Triton’s monthly budget merely amounted to €2.9 million.8 On 23 April 2015, after an emergency summit regarding the increasing number of migrant shipwrecks and fatalities, European leaders agreed on tripling the budget to €120 million per year.9 At the following press conference, German Chancellor Angela Merkel added: ‘If it turns out that the funds are not sufficient we will have to talk about it again. Money should be no object here.’10

Italian Ministry of Defence (Ministerio Della Difesa), Italian Navy (Marina Militare), Mare Nostrum Operation (2018), available at http://www.marina.difesa.it/EN/operations/Pagine/Mare Nostrum.aspx. 4

5

Ibid.

European Commission, Frontex Joint Operation ‘Triton’ – Concerted efforts to manage migration in the Central Mediterranean, Commission Memo 14/566 of 7 October 2014. 6

7 European Commission, Statement by EU Commissioner Cecilia Malmström on operation Triton, Commission Statement 14/302 of 7 October 2014. 8

European Commission, supra note 6.

Vasudevan Sridharan, ‘EU to triple funding for ‘Operation Triton’ to tackle Mediterranean migrant crisis’, International Business Times, 24 April 2015, available at https://www.ibtimes.co.uk/eutriple-funding-operation-triton-tackle-mediterranean-migrant-crisis-1498100. 9

10

Ibid.

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Additionally, Operation Sophia – a military operation by the EU – was established on 18 May 2015 by a Council decision.11 Its budget amounted to €11.82 million per year.12 Moreover, military personnel and material was provided by 25 contributing nations.13 The core purpose of the mission was to ‘prevent the further loss of life at sea’ by fighting human smuggling and trafficking and the business network behind it.14 Germany has supported the establishment of Operation Sophia with the goal of fighting organised immigration crimes in the southern and central Mediterranean Sea and has contributed units since 2015.15 In February 2018, Frontex replaced its Triton mission by a new operation called Themis. The Themis Operation no longer enshrines the obligation to bring migrants to Italy but leaves the decision to the country coordinating the particular rescue. The meaning of the operations’ names thereby indicates their purposes. While Triton was a Greek god and the messenger of the sea, Themis was the goddess of divine law and order. Especially through covering a larger area than before and through unlawful pushbacks,16 the above-mentioned missions achieved to lower the number of migrants successfully reaching European shores to 185,139 in 2017 and to 141,475 in 2018.17 However, the United Nations Refugee Agency still counted more than 3,000 people dead or missing in 2017 and 2,277 in 2018.18

11 Council Decision (CFSP) 2015/778 of 18 May 2015 on a European Union military operation in the Southern Central Mediterranean (EUNAVFOR MED), OJ 2015 L 122/31. 12 European Union (EU) Naval Force - Mediterranean Operation Sophia, Media and Public Information Office, European Union Naval Force – Mediterranean Operation Sophia, 30 September 2016, available at http://www.eeas.europa.eu/archives/docs/csdp/missions-and-operations/eunavformed/pdf/factsheet_eunavfor_med_en.pdf. 13

Ibid.

14

Ibid.

German Parliament (Bundestag), Reply of the German government to the small interpellation by the member of parliament Stephan Brandner and the AfD faction, 24 July 2018, Bundestagsdrucksachen (BT-Drs.) 19/3262. 15

16 European Court of Human Rights (ECtHR), Grand Chamber, Case of Hirsi Jamaa and Others v. Itlay, Appl. No. 27765/09, Judgement, 23 February 2012.

UN High Commissioner on Human Rights, Operational Portal Refugee Situations (2019), available at https://data2.unhcr.org/en/situations/mediterranean?id=105. 17

18

Ibid.

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In addition to the European governments, private organisations started to establish rescue operations to save people from distress in the Mediterranean. One well-known name in this field is Sea Watch, which was founded in the end of 2014 with the goal ‘that no human being shall die at the European boarders on his or her escape for a better and humane life’. Furthermore, in 2016 the association Mission Lifeline was founded in the city of Dresden by Axel Steier. Its main objective, as stated in its Charter, is the rescuing of migrants at sea and the support of refugees coming to Europe and Germany. To fulfil their goal, Mission Lifeline bought a vessel from Sea Watch and started rescuing operations in 2017. However, on 21 June 2018 a new chapter for private SAR operations in the Mediterranean began. The crew of the Lifeline sighted two unseaworthy ships on the high seas and rescued 234 people by taking them on board.19 Lifeline requested access to a safe harbour, which neither Italy nor Malta were willing to grant.20 Matteo Salvini, the Italian Minister of Home Affairs, justified the decision and declared that he will not support illegal migration businesses.21 José Luis Ábalos, Spanish Minister of Public Works, declared that Lifeline may not enter Spanish ports.22 Nevertheless, on 25 June 2018 the Italian and Maltese governments agreed that Lifeline could land in the port of Valletta.23 As the Lifeline entered the Maltese port, the German captain Claus-Peter Reisch was arrested and tried for incorrect registration of the ship.24 Mission Lifeline’s statement that it was flying a Dutch flag was contested by Dutch authorities.25 According to these authorities, the ship was merely registered in the Watersportverbond, and not Raphael Thelen, Situation an Bord der Lifeline: Die Riesenangst – wo geht es hin?, 24 June 2018, available at http://www.spiegel.de/politik/ausland/fluechtlinge-rettungsschiff-lifeline-die-situation-istbelastend-a-1214665.html. 19

20 MDR Aktuell Nachrichten, Migranten im Mittelmee:r Italiens Küstenwache sieht sich für Rettung vor Libyen nicht mehr zuständig, 24 June 2018, available at https://www.mdr.de/nachrichten/politik/ ausland/italien-kuestenwache-migranten-rettung-libyen-100.html; MDR exakt, “Lifeline”: Logbuch einer umstrittenen Mission, last updated 3 April 2019, available at https://www.mdr.de/investigativ/ seenotrettung-logbuch-umstrittene-mission-lifeline100.html. 21

MDR exakt, supra note 20.

22

Ibid.

23

Ibid.

24

Ibid.

25

Ibid.

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as a ship but as a pleasure craft.26 Moreover, the Maltese police requested the seizure of the corpus delicti – the Lifeline.27 This procedure by Maltese authorities was supported by the German Minister of Home Affairs, Horst Seehofer, who named the prosecution of the Lifeline’s crew, as well as the seizure of the ship, a requirement for the accommodation of the migrants on board the Lifeline.28 With the start of the hearings in front of a Maltese Court, Reisch had to stay in Malta and had to hand in his passport.29 Until the present day, no judgement has been rendered. In addition to the detention of Axel Reisch, the ship Lifeline was prevented from leaving the port.30 This conduct started a new way of dealing with migration to Europe and the highly criticised topic of private sea rescue in the Mediterranean. In the upcoming month after the blocking of the Lifeline, other organisations and ships were blocked, or States denied access to their harbours for the purpose of disembarkation of migrants. Ships like Sea Watch 3, Iuventa, or Aquarius were impeded to fulfil their missions. Official statements on the current legal situation by the German government are rare. However, Germany explicitly supported the Code of Conduct for NGOs Involved in Migrants Rescue Operations at Sea, issued by the Italian government in 2017.31 The Code of Conduct calls upon NGOs to follow the commitments: […] not to enter Libyan territorial waters, except in situations of grave and imminent danger requiring immediate assistance and not to obstruct Search & Rescue by the Libyan Coast Guard; […] to respect the obligation not to turn off or delaying the regular transmission times of AIS (Automatic Identification System) and LRIT (Long Range Identification and Tracking) signals, whenever on board (Chap. V SOLAS);

26

Ibid.

27

Ibid.

28

Ibid.

29

Ibid.

30

Ibid.

Bundestag, supra note 15; Scientific Service of the German parliament (Wissenschaftliche Dienste des Deutschen Bundestags), Sachstand, Der italienische Verhaltenskodex für private Seenotretter im Mittelmeer: Völker-, europa- und strafrechtliche Aspekte, WD 2 – 3000 – 068/17, 31 July 2017. 31

528 GERMAN YEARBOOK OF INTERNATIONAL LAW 61 @ 2018 […] not to make communications or send light signals to facilitate the departure and embarkation of vessels carrying migrants, without prejudice to the communications that are necessary in the course of SAR events to preserve the safety of life at sea; […] to communicate to the competent MRCC the technical suitability (regarding the vessel, its equipment and the crew’s training) for rescuing activities, without prejudice to the applicable domestic and international provisions regarding seaworthiness of vessels and other technical conditions necessary to operate ships; […] to ensure that when SAR cases occur where no official SRR is established, the ship’s master immediately notifies the competent Authorities of the flag-states for security purposes and the MRCC competent for the nearest SRR as “better able to assist”, except in case the latter expressly refuses or doesn’t respond; […] to respect the obligation under international law to keep constantly updated the competent MRCC or the OSC (On Scene Coordinator) appointed by the latter as to the ongoing scenario and the developments of rescuing operations; […] ‘not to transfer those rescued on other vessels’; […] to ensure that the competent Authorities of the flag-state are constantly kept updated on the activities undertaken by the vessel; […] to cooperate with the competent MRCC, executing its instructions and informing it in advance of and initiative undertaken independently; […] to receive on board, possibly and for a period which is strictly necessary, upon request by the competent National Authorities, judicial police officers for information and evidence gathering with a view to conducting investigations related to migrant smuggling and/or trafficking in human beings, without prejudice of the ongoing humanitarian activity; […] to declare, in conformity with legislation of the flag-state, to the competent authorities of the State where NGO is registered, all sources of financing for their rescuing activity at sea; […] to loyal cooperation with the Public Security Authority of the migrants’ intended place of disembarkation [and] […] to collect, during the activities, once migrants are rescued and if possible, the makeshift boats and the outboard engines used by migrants’ traffickers/smugglers and commitment to immediately notify the ICC (International Coordination Centre) of the Triton Operation; the coordinating MRCC shall anyway be informed on the aspects relating to navigation security and pollution risks.32

32 Avvenire, Code of Conduct for NGOs Undertaking Activities in Migrants’ Rescue Operations at Sea (2017), available at https://www.avvenire.it/c/attualita/Documents/Codice%20ONG%20migranti% 2028%20luglio%202017%20EN.pdf.

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Due to the acknowledgement of the Code of Conduct by Germany, the aspects named above can – cautiously – be considered as German opinio iuris.33 There is continuous criticism, especially by Frontex and other EU-Departments, concerning the work of Lifeline and other NGOs, including the accusation to cause the departure of ships chartered by smugglers.34 Regarding these allegations, the German government emphasised that the duty to rescue at sea enshrined in Article 98 United Nations Convention on the Law of the Sea (UNCLOS or the Convention)35 exists regardless of the reason why a ship is in distress at sea.36 Nevertheless, the government emphasised (from a rather political than legal perspective) that SAR operations are an ultima ratio means and not a means to control and regulate migration.37 Beyond that, the German government seems to avoid distinct statements and frequently refers to the applicable rules of public international law. Therefore, this article will seek to examine which legal rules apply for States in regard to maritime boundaries and will elaborate on the closing of harbours by coastal States as far as disembarkation is concerned. Further, it will be asked what this means for NGOs while rescuing humans at sea. Here, the reciprocal relation between the rights of the coastal and the flag-State will be focussed upon, as well as the scenario when the ship is flagless and therefore stateless.

II. The Law of the Sea The question regarding the rights and duties of a coastal State under international law depends on the maritime zone in which a State is acting. A classification is given by UNCLOS, which, in most parts also reflects customary international law.38 For 33 Hugh Thirlway, ‘The Sources of International Law’, in Malcolm Evans (ed.), International Law (4th ed., 2014) 91, at 98. 34 Thomas Pany, Migration: Der böse Vorwurf vom “Pull-Faktor” Seenotrettung im Mittelmeer, Telepolis, 28 March 2017, available at https://www.heise.de/tp/features/Migration-Der-boese-Vorwurfvom-Pull-Faktor-Seenotrettung-im-Mittelmeer-3666705.html?seite=2. 35

UN Convention on the Law of the Sea (UNCLOS) 1982, 1833 UNTS 3.

36

Bundestag, supra note 15.

Press conference of the German government of 30 January 2019, available at https://www. bundesregierung.de/breg-de/aktuelles/regierungspressekonferenz-vom-30-januar-2019-1575182. 37

Malcolm Evans, ‘The Law of the Sea’, in Malcolm Evans (ed.), International Law (4th ed., 2014) 651, at 653. 38

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this article, an exposition will be given starting at the High Seas and ending with the internal waters. Since this article will focus on the coastal State’s rights concerning measures against vessels of private sea rescuers, particular attention will be put on the rights within internal and sovereign waters. At the same time, the ship’s rights will be emphasised vice versa.

A. The High Seas

According to Article 89 UNCLOS the High Seas are regarded as res communis omnium and therefore cannot, as a whole or in part, be subject to a State’s sovereignty. Thus, they are equally open to all States, whether coastal or land-locked. This status includes, inter alia, the freedom of navigation or overflight.39 Therefore, private sea rescuers can navigate freely, without being subject to any of the coastal State’s enforcement measures. This even holds true if the High Seas are part of a designated SAR zone. While these zones require certain coordination measures for SAR and impose duties on the coastal State, they do not grant any particular sovereign rights that would limit the freedom of navigation.

B. Exclusive Economic Zone

Getting closer towards land, States can claim an Exclusive Economic Zone (EEZ), which can lead up to 200 nautical miles (nm) from their baselines. According to Article 55 UNCLOS the EEZ is an area under which the rights and jurisdiction of the coastal State and the rights and freedoms of other States are governed by the relevant provisions of UNCLOS, namely the Articles codified in Part V of the Convention. Within the EEZ, States enjoy e.g. sovereign economic exploitation and fishing rights, without having sovereignty over the territory itself.40 In regard to foreign vessels, Article 58 UNCLOS explicitly states that the freedom of navigation, as provided under Article 87(1)(a) UNCLOS, also extends to the EEZ. This extension allows

39

Art. 87(1) UNCLOS.

40

Art. 56 UNCLOS.

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private rescuing organisations to navigate unrestrictedly through the EEZ of other States, including passage for the purpose of rescuing migrants in distress.

C. Contiguous Zone

States further have the right to claim a contiguous zone which can extend up to 24nm from the baselines.41 Within this zone, States may exercise the control necessary to inter alia prevent and punish infringement of immigration laws.42 In the context of EU law,43 the Dublin III-Regulation44 has to be taken into consideration. The Regulation’s Articles 13-15 determine which EU member State is responsible for the examination of the asylum application. Here, Article 13 is of particular importance, which governs that if an applicant has irregularly crossed a member State’s border – including entry by sea – this member State shall be responsible for examining the application for international protection. Regarding the migration within the Mediterranean, it follows that Mediterranean Sea littoral States – due to their geographic proximity to Africa, mainly Italy, Spain, Greece, or Malta – are usually responsible for examining the application. In the case at hand, Malta would be responsible for examining the application for international protection and to send migrants back to their country of origin. It can be assumed that the above-mentioned bordering States, through their actions and their strict relying on the law of the sea, try to avoid this responsibility.

D. The Territorial Sea

Lastly, every coastal State has the right to establish a territorial sea, up to a maximum limit of 12nm.45 This marine space is under the territorial sovereignty of that State. Hence, coastal States can exclusively exercise legislative and enforcement juris41

Art. 33 UNLOS.

42

Art. 33(1)(a), Art. 33(1)(b) UNCLOS.

Besides EU member States, Iceland, Norway, Switzerland, and Liechtenstein are bound by the Regulation. 43

44

Council Regulation 604/2013, OJ 2013 L 180/31.

45

Art. 3 UNCLOS.

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diction over all matters and all persons within their territorial sea under international law.46 Nevertheless, within the territorial waters of a coastal State, foreign ships enjoy a right to innocent passage, granted under Article 17 UNCLOS. However, there are certain exceptions regarding the right of innocent passage. Under Article 19(2)(g) UNCLOS, passage is not innocent anymore if the passage follows the aim of unloading persons, contrary to the immigration laws and regulations of the coastal State. ‘Unloading’ under this exception means that the captain of a vessel at least tolerates that migrants leave the vessel in a harbour.47 Additionally, the unloading must be contrary to the national immigration laws. It further needs to be distinguished at which point a vessel is ‘immigrating’ to a country, and therefore at which point a violation of immigration laws accrues. As the regulation of immigration lies within a State’s discretion, it is hard to objectively define whether such a violation accrued. However, it can be assumed that in the case at hand, immigration without valid documents, is in any case contrary to the immigration laws of a State. Therefore, the exception under Article 19(2)(g) UNCLOS applies, leading to the consequence that Lifeline’s passage cannot be qualified as ‘innocent’.

E. Internal Waters

The most relevant maritime zone to look at regarding the case of the Lifeline are Malta’s internal waters. The internal waters ‘lie landwards of the baseline from which the territorial sea is measured’ and therefore include ports and harbours.48 According to Article 2(1) UNCLOS, coastal States enjoy full sovereignty over their internal waters, and the law of the coastal State is exclusively applicable.49 Further, the existence of sovereignty over its internal waters and the absence of any general right to innocent passage allows coastal States to limit and regulate the entry into their ports as well as

46

Yoshifumi Tanaka, The International Law of the Sea (2nd ed., 2015), at 84.

47

Sicco Rah, Asylsuchende und Migranten auf See (2009), at 25.

48

Art. 8(1) UNCLOS; Tanaka, supra note 46, at 77.

International Court of Justice (ICJ), Case Concerning Military and Paramilitary Activities in und against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, 27 June 1956, ICJ Reports 1986, 14, at para. 213; Wolfgang Graf Vitzthum, ‘Maritimes Aquitorium und Anschlusszone’, in Wolfgang Graf Vitzthum (ed.), Handbuch des Seerechts (2006) 63, at 87, para. 42. 49

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the entry into their internal waters in general.50 The exception of innocent passage, well known within the framework of the territorial sea, does not apply within internal waters.51 Hence, there is no general right to entry into ports of coastal States, neither under treaty nor under customary international law and thus, a State can refuse foreign ships’ access to its ports.52 It therefore can be concluded that the internal waters are the maritime zone over which a coastal State has the most jurisdictional control and in which flag-States have least rights.53

F. Ships in Distress at Sea

However, and most importantly, under humanitarian and safety aspects, it is generally recognised, and a rule of customary international law,54 that any foreign vessel has a right to enter a port in the case of distress at sea.55 If a ship needs to enter a port or internal waters to protect human life, international law gives a right of entry. Emerging from the idea of reciprocity, the obligation to aid limits the principle of domaine réservé, and allows for entry into the port and disembarkation of migrants at sea. Regarding the link of the duty to render assistance, the sovereignty of the coastal State and the right to enter a port in case of distress, the German government stressed that the latter is an exception of the principle of sovereignty of the coastal State and therefore has to be interpreted narrowly.56 Moreover, it contested that there is a right to disembark the crew and the passengers and to let them enter the coastal State’s territory without its permission derived from the right to enter a port in case of dis-

Robin Churchill and Alan Lowe, The Law of the Sea (3rd ed., 1999), at 61; ICJ, Nicaragua, supra note 49, at para. 213; Kaare Bangert, Internal Waters, Max Planck Encyclopaedia of Public International Law (MPEPIL), February 2018, available at http://opil.ouplaw.com/home/EPIL, at para.15. 50

51

Kaare Bangert, supra note 50, at para.16.

52

Ibid., at para.15.

53

Ibid., at para.16.

Churchill and Lowe, supra note 50, at 63; John E. Noyes, Ships in Distress, MPEPIL, October 2007, at para. 4. 54

55

Kaare Bangert, supra note 50, at para. 16.

Bundestag, Reply of the German government to the small interpellation by the members of parliament Ulla Jelpke, Gökay Akbulut, Dr. André Hahn, and more and the faction DIE LINKE, 5 September 2018, BT-Drs. 19/3721. 56

534 GERMAN YEARBOOK OF INTERNATIONAL LAW 61 @ 2018

tress.57 Since a ship in distress, while being in a port or harbour of a foreign coastal State, enjoys immunity from local laws, the burden of proof when relying on distress lies with the ship in question.58 Except for the duty to render assistance, found in Article 98 UNCLOS, the Convention uses the term ‘distress’ in the context of the right to innocent passage in Article 18 UNCLOS. Nevertheless, the Convention lacks any definition of this term. With regard to the International Convention on Maritime Search and Rescue, a distress phase, however, is defined as ‘[a] situation wherein there is a reasonable certainty that a vessel or a person is threatened by grave and imminent danger and requires immediate assistance’.59 Additionally, the statement of Lord Stowell, in the Eleanor case of 1809, can be taken into consideration, as it sets out four requirements on how to define distress: First, distress must be urgent and something of grave necessity. Second, there must be at least a moral necessity. Third, it must not be a distress which the claimant has created himself, and lastly the distress must be proven by the claimant in a clear and satisfactory manner.60 According to George K. Walker, this right indeed is not applicable if he who claims distress has caused the event of grave necessity, ‘except in cases involving protection of human life or human safety’.61 This approach is consistent with the telos of that right, namely to prevent abuse of law in these situations. Otherwise, ships could deliberately cause a situation of distress in order to have a right to enter the port. Therefore, the threshold mainly enshrines external causes.62 However, this cannot apply to the specific situation of private SAR organisations. Indeed, NGOs purposely manoeuvre their vessel into the Mediterranean to rescue migrants and refugees at sea while it is at least presumable that events of grave necessity will occur during the operations. Nevertheless, it would be inappropriate to deny a situation of distress under these circumstances. The duty to render assistance in Article 98 UNCLOS – contrary to the right to enter a port in case of distress – applies independently from what (or who) caused the situation triggering Article 98. Therefore, it would be contradictory 57

Ibid.

