Hague Yearbook of International Law / Annuaire De La Haye De Droit International: 2020 (Hague Yearbook of International Law / Annuaire De La Haye De Droit International, 33) 9004518207, 9789004518209

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

Hague Yearbook of International Law 2020 Editor-in-Chief Prof. Jure Vidmar Vice-Editor-in-Chief Dr. Ruth A. Kok Editorial Board Dr. Julian Arato, Dr. Nikos Lavranos, Dr. Daniel Peat, Dr. Daniel Rietiker Managing Editor Sarah Thin Email address [email protected] Advisory Board Serge Brammertz (Chief Prosecutor of the International Residual Mechanism for Criminal Tribunals) – Antônio Cançado Trindade ( Judge at the International Court of Justice (ICJ)) – Jacomijn J. van Haersolte-van Hof (Director General of the London Court of International Arbitration and University Professor at Leiden University) – Peter Hilpold (University Professor at Innsbruck University (Austria)) – Bruno Simma (( former) Judge at the ICJ) – Olivia Swaak-Goldman (( former) Head, International Relations Task Force, Office of the Prosecutor, International Criminal Court (ICC) and Executive Director, Wildlife Justice Commission)

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

HAGUE YEARBOOK OF INTERNATIONAL LAW ANNUAIRE DE LA HAYE DE DROIT INTERNATIONAL VOLUME 33

2020

Edited by

Jure Vidmar, Ruth Kok et al.

leiden | boston

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. issn 0167-6660 isbn 978-90-04-51820-9 (hardback) isbn 978-90-04-51821-6 (e-book) Copyright 2022 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Nijhoff, Brill Hotei, Brill Schöningh, Brill Fink, Brill mentis, Vandenhoeck & Ruprecht, Böhlau and V&R unipress. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Requests for re-use and/or translations must be addressed to Koninklijke Brill NV via brill.com or copyright.com. This book is printed on acid-free paper and produced in a sustainable manner.

Contents Editorial Jure Vidmar 1 The Death Knell of Forum Prorogatum or: How the ICJ Missed its Opportunity to Generate its Own Jurisdiction Leoni Ayoub

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2 Provisional Measures of the International Court of Justice: Recapturing the Plausibility Test as Foreshadowed Dimitris Kontogiannis

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3 Outside the Margin for Error: The Invalidity of the Philippines’ Withdrawal from the Rome Statute Gemmo Bautista Fernandez

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4 A Dual Threshold: Understanding the Test for Apprehended Bias at the ICC Jennifer Keene-McCann 5 Jurisprudential Failures: How Systemic Judicial Errors in Both the United States Supreme Court and the European Court of Human Rights Perpetuate Law Enforcement’s Racially Motivated Violence Mary Levine

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6 The International Humanitarian Law Principle of Distinction and UN Peace Support Operations’ Deployment Objectives – Conflicting Approaches and Undesirable Outcomes? 191 Charuka Ekanayake 7 Global Pandemic and the Regionalisation of Security Ursula Werther-Pietsch

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8 The Rise of Private Regulation in International Arbitration: How the World Intellectual Property Organisation and the Court of Arbitration for Art Try to Shape Artwork Dispute Resolution Henrique Lenon Farias Guedes and João Victor Porto Jarske 9 Football-Related Corruption as a Human Rights Issue: The Case of Michel Platini v. Switzerland before the European Court of Human Rights (Inadmissible, 11 February 2020) Daniel Rietiker

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Editorial Beyond the Territorial Paradigm of International Law: Should We Distinguish between Substantive and Procedural Definitions of the State? In the contemporary world, nearly all land on Earth is divided between states. The delimited land surfaces constitute state territories. The sea adjacent to the land constitutes territorial waters of the state. The relationship between the state and the territory is a complex one. On the one hand, it is said that having a territory is a criterion of statehood under international law and a sine qua non of every state. On the other hand, there also appears to be a silent presumption in contemporary international legal doctrine that every territory on Earth should have a state. Indeed, the rules of international law are written with a territorial presumption in mind. The territory can crucially determine which rules of international law apply and how they ought to be applied. The whole structure of international law can thus end in limbo where territorial ambiguity exists. The complexity of the state-territory relationship also vexes the international judiciary. Palestine has acceded to certain international treaties as the State of Palestine. But does the State of Palestine actually have statehood? Does the State of Palestine have a territory; and does the Palestinian territory have a state? Palestine’s territorial ambiguity has prominently been in the background of judicial proceedings brought before the International Criminal Court (ICC) and the International Court of Justice (ICJ), respectively. 1