58

John E. Noyes, supra note 54, at para. 21.

International Convention on Maritime Search and Rescue 1979, 1405 UNTS 97, Annex Chapter 1.3.11. 59

60

The Eleanor case [1809] 165 English Reports 1058; Tanaka, supra note 46, at 81-82.

61

George K. Walker, Definitions for the Law of the Sea (2012), at 169.

62

Ibid.

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to deny the right to enter a port to a ship merely because it was fulfilling its duty under public international law. Moreover, human rights law plays an important role within this consideration. Aside from the rules constituting customary international law or ius cogens, all EU Mediterranean Sea littoral States are bound by the core international human rights treaty provisions.63 This leads to the conclusion, that private sea rescuers enjoy a right to enter a port in the case of distress, mainly because of considerations of humanity. Despite the fact that the right to enter a port in case of distress is a long-established rule of customary international law, the question arises in how far coastal States still have discretion to deny such access. Paragraph 3.12 IMO Guidelines on Places of Refuge for Ships in Need of Assistance states: ‘[w]here permission to access a place of refuge is requested, there is no obligation for the coastal State to grant it, but the coastal State should weight all the factors and risks in a balanced manner and give shelter whenever reasonably possible.’ Some argue that the coastal State is entitled to deny access to the harbour if the environment, economic interests, or public safety is threatened.64 This approach corresponds with Article 19 UNCLOS, which states that ‘[p]assage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State’. While there may exist situations in which the coastal State is justified to restrict the right to enter its port, this does not apply to the situation of refugees at sea, particularly if the coastal State does not face any grave dangers by the ship’s entry.65 Considering the humanitarian aspects again, it is more than reasonable to argue that the coastal State has no discretionary power at all, especially in the case of danger to life or grave health issues.66 Unless there are additional circumstances such as contagious diseases on board that may amount to a threat to public safety and could require a balancing of interests as a means to deny access. This applies even more considering that the risk of dangerous situations for the people aboard increases immensely if a vessel is left alone in distress.67 Malta and all EU member States have to pay attention to these considera63 International Covenant on Civil and Political Rights (ICCPR) 1966, 999 UNTS 171; European Convention on Human Rights (ECHR) 1950, ETS 5. 64

John E. Noyes, supra note 54, at para. 14.

65

Rah, supra note 47, at 95.

66

Tanaka, supra note 46, at 83.

67

Ibid.

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tions in particular since Article 20 Directive 2002/59/EC obliges the member States to ‘draw up […] plans to accommodate, in the waters under their jurisdiction, ships in distress.’68 It is arguable that the coastal State has discretion as to the specific measures in order to fulfil its duty, e.g. through food or medication supply at sea or by providing the ship with lifeboats. However, if these measures fail or if they do not constitute a long-ranging solution, the coastal State loses its discretion and is obliged to let the ship enter its port.69

III. Legal Analysis of the Case of the Lifeline Regarding the case of the Lifeline, two questions arise: First, was the Lifeline in distress and did it therefore have a right to enter the port of Valletta? And second, are the same rights, especially the right to access internal waters and ports due to distress, also applicable to flagless ships? Regarding the first question and considering the definition under the SAR Convention, it is reasonable to assume that Lifeline’s situation was one of distress. As mentioned above, reasonable certainty that a vessel or a person is threatened by grave and imminent danger and requires immediate assistance, is sufficient to proof a ship’s distress. Taking further the second requirement of Lord Stowell into account, at least a moral necessity for help and access is needed. Between 21 July 2018 and 25 July 2018, 234 people were on board the Lifeline after trying to reach the European coast in unseaworthy boats. With a length of 32m and a width of 8m the ship was merely designed for a crew of 15 people, and therefore was definitely overloaded.70 Moreover, most of the people on board became sick during the journey.71 In addition, regarding Malta’s duties under human rights law, either sending the ship back to Libya or back to the High Seas would have presumably resulted in a violation of human rights. First of all, sending the ship back to Libya would have caused a violation of the principle of

68 European Parliament and Council, Directive 2002/59/EC of 27 June 2002 establishing a Community vessel traffic monitoring and information system, OJ 2002 L 208/10. 69

Rah, supra note 47, at 95.

70

Marine Traffic, Lifeline, available at https://www.marinetraffic.com/de/ais/details/ships/244870698.

71

MDR exakt, supra note 20.

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non-refoulement.72 It is generally accepted that the non-refoulement principle is applicable in the coastal State’s internal waters73 as well as in its territorial sea, over which it does not only have de jure jurisdiction, but also de facto control.74 Sending the people on board back to Libya would have resulted in a violation of this principle, since they were threatened by torture, forced labour, and other practices infringing human rights in Libya.75 Apart from this, sending the ship back to the High Seas would most likely have led to medical and logistical distress, and what is more, to a violation of the prohibition of collective expulsion of aliens as codified in Article 4 of Protocol No. 4 to the ECHR.76 On these grounds, it would have been disproportionate to deny a situation of distress, as that would ultimately have meant sending the ship back to Libya or to the High Seas and by doing so to cause a situation of distress at sea at a later point. Additionally, there have been external causes for the ship’s distress. The Lifeline had to face heavy weathers during their journey, which – in combination with the lack of capacity to accommodate that many people – did not only lead to humanitarian but also technical risks.77 As this situation worsend day by day, it has to be assumed that the Lifeline was in distress. The second question is whether a ship without a valid Flag enjoys the same rights under the international law of the sea. Under Article 92(1) UNCLOS and as a rule of customary international law, ships are obliged to sail under the flag of one State.78 In order to fulfil the requirement of a genuine link between the ship and the flag-State it is sufficient but necessary that at least the administrative requirements have been met.79 Regarding the case of the Lifeline, Malta claimed that the ship wrongfully flew 72

Art. 33 Convention relating to the Status of Refugees 1951, 189 UNTS 137; Art. 3 ECHR.

Anja Klug and Tim Hove, ‘The Concept of State Jurisdirction and the Applicability of the NonRefoulement Principle to Extraterritorial Interception Measures’, in Bernard Ryan and Valsamis Mitsilegas (eds.) Extraterritorial Immigration Control (2010) 69, at 90-91. 73

74

Ibid.

ECtHR, Case of Hirsi Jamaa and Others v. Itlay, supra note 16, paras. 37-41; UN Human Rights Council, Resolution on Technical assistance and capacity-building to improve human rights in Libya, UN Doc. A/HRC/RES/37/41, 23 March 2018. 75

76

ECtHR, Case of Hirsi Jamaa and Others v. Itlay, supra note 16.

77

MDR exakt, supra note 20.

Rüdiger Wolfrum, ‘Hohe See und Tiefseeboden (Gebiet)’, in Wolfgang Graf Vitzthum (ed.), Handbuch des Seerechts (2006) 287, at 301, para. 31. 78

79 Tanaka, supra note 46, at 158-159; Nivedita M. Hosanee, A Critical Analysis of Flag State Duties as Laid Down Under Article 94 of the 1982 United Nationas Convention on the Law of the Sea (2009),

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the flag of the Netherlands and therefore is flag- and stateless. This opinion was confirmed by the Permanent Representation of the Netherlands to the European Union.80 Lifeline’s argumentation relying on an Expert Opinion issued by Leiden University did not receive support.81 Due to the fact that Lifeline was not entitled to fly the Dutch flag it did not fly any flag at all. The legal consequence of a ship flying no flag – equivalent to a ship flying two or more flags according to Article 92(2) UNCLOS – is statelessness.82 Under the concept of sovereignty, it is clear that statelessness does not allow every State to assert jurisdiction over such ships.83 Therefore, two options of jurisdiction are possible. First, according to the principle of territoriality, jurisdiction can be asserted over stateless ships in a States’ territorial or internal waters. Alternatively, a comparable connection can be made by applying the principles of personality and diplomatic protection through focussing on the nationality of the ship’s owner or crew.84 With respect to Lifeline, this would mean focussing on its link to Germany. First of all, captain Reisch is of German nationality. The same applies for the majority of the vessel’s crew. Moreover, Mission Lifeline is based in Germany. Therefore, creating a link to Germany would be reasonable. However, since de facto Germany is not exercising jurisdiction and since there is no obligation for a State to do so, the Lifeline is stateless. Moreover, it is widely accepted that such ships are under no protection at all, since ‘if jurisdiction were asserted no State would be competent to complain of a violation of international law’.85 This gives rise to the question what rights stateless ships have under the law of the sea. As the United States Court of Appeals put it in US v. MarinoGarcia: available at http://www.un.org/Depts/los/nippon/unnff_programme_home/fellows_pages/fellows_ papers/hosanee_0910_mauritious.pdf, at 89. 80

Kronen Zeitung, Streit um Asyl-Schiff, 22 June 2018, available at https://www.krone.at/1727912.

Petra Sorge, ‘Mission Lifeline – Wir sind verpflichtet zu retten’, Rhein-Neckar-Zeitung, 29 June 2018, available at https://www.rnz.de/politik/hintergrund_artikel,-mission-lifeline-wir-sind-verpflichtetzu-retten-_arid,369148.html. 81

82

Churchill and Lowe, supra note 50, at 212.

Patrick D. O’Connell, The International Law of the Sea (2nd ed., 1984), at 756; Churchill and Lowe, supra note 50, at 214. 83

84

Churchill and Lowe, supra note 50, at 214.

85

Ibid., 214, referring to the case of Molvan v. A.G. for Palestine [1948] 81 LI L Rep. 277.

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[v]essels without nationality are international pariahs. They have no internationally recognized right to navigate freely on the high seas. […] Moreover, flagless vessels are frequently not subject to the laws of a flag-state. As such, they represent “floating sanctuaries from authority” and constitute a potential threat to the order and stability of navigation on the high seas.86

Therefore, it can be concluded that the Lifeline due to its statelessness, is neither protected under the Law of the Sea Convention, nor is it protected under customary international law.87 Thus, the Lifeline did not have a right to enter and leave Malta’s territorial and internal waters, especially including the port of Valletta.88

IV. Conclusion In 2018, 107,192 people89 risked their live reaching Europe by sea. By 12 February 2019, 7,421 people had already reached Europe by sea, and another 207 had died.90 According to the UN High Commissioner for Refugees, most of these trends are expected to continue over the following months in 2019.91 Therefore, the case of the Lifeline will not remain an isolated case. Whether it is in the Mediterranean Sea or in other parts of the globe, as long as people will seek refuge by sea, situations like the case at hand will continue to occur. This article showed that, in fact, public international law as such, and UNCLOS in particular, address the situation of humans encountering distress at sea. The rule of law is further providing a framework of rescuing, protecting, and securing people in distress. First of all, Article 98 UNLCOS obliges the master of a ship to render assistance to any person found at sea in danger of being lost; further, Article 17 UNCLOS United States Court of Appeals (11th Circuit), US v Marino-Garcia and others, 679 F.2d 1373, 1985 AMC 1815 (1982). 86

87

Rüdiger Wolfrum, supra note 78, at 301, para. 31.

Joseph R. Brendel, ‘Marijuana on the High Seas Act and Jurisdiction over Stateless Vessels’, 25 William & Mary Law Review (1983) 313, at 313. 88

89

html.

UN Refugee Agency, Europe Situation (2017), available at https://www.unhcr.org/europe-emergency.

90 UN High Commissioner on Human Rights, Operational Portal Refugee Situations (2019), available at https://data2.unhcr.org/en/situations/mediterranean?id=105.

UN Refugee Agency, Desperate Journeys – January to December 2018, 6 February 2019, available at https://data2.unhcr.org/en/documents/details/67856, at 11. 91

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codifies customary international law, allowing for innocent passage through territorial waters, especially in the case of distress. Lastly, customary international law provides, in regard to humanitarian and safety aspects, for any foreign vessel in distress a right of entry to any port. This right even outweighs the absolute sovereignty a State has over its internal waters. However, this article also addresses the core problem: The rule of law does not provide a framework, which is applicable to private sea rescuing, mass migration, and disembarkation of migrants in a port of choice. The drafters of Article 98 UNCLOS presumably did not have in mind situations like the one in the Mediterranean since 2014 and neither did the customary rule of a right of entry to any port in the case of distress evolve within similar circumstances. In the light of experience in recent years, some conclusions can be found. Regarding the mass migration, it is reasonable to argue that coastal States cannot fulfil their obligations towards foreign vessels in distress solely by letting them enter their ports. Other measures, e.g. food or technical help, can be sufficient if they are successful in helping to end the situation of distress. However, in the case of risk to death it is more than reasonable to assume that coastal States do not have any discretion regarding their choice of measures. Considering the situation of private sea rescuers, it has been shown that Article 98 UNCLOS applies to their missions, regardless whether they searched for vessels in distress intentionally. However, they generally have to follow the coastal States’ instructions and it seems to be appropriate to oblige them – except from a situation of non-refoulement – to proceed to the nearest port. In general, different regimes of public international law, e.g. the law of the sea and human rights law apply in these situations. Since there is no hierarchy between these regimes, it is necessary to carefully balance between concurrent rules in each case. Moreover, questions like the refugee status of an individual or the problem of nonrefoulement highly depend on the particular circumstances of a case, which is why it seems to be impossible to establish a universal interpretation of the rules in question. Therefore, there may be no need to readapt the legal regime. However, cases of private sea rescuers need to be considered on a case-by-case basis and with particular attention to the principle of proportionality.

THESIS SUMMARIES

Editors’ Note

ANDREAS VON ARNAULD, KERSTIN VON DER DECKEN, AND NELE MATZ-LÜCK( The German Yearbook of International Law (GYIL) is not only an international law journal dedicated to the publication of cutting-edge scholarship. As the German Yearbook, it has also provided an international audience – for seven decades now – with reports on German practice in international law. German contributions to international law are, however, not limited to practice. To draw attention to German scholarship in international law beyond the occasional book review and to support junior scholars from Germany, with this edition of the GYIL we are launching a new section: ‘Outstanding Doctoral and Post-Doctoral Theses’. It is meant as a forum in which authors of excellent doctoral or post-doctoral dissertations on international and European law at German universities can present their theses to a wider international audience. We trust that this new platform will foster interest in the books presented as well as in the vibrant scene of junior legal scholarship from Germany!

(

Editors of the German Yearbook of International Law.

Comparative Constitutional Justice

Stefan Martini, Vergleichende Verfassungsrechtsprechung. Praxis, Viabilität und Begründung rechtsvergleichender Argumentation durch Verfassungsgerichte, Duncker & Humblot, Berlin 2018, 712 pages, ISBN 9783428152711. STEFAN MARTINI(

In my dissertation “Comparative Constitutional Jurisprudence”, handed in at Kiel University, I am pursuing a dialectical approach, combining both empirical and normative-analytical research perspectives. On the one hand, my first goal is to learn – more than has been hitherto achieved in academic literature – about the actual historical significance and development of comparative arguments in concrete constitutional jurisprudence. On the other hand, I endeavour to explain and justify the argumentative status of comparative reasoning in constitutional jurisprudence, taking into account the ties between courts and constitutional orders. I. The Practice of Comparative Reasoning at the German Federal Constitutional Court and the South African Constitutional Court: In the empirical part of my thesis, I examine the significance and the development of comparative reasoning in the case law of the German Federal Constitutional Court. For this purpose, I have sifted through the Court’s official collection of judgments employing various parameters in order to be able to identify the statistical distribution as well as the quantitative development of comparative reasoning and to be able to compare comparative arguments with other elements of legal reasoning. Contrary to the assumption that only ‘young’ constitutional courts tend to utilise comparative reasoning extensively, the main quantitative conclusion of my analysis is that although the frequency of comparative reasoning has decreased after an initial surge, it has again increased since the turn of the millennium: During its first six decades, on average, the German Federal Constitutional Court compares in every twentieth decision (of significance). The most recent increase is associated with a rise in citations of transnational legal materials (such as references to the case law of the European Court of Justice and European Court of Human Rights) – here, the influence of European integration is especially tangible. As far as geographical distribution is concerned, the German Federal Constitutional Court most frequently refers to ‘transatlantic’ or ‘Western’ legal systems as well as to unspecified global or European (

Dr. Stefan Martini is a post-doctoral researcher at the Walther Schücking Institute of International Law at Kiel University.

546 GERMAN YEARBOOK OF INTERNATIONAL LAW 61 @ 2018 developments. In qualitative terms, it should be emphasised that comparative reasoning generally serves as additional support for the internal argumentation; however, comparative law can provide valuable help in concretising vague constitutional provisions and in calculating future implementations of legal norms by learning from the experiences of other constitutional orders. In the course of interpretive exercises, an additional feature of the German Federal Constitutional Court’s comparative jurisprudence is the frequent combination of comparative reasoning with assessments of historical legal developments. When compared with its judicial counterparts, the German Federal Constitutional Court can be placed in the lower middle range of comparative frequency – the Court, therefore, should not qualify as isolationist, in stark contrast to its reputation. However, other constitutional courts compare much more extensively as well as intensively – such as the South African Constitutional Court does in almost half of its decisions. From a methodological point of view, the investigation of the this ‘younger’ constitutional court is conducted in a more exemplary way than is the case for the Federal Constitutional Court. The comparative judgments of the South African Constitutional Court illustrate that the interpretive authorisation clause in the South African Constitution, which allows for comparative reasoning when interpreting fundamental rights, does not determine the quantity or frequency of comparative reasoning decisively. Much more influential is the willingness of the South African legal community to take part in international political culture, the tradition of singular judicial opinions, and, last but not least, the common law tradition, which in South Africa is particularly influential in the public law realm. II. The Viability of Comparative Reasoning in Constitutional Jurisprudence: By viability I mean the theoretical as well as methodological feasibility and, at the same time, the epistemological possibility of comparative legal reasoning. In a first step, I argue that there are no convincing objections to the possibility of comparative observations of other legal systems. However, one must be aware of the irreducible perspectivity of one’s own jurisprudential activity and choose the tertium comparationis wisely. In a second step, I present a system of open and responsive legal reasoning which incorporates not only traditional canons of interpretation, yet additionally assigns a stand-alone position to or rather an autonomous role for the exercise of comparative reasoning. III. Justifying Comparative Reasoning in Constitutional Jurisprudence – Openness and Opening: In this more theory-oriented part of the study I justify the use of comparative reasoning in constitutional jurisprudence from two different angles: comparative empowerment through characteristics of (changing) legal systems on the one hand, and legitimacy through comparative reasoning itself on the other. Firstly, I demonstrate the foundational openness of constitutions as well as the development and activity of them opening up, which both provide entry points for comparative legal artefacts. The vagueness and incomprehensiveness of constitutions entail an inherent openness which corresponds to the requirements of legal concretisation in constitutional jurisprudence. Here, comparative reasoning may offer argumentative assistance. I further distinguish endogenous and exogenous variants of constitutions opening up. A constitutional order is opened up endogenously by its peculiar features, which can be exhibited in the particular training of its lawyers, in its individual constitutional culture, but also in unique decisions of the individual

COMPARATIVE CONSTITUTIONAL JUSTICE

547

(constitutional) political community, i.e. in positive constitutional norms. In particular, I examine the endogenous opening up of the constitutional order of the Federal Republic of Germany, expressed, inter alia, in the openness towards international law (so called Völkerrechtsfreundlichkeit) and the commitment to international human rights in Article 1(2) German Basic Law. Thus, I am able to reach the conclusion that the German constitutional order is a legal order fundamentally open towards external sources. The exogenous opening up of constitutional orders takes place by constitutional institutions and actors participating in the transnational field of legal communication. Following in the footsteps of the field theory of the French sociologist Pierre Bourdieu, this specific field is a social(ly constructed) space of actors, institutions, positions, statements, and relations that may be distinguished from other social fields by assigning to them a certain logic and structure of its own. In addition to their peculiar position in the national sphere, legal actors and institutions increasingly participate in transnational contexts of (legal/constitutional) communication. Transnational communication has by now reached such a level of density, immediacy, and continuity that the emergence of such a field can be affirmed at least for the European sphere, and with some certainty for global contexts, too. Participating in the transnational field of legal communication produces, inter alia, the effect that one can no longer escape communications to and in this transnational field – vice versa, transnational acts of communication have repercussions in the discourse in the national legal field: Above all, one may witness the expansion of the scope of available legal arguments. The increased availability of external arguments and their use have some degree of influence on the legitimacy of constitutional jurisprudence. To demonstrate this, in a second step of justification I argue for the legitimacy of constitutional jurisprudence in principle and emphasise the indirect role of plausible argumentation in legitimising it. Certain orientations of practice in legal reasoning (I term them ‘Suchbewegungen’, i.e. search movements, quasi-search lights of reasoning) participate in this indirect activity of legitimising constitutional jurisprudence. I select three core orientations in legal reasoning: the orientation towards rationality, towards consensus(-building), and towards authority. Comparative legal reasoning may participate in each of these orientations of practice – precisely because of the expanded scope of reasoning induced by the transnational field of legal communication. Subsequently, it can be justified that comparative legal reasoning may enhance legal rationality, consensus(-building), and authority and thus, in turn, may increase the legitimacy of the individual constitutional jurisprudence concerned. IV. Conclusions and Suggestions for the German Federal Constitutional Court’s Practice of Reasoning: In the concluding part of my study, the foregoing material is revisited with the help of three cross-cutting perspectives: media, products, and limits (limitations) of comparative reasoning. First, I trace the variety of media through which comparative reasoning occurs, i.e. the channels through which comparative legal arguments enter constitutional jurisprudence, as well as the modes of expression through which they are displayed by constitutional actors (e.g., at which part of the decision process and/or judgment). I then pick out central products of comparative legal reasoning. On the one hand, I emphasise the benefits of rationalisation and legitimisation that cannot be measured in discrete amounts or degrees, and on the other, that there neither exists a continuous dialogue between constitutional orders (rather a

548 GERMAN YEARBOOK OF INTERNATIONAL LAW 61 @ 2018 series of monologues) nor that comparative reasoning leads to harmonisation by default. Instead, complex processes unfold that are not steered by an invisible hand and thus turn out be highly contingent. Furthermore, I demonstrate the limits and limitations of comparative legal reasoning: Constitutional jurisprudence must not forget to link comparative arguments to its own constitution, its fundamental and original yardstick. With rare exceptions, such argumentative lapses do not happen. It should be noted that constitutional orders can also choose against utilising comparative arguments (openly) although this kind of self-imposed introversion is made more difficult by the effects of the transnational field of legal communication. Finally, the contextual embeddedness of the knowledge received must be taken into account when utilising comparative legal elements. A strong warning must be voiced against drawing conclusions too quickly, e.g. in the case of transnational trends. As part of my maxims and suggestions for the Federal Constitutional Court, I establish a responsibility of the Court to follow external constitutional developments. At the same time, this constitutional responsibility does not entail findings of those observations to be necessarily included in the published grounds of the Court’s judgments in every case. In contexts of legal integration such as the European Union, however, this obligation can harden and consequently lead to a shift in the burden of justification, i.e. the German Federal Constitutional Court should explicitly justify why it deviates from a consensus built by other jurisdictions with regard to European Union law. Furthermore, the German Federal Constitutional Court should present comparative legal information that allows for verification if it is included in the grounds of the judgment. The Court should, when apposite, eventually elaborate on the status of its comparative arguments, which so far have been made on a comparatively unsystematic ad hoc and case-by-case basis.

Prospects for and Limits to Establishing Union Agencies Andreas Orator, Möglichkeiten und Grenzen der Einrichtung von Unionsagenturen, Mohr Siebeck, Tübingen 2017, 549 pages, ISBN 9783161529726. ANDREAS ORATOR( The more than 40 agencies of the European Union (EU) have become an indispensable feature of the EU’s institutional machinery. It is all the more surprising that the EU constitutional (i.e., Treaty-law) foundation of their scope of application remains unclear, and this is what this book aims at redressing. It systematically tracks the existing Union agencies and their powers, substantiates prospects for and limits to establishing Union agencies from the rudimentary explicit provisions and explains the significance of the relevant case-law of the Court of Justice of the European Union (CJEU) from Meroni until Short-selling. The book, which is based on the author’s dissertation at the University of Vienna and has been revised and updated, presents a mostly flexible system to assess the use of Union agencies: What kind of powers may Union agencies be entrusted with? How do democratic accountability and effective judicial protection have to be arranged? What potential do alternative channels of administrative legitimacy hold? These and other questions are developed in the book’s five chapters: After an introduction on the broader context of EU ‘agencification’, chapter two defines, identifies, and classifies Union agencies, before chapter three turns to developing an EU constitutional yardstick for the Union legislator. Subsequently, that yardstick is fleshed out as a ‘semi-flexible’ system of steering and control of seven interlocking elements. How that system functions illustrate several examples in the final chapter. Union agencies probably are the prime example of the continuing trend of the diversifying EU administrative structure. They dispose of legal personality under Union law, are nontreaty bodies established and endowed with powers by the Union legislator, enjoy a relative independence vis-à-vis other Union institutions and especially the Commission, and have a limited and often technical mandate. Classified according to a ‘scaled instrumental approach’ (distinguishing between simple, pre-decision-making, inspecting, decision-making, and lawmaking powers as main instruments the respective Union agencies dispose of), the book lists 41 (existing or former) Union agencies, 15 of which are not ‘simply’ collecting information, providing technical services or facilitating cooperation or coordination with (practically) no exercise of binding authority vis-à-vis third parties. (

Dr. iur., B.A., LL.M. (NYU), diplômé (Sciences-Po), Max Planck Grantee, Max Planck Institute for Comparative Public Law and International Law.

550

GERMAN YEARBOOK OF INTERNATIONAL LAW 61 @ 2018

What is the central constitutional yardstick against which these 15 Union agencies might be assessed? For lack of concrete provisions, it is primarily drawn from Union principles such as representative democracy, the rule of law and institutional balance, supported by comparative observations from the constitutions of EU Member States and, in particular, found in early case-law of the CJEU. The 1958 ‘Meroni doctrine’ still serves as a focal point to assess the entrustment of certain powers with non-treaty bodies such as Union agencies, by establishing a number of criteria such as the prohibition to entrust agencies with ‘discretionary powers’. The book not only aims at capturing the constitutional content of that judgment, but also engages in an elaborate discussion of the 2014 Short-selling case, in which the CJEU for the first time directly applied the Meroni criteria to the powers of a contemporary EU agency (European Securities and Markets Authority, ESMA). The CJEU’s deferential attitude in Shortselling might have dynamised the potential scope of powers for Union agencies, by relying primarily on the newly introduced agency-related Treaty provisions on judicial protection as well as on technocratic arguments – and by only superficially examining whether ESMA’s intervention powers amounted to ‘discretionary powers’. It is argued, however, that the original Meroni criteria are still good law and represent ‘red lines’ of non-delegable powers under the current Treaty framework: Discretionary powers of a political nature, formal legislative powers, delegated powers pursuant to Article 290 Treaty on the Functioning of the European Union (TFEU), and core powers of EU institutions may not be entrusted to Union agencies without Treaty change. This case-law constitutes part of a larger and, with particular respect to the changes in the Lisbon Treaty, contemporary concept of EU administrative legitimacy, which is primarily input-oriented, but also includes technocratic, participatory, deliberative, or other alternative elements of legitimacy, which have an important supplementary function. The application of that constitutional yardstick might be best understood as a ‘semiflexible’ system of steering and control of seven interlocking elements, some of which provide for rigid constitutional limits, while most of them are flexible. These are (i) the objective justification and sufficient legal basis, (ii) the steering through secondary law, (iii) personal legitimation, (iv) legislative control, (v) supervision by the Commission, (vi) judicial protection, and (vii) alternative mechanisms of legitimation. In order to assess whether the exercise of certain powers of a Union agency reaches an adequate level of legitimacy, the concrete interactions of all seven elements must be considered. The final chapter illustrates the functioning of this semi-flexible system as constitutional yardstick by means of eight examples, from the power to opine on market authorisation (European Medicines Agency) to mediate between regulators (Agency for the Cooperation of Energy Regulators), to impose fines on private parties (ESMA), to draft technical standards (European Banking Authority), or to establish a competition authority independent from the European Commission. In many areas, EU agencies have become an indispensable institutional tool for EU administration. With the frequency of their establishment increasing and their scope of tasks and powers expanding, EU agencies have been entrusted with vital tasks for both EU direct administration and administrative cooperation with Member States’ agencies. Obviously, the existing framework of primary law does not adequately address this already firmly established institutional format which Union agencies represent: Apart from selected, mostly isolated

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references they are only systematically covered in the TFEU’s section on judicial protection, inserted by the Treaty of Lisbon. Beyond that, prospects for and limits to establishing Union agencies may only be determined by a general evaluation of relevant EU constitutional norms and their interplay. That includes, besides the principle of effective judicial review, the principles of democracy (Article 10 Treaty on European Union (TEU)), of institutional balance (Article 13 TEU), the system of delegated and implementing acts (Articles 290-291 TFEU) and the principles of EU administration (Article 298 TFEU). While the book welcomes the interinstitutional efforts for establishing such a framework and analyses the contents of the ‘Common Approach’ on Union agencies (which remains non-binding), it not only criticises the widely ‘constitutional silence’ on Union agencies, but also regrets that the CJEU missed its chance to sketch out the constitutional locus of EU agencies under the Lisbon Treaty. In the Short-selling case, the Advocate-General had attempted such an approach; the Court, however, did not relate agency powers to, e.g., the system of delegated and implementing powers under Articles 290-291 TFEU. Together with the parallel (yet unconnected) Schräder case-law on limited standard of review with regards to agency acts in ‘technical’ fields requiring ‘complex’ assessments, the still valid Meroni doctrine risks to be completely sidelined. In discussing these issues, this book deals with what it considers to be an essential concern of EU constitutional thinking, the ‘containment’ of this new type of Union administration within the contours of democracy and the rule of law.

The Changing Structure of International Law as a Change of International Law’s Foundational Principles Jochen Rauber, Strukturwandel als Prinzipienwandel. Theoretische, dogmatische und methodische Bausteine eines Prinzipienmodells des Völkerrechts und seiner Dynamik, Springer, Berlin/Heidelberg 2018, 972 pages, ISBN 9783662554708. JOCHEN RAUBER( Ever since Wolfgang Friedmann famously established the changing structure of international law, international legal scholarship has gone to great lengths to give his findings the occasional update. How has international law changed in recent decades? And how are these changes best to be described? In an effort to capture the ongoing dynamics of international law, scholars have augmented Friedmann’s dichotomy between an international law of co-existence and an international law of co-operation with the conception of international law based on an international community, the idea of a Weltrecht and – perhaps most prominently – the narrative of international law’s constitutionalisation. Despite their differences, all of these approaches in almost all of their diverse manifestations share a common trait: Methodologically, their attempts to understand the alterations in the structures of international law draws on Weberian-type conceptual paradigms (Idealtypen) in order to interpretatively grasp and hence adequately describe the current state or development of the international legal order. This approach, however, has a blind spot. It neglects that every argument about changes in the structures of international law is a generalisation, i.e. an inference drawn from the observation of changes in various individual rules and based on the notion that these individual rule changes follow a common trend. At least prima facie, changes in the structure of international law are thus reflected in developments of individual legal rules – be it, that new rules emerge that sit uneasily with international law’s previous structure or that the meanings of existing rules change in a way incompatible with the hitherto dominant conception of international law. For these modifications in the set of international legal rules international law’s more informal modes of law-making, in particular the determination of customary law and judicial constructions of treaty provisions are of particular significance. In view of these considerations, unravelling the structural changes of international law not only calls for an appropriate conceptual characterisation of international law’s development; ( The author currently works as a senior research fellow at the Chair for Public Law, International Public Law, General Theory of Law and State and Legal Philosophy of the Ruprecht-Karls-University Heidelberg (Prof. Dr. Bernd Grzeszick, LL.M.).

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instead, it has to be complemented by a normative explanation for the rule changes from which every idea about the changing structures of international law – if only implicitly – departs. How can these, often informal, modifications of international rules be explained in terms of legal doctrine? How can they be normatively justified? And what is it that, from a legal point of view, makes them part of a common and unified structural change of international law? My book, Strukturwandel als Prinzipienwandel, endeavours to answer these questions by offering an account of international law’s dynamics that exceeds mere conceptual description and allows for a normative and doctrinal reconstruction of the changing structure of international law and the individual legal developments that reflect it. It is the book’s main thesis that the changes of international law’s structures consist in a change of international law’s foundational principles. These changes of international law’s foundational principles provide normative reasons for the rule developments that reveal the changing structures of international law; and it is the altered body of international legal principles that, in terms of legal doctrine, allows to conceive and justify the observed changes in the rules of international law as reinterpretations in conformity with these new principles or as principle-based judicial developments of the law. The emergence of new foundational principles thus paves the way both for a doctrinal justification of the changes in legal rules that are at the surface of international law’s structural evolution and for a theory that sheds light on why – even from a genuinely legal standpoint – they reflect a common structural change: they can be traced back to the impact of changes in the underlying international legal principles. The book elaborates this proposition in five chapters. The first part of the analysis gives an overview of the legal phenomena and developments that can be understood as individual manifestations of the structural changes of international law. It analyses how previous approaches, in particular communitarian and constitutionalist theories of international law, endeavour to record these developments and elaborates the above argument, that these approaches fail to offer a normative and doctrinal explanation of the rule changes reflecting the changing structure of international law. Against this background, the second part of the book presents the legal-theoretical foundations of the book’s thesis, that the changing structure of international can be understood as a change of international law’s foundational principles. From the perspective of legal theory, it elaborates on the relationship between rules and principles in order to validate the assumption that the emergence of new principles of law does not leave existing rules untouched. Drawing on the understanding of legal principles elaborated in particular by Robert Alexy, it demonstrates that principles of law function as reasons for rules and that, hence, legal rules can be reconstructed as the result of a balancing exercise weighing the legal principles underlying the respective legal rules. Consequently, the emergence of new principles of law gives rise to previously unknown reasons for rules – reasons, that existing rules and the balance of principles underlying them do not yet reflect. Thus, as new principles come to the fore, the foundation of existing rules changes, so that the rules themselves have to be reconsidered. The following parts of the study examine whether this theory finds support in positive international law. To this end, the third chapter substantiates the main empirical premise of the book’s thesis, namely that the body of international law’s foundational principles has in

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fact changed. Scrutinising the different sources of international law in light of the specific properties of legal principles, it determines the conditions under which principles of international law develop. On the basis of the obtained results the book argues that classical international law is dominated by the principle of State sovereignty, whereas in current international law there is also strong evidence of a principle of humanity as well as both a principle of environmental and legal protection. All these principles are principles in a twofold sense: they qualify as general principles of law in the sense of Article 38(1)(c) Statute of the International Court of Justice and their norm structure exhibits the properties of principles in the theoretical understanding elaborated in chapter two. From a doctrinal point of view, however, the argument that changes in the rules of international law can be attributed to the influence of newly emerged legal principles promises success only insofar as the methodology of international law is open for such an influence. In view of the extension of the body of international legal principles the fourth chapter, therefore, examines to which extent the methods of international law admit or even require to take international law’s new foundational principles into account when interpreting and applying existing international rules. Analysing the rules of legal interpretation and the methods regarding the further development of the law, chapter four identifies ways through which the new foundational principles established in the previous chapter can influence the existing rules of international law. It demonstrates that changes in the meanings of existing rules can be justified in terms of legal doctrine, mainly, through a systematic (re-)interpretation of treaty provisions or, in case of legal lacunae, through a principle-based judicial development of the law. Using the insights gained in chapters three and four, the fifth chapter finally takes a second look at some of the phenomena outlined in the first chapter. Here, the book’s thesis, that the rule changes at the surface of the changing structures of international law can be explained by the influence of changes in their underlying principles, is put to a practical test. To this end, the chapter reconstructs some of the rule developments constitutive for the structural changes of international law as rule interpretations or further developments of the law, that find their normative basis in one of the newly developed basic principles of international law. By way of concrete examples, the fifth chapter thus illustrates that the rule changes that make up the structural changes of international law can, from the perspective of legal doctrine, largely be justified by drawing on international law’s newly emerged foundational principles. The book concludes with a few final considerations and a brief summary of the results.

The Monopoly of Trade Unions in German Strike Law: The Strike Between Constitution and International Law Hubertus Reinbach, Das gewerkschaftliche Streikmonopol: Der Streik zwischen Verfassung und Völkerrecht, Duncker & Humblot, Berlin 2018, 388 pages, ISBN 9783428155279. HUBERTUS REINBACH( The dissertation examines the legal ban on wildcat or, better still, non-union strikes1 in Germany and discusses its legal permissibility in view of international law, the German Basic Law (Grundgesetz), and German case law. According to the settled case law of the Federal Labour Court (Bundesarbeitsgericht) lawful strikes in Germany must be organised by representative trade unions that need sufficient bargaining power (‘tariffähige Gewerkschaften’). The study’s results, however, show that this special form of strike is permissible under narrow conditions where trade unions do not provide enough protection for employees. Questioning the German ban on non-union strikes gains special relevance by the finding that various international treaties protect strikes organised by simple groups of employees without the support of representative trade unions. Due to the lack of codification of strike and collective action law in Germany the legal legitimacy of non-union strikes depends on three sources: the scope of protection given by the freedom of association in Article 9(3) German Basic Law, the applicable international law, and the case law for strikes developed by the Federal Labour Court. The study analyses all three sources in depth and works out the linkages between them to show which conclusions need to be drawn for non-union strikes in Germany. According to the settled case law of the Federal Labour Court, strikes that are not organised by representative trade unions are illegal. They lead to tort and contractual liability of the striking employees against their employers. The study shows that the negative verdict of the Federal Labour Court in its general mandate can constitute an infringement of international law and an unlawful encroachment on the freedom of activity of employees’ associations protected by Article 9(3) German Basic Law. However, this is only the case in exceptional situations where trade unions refuse to represent employees in negotiations with their employers ( The author is a lawyer in Hamburg and worked previously as a law clerk (Referendar) for one term at the German Federal Constitutional Court (First Senate, Department of Justice Prof. Dr. Baer, LL.M.). 1 The study uses the term ‘nichtgewerkschaftlicher Streik’ (non-union strike) instead of the popular term ‘wilder Streik’ (wildcat strike) to avoid an anticipated legal classification caused by the connotation of ‘wild’.

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or no trade union exists at all in the concrete industrial area. Apart from these cases it is justifiable in view of the German Basic Law and international law to bring order to collective bargaining by appointing trade unions as representatives of the employees’ interests. Despite the settled judicial practice, the research issue is of practical relevance as a recent non-union strike at the Mercedes-Benz plant in Bremen in 2014 shows. The seised Regional Labour Court of Bremen left the legal permissibility of the non-union strike unanswered after Mercedes-Benz, as employer, withdrew the issued warning letters from the employee records before the appeal hearing took place.2 Additionally, the decision of the German Federal Constitutional Court from 2018 on the Act on Uniformity of Collective Agreements, which found it for the most part compatible with the Basic Law, gives rise to the question how employees can create sufficient bargaining power if their trade union loses the right to enforce its own collective agreement.3 In its methodology the dissertation looks initially in the first of five main chapters at the historic phenomenon of non-union strikes and examines in a comparative part how this type of strike is legally treated in various countries. This basic chapter especially emphasises that union and non-union strikes were treated equally until the end of the Weimar Republic. Both forms were neither forbidden nor did they led to an automatic suspension of the employees’ duty to perform their work. Hence employees had to terminate their working contract before they went on strike to avoid a breach of their contractual duties. Only after the landmark decision of the Federal Labour Court of 8 January 1955 did the union strike gain the important suspension effect evolved in the courts’ case law.4 This judgment changed this form of strike, unlike the non-union strike, from a mere freedom of strike to a real right to strike in terms of contract law. In the subsequent second chapter the study examines all relevant international treaties that Germany has ratified, such as the European Social Charter and the European Convention on Human Rights, with respect to the level of protection afforded to non-union strikes. For each treaty the chapter determines whether a binding connection of strikes to unions either exists or is allowed. Especially for Article 6(4) European Social Charter many scholars are of the plausible opinion that the strict linkage of strikes to trade unions in Germany infringes the guarantee for collective action in this treaty. The chapter on international law is followed by the third chapter which analyses the scope of protection of Article 9(3) German Basic Law regarding its personal dimension and material area. The study concludes that the right of association also protects in general strikes without the support of trade unions. In this regard, the work particularly considers the broad understanding of the scope of basic rights established by the Federal Constitutional Court (‘weites Schutzbereichsverständnis’) and the commitment of the Basic Law to international law (‘Grundsatz der völkerrechtsfreundlichen Auslegung’). The latter has the effect that in case of different possible ways of interpretation the one prevails that gets the closest to international law. 2

Regional Labour Court Bremen (Landesarbeitsgericht Bremen), 2 Sa 67/16 of 9 March 2017.

3

Federal Constitutional Court (Bundesverfassungsgericht), BVerfGE 146, 71.

4

Federal Labour Court (Bundesarbeitsgericht), Judgement of 28 January 1955, reprinted in: Neue Juristische Wochenzeitschrift (NJW) 1955, 882.