Palestine and the ICC

Palestine joined the ICC Statute in 2015 and subsequently made a reference under Articles 13(a) and 14 of the Statute. Article 13(a) is subjected to certain preconditions for the exercise of the ICC’s jurisdiction which are regulated in Article 12. This Article, inter alia, provides:

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In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3: (a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft. Once it was accepted that Palestine is a state party to the ICC Statute, the question appeared of whether this state party to the ICC necessarily has a territory, and where this territory is located for the purposes of Article 12(a) ICC Statute. The underlying question here was whether the concept of ‘state party’ to the ICC Statute necessarily implies a geographical (i.e. territorial) component of this legal entity. The question is especially relevant in light of the ICC’s position that the term state in the ICC Statute is explicitly detached from any legal meaning under the law of statehood (see Decision on the ‘Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine’, Pre-Trial Chamber I, ICC-01/18–143 (5 February 2021). Central to the pre-Trial Chamber’s reasoning was the applicability of the right of self-determination to the Palestinian people in the Occupied Palestinian Territory (paras 119–122). While the applicability of the right of self-determination of the Palestinian people in these territories is beyond dispute and has indeed been affirmed in a range of international fora, it is at least debatable whether the pre-Trial Chamber sufficiently substantiated the legal link between the applicability of the right of selfdetermination and defining the territory of this state party to the ICC Statute. In paragraph 123, the Chamber reasoned: The Chamber considers that, in light of the broad remit of the Appeals Chamber’s determination, it must also ensure that its interpretation of article 12(2)(a) of the Statute… is consistent with internationally recognised human rights. More specifically, the Chamber is of the view that the aforementioned territorial parameters of the Prosecutor’s investigation pursuant to articles 13(a), 14 and 53(1) of the Statute implicate the right to self-determination. Accordingly, it is the view of the Chamber that the above conclusion – namely that the Court’s territorial jurisdiction in the Situation in Palestine extends to the territories occupied by Israel since 1967 on the basis

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of the relevant indications arising from Palestine’s accession to the Statute – is consistent with the right to self-determination. The pre-Trial Chamber might have taken too far the provisions in the ICC Statute that require interpretation consistent with international human right law. The question here was not whether the right of self-determination applied to the Palestinian people, but whether Palestine – state party to the ICC Statute – had a territory and, if so, where. The right of self-determination applies to peoples, not to states or ‘states party’ to international treaties. And the right of self-determination does not automatically lead to a certain status under the law of statehood or create a self-executing territorial entitlement. The pre-Trial Chamber thus effectively said: Palestine is a state party to the ICC Statute and the Occupied Palestinian Territory is a defined territory where self-determination is applicable, but we do not need to decide whether Palestine has statehood. This problem was aptly identified by Judge Kovács in paragraph 245 of his Partly Dissenting Opinion: The real and persisting problem in answering the question concerning the geographical scope of the Court’s jurisdiction and the Prosecutor’s investigation is linked to the fact that, currently, there are no precise settled borders either at the bilateral Israeli-Palestinian level or at any multilateral level. Instead, UN Resolutions merely allude to the necessity of engaging in bilateral negotiations on the issue of borders, using varying formulas of the pre-1967 borders. These formulas are similar but not identical as the emphasis placed on the 1967 borders in each of them is far from being the same. Indeed, the right of self-determination does not automatically translate into the geographical scope of the State of Palestine and thus the ICC’s geographical jurisdiction. The Chamber did not convincingly explain why the territory of Palestine, state party to the ICC Statute, automatically overlaps with that of the Occupied Palestinian Territory. The legal ambiguities pertaining to international judicial proceedings involving Palestine are a consequence of an inadequate theoretical grounding of territorial status in international law. The question of Palestine points to a deeper conceptual problem of whether and/or for which purposes the procedural category of a ‘state’ in the context of international legal procedures necessarily overlaps with statehood as substantive legal status of a territory, and how one identifies a territory where the