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Furthermore, a second key finding is made in this chapter: The strike constitutes not only a natural phenomenon by its mere human behaviour but also normative construct. The strike is a mixed natural and normative basic right. The normative part is embodied by the possible contractual suspension effect of a strike, which requires like the freedom of ownership an act of the State. For union strikes this action was taken by the Federal Labour Court establishing the suspension effect by means of case law in 1955. The non-union strike still lacks the suspension effect and has therefore no normative dimension because neither case law nor the legislator has established it for this form of strike. The establishment of the normative suspension effect of the union strike emanates from the positive obligation (‘Schutzpflicht’) to create at least a minimum protection for employees in Article 9(3) German Basic Law. Building on these results, in chapter four the study discusses whether the case law of the Federal Labour Court regarding non-union strikes corresponds to the scope of protection given by the Basic Law and international treaties. Initially, the difference between encroachment of basic rights (‘Grundrechtseingriff’) and statutory design (‘Grundrechtsausgestaltung’) is elaborated. Upon this important differentiation, the dissertation concludes that the general ban of non-union strikes in tort law (Section 823 German Civil Code) constitutes an unlawful encroachment on the basic right of freedom of association in Article 9(3) German Basic Law. The relevant right to an established and operating business (‘Recht am eingerichteten und ausgeübten Gewerbebetrieb’) is a so-called Rahmenrecht, which requires at least a balancing between the protected freedom of non-union strikes and the conflicting basic rights of the employer. In contrast to tort law, the study then classifies the contractual inadmissibility of non-union strikes (due to the lack of a suspension effect) not as encroachment of Article 9(3) German Basic Law. The different legal treatment in this respect between non-union and union strikes constitutes a legitimate approach within the statutory design of the freedom of association taken by the State. The existing suspension effect created for union strikes protects employees to a sufficient level. Hence the positive obligation of Article 9(3) German Basic Law requires in general no action by the State to establish the suspension effect for non-union strikes. The study’s conclusion to differentiate between the legal treatment of non-union strikes in tort and in contract law therefore implies no carte blanche for employees to choose non-union strikes as an equivalent alternative to union strikes. However, it provides them with an optional means they can opt for, if unions protect their interests insufficiently. Only in exceptional cases – explained in the fifth and final chapter – where unions may use their monopoly against the employees’ interests, the positive obligation of Article 9(3) German Basic Law may force labour courts to assume a contractual suspension effect for a non-union strike and hence no breach of contract. In summary, the dissertation provides a contribution to the dogmatic principles of labour disputes and pursues the goal to integrate international obligations into German strike law. International law should not be considered as a foreign and external element. If there is no contradiction with constitutional values its guidelines and requirements should be met. A common statement in German labour law is that international law does not go beyond the level of protection provided by German law – from my perspective this attitude arises out of a certain fear of a foreign influence and the need for harmonisation between national and international law.

The Enforcement of EU Law by the European Court of Human Rights: Vicarious Constitutional Jurisdiction for Improving the Protection of Individual Rights Philipp Tamme, Die Durchsetzung von EU-Recht durch den Europäischen Gerichtshof für Menschenrechte: Stellvertretende Verfassungsgerichtsbarkeit zur Effektivierung des Individualrechtsschutzes, Duncker & Humblot, Berlin 2018, 689 pages, ISBN 9783428847990. PHILIPP TAMME( The dissertation examines to what extent the European Court of Human Rights (ECtHR) can enforce individual rights from European Union (EU) law against EU Member States. Analysing the cases decided in Strasbourg, the author illustrates the causes of existing deficiencies in legal protection and identifies the conditions for an implementation of EU law via the European Convention on Human Rights (ECHR). The study presents the basic legal principles and successively focusses on the enforcement of procedural rights, rights from EU directives, free movement rights, and political rights. Based on the rule of law, further proposals for a better protection of individual rights in the European multi-level system are developed. Legal protection in the EU is embedded in a complex system consisting of national legal orders, EU law, and the ECHR. Individuals are primarily obliged to address national courts in order to achieve enforcement of their rights deriving from EU law. If, however, national courts fail to ensure effective judicial protection, the implementation of EU law is regularly in danger, as access to the European Court of Justice (ECJ) is only restrictively granted to individuals.1 In this situation, the ECtHR can under certain conditions provide a vicarious constitutional jurisdiction and secure the respect of EU individual rights. This function of the ECtHR proves to be particularly helpful with regard to two typical structural problems impeding the effective enforcement of EU law at national level: (1) violations of the obligation to initiate a preliminary ruling procedure at the ECJ and (2) execution deficiencies. Dr. Philipp Tamme studied law in Kiel and Strasbourg, funded by the Studienstiftung des deutschen Volkes. After graduation, he became a research assistant at the Walther Schücking Institute of International Law (chair Prof. Dr. Thomas Giegerich) in Kiel, where he also wrote his dissertation. During the Rechtsreferendariat, he was employed, inter alia, at the Ministry for Justice, Culture and European Affairs of Schleswig-Holstein and at the EU branch of the Federal Ministry for Economic Affairs and Energy in Berlin. Currently, he works as a legal counsel for the state Government of Schleswig-Holstein. 1 They can, e.g., only propose, but not claim the initiation of a treaty infringement procedure by the European Commission. See Art. 258 Treaty on the Functioning of the European Union (TFEU), OJ 2012 C 326, 47 (consolidated version). (

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The first one of these structural problems is rooted in the disregard of Article 267 (3) TFEU.2 Under this provision, last-instance national courts are obliged to refer relevant questions of EU law to the ECJ for a preliminary ruling. This procedure is intended to guarantee uniform application of EU law as well as effective judicial protection. However, occurring questions are sometimes not referred, even if none of the accepted exceptions to the obligation of referral is fulfilled.3 The reasons of such a non-referral can be manifold: Some national judges may lack expertise in EU law, some may fear a negative impact on their own authority or a delay of the national proceedings. Usually, individuals seeking judicial protection cannot expect to reach their target by recourse to further national remedies. A liability action in damages against the Member State concerned will rarely appear to be successful, and a suitable constitutional review only exists in some EU Member States.4 After having exhausted the national remedies, individuals may then seize the ECtHR by individual application (Article 34 ECHR) for control of conformity of the national courts’ decisions with the requirements of the ECHR. According to the ECtHR, a non-referral to the ECJ infringes the right to a fair trial granted in Article 6(1) ECHR if it is not duly motivated with regard to the applicable law, including the pertinent case law of the ECJ.5 Based on these criteria, the ECtHR found such a violation for the first time in 2014,6 after comparable applications had been dismissed before for more than 25 years. Despite this improvement of judicial protection, the control exercised by the Strasbourg court still does not cover all relevant legal aspects. For the ECtHR does not examine the correctness under EU law of the motivation given by the national court, and not every national legal order grants restitution proceedings. Last but not least, Article 6(1) ECHR is not applicable in the context of procedures concerning genuine matters of public law, such as tax law, immigration law, and the law of political parties.7 In such a constellation, individuals may achieve judicial protection by founding their applications on non-procedural guarantees of the ECHR. Frequently, a violation of the obligation of referral also implies a breach of substantive EU law, e.g. if a last-instance national court deviates from the established case law of the ECJ. In a judgment of 2002, the ECtHR recognised 2

Supra note 1.

3

According to the case law of the European Court of Justice (ECJ), a referral is not necessary if previous decisions of the ECJ have already settled the point of law in question (acte éclairé) or if the correct application of EU law is so obvious that no reasonable doubt persists for national courts or the ECJ (acte clair); ECJ, CILFIT v. Ministero della Sanità, Case 283/81, Judgment, 6 October 1982, ECLI:EU: C:1982:335, paras. 13 et seq.; ECJ, Intermodal Transports BV v. Staatssecretaris van Financiёn, Case C495/03, Judgment, 15 September 2005, ECLI:EU:C:2005:552, para. 33. 4 There one may argue that the refusal of a domestic last-instance court to refer a case to the ECJ infringes a national fundamental right, such as the right to a lawful judge. 5 European Court of Human Rights (ECtHR), Chamber, Ullens de Schooten and Rezabek v. Belgium, Appl. Nos. 3989/07 and 38353/07, Judgment, 20 September 2011, paras. 59 et seq. 6 7

ECtHR, Chamber, Dhahbi v. Italy, Appl. No. 17120/09, Judgment, 8 April 2014.

Cf. ECtHR, Grand Chamber, Maaouia v. France, Appl. No. 39652/98, Judgment, 5 October 2000, paras. 35 et seq.; ECtHR, Chamber, Lupsa v. Romania, Appl. No. 10337/04, Judgment, 8 June 2006, para. 63.

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a claim on tax reimbursement, which was based on a European directive, as a property right under Article 1 of the First Additional Protocol to the Convention.8 It found that the decisions of the French courts, which had denied the claim, violated the right of the applicant company to peaceful enjoyment of its possessions. Consequently, the company was afforded just satisfaction corresponding to the amount of the illegally raised tax. The result of the Strasbourg proceedings thus consisted in the enforcement of European law against the Member State and included an indirect disapproval of the violation of the duty of referral. Nevertheless, individuals’ success in Strasbourg is often not secure. In 2007, the ECtHR dismissed the application of a Basque political party in France whose funding by its Spanish mother party had been completely prohibited by the French State.9 Although the relevant French law clearly breached the free movement of capital under European law10 and the Conseil d’État as last-instance national court had not initiated a preliminary ruling procedure, the ECtHR did not find a violation of the freedom of association (Article 11 ECHR). The majority of the deciding judges referred to the States’ large margin of appreciation in highly political questions and abstained from a strict control of conformity with European law. In the end, judicial protection for the applicant party was not granted. This case exemplifies that the ECtHR does not always focus on correcting violations of EU law, but also acts with reluctance depending on the circumstances of the individual case. Generally, it is also important not to overcharge the Strasbourg court with the resolution of difficult questions of EU law. De lege ferenda, it should therefore be considered to strengthen the responsibilities of the ECJ instead. The introduction of a direct legal remedy for individuals to the Luxembourg court allowing – under strict admissibility conditions – the control of national judgments rendered in breach of the duty of referral would be an adequate solution. This proposal entails several structural and practical advantages, but its realisation would require a modification of primary EU law. The second of the structural problems mentioned above consists of execution deficiencies. Even the best EU provision turns out to be useless if the executive organs of the Member States do not (correctly) apply it. If then national courts are not able or not willing to intervene or if their decisions are ignored by the executive power, the practical effect of the rule of law will be threatened. Such execution deficiencies particularly, but not exclusively arise in the field of environmental law. Its enforcement often suffers from administrative weaknesses, unclear political decisions, and complicated regulation techniques. In cases situated in Italy, inhabitants of areas with potentially dangerous industrial plants argued that the competent authorities had not carried out an environmental-impact assessment or had not provided any information about dangers for the environment, although European directives and the corresponding national law both obliged them to do so.11 The ECtHR primarily 8 9

ECtHR, Chamber, S. A. Dangeville v. France, Appl. No. 36677/97, Judgment, 16 April 2002.

ECtHR, Chamber, Parti nationaliste basque – Organisation régionale d’Iparralde v. France, Appl. No. 71251/01, Judgment, 7 September 2007. 10 See Art. 63 et seq. TFEU. 11 ECtHR, Grand Chamber, Guerra et al. v. Italy, Appl. No. 14967/89, Judgment, 19 February 1998; ECtHR, Chamber, Giacomelli v. Italy, Appl. No. 59909/00, Judgment, 2 November 2006.

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referred to Article 8 ECHR, which protects the individual’s right to respect for home, private, and family life also against significant interferences in the environment. In order to specify its standard of review, the Strasbourg court relied on the relevant provisions of environmental law and criticised the execution deficiencies as violation of the principle of the rule of law. It held that a fair balance between the conflicting interests was not struck and that Article 8 ECHR was therefore violated. Thus, the Italian national law, being itself in conformity with EU law, was integrated in the Court’s assessment under the ECHR and had a considerable impact on the conventional standard of protection. Such harmonising effects between the national, EU and ECHR legal orders can essentially benefit the enforceability of EU law via the Convention. Altogether, the enforcement of EU law by the ECtHR includes significant potential to compensate existing gaps in judicial protection. This mechanism proves to be especially effective if EU law and the ECHR show equal standards of protection or if the ECtHR refers to EU law in conformity with the general principles of the rule of law. Yet, it would be desirable for the ECtHR to use the available potential even more consistently. An accession of the EU to the ECHR might give some impulses in this direction. Subsidiarily, it remains the duty of the Member States to further develop the legal ground for a comprehensive protection of individual rights in European law.

The Emancipation of Regional Human Rights Protection Mechanisms Johann Justus Vasel, Regionaler Menschenrechtsschutz als Emanzipationsprozess. Grundlagen, Strukturen und Eigenarten des europäischen und interamerikanischen Menschenrechtsschutzsystems, Duncker & Humblot, Berlin 2017, 378 pages, ISBN 9783428150403. JOHANN JUSTUS VASEL( Regional human rights protection has existed for almost seven decades and yet we witness some explanatory and theoretical deficits in the field. Despite multifarious analyses, there is a lacuna in the examination of the unique and distinct character of these protection mechanisms.1 The singular existing approach describes their development as a process of ‘constitutionalisation’. But can we really attest to an ongoing process of constitutionalisation? How can this be aligned with the subsidiary nature of the systems? How can we legitimise regional human rights protection, considering the ‘counter-majoritarian difficulty’? Are we witnessing ‘unbounded’ courts that override democratic decisions and trivialise human rights? Consisting of three major parts, this thesis first traces the history and development of human rights protection, followed by a comparative analysis of the two most effective and developed regional human rights systems – the European Convention on Human Rights (ECHR) and the Inter-American Human Rights System (IAHRS). The third and by far the largest section deals with normative questions, it undertakes to provide answers to fundamental challenges related to regional human rights protection, and attempts a characterisation and classification of the systems. Following some preliminary remarks on methodology, the historical analysis revisits the impact and bequest of Spanish scholasticism. In addition to the contributions of the School of Salamanca, the oeuvre of Bartolomé de Las Casas, originator of the term ‘derechos humanos’, is prominently portrayed in this section. It concludes with reflections on how human rights and international law crystallised in this époque, marked by the momentous encounter between the ‘old world’ and the ‘new world’ in the age of conquista and coloniaje. Then, the three ( Dr. Johann Justus Vasel, LL.M. (NYU) is a research associate at the University of Hamburg, Associate Editor of the European Journal of International Law (EJIL), and teaches European and Public International Law at the University of St. Gallen (Switzerland). 1 European Court of Human Rights, Ireland v. United Kingdom, Appl. No. 5310/71, Judgment, 18 January 1978, at para. 239. Inter-American Court of Human Rights, Ivcher-Bronstein v. Peru, Judgment, 24 September 1999, Series C No. 54, at para. 42.

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major stages of fundamental rights development are traced: from a universal but pre-positive status, to a positive but national stage, and finally a universal and positive framework. Reflections on regional human rights protection as a ‘fourth’ evolutionary stage, which can be qualified as a ‘mezzanine’ between the national and the international levels, borrowing from and replicating these origins, close this chapter. The second part provides a comparative analysis of the genesis, structure, functioning, and status quo of the ECHR and the IAHRS. Beginning with the Pan-American and Pan-European movements, it outlines the Organization of American States and the Council of Europe, and compares the various institutions and instruments of both human rights systems. In so doing, it reveals differences, parallels, and future potential for cross-fertilisation. The third and major part of the thesis deals with the impact, characterisation, and justification of regional human rights protection. The first chapter in this part investigates whether regional human rights supervision precipitates an alleged loss of sovereignty and scrutinises the ambivalent relationship of supranational human rights protection and national sovereignty: On the one hand, regional mechanisms are constructed by sovereign member States and the conventions rest and rely on them. On the other hand, regional judicial review constantly relativises the sovereignty of member States. The chapter examines hierarchy, rank, and binding effects of the Convention as specific phenomena reflecting both the dependency on, as well as the relativisation of, sovereignty. Case law illustrates different shades of implementation ranging from ‘osmosis’ to a ‘dialogisation’ between the national and the regional levels, and the shift from a ‘duty of consideration’ to a ‘duty of compliance’, culminating in an active obligation to undertake a ‘conventional control’. The analysis finds partial erosion – but mainly a transformation – of the elastic concept of sovereignty and identifies the emergence of some sort of ‘supraconstitutionality’ due to the final decisionmaking power of the regional courts. To cope with the resulting tension between the national and the regional levels, the study proposes an increased effort to ‘verticalise’ the principle of ‘practical concordance’. The second chapter questions the broad consensus of accrediting a ‘constitutionalisation’ of the convention systems. While there are certainly substantive, procedural, and institutional parallels to constitutional law – such as the mandatory individual complaint procedure, a permanent court, and an extensive catalogue of rights – the analysis sheds light on a continuous auto-declaration by the Strasbourg court to establish the ‘constitutional myth’ and an almost orthodox affirmation of the constitutionalisation thesis in the academic discourse. The analysis then points towards constitutional deficits of the convention systems. Both conventions perform only some core functions of a constitution but lack essential elements and features. In short: The conventions do not constitute and govern the exercise of political power. They are ‘bills of rights’, and establish a second-tier judicial review but do not amount to ‘instruments of governance’. All in all, the European and the Inter-American convention can be pictured as important ‘tessera’ of a constitutional mosaic, as complementary bills of rights. Exasperatingly, the regional protection mechanisms are omnipresently and concomitantly characterised as constitutional instruments and as being of a subsidiary nature, suggesting a certain contradiction. Undoubtedly, both protection mechanisms comprise procedural and substantive subsidiary elements, such as the primary responsibility of the member States for

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implementing and enforcing the rights guaranteed by the conventions, the local remedies rule, and the conceded ‘margin of appreciation’. Regardless of the unanimous allegation of the subsidiary nature, the accuracy of this description is rather limited. In light of their rampant jurisdiction and mushrooming case law, it is misleading to consider the convention systems as mere minimal standards, safety nets, a last resort of rights protection, or a bare backup. This would mean ignoring the task, the state of development, and the tremendous qualitative and quantitative impact of both machineries. Even the intended reference to the principle of subsidiarity in Protocol No. 15 amending the ECHR would not and could not change this. The demonstrative assertion of the subsidiary nature of these systems is rather ostensible and functions as a label to camouflage their actual extensive judicial activism. The unrestrained judicial expansionism and flourishing case law of the regional protection mechanisms provoke serious questions of legitimisation. Judicial review challenging democratic decisions by the legislature already creates a severe tribulation in constitutional democracies, famously described as the ‘counter-majoritarian difficulty’ (A. M. Bickel). This, however, is potentiated with regard to regional human rights protection. Firstly, because human rights are ‘trumps’ and can be pictured as a ‘republican sting’ – they protect the individual against the tyranny of the majority. Res publica and civis collide. Secondly, because regional human rights review correlates not only with a shift from the legislative branch to the judicial branch on the domestic level, but requires a transferral to a distant, out-of-State review mechanism. In addition, one can determine that the ‘evolutive’ and ‘dynamic’ interpretation of the conventions resulted in a departure from a mere safeguard mechanism against gross human rights violations and has led to a certain ‘unboundedness’ and trivialisation of human rights – at least in the jurisdiction of the Strasbourg court – enhancing the aforementioned legitimacy problems. Overall, regional protection machineries contribute to the alleged trend of ‘judicialisation’, resulting in a ‘governing with judges’ (A. Stone Sweet) and undermining the supremacy of parliament. At the same time, regional human rights protection also exhibits specific possibilities of legitimisation ranging from pluralism and a ‘veil of distance’ to a distinct standpoint of ‘disinterestedness’, or a functioning as a ‘pouvoir neutre’ inviting reflections on the possibility of not only a ‘least dangerous’ but even a ‘non-dangerous branch’. The attempt to analyse and define the character of regional protection mechanisms results in the finding that they are a recombination of constitutional and international structures mimicking diverse functions. While their origin is derivative and syncretic, they have profoundly developed, emancipated themselves from their foundations, and gained an autonomous character, to constitute a ‘mezzanine’ system sui generis, which is marked by complementarity and concatenation.

Nationality and Status: Static and Dynamic in Political Community-Building Ferdinand Weber, Staatsangehörigkeit und Status: Statik und Dynamik politischer Gemeinschaftsbildung, Mohr Siebeck, Tübingen 2018, 570 pages, ISBN 9783161562945. FERDINAND WEBER( In the face of globalisation, the growing legal-political interconnectedness of States and the mobilisation of people, nationality seems like a dated contradiction in need of dogmatical retirement. Hence, the dissertation aims to deliver a comprehensive analysis of German nationality law’s function for political community-building while considering its links to inter- and supranational1 legal pluralism. The objective is pursued through a combination of historical, conceptional, and dogmatical perspectives which emphasise the simultaneity of static and dynamic elements in political community-building. The study’s main thesis is that nationality law’s key function lies in an abstract conflict resolving-mechanism between individual freedom and collective self-determination, both fundamental principles of constitutional law, public international law, and human rights law. It fulfills this function through addressing non-members as potential future members with a liberal, i.e. accessible normative structure, demanding learnable preconditions. On the other hand, it is necessarily being ‘written’ by an already existing political community, relying on particular backgrounds. To explain and substantiate the thesis, the study is divided into three main parts, which are each subdivided into two chapters that are consecutively numbered. The first part deals with the making, i.e. the historic process leading to the creation of the legal status we call nationality today. Beginning with the end of the Holy Roman Empire in 1806, the first chapter follows the status’ slow coming into being in the German States and its (

The author currently works as a law clerk (Referendar) at the German Federal Constitutional Court (First Senate, Department of Justice Prof. Dr. Paulus) and was previously a research fellow at the chair for Public Law and European Law at the Institute for Public International Law and European Law of the Georg-August-University Göttingen (Prof. Dr. Schorkopf). 1 The study uses the term ‘Überstaatlichkeit’ or ‘überstaatliche Zusammenhänge’ which also captures dynamic influences from other sources like the European Convention of Human Rights. For an explanation of the different ideas behind ‘supranational’ and ‘überstaatlich’ in German, see Ferdinand Weber, ‘Überstaatlichkeit als Kontinuität und Identitätszumutung’, 66 Jahrbuch des öffentlichen Rechts der Gegenwart (2018) 237, at 239, with further references; for an English illustration based on Herbert Kraus’ terminology, see Bill Davies, ‘Resistance to European Law and Constitutional Identity in Germany: Herbert Kraus and Solange in its Intellectual Context’, 21 European Law Journal (2015) 434, at 447.

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contextual political and legal change until 1945. It is argued that the fundamental change, away from the legal assignment of the individual through a pre-modern but already dogmatically differentiated residence principle (‘ius domicilii’) to the common mechanisms of ius sanguinis, ius soli, and naturalisation reflects and reacts to the rapid change of political rule and societal structures in the German States. The study takes a special focus at the pre-unification era before 1867/1870, when those changes, with whose outcomes we still work today, took place. The legal need for handling, in qualitative and quantitative terms, a new extent of social mobility leads to the conclusion that the genesis of German ‘nationality law’ in the different German States was neither concerned with building a German nation as a political subject nor driven by that goal (cf. only the German term for nationality until today: Staatsangehörigkeit). Rather, as inter-State negotiations reveal, it was generated in a web of multi-layered, interconnected legal levels, consisting of administrative practice without any codified ‘status personalis’ at all, a large number of bi- and multilateral treaties plus a several decades negotiated and finally cancelled harmonising convention, including – in its modern meaning – supranational elements within the law of the German Confederation, all influencing each other and being driven by a predominant monarchical rule. Thus, the study’s first outcome is that German nationality law’s history isn’t rooted in a national-political context or programme (as happened after 1870) but surprisingly reveals a überstaatlichen background. From this point the study follows the codification of the harmonising nationality law of the North German Confederation and subsequent integration and exclusion politics, laws, practices, proposals and contemporary commentaries from legal scholars through Imperial Germany, over the Weimar Republic up to the Nazi regime. The second chapter pursues a more descriptive approach. The first section retraces the normative transition of the – under the Grundgesetz still valid – nationality law from imperial times under a new constitutional setting. This leads to the larger part which is dedicated to German nationality law’s (again) growing interconnectedness, now with the universal and European framework of public international law, inter alia, United Nations- and Council of Europe-conventions as well as effects of supranational European Union (EU) law, especially EU citizenship and fundamental rights. Furthermore, the selling of nationality in certain member States and case law of the European Court of Justice as well as the European Court of Human Rights is analysed. The conclusion states that one of the reasons for the growing contestation and criticism of nationality law in this context, coming from considerable parts of legal literature, is its – from a strictly legal point of view – still uncontestable and even growing importance as the only access to Union citizenship rights and as a prerequisite to substantial political participation. The study’s second part switches perspectives. Chapter three turns to an inspection of theoretical arguments fundamentally questioning the legitimacy of the traditional structure of nationality law. Views from sociology and social philosophy on community-building and membership are discussed, exemplified by Niklas Luhmann’s System Theory and Jürgen Habermas’ Discourse Theory of Law. After that, the lack of a general theory on incorporation of interdisciplinary findings is addressed, followed by a look at subsequent problems for dogmatical analyses of law, hereby considering the content and influence stemming from the interdisciplinary citizenship-debate as well as transnational-theory approaches in migration

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sociology. In the end, interdisciplinary standpoints are recognised as outer-law suggestions that often need to be scrutinised for specific moral premises while tending to overlook the need for procedural democratic legitimacy, governed by law. Proposals for a renewed ius domicilii as well as a ius nexi, ius laboris, political denizenship, and a more or less closed status linked to a static understanding of the nation as a legal-political subject are scrutinised in the fourth chapter. Here, the arguments for and against each conceptual vision of a more or less fully remodeled concept are being weighed. Ultimately, they are dismissed, favoring a combination of ius sanguinis, ius soli, and/or (conditional) rights to naturalisation on which each political community has to decide for itself and reconsider the details depending on changing circumstances. The third and final part aims to identify normative elements, understood as determinants suiting a modern form of nationality law in an open and democratic constitutional State. For this purpose, the fifth chapter deals with institutional and national groundings of the status, a democratically legitimate balance between homogeneity postulates and constitutionally protected pluralism, the question of double or multiple nationality and the normative expectations behind the operative structure of nationality law. After a critical survey of structures and common objections raised against certain preconditions, the study compares the status to other, in past years continuously expanded residence rights. In the end, it is proposed to first change the focus from allegedly necessary changes of codified law in favour of increasing the knowledge of migrants, i.e. potential new citizens on continuing benefits of nationalityacquisition and, secondly, to develop a stronger ‘culture of naturalisation’ in administrative practice without waiving necessary conditions for maintaining a stable political community in the long-term. The sixth chapter summarises the outcomes of the foregoing chapters in ten concluding theses. In the outcome, it is pleaded for a modern nationality law, understood as a status of ‘bound openness’, built on human dignity and the – legally codified – democratic principle of the Grundgesetz at the same time. Both belong together and urge the liberal constitutional State to take the individual and the collective body politic equally seriously in their choices as selfdetermined subjects.

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Edward Chukwuemeke Okeke, Jurisdictional Immunities of States and International Organizations, Oxford University Press, Oxford 2018, 408 pages, ISBN 9780190611231. Edward Chukwuemeke Okeke, currently a Senior Counsel at the World Bank Group and previously a legal officer at the United Nations (UN) Educational, Scientific and Cultural Organization, has presented an impressive volume on the international law of State immunity and the immunity of international organisations. His background may explain the peculiar mix of immunities. States and international organisations possess international legal personality. Both institutions are – to varying degrees – protected by the privilege of immunity from adjudication in domestic courts. However, the reason for this protection is vastly different. State immunity finds its foundational justification in the concept of ‘par in parem non habet imperium’. The immunity of international organisations is treaty-based and hence a matter for the member States of the treaty establishing the international organisation. The author’s long employment connection to international organisations relying on immunity explains why the link between the two came very naturally to him despite their separate underpinnings. The author states that his work was driven by confusions and lack of knowledge widely witnessed in the community of practitioners working for international organisations and, presumably, elsewhere. Okeke is quite frank about his intentions. He opens up (1) by stating that his book is for readers who are seeking ‘a vade mecum on the law and practice of jurisdictional immunities of States and international organization [sic].’ He wants to describe ‘what the law is’ rather ‘than to argue about what the law should be’ (2). That distinction is indeed always important and more so in international law where one often has the impression that the debate between what the law is, for example, whether settled State practice exists or does not exist to support a norm of customary international law, and what the law should be often get confused. No better example than the decision of the International Court of Justice (ICJ) in the case of Germany v. Italy and the majority opinion (what the law is) on the one hand and the dissenting opinion of Judge Cançado Trindade reflecting strongly what the law should be in his view.1 Okeke is adamant that his book is not a ‘hackneyed polemic about immunity and impunity’ (1) (‘impunity’ to be understood in a wider sense as State and international organisation immunity cannot be about punishment but deals with protection from domestic civil actions, unlike personal immunities such as diplomatic or head of State immunity, where impunity is indeed a possible and important consequence of the immunity privilege). Finally, the author makes it clear that he does not think much of doctrinal debates, which he regards as ‘prone to oversim1

International Court of Justice, Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment, 3 February 2012, ICJ Reports 2012, 99, Dissenting Opinion of Judge Cançado Trindade, at 179 et seq.

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plification’ (1). Rather, Okeke sets out to emphasise the ‘judicial dialogue by courts’ and wants to engage with doctrinal debates only ‘where it elucidates’ (1). Of course, and the abovementioned example of the ICJ’s seminal immunity decision in Germany v. Italy illustrates that quite impressively: if it were only possible to easily segregate the law as it supposedly stands from the law one wishes would exist, things would be much easier. The reality, however, is that very learned people tend to disagree strongly on what the law is and if the debate is legal rather than factual doctrinal considerations are always at play. Interestingly enough Okeke admits as much when, in the opening chapter about the nature of jurisdictional immunity, he cites a decision by the Canadian Supreme Court describing State immunity as ‘a complex doctrine that is shaped by constantly evolving international relations.’2 The book has two main parts dealing with State and international organisation immunity respectively and a shorter third part mainly concerned with diplomatic immunities and its relationship with the immunities dealt with in parts one and two. The part dealing with State immunity lays out the historical development of the concept and the evolution of the customary international law from an absolute to a restrictive approach, i.e. from protecting all foreign State action from adjudication in domestic courts to the establishment of an exception for commercial transactions (acta jure gestionis) and restricting the immunity privilege only to sovereign acts (acta jure imperii). The emphasis is on the common law countries (22 et seq.), the civil law tradition receives rather little attention (35 et seq.). There is nothing wrong with that but the author implies some foundational difference between the two legal systems, which he says have taken ‘a different route’ (36) in the development of the restrictive approach. However, it is questionable whether that ‘different route’ had any bearing on the matter. Whether or not immunity is absolute or relative/restrictive is a matter of sufficient evidence of settled State practice. The only visible difference is that in a few jurisdictions, most of them common law ones, the legislator has taken the international law question in its own hands and away from the courts by passing immunity legislation. Such legislation could then, absent constitutional bars, be binding on the courts even if such legislation violated international law. The Justice Against Sponsors of Terrorism Act (JASTA) in the United States could be an example.3 The Act creates a further exception from adjudicatory immunity for terrorist acts under certain circumstances and could apply to what otherwise would have to be considered sovereign acts. A District Court in the U.S. recently denied immunity to Saudi Arabia in application of JASTA.4 That said, the fact that the legislator acts changes nothing regarding the fact that State immunity law is international law and such legislation can violate international law. However, in some jurisdictions the courts are unable to rectify legislatively created international wrongful acts. In Germany, for example, that is possible; the Federal Constitutional Court has special jurisdiction to address such matters and to determine what the relevant international law says. Its leading decision in the

2 Supreme Court of Canada, Kazemi Estate v. Islamic Republic of Iran, 2014 SCC 62, [2014] 3 S.C.R. 176, para 169. 3 Justice Against Sponsors of Terrorism Act, 28 U.S.C. §1605B. 4 In Re Terrorist Attacks on September 11, 2001, 28 March 2018, 03-MDL-1570(GBD).

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Persian Embassy case5 can still be regarded as the foundational guide illustrating the development from the absolute to the restrictive approach to State immunity. Okeke guides the reader through the various aspects of State immunity (41 et seq.), starting with the sources of the law and including the presentation of the European Convention on State Immunity (which is actually in force albeit of little impact) and the UN Convention on Jurisdictional Immunities of States and Their Property (which is not in force but has a significant impact nonetheless as a repository of sorts of the customary international law of State immunity) and the various national legislative acts, which are relevant internationally as important elements of State practice. The author’s reservations against doctrinal debates on what the law should be probably kept him from discussing whether recent reforms, such as the JASTA mentioned above, actually constitute violations of international law. In any case, as existing State practice, the core content of such new national norms, namely the attempt to create a further exception to the immunity privilege enjoyed by States, might in due course indeed become settled State practice. Until then these norms may well constitute a breach of international law as it stands. The example shows the difficulty of the concept of ‘the law as it stands.’ Whereas the U.S. Foreign Sovereign Immunities Act expansion states the law in the United States, it cannot state the international law of State immunity. ‘Common exceptions’ are, of course, given proper attention (106 et seq.). In particular express or implied waivers of immunity, which play an important role in the context of international financial transactions such as bonds placed on the capital markets to finance sovereign debt and in arbitration which plays a big role in investment treaties and investment chapters of free trade agreements and other treaties are covered (155 et seq.).6 The problem of immunity waivers has been particularly visible in recent years in the context of so-called ‘vulture funds’, e.g., the notorious Paul Singer’s Elliott Management fund, pursuing States defaulting on sovereign debt. The second part of the book (229 et seq.) turns to the adjudicatory immunity of international organisations and proceeds in much the same way, enlightening the reader on the different reasons and the purpose of granting such a privilege to international organisations, shedding light on the scope and reach of the privilege and the exceptions to it. In doing so, Okeke gives the reader an introduction to general international organisations law, extrapolating their legal status and the questions around legal personality in some detail to provide the relevant context. The part dealing with the legal sources for this immunity is particularly interesting (265 et seq.). The immunity of international organisations is, in contrast to State immunity, primarily based on treaty law and usually flows from the treaty establishing the organisation. Obviously, States cannot contract to the detriment of third parties, i.e., obligate third parties to grant immunity. Hence the question whether international organisation immunity is also a privilege prescribed by customary international law is an interesting one. Okeke thoroughly examines the material in this regard but, perhaps in line with his reserva-

5 6

Federal Constitutional Court (Bundesverfassungsgericht), BVerfGE 16, 272.

See Jürgen Bröhmer, ‘State Immunity and Sovereign Bonds’, in Anne Peters et al. (eds.), Immunities in the Age of Global Constitutionalism (2014) 182.

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tions regarding doctrinal debates, does not propose an answer leaving it to the readers to reach their own conclusions. In the brief third part, the author communicates some foundational knowledge about diplomatic immunity in the same way as before albeit very much shorter. It is therefore not always clear how these brief forays enhance the understanding of the two main topical immunities dealt with in the book (341 et seq.). If they did, would it not have been better to put them at the beginning? The inherent – and as such not to be criticised in the light of the purpose of the book – brevity in this part does not allow to follow through on some assumptions that are not as clear as presented. For example, Okeke states (347) that ‘State immunity is multilateral and applies erga omnes in relation to all States. Diplomatic immunity, on the other hand, is bilateral and applies in relation to the sending and receiving States […]’. That is correct on one level. But does the statement yield anything of substance? The adjudicating State must have jurisdiction before State immunity even comes into question and hence the immunity pertaining to certain acts or omissions of a State is relative to those States possessing jurisdiction. It is an interesting question in itself whether a third State could exercise jurisdiction over a diplomat for exactly the same activity for which the host State is barred from exercising its jurisdiction. Could a foreign diplomat accredited in Germany who allegedly has caused damages in Germany be sued in Austria for these same damages, while visiting the UN in Vienna on official business as a diplomat in Germany, even if Austria had jurisdiction otherwise? A bit further down (350) the author claims without authority that the concept of a ‘[p]ersona non grata has no place in the immunity of officials of international organizations because the functions of diplomats and officials are very different.’ I would question this assumption. Their functions are indeed very different, but at least some of the legitimate considerations that could prompt a State to want to expel a person are the same, for example, if the official of an international organisation were found to engage in criminal activity in the host State. It is interesting that Okeke, again without authority, concedes that in analogy to diplomatic law an ‘agrément’ is necessary for an official of an international organisation to be deployed in the host State ‘as a trade-off for conferring diplomatic status’ (350) on such officials. Yet should there not be any possibility to expel such officials once they have been deployed? That said, the underlying problem of the independence of international organisations is, as is correctly emphasised by the author, clearly of utmost importance. In summary, Okeke delivers beautifully on what he set out to do, creating a vade mecum on the law and practice of jurisdictional immunities of States and international organisations. Some readers might wish for more discussion, more doctrinal debate. This is a question of taste. But there is no doubt in the mind of this reviewer that Okeke’s book will be on the desk right next to the computer of anybody who sets out to write about the immunity of States and international organisations in the foreseeable future, be it as a student, be it as a scholar, be it as a practitioner, or be it to engage in lofty doctrinal debates in any of these capacities. A wealth of information, diligently collected and analysed, cogently delivered and explained, a

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true treasure trove. A must have for any decent library of international law and anybody working around this subject. JÜRGEN BRÖHMER Dean of External Engagement and Professor of Law College of Arts, Business, Law and Social Sciences Murdoch University

Benoit Mayer, The International Law on Climate Change, Cambridge University Press, Cambridge 2018, 302 pages, ISBN 9781108412992. International law on climate change has been going through a period of rapid development. Its evolution started with the 1992 United Nations Framework Convention on Climate Change (UNFCCC), followed by the 1997 Kyoto Protocol and 2015 Paris Agreement. At the end of 2018, the UN Climate Change Conference in Katowice, Poland, adopted detailed implementation rules for the Paris Agreement. Overall, the Parties have adopted a large number of decisions fine-tuning details of the UN climate regime and establishing institutions, such as the Green Climate Fund, and constituted bodies, such as the Adaptation Committee, Technology Executive Committee, Standing Committee on Finance, and Executive Committee of the Warsaw International Mechanism on Loss and Damage. At the same time, the regime’s implementation by the European Union (EU) and various other countries around the world has led to the growth and expansion of climate change-related legislation, leading many scholars to argue that climate law has emerged as a new field of legal practice and study. Benoit Mayer’s textbook, The International Law on Climate Change is largely geared to the needs of the specialist community of climate change lawyers and students of climate change law. Following the adoption of the Paris Agreement, there was a clear need for updated teaching and reference materials on international climate change law. Mayer’s textbook is one the books published in the past three years responding to this need. His book includes 16 chapters with an emphasis on legal aspects of the UN climate regime. However, the book also covers various other topics from climate science and rationale for international action on climate change to geoengineering, relevant developments in other international legal regimes and relevant norms of general international law. In some ways, Mayer’s book serves to illustrate how rapidly international climate change law has been evolving during the past decade. During the same year that the book was published, the UN climate regime took yet another significant step forward. In December 2018, the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement (CMA) adopted the Paris Agreement Rulebook, consisting of around 150 pages of decision text detailing the way in which the Paris Agreement is to be interpreted and implemented. These decisions clarify, for example, what information the Parties’ self-determined mitigation

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contributions (known as Nationally Determined Contributions, NDCs) must contain, thereby introducing an important top-down element to a mitigation regime that otherwise places a lot of emphasis on Parties’ national sovereignty and discretion. The Paris Rulebook also goes a long way towards clarifying how the delicate issue of differentiation between developed and developing countries is to be operationalised in the implementation of the Paris Agreement. This issue has been highly contentious since the early days of the UN climate regime, and the Paris Agreement took a significant step forward by omitting references to the blunt categories of Annex I (developed) and non-Annex I (developing) countries included in the UNFCCC in the early 1990s. The Paris Agreement also introduced new language on countries’ ‘national circumstances’ in references to the principle of common but differentiated responsibilities, which has been widely seen as another step away from categorical distinctions between developed and developing countries. However, many of the traditional controversies reemerged during the negotiations on the Paris Rulebook with some developing countries calling for bifurcated implementation rules. The Paris Rulebook resolved these disputes through a system that is, in principle, the same for all Parties, but with a number of flexibilities granted to developing countries, including with respect to reporting of their greenhouse gas emissions and climate policies (i.e. the Transparency Framework under Article 13). In light of these examples and other elements of the Paris Rulebook, Mayer’s book unfortunately no longer reflects the state-of-the-art of international climate change law. This is definitely not to say that it is no longer useful as teaching material. Indeed, the same gap obviously applies to all other textbooks currently on the market. However, teachers of climate law courses will nevertheless need to use supplementary materials to reflect the latest developments culminating in the adoption of the Paris Rulebook. According to Mayer, his book ‘seeks to provide what could be the first comprehensive account of the international law on climate change as a discipline’ and ‘bring all components of the international law on climate change together in a unique, comprehensive and coherent account of what international law has to say about climate change’ (xiv). This broader ambition is very welcome, even if not completely unique. Mayer’s textbook’s main competition comes from International Climate Change Law by Daniel Bodansky, Jutta Brunnée, and Lavanya Rajamani (Oxford University Press 2016), which covers much of the same substance, including relevant international law beyond the UN climate regime, such as relevant principles of international environmental law and general international rules on State responsibility. Chapter 15 of Mayer’s book is dedicated to the role of non-State actors, and in a similar vein, Bodansky, Brunnée, and Rajamani have dedicated chapter 8 to climate governance beyond the UN climate regime, bringing up many of the same topics as Mayer but also usefully discussing the relevant theoretical framings, such as multi-level and polycentric governance. In light of Mayer’s objective to provide a coherent account of what international law as a whole has to say about climate change, it is interesting to compare the two textbooks in this regard. In general, it seems that Mayer’s book places more emphasis on the role of general international law than Bodansky, Brunnée, and Rajamani. Mayer considers at length the argument that ‘industrial states’ excessive greenhouse gas emissions’ could give rise to State responsibility under general international law, ‘most convincingly under the no-harm principle, or alternatively under other principles of international law or under international human rights law’ (78). Drawing on case law around the no harm principle, he argues that ‘the existence of

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a due diligence obligation of States to prevent activities causing excessive GHG (greenhouse gas, KK) emissions from taking place within their territory or under their jurisdiction is well established in international law’ (78). Mayer then discusses secondary obligations related to State responsibility, namely cessation and reparation. Overall, while careful to emphasise uncertainties related to the interpretation of international law relating to State responsibility in the context of climate change and greenhouse gas emissions, Mayer sees general international law on State responsibility as clearly relevant, emphasising that ‘a State which complies with its obligations under international climate agreements may still be in breach of its obligations under general international law’ (86) and lamenting ‘developed States’ efforts to obstruct the development of any authoritative interpretation’(88). Bodansky, Brunnée, and Rajamani, in turn, highlight that even if it should not be difficult to show that climate change causes significant harm, ‘it may still be difficult to establish with sufficient probability that a particular weather event or impact was, in fact caused by human action, as opposed to other factors, let alone be attributed to the conduct of a specific state’7. They also emphasise the ‘customary international law provides no general, bright line standard for due diligence, let alone climate change-related diligence’8. Partly contradicting Mayer, they argue that: Ironically, the recent evolution of the UN climate regime may have made it easier for states to demonstrate their due diligence. After all, the Paris Agreement accommodates a wide range of national contributions, raising the question whether it would be possible to argue that a state that meets its commitments under the agreement is not exercising due diligence.9

Bodansky, Brunnée, and Rajamani also move beyond the traditional bilateral setting of State responsibility, considering the concept of erga omnes obligations and the prospects of invoking State responsibility for harm to the global commons. While they discuss the topic of State responsibility at length and in light of concrete examples, the tone of their analysis is more reserved than that of Mayer’s and they point out that ‘the adversarial mode of the law of state responsibility is especially ill-suited to promoting the collective action and close cooperation that is needed to tackle climate change’10. For teaching purposes, my preference is on the approach taken by Bodansky, Brunnée, and Rajamani: They explore in a more nuanced manner the strengths and weaknesses of legal arguments building on the law of State responsibility. Comparing the two textbooks in their discussion of the UN climate regime, it seems that Bodansky, Brunnée, and Rajamani often provide clearer and more detailed explanations of the key issues than Mayer, especially by shedding more light on their political context and negotiating history. Good examples include climate finance and the Paris Agreement’s so-called ambition mechanism, which seeks to ensure that Parties’ mitigation goals are eventually aligned with the Agreement’s objective of maintaining the global average temperature increase well below 2 degrees Celsius and pursue efforts to limit to 1.5 degrees above pre-industrial levels. 7 Daniel Bodansky, Jutta Brunnée, and Lavanya Rajamani, International Climate Change Law (2016), at 45. 8 Ibid. 9 10

Ibid. Ibid., at 50.

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One of the cornerstones of the ambition mechanism is global stocktaking, defined in Article 14 of the Paris Agreement. Mayer describes its role and functions in a couple of short paragraphs (at 49 and 235) while Bodansky, Brunnée, and Rajamani explain the mechanism’s purpose and negotiating history under a separate heading. Furthermore, their book addresses it in a highly useful section dedicated to the Paris Agreement’s legal architecture which, inter alia, sheds light on differences between top-down and bottom-up approaches climate change mitigation, and how these somewhat competing approaches have shaped the international legal response to climate change mitigation over the years and how the Paris Agreement crystallises a hybrid architecture that includes both bottom up and top down elements. Overall, Mayer’s textbook does a very good job of covering a complex topic comprehensively and I will definitely recommend that my students read it to get a broader perspective on the field. Still, the Bodansky, Brunnée, and Rajamani textbook, written by three of the field’s top experts, provides tough competition and remains the key reference on international climate change law. KATI KULOVESI Professor of International Law & Co-Director of the Center for Climate Change, Energy and Environmental Law, Law School University of Eastern Finland

Henri Decœur, Confronting the Shadow State: An International Law Perspective on State Organized Crime, Oxford University Press, Oxford 2018, xxx+271 pages, ISBN 9780198823933. Decœur’s book explores international legal frameworks to prevent, prosecute, and punish the involvement of senior State officials in the ‘shadowy’ world of corruption, kleptomania, and organised crime such crime. The book highlights the scope and shortcomings of existing international criminal law treaties and develops several creative ideas to ‘confront the shadowy State’ more effectively. Decœur argues that State organised crime be recognised as a distinct crime type in international law and explores the idea of a convention, United Nations Security Council (UNSC) action, and the role of international criminal courts to combat and prosecute such crime. The depth of Decœur’s work is remarkable. The book comprises three main parts, including nine chapters, that introduce the concept of State organised crime (Part I), flag the limitations of existing international law (Part II), and explore ‘international legal mechanisms for the suppression of State organized crime’ (Part III). The term ‘State organized crime’ is understood by Decœur as ‘an advanced form of system of criminality where the perpetrators, abusing their authority as officials of the State, use the State’s material and human resources to commit or facilitate the commission of crimes for the purpose of profit’. Using a range of examples from Asia, Eastern Europe, Africa, and Latin

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America, the scale and seriousness of State organised crime becomes evident in chapter 1. The ‘motives’, ‘actors’, and ‘means’ further illustrate various manifestations of this phenomenon, but also show that it is difficult to articulate firm criteria to define what State organised crime is. Chapter 2 turns to questions about the responsibility of States for State organised crime. Decœur explores how the conduct by officials may be attributed to the State. He then turns to the more difficult question when such conduct ‘constitutes a breach of an international obligation of the State’. The answer remains opaque, not least because existing treaties do not envisage the idea that the State itself, through its officials, can participate in organised crime. Decœur demonstrates that responsibility of a State could only be established for breaches ‘peripheral to the wrong inherent in State organized crime’ and concludes that existing treaties as well as customary international law are inadequate to address the wrong inherent in such crime. The United Nations Convention against Transnational Organized Crime (UNTOC) and the Convention against Corruption are the main subjects of chapter 3. The book goes to some length to outline the criminalisation requirements, jurisdiction, international cooperation, seizure, and confiscation measures under these instruments. References to pre-existing and regional treaties are included, especially where they complement or exceed obligations under these two UN conventions. This forms the necessary basis for chapter 4, which highlights the limits of these treaties in cases involving State organised crime. Here, Decœur starts to build his case for the development of ‘dedicated legal responses’ at the international level. Chiefly, he argues that existing instruments are too fragmented, that procedural limits obstruct law enforcement, and that current laws ‘fail to take into account the involvement of State organs and resources in organized crime’. His first point stems from the fact that international conventions target various crime types selectively and somewhat randomly. The overlap of different treaties and large gaps between them characterise this ‘patchwork’ of legal regimes. His second point relates to ‘archetypal manifestations of State sovereignty in international law’ and problems relating to cross-border law enforcement. The extensive material referenced by Decœur documents the legal and practical obstacles associated with double criminality and evidentiary requirements, exception and discrimination clauses, questions of jurisdiction and immunity, and the dilemmas associated with the aut dedere aut judicare principle. His third point is, perhaps, a less convincing one when he argues that ‘providing for aggravated punishment is not sufficient to reflect the qualitative difference between regular cases of organized crime and cases involving State officials abusing their authority to participate in organized crime’. On the surface, it would appear that the offence of ‘participating in an organized criminal group’ under Article 5(1) UNTOC could be used as a base offence that is aggravated, and the penalty raised, in circumstances where State officials participate in, support, benefit from, or direct such groups. The same aggravation could be extended to offences relating to corruption, money laundering, and obstruction of justice under Articles 6, 8, and 23 UNTOC. While it is true that the current text of UNTOC does not envisage aggravations and extensions of this kind, it is surprising that Decœur does not entertain this idea further. Chapter 5 provides the ‘normative justification for establishing State organized crime as an international crime’. Decœur explores a range of theoretical and conceptual reasons in support

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of his thesis, starting with basic questions about the purposes of criminalisation and the functions of criminal law. Next, he turns to ‘criminalization theory in international law’, which, he admits, is poorly developed, yet he attempts to define a framework to produce arguments for the international criminalisation of State organised crime. His recourse to concepts of international crime and to crimes recognised in international law makes a sufficiently convincing case that is further supported by a range of strategic observations relating to the integrity of State authority, international peace and security, human rights, and the rule of law. In chapter 6, Decœur turns to the idea of a stand-alone ‘Convention for the Suppression of State Organized Crime’. He goes as far as setting out the text of draft provisions concerning definitions, criminalisation, jurisdiction, extradition, mutual legal assistance, and for an ‘obligation not to participate in organized crime’. While his proposals are well developed, his endeavour may be seen as courageous by some — and as lofty by others. It is meaningful and consequential to explore the idea of a convention on this topic, but the detailed drafts set out here may do a disservice to the greater goal. What would perhaps be more valuable is a more cautious yet thorough articulation of the specific purposes, concepts, and elements of a convention that can serve as a starting point for further research, discussion, and drafting in the future. Next, Decœur outlines the legal basis for UNSC action to criminalise State organised crime and the use of sanctions against State officials. It is debatable whether UNSC resolutions should complement a multilateral treaty, as suggested by Decœur, or whether it should precede it. The UNSC certainly has a role to play in this space, though the book does not reveal whether it has track record of ‘naming and shaming’ State organised crime. The discussion of international criminal courts prosecuting organised crime in chapter 8 is founded on suggestions from the 1980s and 1990s proposing international courts with jurisdiction over drug trafficking, money laundering, and the like. The Rome Statute of the International Criminal Court, however, ended up with a very different mandate. Decœur’s reflections may seem far-fetched, but it is vital that debates about the mandate of the International Criminal Court and the prosecution of international crimes by international tribunals are kept alive and this book makes a new and important contribution to this field. In summary, ‘Confronting the Shadow State’ dismantles some myths and misconceptions of organised crime. The book demonstrates that all too often senior government official work with — rather than against — criminal organisations and that ‘organized crime may become a tool of political, economic, and social control’. Decœur’s approach is methodical, thorough, and sufficiently cautious. His arguments are carefully developed and his conclusions, referred to as ‘utopian’ in the book’s preface, are, in fact, compelling. ANDREAS SCHLOENHARDT Professor of Criminal Law The University of Queensland; Professorial Research Fellow Universität Wien

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Leonardo Borlini, Il Consiglio di sicurezza e gli individui (The Security Council and Individuals), Giuffrè Editore, Milan 2018, 510 pages, ISBN 9788814227622. We may perhaps be forgiven for not offering a full summary and discussion of this very dense and rich monograph, instead focusing on the most important chapters of the book, namely the ones devoted to the functions of the United Nations Security Council (UNSC) in the context of Chapters VI and VII of the Charter of the United Nations (UN Charter). Undoubtedly, the subject matter is at once timely and extremely relevant. And the author offers us a detailed landscape of evolutions and contemporary practice, matured from a painstaking review of the bulk of existing resolutions of the UNSC – an inductive approach of significant magnitude and scope. Within the analytical categories framed through the lens of that practice (e.g. thematic resolutions, quasi-legislative resolutions, etc.), the author manages to insert topical legal considerations and analysis relating to the law of the UN. We have thus here a quite unique piece, where minutia, practice, and legal discussion is interwoven in a dense discourse of quite high standing and admirably controlled linguistic command. It is regrettable that in the world of today many if not most international lawyers read mainly if not only English and thus the benefit of the present significant effort will be lost for an all too significant fraction of our scientific community. International law without languages is like swimming without water. And yet this idiosyncratic exercise seems to constantly gain ground. Let us start with a summary of the most important parts of the text. The main aspects of the text will be carefully mentioned, but the rich and fine-tuned analysis cannot be summarised to any satisfactory extent. I. Introduction: The increasing relevance of individuals for UNSC action (1 et seq.). Since 1990, the practice of the UNSC shows a significant increase of new tools of action and new actors involved in the processes, ranging from demarcation of boundaries, to robust peacekeeping, to territorial administrations, to sanction of violations of human rights and humanitarian law, to referral of cases to the International Criminal Court (ICC), to direct injunctions made to armed groups and individuals, etc. In this process, one sees generally an increasing role played by individuals, be they armed groups, terrorists, militias, pirates, criminal bands, and so on. This evolution reflects changes in international society: extension of non-international armed conflicts; new threats (e.g. arms, drugs, pandemics, terrorism), new peacekeeping operations (‘jus post bellum’), gain of importance of certain branches of international law (in particular human rights and humanitarian law), etc. These shifts explain that the UNSC addresses itself to States but sometimes also directly to individuals, e.g. to members of armed groups. The legal vehicle for this extension has been the concept of ‘threat to the peace’ enshrined in Article 39 UN Charter. Today, a series of individuals have an incidence on peace (especially on so-called ‘positive-peace’); thus, they must also be addressees of UNSC measures. II. Chapter VI UN Charter: The Exercise of the Conciliatory Function and Individuals (75 et seq.). Chapter VI UN Charter has been extended to non-State actors clothed with international legal personality, for example to de facto régimes, insurrectional movements and the like. Concomitantly, the attempt at peaceful settlement of disputes has been made with regard to all relevant parties to the conflict, even non-State parties. Three main functions and areas can be singled out. First, internal crises. Given that Chapter VI UN Charter contains

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wording related to ‘parties’ to the conflict, the extension to non-State actors is easy to achieve by a moderate evolutionary interpretation of the terms of the UN Charter. This extensive practice, whose roots can be found at the beginning of the 1970s, has not elicited resistance or objections on the part of States. It must be emphasised that the UNSC’s function is here limited to issuing recommendations. The UNSC cannot impose the prospected solution to the conflict by terming as ‘threat to the peace’ the non-acceptance of its terms by the parties. In its practice, the UNSC issued many such recommendations related to internal struggles: e.g. in the context of the direct negotiations between Morocco and the Polisario Front, the mediations in the context of Cyprus, or even preventive actions, such as the ‘prevention of armed conflicts’ under UNSC Resolution 1366.11 Second, fact-finding. This function has been extended to situations created by individuals: terrorism, grave violations of humanitarian law and human rights law, organised crime, flows of arms, etc. The UNSC has ordered fact-finding in many cases going well beyond the letter of Article 34 UN Charter, be it through ad hoc missions, fact-finding commissions, delegation of powers to the Secretary General, and so on. In particular, we may recall fact-finding missions attached to the killing of individuals (e.g. Congolese politician, Patrice Lumumba), to the presence of mercenaries (e.g. Benin, 1977), to the violation of humanitarian and human rights law (e.g. Darfur),12 to terrorist activities (e.g. the killing of Rafic Hariri in Lebanon),13 to proliferation of weapons of mass destruction (e.g. in Syria),14 to criminality and trafficking of all sorts (e.g. drug trafficking in North Korea and wildlife trafficking in the Democratic Republic of the Congo (DRC)), etc. The reports provided by the fact-finding missions are not normally based on a fair hearing of all parties, a circumstance which may raise human rights concerns. The facts found by the UNSC do not have any direct legal effect for the individuals concerned; but they can heavily impact on their position, e.g. through decisions taken on the basis of the facts ascertained. Third, proposal of terms of settlement. The UNSC only infrequently sets out concrete terms of settlement of a dispute according to Article 37 UN Charter. When it does so, the UNSC once more increasingly addresses its proposals also to individuals, e.g. to armed factions (as in Angola, Cambodia, and Mozambique). It also occurs that the proposal indirectly concerns individuals, e.g. when there is the recommendation to release hostages (as in Iran, 1979), to extradite terrorists (as in Libya and Sudan in the 1990s), etc. The UNSC can recommend solutions de lege ferenda, within the limits of jus cogens, in particular in cases where there is intense antagonism between the parties and the mere application of existing legal norms would be insufficient. III. Chapter VII UN Charter: Recommendations and Individuals (143 et seq.). In the context of the recommendatory function under Chapter VII UN Charter,15 the UNSC addresses itself directly to most different individuals, ranging from armed groups, to mercenaries, NGOs, commercial enterprises, mass media actors, political parties, donors, and so on. This practice has not raised objections by the member States. The activities in which the UNSC intervenes reflect the considerable expansion of the concept of ‘threat to the peace’ enshrined in Arti11 12 13 14 15

United Nations Security Council (UNSC) Res. 1366, 30 August 2001. UNSC Res. 1564, 18 September 2004. UNSC Res. 1595, 7 April 2005. UNSC Res. 2235, 7 August 2015. Art. 39 Charter of the United Nations 1945, 1 UNTS XVI.

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cle 39 UN Charter. From the point of view of substance, the measures taken are also most variable: demands for respect of humanitarian and human rights norms, transparency in the administration of the res publica, economic development, and so on. Three types of activities of the UNSC must be particularly noted. First, there are recommendations directed to armed groups. The notion of armed group in the practice of the UNSC is quite extended and does not always reflect the stricter criteria of the law of armed conflicts, in particular as to the degree of the organisation of the group. There is clearly a crossing of the boundaries towards criminal bands and terrorist groups, e.g. in the DRC or in Mali. Questions of status or international legal personality do not hamper UNSC action, which is pragmatic on these aspects. Substantively, the recommendations in this area have again most variegated features, e.g. demands range from freeing hostages to securing a better protection of the civilian populations. Second, the so-called ‘thematic resolutions’. These are resolutions of general scope and of a quasi-legislative nature, concerned especially with the protection of civilians in armed conflicts, and within this group particularly with the vulnerable persons such as women and children. Other resolutions of this type deal with illicit transfers of arms. This type of resolutions is concerned with ‘standard setting’ in promotion of existing international law. There are also recent tendencies towards the adoption of ‘guidelines’, for example on non-payment of ransom to terrorist groups;16 or on the cooperation between the State and the private sector on weapons.17 Third, there are resolutions on the fight against crime and terrorism. The most salient feature in this context is the growing cooperation called for with the private sector, as evidenced in the Kimberley process on diamonds. Summing up, one can say that recommendations under Chapter VII UN Charter can have various legal effects, for example induce the ratification of certain conventions, activate municipal legal processes,18 extract a subject-matter from the domestic jurisdiction, set a duty to take into consideration the recommendation in good faith and state the reasons if there is nonrespect, help interpret norms of hard international law, provide evidence of practice for the establishment of customary international law, set up systems of monitoring (especially in the context of terrorism), etc. IV. Chapter VII UN Charter: Coercive Measures and Use of Force and Individuals (235 et seq.). There is a continuity between action under Chapter VI and Chapter VII UN Charter in the activities of the UNSC on issues concerning individuals, e.g. in the context of crime or terrorism. The sanctions meted out under Chapter VII UN Charter operate through the legal orders of the member States and not directly. It occurs frequently that orders to behave in a certain way are directly given to individuals, but the sanction for non-compliance depends on action by the member States. In most cases, the obligations set out reflect pre-existing positions under international law, for example in the context of humanitarian law. In some cases, there is a direct international sanction, as in the case of criminal tribunals set up under Chapter VII UN Charter, e.g. the International Criminal Tribunal for the former Yugoslavia (ICTY); or international civil administrations with direct governmental powers towards 16 17 18

See UNSC Res. 2133, 27 January 2014. See UNSC Res. 2370, 2 August 2017. See UNSC Res. 1941, 29 September 2010.

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individuals, e.g. the United Nations Mission in Kosovo; or in cases of peace-enforcement directed against individuals partly in international areas, e.g. piracy off the coast of Somalia. The first series of measures to be discussed are those which do not imply the use of force (268 et seq.). There are many resolutions expressing duties directly addressed to individuals. The legal basis of this practice is unclear. In some cases, the UNSC limits itself to recalling preexisting obligations under international law, mainly under humanitarian law. In other cases, the UNSC goes beyond existing legal positions, e.g. in the context of the protection of national resources against trafficking.19 In still other cases, the duties under pre-existing international law are developed in more detail, for example in the context of human rights obligations for armed groups. In these latter cases, not covered by pre-existing norms of international law, the legal basis for UNSC action seems to reside in the acquiescence of the membership to an action considered to be necessary to protect fundamental values of the international community, from where implicit powers of the organisation flow (289). There is an issue of coherence here: if the UNSC can qualify as threats to the peace internal situations, it must be also able to tailor and address its action to groups and individuals which represent the source of the threat (290). Therefore, the measures at stake are necessary in order to realise the purposes set out by the UN Charter. However, no general customary rule has yet emerged on this type of action. Thus, the acquiescence of the member States must be ascertained in every single context (294). This is particularly true when the UNSC addresses to single individuals or when it treats novel aspects, e.g. the ‘foreign terrorist fighters’.20 Four types of actions of the UNSC feature most prominently under our heading. First, resolutions against terrorism.21 The main problem here is the absence of a generally agreed definition of terrorism or the use of such unclear notions as ‘terrorist suspects’ or ‘terrorist intent’. In this context, we must notice that there have been objections by member States, which seems to bring some of these resolutions in the ultra vires area. The main problem with such quasi-legislation is the lack of any parliamentary control for the measures of the UNSC. Second, smart sanctions. We can here notice in particular the lists of persons to be sanctioned (under Article 41 UN Charter) in the context of terrorism. The measures involved are most often the freezing of funds, the suspension of credits, the curbing of communication and transit, etc.22 There have been various human rights criticisms on such measures and various responses by the UNSC, e.g. through the focal point on delisting and later the Ombudsperson.23 Third, action in the context of individual criminal responsibility. We must here mention the criminal tribunals set up by the UNSC (e.g. the ICTY and International Criminal Tribunal for Rwanda) and the participation of the UN in criminal justice matters in territo19

E.g. UNSC Res. 2348, 31 March 2018 (concerning the situation in the Democratic Republic of the Congo (DRC)). 20 See UNSC Res. 2170, 15 August 2014; UNSC Res. 2178, 24 September 2014. 21 Cf. UNSC Res. 1373, 28 September 2001 (quasi-legislation of general scope); UNSC Res. 1540, 28 April 2004 (in the context of arms); UNSC Res. 2170, 15 August 2014; UNSC Res. 2178, 24 September 2014 (both in the context of foreign terrorist fighters); UNSC Res. 2368, 20 July 2017 (in the context of the Islamic State of Iraq and the Levant), etc. 22 See UNSC Res. 1267, 15 October 1999; UNSC Res. 2253, 17 December 2015. 23 See UNSC Res. 1904, 17 December 2009.

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ries administered temporarily by the organisation; or the participation in the work of the ICC (e.g. in the context of crimes committed in Darfur, Sudan); or the involvement in issues of inter-State extradition of persons or surrender to an international tribunal;24 or in the suppression of piracy, with the urge to member States to adopt the relevant internal legislations. Fourth, peacekeeping and transitional civil administrations. Of particular interest is the peacekeeping of the second generation with the task to protect the civilian population, to provide humanitarian aid, to control and promote human rights, to supervise election processes, etc. There are here various effects on individuals, e.g. when the UN has assumed governmental powers on certain territories such as in Kosovo or East Timor. The UN has in such cases exercised a direct power over individuals. We must also mention the broad field of jus post bellum with the UN supporting governmental action in weak States, for example in the context of investigations for the military justice.25 The last category of measures relates to the use of force against individuals (372 et seq.). The use of force is now based on ‘authorisations’ or ‘delegations’ of powers by the UNSC, allowing the member States acting on these resolutions to depart from ordinary rules of international law. This is contrary to the situation when the UNSC merely recommends a certain action, where international law remains reserved.26 The mandates provide for the use of force in cases of self-defence or for the realisation of the mission. This is ‘robust peacekeeping’, e.g. the United Nations Transitional Administration in East Timor (UNTAET).27 Three particular categories of action can be singled out. First, the suppression of piracy. Compare UNSC Resolution 1816,28 concerning the situation in Somalia, where the notion of piracy was extended to activities taking place within territorial waters, and lately also to the territory of Somalia.29 This latter resolution contains a caveat according to which it shall not be considered as establishing customary international law. Second, the suppression of trafficking of migrants in the Mediterranean Sea. Compare UNSC Resolutions 2240,30 2312,31 and 2380,32 with authorisations to inspect and seize ships in certain cases also without the consent of the flag State. For the rest, the relevant norms of international law remain applicable, for example on human rights or on the law of the sea. The resolutions are strictly limited ratione loci, temporis, and even materiae (for example they do not apply to ships benefitting from sovereign immunities). There are here also all the duties to adopt the relevant municipal legislation and to prosecute the traffickers in States having the relevant jurisdiction under international law. We can consider that the UNSC has in this case given a weak authorisation of use force, since the discre24

E.g. pursuant to UNSC Res. 748, 31 March 1992 (concerning Libya) or under UNSC Res. 1638, 11 November 2005 (concerning Charles Taylor and the situation in Liberia). 25 See UNSC Res. 1925, 28 May 2010 (concerning the situation in the DRC). 26 This is the case for UNSC Res. 2249, 20 November 2015 (concerning threats to international peace and security caused by terrorist acts). 27 See UNSC Res. 1272, 25 October 1999 (concerning the situation in East Timor). 28 UNSC Res. 1816, 2 June 2008. 29 See UNSC Res. 1851, 16 December 2008. 30 UNSC Res. 2240, 9 October 2015. 31 UNSC Res. 2312, 6 October 2016. 32 UNSC Res. 2380, 5 October 2017.

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tion of States has been fettered with regard to proportionality and human rights mentioned in the resolutions. Third, peacekeeping and peace-enforcement. Force can here be used for example to implement the mandate and to protect civilians, including the elimination of threats. The line of evolution goes from the DRC in the 1960s, where the use of force was conceded beyond self-defence in order, among others, to ‘prevent the occurrence of civil war’; to Yugoslavia in the 1990s, where the United Nations Protection Force (UNPROFOR) could use force to deter attacks against safe havens, ensure its freedom of movement and protect humanitarian convoys; and finally the United Nations Organization Stabilization Mission in the Democratic Republic of the Congo (MONUSCO), in 2013, in the DRC, where a whole brigade was created with offensive military tasks against armed groups. The question remains open whether such an offensive armed force transforms the participating UN personnel into combatants. The resolutions of the UNSC under Chapter VII UN Charter (recommendation or authorisations) frequently create a new set of obligations for individuals, i.e. obligations which do not flow from pre-existing norms of international law. The power of the UNSC to act in this way is implicit in the UN Charter, but needs to be confirmed in each situation by the acquiescence of the member States. Substantively, the measures taken are most often of a ‘provisional measures’ type. In a series of cases, however, only the States are obliged to take measures and the individuals are merely indirectly affected, e.g. in the context of smart sanctions. In some cases, the resolutions of the UNSC have implications for general international law, e.g. the lifting of the immunity of President Al-Bashir confirmed by a Pre-Trial Chamber of the ICC in 2017. This raises questions as to the limits of UNSC powers. Generally speaking, two sets of limitations must be noticed: (i) The purposes and principles of the UN Charter pursuant to Article 24(2) UN Charter. This supposes a balancing to be performed by the UNSC. Article 24(2) UN Charter shows that the UNSC is not legibus solutus. On the other hand, general international law does not bind the UNSC. Thus, there is no duty of graduation or proportionality in the measures taken (non-forcible or forcible), and UNSC measures take precedence over obligations contained in treaties other than the UN Charter according to Article 103 UN Charter. (ii) The limit of jus cogens, i.e. non-derogable norms of international law, as well as fundamental principles of international law such as the self-determination of peoples, humanitarian and human rights law, etc. But in such situations one must be careful to define the scope of the rules from which the UNSC cannot depart, in particular in the context of human rights law where only some rules cannot be derogated from. These limitations do operate in practice, as can be seen in the process of listing and delisting of terrorists and the jurisprudence of a series of regional and national tribunals on the issue. V. Conclusion. As can be seen, the present book is of a considerable richness of content and analysis. If one criticism may be aired, it is that a table setting out in synthesis the various types of effects the resolutions of the UNSC have had on individuals would have been valuable for the reader. The text is so dense that a summing up of the type mentioned would have been beneficial. For the rest, one may say that the careful and moderate legal conclusions of the author can be shared by most international lawyers.

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From the legal point of view, the present book provides ample illustration for a salient aspect of UN law. The UN Charter, it is said, is a ‘living instrument’. Under that aspect, it resembles a constitution. The rise of the individual in the context of UNSC action is an example of the importance of subsequent practice and evolutionary interpretation in the context of the UN Charter. Such practices and interpretations at once modify the UN Charter (as happened with many of its provisions, a famous example being Article 27(3) UN Charter), or help reinterpret its content in the light of modern conditions (as happened with the term ‘party’ to the conflict in Chapter VI UN Charter). The net result is that there are two UN Charters: the black letter law UN Charter of 1945, which is largely a matter of historic interest; and the positive law UN Charter as it stands today, which can be grasped only when the letter is joined to the practice, i.e. treaty law to the special customary international law called subsequent practice (the one computing the practice and opinion of the member States). Only through this mobility can the UN Charter remain adapted as a flexible instrument of international governance. And it indeed moves and continues to move. ROBERT KOLB Professor of Public International Law University of Geneva

Birgit Spiesshofer, Responsible Enterprise: The Emergence of a Global Economic Order, C. H. Beck/Hart/Nomos, München/Oxford/Baden-Baden 2018, 591 pages, ISBN 9783406714 597; (German version: Unternehmerische Verantwortung. Zur Entstehung einer globalen Wirtschaftsordnung, C. H. Beck/Nomos, München/Baden-Baden 2017, 713 pages, ISBN 9783848722303). Birgit Spiesshofer’s monograph Responsible Enterprise: The Emergence of a Global Economic Order (RE), which was accepted as her habilitation thesis (Habilitationsschrift) by the University of Bremen in 2018, is unusual in a number of ways. Firstly, it is broad-based insofar as it is informed not only by the international academic discourse on Corporate Social Responsibility (CSR) and Business and Human Rights but also by direct involvement in relevant political processes and enterprise practice. Secondly, it shows that CSR is a cross-cutting issue involving almost all disciplines of law, from international public and private law to constitutional, corporate and criminal law and legal and business ethics. Thirdly, it analyses the great variety of normative processes encompassed by the term CSR and subjects them to a critical and systematic examination. By applying the basic categories of enterprise, responsibility and governance the relevant approaches in particular of the United Nations (UN), the Organisation for Economic Co-operation and Development (OECD), the International Organization for Standardization (ISO), and four different sectors (mining, finance, textile, legal profession) are made transparent and comparable. By combining a vertical multi-level approach (UN, OECD, ISO, European Union (EU), national) with a diagonal sector-specific approach the polycentric transnational governance structure of CSR is disclosed. This approach is both

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profound and profoundly relevant to the actual state of contemporary regulatory governance in which states remain powerful but not the singular regulatory actors within the structures of global business. Fourthly, the analysis of the CSR discourse shows the extent and varieties of norm-building and norm-enforcement mechanisms established in the area between voluntary and legally binding, usually described as ‘Soft Law’. It also shows the sliding scale of bindingness, the hardening of soft law and the ‘smart mix’ of hard law/soft law regimes forming the framework for global business. This raises the question whether the traditional definition of ‘law’ should be expanded to encompass these new emanations of normative steering. Part A starts with a description of the conceptual foundations of CSR, in particular, the honorable businessman, lex mercatoria, and the Triple Bottom Line (People, Planet, Profit) as it was shown before that CSR is rather a key term and leitmotif of a political discussion, aiming at a new role of enterprises in society, than to be grasped by a definition. Chapters 2 through 7 contain a detailed and quite comprehensive exploration of the sources and public and private drivers of CSR and their regulatory conceptions. Chapter 2 analyses the development of the CSR conceptions of the UN, starting with the Draft UN Code of Conduct on Transnational Corporations which still followed the model traditional international legal approach. The UN Global Compact takes up the contractual model covering all areas of CSR whereas the UN Guiding Principles on Business and Human Rights, developed by special representative Professor John Ruggie and endorsed by the UN Human Rights Council, claim to be binding, albeit not legally binding, distributing human rights responsibilities between states (duty to protect) and business (responsibility to respect). They became the blueprint influencing other CSR instruments. Chapter 3 analyses the OECD approach, in particular the OECD Guidelines for Multinational Enterprises which have adopted the human rights and due diligence conception of the UN Guiding Principles. It analyses the transnational enforcement capacities of the special instances procedures, their transnational modus operandi and reach and their constitutional challenges. Chapter 4 explores the ISO CSR conception, in particular the genesis and content of ISO 26000, which was also partly influenced by the UN Guiding Principles but negotiatied in a multi-stakeholder process. The UN, the OECD, and ISO developed a plethora of guidance, tools, and norms elaborating specific aspects of enterprise responsibility. Chapter 5 shows that the EU functions as a hub as it not only develops its own CSR strategy, but adopts international soft law and transforms it into European hard law thereby enhancing legitimacy and enforcement power. Chapter 6 deals with national CSR strategies and the relationship of CSR and national law, in particular, the extraterritoriality of national laws and human rights as a-national global law directly applicable by and to private actors. Chapter 7 explores different sector-specific conceptions prominent in the legal political discourse. The section on mining industry includes a thorough and critical analysis of the regulatory public/private and hard law/soft law approaches and their interplay concerning conflict minerals. It turns out that the extraterritorial reach of the relevant (hard) United States- and EU-regulation is problematic; support for the Great Lakes Regime, based on international

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agreements, with a comprehensive hard/soft and public/private governance approach could be more effective. The financial sector developed transnational governance regimes under the heading of Responsible Finance (i.a. World Bank, International Finance Corporation, Equator banks), Responsible Export Credits and Responsible Investment calling on the economic and legal power of finance institutions and investors to pursue CSR and sustainability goals. The policies mandating the inclusion of CSR factors in financing and investment decisions are implemented and enforced i.a. through contractual and corporate law mechanisms. They are complemented by ratings, rankings, and benchmarkings. Non-financial reporting establishing duties of enterprises to ‘know and show’ their CSR impact has gained significant international momentum, in particular, as it allows for an extraterritorial outreach and impact of national legislation also with regard to group enterprises and supply chains worldwide. In the textile industry, transnational supply chain management by Western enterprises, including the application and enforcement of Western safety standards, is a common request. The Rana Plaza Governance system shows, however, that private normative regimes can conflict with public regulatory and development schemes and national sovereignty leading to accusations of neo-colonialism. For the legal profession, CSR is relevant in a multitude of ways. Law firms and bars are in principle also addressees of CSR norms such as the International Bar Organisation’s Guidance on Business and Human Rights. They are, however, also suppliers of services and advisors to their clients which raises also the question whether the advice on CSR norms is ‘legal’ advice. In all the chapters a meta-framework grounded in enterprise, responsibility, and governance sets the stage for the construction of RE’s ‘responsible enterprise’ framework in Part B. RE quite correctly situates those debates and the alternative construction of normative narrative ‘against the background that the traditional instruments of international law […] have shown themselves to be insufficient with regard to the challenges of global business activities.’ (31) Chapter 8 evaluates the findings of the previous chapters and elaborates the key questions concerning the basic categories enterprise, responsibility and governance. It lays the ground for the fundamental considerations concerning these concepts in chapters 9 through 11 in Part B. Chapter 9 discusses the conception of enterprise as it is developed by the CSR norms. It shows that a broad functional-teleological conception of enterprise is applied encompassing also non-profit organisations. Group responsibility is a key issue in the CSR discourse with a clear tendency to pierce the corporate veil by applying various concepts of German and common law and CSR soft law, in particular, by establishing parents' duties of care. Chapter 10 deals with fundamental questions of the justification and scope of enterprise responsibility based on business ethics, law, and CSR soft law. A central question, in particular in the Business and Human Rights discourse, is ‘universalism v. historical-cultural contextualism’, i.e., whether it is possible to form a uniform global ethic or code against the background of diverse cultural settings, influenced by Christian, Islamic, and Confucian business ethics. The author advocates a culture-sensitive approach which allows and requires, however, the search for common ground.

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Chapter 11 elaborates the normative core of CSR as a transnational polycentric publicprivate governance order with innovative norm creation and enforcement processes linking up to a system. It reveals that the informalisation of norm-creation and its transfer to or usurpation by international organisations, the executive and private actors raises fundamental questions of national sovereignty, democratic legitimation and rule of law. A new conception of ‘law’ is also required. The new CSR world order - a ‘legal internet’? The author concludes: ‘The functional conception of enterprise and the essential features of the CSR responsibility and governance regimes can be seen as the basic elements of a “CSR constitution”.’ (548) The present reviewer concurs with Professor Larry Catá Backer, who has concluded as follows: ‘RE represents an important investigation into the constitution of CSR. […] It situates CSR within the great contemporary currents of trends in the regulation of the conduct of actors undertaking economic activity – sustainability and human rights. To that end alone RE is worth reading.’33 Its insights are based on extensive research and thorough and careful analysis. It maps out the normative innovative dimensions of CSR and identifies the key questions to be further developed by academic research, policy making and in business practice. STEPHAN HOBE Director of the Institute for Air Law, Space Law and Cyber Law University of Cologne

Astrid Kjeldgaard-Pedersen, The International Legal Personality of the Individual, Oxford University Press, Oxford 2018, 304 pages, ISBN 9780198820376. Astrid Kjeldgaard-Pedersen’s The International Legal Personality of the Individual is the latest contribution to a rich and growing literature focussed on the legal status of the individual in international law.34 Kjeldgaard-Pedersen asks to what extent individuals can be considered to be legal persons under international law, and argues (following Kelsen) that this question need not (indeed, perhaps cannot) be answered in the abstract. Rather, legal personality is granular: where a rule of international law, interpreted properly and according to the usual canons, appears to imbue an actor with personality, that actor should be understood to be a le-

33

Larry Catá Backer, “The Enterprise of Responsibility:” Reviewing Birgit Spiesshofer, “Responsible Enterprise: The Emergence of a Global Economic Order” (Munich: CH Beck, Oxford: Hart, 2018), 23 February 2018, available at http://lcbackerblog.blogspot.com/2018/02/book-review-birgit-spiesshofer. html. 34 Other important contributions to this field include Anne Peters, Beyond Human Rights: The Legal Status of the Individual in International Law (Huston (tr.), 2016); Kate Parlett, The Individual in the International Legal System (2011); Roland Portmann, Legal Personality in International Law (2010).

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gal person (26). This, the ‘a posteriori’ conception of international legal personality, she contrasts with the ‘States-only’ and ‘individualistic’ (or ‘a priori’) conceptions (14-15). The book begins with a general outline of international legal personality (chapter 2), before proceeding to examine the positive law in a number of fields. Chapter 3 treats ‘general issues’ – notably the drafting of the Vienna Convention on the Law of Treaties and the Statutes of the Permanent Court of International Justice and International Court of Justice, the application of customary law to individuals, diplomatic protection, and (very significantly for her argument) rules of treaty interpretation – before Kjeldgaard-Pedersen considers international claims (chapter 4), international humanitarian law (chapter 5), international criminal law (chapter 6), international human rights law (chapter 7), and international economic law (chapter 8), under which heading she also treats EU law. Each chapter considers the modern day law in force against a backdrop of some of the major historical developments in the area, in order to identify whether the decisions, instruments, and forms of argument used disclose basic assumptions made by the actors about the nature of individual personality. Although she finds certain areas in which the ‘States-only’ logic could explain the legal rights and obligations in force, this Kjeldgaard-Pedersen argues is not an accurate depiction of the structure of the legal order overall. She concludes that ‘contrary to common belief, the “States-only” conception of international legal personality has in fact never reflected the realities of practice – at least not for as long as there has been substantial practice to consider’ (230). Instead, she prefers the ‘a-posteriori’ approach which derives personality purely from the construction of treaty provisions, noting that ‘the study of international law lex lata in Chapters 3-8 shows that rights, duties, and capacities were conferred directly on individuals in a number of legal fields throughout the twentieth century’ (232-233). Some might be inclined to characterise Kjeldgaard-Pedersen’s study as an exercise in tilting at windmills. After all, so the argument might run, the ‘States-only’ conception of international legal personality is no longer – if it ever was – a supportable position in the face of the extensive development of human rights and international criminal law (to take only two examples), wherein individuals manifestly possess rights and obligations qua individuals, and where those rights and obligations can (often) be enforced entirely independently of the State of nationality.35 Such an objection, however, would miss its mark. As Kjeldgaard-Pedersen demonstrates, ‘States-only’ thinking continues to pervade legal reasoning in the most unlikely areas – EU law is perhaps her most eye-catching example (221-227) – and thus has a formative effect on legal discourses and development even where it does not act (and perhaps has never acted) as the organising principle. That observation has significant implications for the ways in which international lawyers should conceive of, refer to, and formulate arguments about our discipline; and if the more nuanced understanding of personality which it implies filters through into the scholarly and practical consciousness, it would likely have a positive impact on international law’s development. Were this the only contribution that the book makes to the field – and it is not – it would suffice to mark The International Legal Personality of the Individual as a welcome addition to the literature, and its value is enhanced further by the 35

Bianchi describes it as a ‘principle of classical international law’ that is now ‘obsolete’: Andrea Bianchi, ‘State Responsibility and Criminal Liability of Individuals’, in Antonio Cassese (ed.), The Oxford Companion to International Criminal Justice (2009) 16, at 17.

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technically-able treatment Kjeldgaard-Pedersen gives each of the regimes she considers, the historical context within which the major instruments are situated, and the breadth of scope of the investigation. Nevertheless, I remain somewhat unconvinced whether the design of Kjeldgaard-Pedersen’s study is the best way of realising her stated objectives. Kjeldgaard-Pedersen chooses to avoid jurisprudential and philosophical approaches to personhood, focussing instead on the positive law.36 She defines the ‘core objective of this book [as] to ascertain the role of the individual according to the lex lata’ (14), and ‘to show that scholars, including those who pledge allegiance to positivism, have failed to provide a satisfactory account of the position of the individual as a matter of positive international law’ (6). A rigorous treatment of the positive law (which Kjeldgaard-Pedersen provides) is welcome but, I would argue, needs to be informed by philosophical considerations. In my opinion Kjeldgaard-Pedersen’s choice to consider only the positive law presents obstacles to the enquiry she pursues. Although this methodology is well-matched to one of Kjeldgaard-Pedersen’s stated goals – that of determining whether the ‘States-only’ conception continues to apply – it seems ill suited to her second aim; to establish that individual international legal personality is ‘a-posteriori’ rather than ‘a priori’. Indeed, the impression that the methodology is not adequate for this purpose is reinforced in that only one chapter (chapter 6 on international criminal law, see in particular 135) engages substantively with the question of whether the norms in question imply an a posteriori or an a priori personality. In other words, Kjeldgaard-Pedersen answers the question of whether individuals can be persons under international law, but not whether they inherently are persons. The absence of philosophy (and the consequent restricted ability meaningfully to consider the a priori position in the analysis) leads Kjeldgaard-Pedersen to choose between two positions which cast individual legal subjecthood as a delegated or secondary off-shoot of the plenary international personhood of States. By contrast the a priori position casts the legal personality of individuals either as independent of State personality, or as the latter’s source. That is a fascinating question in its own right, and has significant practical implications; including whether States are able to remove rights (in other words, whether human rights were instituted or recognised in the Universal Declaration of Human Rights and the instruments which followed), and whether the process of downgrading substantive rules thereby diminishes individuals’ personality (in other words, whether the genie can be put back in the bottle). As will be apparent, I take a different view on a number of key issues to that offered by Kjeldgaard-Pedersen. Nevertheless, and in addition to the monograph’s welcome survey of this complex and wide-ranging area of concern, it is these very disagreements which, in my opinion, make this volume valuable. By way of this careful consideration of the positive law, Kjeldgaard-Pedersen offers the opportunity for exactly these kinds of debates. It is to be hoped that scholars will take up that task in the coming years from a variety of standpoints

36 Note that the term ‘theory’ is used by Kjeldgaard-Pedersen to refer to scholarship in general, rather than to jurisprudential/philosophical approaches in particular. For this reason, the terms philosophy/philosophical are used in this review, but should be understood broadly.

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and methodological positions, and that the field will continue to see rich and fruitful engagement on this fundamental issue. TOM SPARKS Senior Research Fellow Max Planck Institute for Comparative Public Law and International Law

James Harrison, Saving the Oceans Through Law: The International Legal Framework for the Protection of Marine Environment, Oxford University Press, Oxford 2017, 336 pages, ISBN 9780198707325. James Harrison’s ambition to save the oceans through law appears prima facie unreachable in the light of the alarming state of the marine environment at the beginning of this 21st century. Decades of law-making and implementation at multi-levels have been powerless to stop the current global environmental crisis that transcends marine and political boundaries. Yet the ambition of this book makes common sense because of the protective role of law. It makes perfect sense even more in the context of globalised anthropogenic pressures that not only threaten the marine environment, but the future of humankind. Throughout his book, James Harrison describes meticulously the state of the law related to the protection of the marine environment at global and regional levels, supported by a strong legal and non-legal bibliographic apparatus. In the opening remarks, he notes that the oceans are at a ‘tipping point’ (1) due to varied and complex pressures everywhere at sea. The interconnected nature of the oceans means that individual action by States is not sufficient to address the protection of the marine environment. On the contrary, the characterisation of the protection of the marine environment as a Common Concern of Mankind entails that all States have a global responsibility in the way in which activities affecting the marine environment are carried out on land or at sea. More interestingly, the author highlights that the Common Concern of Humankind can be linked to the emergence of erga omnes obligations and, that through the increasing role of non-State actors in law-making, it could lead to a more inclusive vision of humanity as a whole (4). Briefly recapitulating the progressive construction of international law of the protection of the marine environment from its main sources (customary international law, treaties, general principles), James Harrison then opens the discussion with an indepth analysis of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) as a central pillar of international law (chapter 1). Based on the classic observation that UNCLOS is not sufficient in itself to offer comprehensive and effective protection of the marine environment, but only acts as a basis for further elaboration, interpretation, and negotiation, the author explores how this process works in practice in regards to miscellaneous sources of marine environmental degradation: land based sources of marine pollution (chapter 4), dumping of waste at sea (chapter 5), marine environ-

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mental threats from shipping (chapter 6), fishing and conservation of marine living resources (chapter 7), seabed activities within and beyond national jurisdiction (chapter 8), and marine environmental impacts of climate change and ocean acidification (chapter 9). The finding of this analytical study is that of a fragmentation or specialisation of the international legal framework for marine environment, ‘developed in an incremental fashion, largely through specialist institutions with a particular focus, be it shipping, seabed mining or dumping, etc.’ (275). James Harrison not only pursues a sectoral and descriptive approach of the sources of marine environmental degradation through sectoral and regional arrangements within the unified legal framework of UNCLOS. He puts the law of the sea in perspective with exogenous sources of international law such as biodiversity law (chapter 2) or climate law (chapter 9). Thus, he shows the possible interactions and reciprocal influences between the nebula of instruments and institutions related to the protection of the marine environment via the interpretation and implementation of existing rules and standards. In a more innovative way, he emphasises the crucial role of inter-institutional cooperation and coordination in the development and implementation of an integrated management of the oceans at international level (chapter 10), based upon ‘emergent practices in the field on marine environmental protection’ (276): a bottom-up approach relying on ad hoc arrangements between small numbers of institutions with overlapping mandates (277 et seq.); a top-down approach centralised by the United Nations General Assembly (289 et seq.) and; an integrated approach in the management of certain regional seas and which could take on polycentric management accents, as described by Elinor Ostrom,37 with regard to the future management of marine biodiversity beyond the limits of national jurisdiction (296 et seq.). In a concluding chapter on the role of international law in saving the oceans and future challenges for the legal framework (chapter 11), he brings out the complex (multifaceted and multilayered), flexible and dynamic nature of the legal framework for the protection of the marine environment, expanding and mainstreaming through law-making process beyond the initial focus on UNCLOS. With regard to that evolving legal and non-legal environment, the author acknowledges the constructive and adaptive role of general principles of international environmental law, such as the precautionary approach, the ecosystem approach, and the participatory approach, thus meeting the ambition of the draft Global Pact for the Environment38 to further anchor these principles in the international legal order. If the ambition of this book is to save the oceans through law, this is indeed a teleological ambition. The challenges remain numerous, ‘undoubtedly daunting’ but ‘not insurmountable’ (309), requiring further action from States and institutions to fill legal gaps, to implement and enforce existing rules and standards, and to achieve an integrated approach to the protection

37

Elinor Ostrom, ‘Polycentric systems for coping with collective action and global environmental change’, 20 Global Environmental Change (2010) 550. 38 See United Nations General Assembly Res. 72/277, 14 May 2018.

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of the marine environment. I deeply share this view, this common sense, except that the drivers for change towards saving the oceans may not only be legal and institutional, but essentially ideological, societal, and psychological. BLEUENN GAËLLE GUILLOUX Research Fellow Walther Schücking Institute for International Law

Paolo Lobba and Triestino Mariniello (eds.), Judicial Dialogue on Human Rights: The Practice of International Criminal Tribunals, Brill Nijhoff, Leiden/Boston 2017, 304 pages, ISBN 9789004313743. Judicial Dialogue has been on the agenda of international lawyers and scholars for a long time. As to human rights, the International Court of Justice (ICJ) in its 2010 judgment in Ahmadou Sadio Diallo39 made it very clear that it relies on the jurisprudence of human rights adjudicative bodies from the European Court of Human Rights (ECtHR) to the quasi-judicial bodies such as the Human Rights Committee. The reasons given, both in case law and academic writings, are mostly the same: tackling the phenomenon of proliferation of courts and the problem, if you want to call it one, of fragmentation in international law. Moreover, the debate about judicial dialogue and human rights centres around two main aspects, one concerning the more general interest of systematisation and the other the respect for individual rights. To cite the ICJ, it is ‘[…] to achieve the necessary clarity and the essential consistency of international law, as well as legal security, to which both the individuals with guaranteed rights and the States obliged to comply with treaty obligations are entitled.’40 Hence, it would be a missed opportunity in terms of effective promotion of the international rule of law and human rights, both permeating and shaping the international order well beyond the confines of the various single legal regimes, to not rely on the jurisprudence of those whose sole purpose is to supervise the application of these human rights standards. Now, in international criminal law, these questions are even more pressing, on the level of procedural and material legal standards alike for that matter, stemming in particular from the requirements of rule of law principles in the special context of criminal law. Because (international) criminal proceedings are always confronted with the need to balance the commendable purpose of global justice in cases of the gravest international crimes and human rights violations and the rights of the accused to a fair trial. The latter thereby touches upon the very heart of the debate on the legitimacy of international criminal justice. In this light, Paolo Lobba and Tristino Mariniello’s edited collection, Judicial Dialogue on Human Rights: The Practice of the International Criminal Tribunals, is a surprisingly late and, 39 International Court of Justice (ICJ), Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of Congo), Judgment 30 Nov. 2010, ICJ Rep. 2010, 639, paras 66-68. 40 Ibid., para. 66.

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for this reason, an even more welcome and recommendable addition to the debate. To start with, the book’s aim, as is the case with many of these types of collection of essays, is not to give but one straightforward answer as to how international criminal tribunals can do better. Hence, those who expect a complete picture of the current status of the work of the international criminal tribunals (ICTs)41 – may it be in their relations amongst themselves or in their relations between them and human rights judicial bodies – will not find it. But what the book actually does, and quite successfully so, is to offer the reader a critical engagement with the ongoing pursuit of more consistency and legal certainty by judges, practitioners, and scholars in the field of international criminal law and justice. By calling into question the overall positive narrative that often comes with the application of human rights standards in these trans-judicial settings, the contributions, each one on its own, but also as a collection, provide for the key elements for future deliberations on trans-judicial interpretative processes in the field of international criminal law. In that, and by presenting some first answers to the problem of systematisation of the field, the book deserves closer attention. It consists of five parts, each dedicated to one specific avenue to approach the inter-systemic communication between the ECtHR and the ICTs. The essays in the first part are interested in a methodology for judicial cross-referencing. All of the three contributions by Sergey Vasiliev (13-39), Julia Geneuss (40-55), and Christoph Burchard (56-70) analyse the question of systematisation through rules of context aware interpretation or ‘translation’ and new forms of legal authority governing the judicial dialogue. Their overall argument is that one could not only attenuate the effects of missing checks and balances, but also tackle the ambivalent practice of a judicial reasoning that, at times, is rather inspired by (legal) pragmatics instead of analytical judicial standards. Vasiliev, concerned with ‘[t]he informal and discretionary character of judicial dialogue’ between the ECtHR and the ICTs (15), presents the reader a set of principles: first, to avoid false analogies; second, to restate and apply legal tests accurately; third, to appreciate the context of jurisprudence; and finally, to readjust legal tests, where appropriate. Geneuss’s contribution very convincingly picks up where this first chapter left off, namely as regards the question of legal authority. The phenomenon of ‘cross-fertilization’42 of human rights standards within the inter-judicial dialogue between the ECtHR’s case law and international criminal law proves to be a perfect example of challenges an interpretative authority faces in an inter-systemic setting. Who, and to what extent possible and necessary, guarantees the systematic application and interpretation of ECtHR’s jurisprudence in the new context, whilst equally being aware of the specificity of an (effective) international criminal justice? The Concept of ‘Directory Authority’ therefore submits that ECtHR case law should be translated to the ICTs’ context based on a ‘persuasive authority’ (52-55).43 On the one hand, judges of the 41 By international criminal tribunals the editors in their foreword refer not only to the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). In some of the contributions the International Criminal Court (ICC) (e.g. chapters 4, 5, and 14) is equally addressed. 42 See Antje Wiener and Philip Liste, ‘Lost without Translation? Cross-Referencing and a New Global Community of Courts’ 21 Indiana Journal of Global Legal Studies (2014) 263 at, 264, 266, 268, and 270, cited by Geneuss at 41. 43 Working with the concept of ‘persuasive authority’ by Frederik Schauer, ‘Authority and Authorities’, 94 Virginia Law Review (2008) 1931, at 1946.

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ICTs are obligated to consult it, whenever confronted with human rights law, yet can decide themselves as experts of their legal domain and after a thorough review how to translate the ECtHR standard into the context of their own court. The second part looks at the law and practice of the ICTs, with an equally doctrinal as well as foundational analysis of how to interpret the ‘multifaceted term’ of ‘internationally recognized human rights’.44 Volker Nerlich makes a compelling argument for a broad, yet differentiated understanding of the term ‘internationally recognized human rights’, taking into account the complexity of the sources doctrine in human rights law (73-89). Meanwhile Deprez argues for a ‘mandatory judicial dialogue’ between the International Criminal Court (ICC) and human rights that emphasises the bindingness of this human rights jurisprudence for the ICC (90-108). The part closes with an interesting juxtaposition of a quantitative analysis of ICTY references to the jurisprudence of the ECtHR by Frauke Sauerwein (109-128). The third part turns to the more substantial area of ‘cross-fertilization’, namely crimes and punishment. It is therefore the most explicitly criminal law-oriented part of the book. The first two contributions specifically examine the principle of legality and thereby address heavy weighing concerns as to the how inconsistent cross-referencing paired with statutory vagueness can negatively influence the already problematic practice of sentencing at the ICTs. In the last two chapters of this part, Elena Maculan (184-202) and Elizabeth Santalla Vargas (203221) turn to the widely debated question regarding the general definition of torture as an offence adopted by the ICTs. Since they both come with their own very distinct perspective, but share the same concern, namely the disregard for a strict reading of the ne bis in idem principle, they both help the reader to understand the ambiguities that can come with transjudicial harmonisation that at times can interfere with the complex structure of international crimes and their legal elements. The fourth part has a particular concern for the real life impact an epistemic practice of unsystematic cross-referencing can bring about. It draws a rather worrisome picture, when it comes to the cross-referencing of ECtHR case law and how that actual instrumental usage taints the fairness of criminal proceedings at the ICTs. Therefore, it presents the other side of the spectrum, the discontents, so to speak, to which human rights cross-referencing (paradoxically) can lead, in particular when one thinks about the right of the accused. Yvonne McDermott therefore rightly highlights that one has to remain cautious as to the ICTs’ selective approach to the ECtHR’s case law on the right to a fair trial (225-242).45 This is because, at times, such an approach does not sufficiently take into account that simply balancing the right of the accused to confront the witness against the rights of the victims might not be completely convincing in the context of ongoing international criminal proceedings. With this last chapter in particular, this collection holds to true to its promise to offer a counternarrative in theory and practice to the widespread optimistic attitude towards judicial dialogue between the ICTs and the ECtHR. In sum, the book contains many valuable strands of investigation into the problems that come with the judicial ‘transfer’ of human rights jurisprudence onto the international criminal 44

Cf. Art. 21(3) Rome Statute of the International Criminal Court 1998, 2187 UNTS 90. Citing, for example, European Court of Human Rights, Chamber, Doorson v Netherlands, Appl. No. 20524/92, Merits and Just Satisfaction, Judgment, 26 March 1996, in particular para. 70. 45

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plane through the work of the different ICTs. It also provides new methodological perspectives, substantive insights, and hence sound starting points for future research for those mainly interested in international criminal law as a coherent legal system. However, beyond that and, if read against the wider discussion on judicial dialogue and the proliferation of courts, it lays meaningful grounds for a wider exchange between the wrongly isolated epistemic discussions in general international law and international criminal law on judicial dialogue on human rights from which both legal fields could but benefit. SARAH IMANI, LL.M. (NYU) Research Associate Walther Schücking Institute for International Law

Stefanie Schmahl and Marten Breuer (eds.), The Council of Europe – Its Law and Policies. Oxford University Press, Oxford 2017, 986 pages, ISBN 9780199672523. The Council of Europe seated in Strasbourg in Alsace is one of the most famous regional international organisations in the world. In the past, it was most prominently described by the former president of the French republic Charles de Gaulle as the ‘dormant beauty on the banks of the Rhine’. With its miscellany published in 2017 Stefanie Schmahl and Marten Breuer are shedding light on the international organisation and its triune goals of the promotion and protection of human rights, democracy, and the rule of law in Europe. Stefanie Schmahl and Marten Breuer’s miscellany is divided into four major parts. Its 27 contributing authors, being professors, practitioners at the Council of Europe or its sub-organs or former employees thereof, from a broad variety of European countries, describe in a grand number of 38 chapters the general aspects (part I), the institutions (part II), the tasks and objectives of, and the impact and outreach of the Council of Europe. Part I depicts the general aspects enshrined within the Council of Europe. While Norman Weiss describes the origins and the development (chapter 1) of the Council of Europe, Christian Walter shows its foundation, being the Statute as the ‘constitution’ of this European international organisation and means to interpret it and the amendment procedure (chapter 2). Further, within the other chapters in part II (chapter 3-5) the membership, the seat and symbols, and the general budget of the Council of Europe are shown and give the reader the general setting to understand how this institution was set up, is still maintained financially, and which enlargement process it underwent in the last decades to become the international organisation it is today. Part II focuses on the key players within the organisation, namely the institutions either already set up by the Statute, e.g. the Committee of Ministers (CM), the Parliamentary Assembly (PACE), and the Secretariat, or by a convention to which all Member States are party, e.g. the European Court of Human Rights (ECtHR) installed by the European Convention of Human Rights (ECHR). Simon Palmer and Philip Leach describe in chapters 6 and 7 the

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composition, the tasks, and working methods of the two main organs within the Council of Europe, the CM and the PACE. Critics might say that especially with regard to those two major organs one would have expected a more in-depth analysis as for instance with regard to the interplay and the competences between those two major organs of the Council of Europe. Nonetheless, the elaborations especially within chapter 6 remain rather descriptive and do not give an analysis entirely from a legally-versed point of view, but may be helpful for anyone taking a first glance at this specific institution. In chapters 8 and 9 Matthias Ruffert and Elisabeth Lambert Abdelgawad discuss the Secretariat and the poster child of the Council of Europe, the ECtHR, in terms of to their constitutions, tasks, and working methods. A minor misunderstanding in chapter 8 then leaves the reader with a little smile on his face, when it says ‘there has been no female Secretary General [of the Council of Europe] so far’ (215) and the table on the next page shows Catherine Lalumière as being Secretary General from 1989 until 1994. In chapters 10 and 11 Bert Schaffarzik and Oliver Dörr demonstrate the origins, tasks, and activities of the Congress of Local and Regional Authorities and the Commissioner for Human Rights. Further, chapter 12 about the Conference of International Non-Governmental Organisations (NGOs) of the Council of Europe written by Heike Krieger is notable, as it shows the important work NGOs provide in ‘fostering Human Rights in front of the European Court of Human Rights and the European Committee on Social Rights’. At the same time the chapter does raise critical voices as to the financing of some NGOs because of their counter-majoritarian approaches and poses questions as to who is entitled to participate in democratically-legitimised decision-making. At its end part II also encompasses chapters (chapters 13-21) about the Council of Europe’s Administrative Tribunal serving to solve intra-Council of Europe staff disputes, its own Development Bank, the European Directorate for the Quality of Medicines and Healthcare (EDQM), the cultural institutions such as Eurimages, the European Centre for Modern Languages, the co-operation Group to Combat Drug Abuse and Illicit Trafficking in Drugs, the European Centre for Global Interdependence and Solidarity (North-South Centre), the European Audiovisual Observatory and the Group of States against Corruption (GRECO). In part III the tasks and objectives of the Council of Europe are shown (chapters 22-35). This part especially focuses on the broad variety of contents the Council of Europe covers with its work and the special safeguards it guarantees by the preparation of specific conventions. One of the most important and successful conventions of the Council of Europe is covered thematically by Oliver Dörr (chapter 22), which illustrates the historical development, the scope and substantive guarantees, and the system of supervision of the ECHR. Further, the European Social Charter, the Conventions on the Protection of National Minorities, the Convention on Human Rights and Biomedecine, the anti-discrimination policy, the Core Monitoring Mechanisms, and related activities are handled in the subsequent chapters (chapters 23-27). Moreover, the Council of Europe’s rule of law concept and the standard-setting instruments are described by Marten Breuer (chapter 28). Christian Walter and Ursula Kilkelly show how and on which footing terrorism and organised crime can be fought by the Council of Europe’s work and how children’s rights can be protected (chapters 29-30). Robert Uerpmann-Wittzack

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and Christoph Grabenwarter illustrate the recent convention on data protection, which also served as a blueprint for other data protection conventions (chapter 31) and how the Venice Commission serves its objective of constitutional standard-setting and strengthening of democratic values in the Council of Europe’s Member States (chapter 32). Kerstin Odendahl (chapter 33) shows that the Council of Europe is also active in the field of securing and enhancing the Common Cultural Heritage and describes the three periods of work the Council of Europe went through in this area of law in the past. She argues that it should, in the future, work on an all-encompassing ‘convention on the intangible heritage in order to protect the richness and diversity of the European traditions, music, knowledge’ and that the role of the Council of Europe is still valuable in this thematic area. Matthias Niedobitek and Norman Weiß conclude part III with showing the cross-border cooperation and the programmes of cooperation and solidarity by the Council of Europe (chapter 34-35). Finally, part IV analyses the impact and the outreach of the Council of Europe. Marten Breuer shows in chapter 36 the impact of the Council of Europe’s legal instruments on the National Legal Systems and quotes inter alia Jörg Polakiewicz, the Director of Legal Advice and Public International Law Council of Europe, who qualified the ECHR and its Protocols as one of ‘the most prominent examples of self-executing treaties’. However, he also contends that the impact of the Council of Europe’s legal instruments still depends on the qualification of the legal system of a Member State as a monist or dualist country. Stefanie Schmahl then positions the Council of Europe in chapter 37 within the international order especially in relation to the United Nations and the European Union and shows the Council of Europe’s cooperation with other prominent international organisations (e.g. the European Free Trade Association, the Organization for Security and Co-operation in Europe, and the Organisation for Economic Co-operation and Development. In its final appraisal Marten Breuer concludes (chapter 38) that ‘Churchill’s prophetic words of creating some sort of “United States of Europe” have not materialized’, however the advantage of the Council of Europe is lying within its intergovernmental character and in the end this has led to permeate the law and reality of the Member States of the Council of Europe. In conclusion, Schmahl and Breuer’s edited volume gives a broad overview and serves as an insight into the most prominent regional international organisation. Because of its thematic breadth, it may serve on the one hand as a practitioner’s handbook despite certain topics being sprinkled over the entire collection and the overlapping of specific themes throughout the miscellany, which cannot be precluded – given the number of chapters and contributing authors. On the other hand, it serves as a means of (first) information about certain areas of the Council of Europe for anyone interested in the work, objectives, institutions and suborgans, and conventions of the Council of Europe. Finally, the history of the Council of Europe is, by and large, a successful one. This miscellany describes almost all layers of this pan-European international organisation – encompassing all European countries – with the exception of Belarus. As of 2017, it describes a status quo of the organisation, which we might not see in this shape in the near future - as the Council of Europe is going through a tough period especially with regard to certain Member States which might soon be breaking off from the organisation. Sceptics might say that this miscellany

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might be a testimonial of an organisation, which through expansion of topics also sought for new fields of activity and which might be streamlined and be seen in a different organisational structure in the near future, as depicted by this book. THOMAS HOPPE, LL.M. (Virginia) Doctoral Candidate Walther Schücking Institute for International Law