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treaty law concept of ‘state party’ does not overlap with the legal status of statehood under general international law. The status of a ‘state party’ to a treaty does not necessarily imply a geographical dimension of that entity and its territorial legal status. It appears that something is missing in the puzzle where the Chamber says that Palestine is a state party to the ICC Statute and that this has nothing to do with the law of statehood, and then concludes that the territory of this state party is where the right of self-determination applies to the Palestinians. There is a sense that the attributes of statehood are nevertheless silently in the background where the Chamber refers to the right of self-determination in the territory of this state party to the ICC Statute. While the Chamber avoided the term ‘statehood’, it appears that it read the attributes of statehood into the term ‘self-determination’. 2

Palestine and the ICJ

The case of Palestine v United States is still pending before the ICJ. Article 34(1) of the ICJ Statute provides that ‘[o]nly states may be parties in cases before the Court’. The question is whether the ICJ now needs to decide whether Palestine is a state in order to decide its own jurisdiction. This could be very problematic; it would mean that the legal status of an entity could be determined as a side-effect of the ICJ’s procedural rules. The logic of such an argument would go as follows: the ICJ can only hear cases between states, so if the ICJ exercises its jurisdiction, the parties in the proceedings must be states. This would be an implicit reading of the ‘state requirement’ contained in an international treaty. Such implicit readings are not uncommon in international legal scholarship. We indeed often read in leading textbooks that since UN membership is only open to states, this is the ultimate confirmation that a UN member indeed is a state. If the logic of implicit reading of the state requirement in international treaties were correct, the ICJ would clarify Palestine’s legal status already by declaring the case inadmissible, e.g. if it found the situation as falling within the Monetary Gold principle. In order to apply Monetary Gold, the Court would indeed first need to have prima facie jurisdiction to hear a case between the two parties which would be, according to the implicit reading of the ‘state requirement’, enough to claim that Palestine was a party in the proceedings and thus a state. But this is clearly not the intention of the word ‘state’ when it is used for the purposes of interna-

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tional treaties and their procedural mechanisms, and where regulating an entity’s legal status is clearly not the object and purpose of the treaty. It is indeed common that international treaties refer to ‘all states’, ‘any state’ or ‘states party’. The problem then emerges how is it decided which entity is a state for the purposes of participation in international treaty regimes. The ‘state yardstick’ that has developed in international law is purely procedural in nature and detached from the law of statehood. The Vienna Convention on the Law of Treaties (VCLT) defines an international treaty as an agreement between states. Article 81 VCLT opens the Convention for signature to all States Members of the United Nations or of any of the specialized agencies or of the International Atomic Energy Agency or parties to the Statute of the International Court of Justice, and by any other State invited by the General Assembly of the United Nations to become a party to the Convention. Note that Article 81 VCLT (the ‘Vienna formula’) does not open the Convention to any entity that meets the Montevideo criteria or any other socalled objective criteria for statehood under general international law. It adopts a purely functional approach for the purposes of treaty participation and without any discussion about the entity’s legal status under the law of statehood. The ‘Vienna formula’ has also been applied in other treaties, not only in the VCLT context, and functionally used when a treaty says generically that it is open to any state, yet without specifying how the term state is to be understood for its purposes. This means that Palestine can participate in international treaty regimes that are generically open to any state. The legal situation at stake is nevertheless a bit different because the question is not whether Palestine can become a party to the ICJ Statute, but rather whether it can bring this case as a state non-party to the Statute. The question is now whether the ‘Vienna formula’ can be applied more broadly and beyond the process of joining a treaty. The actual effect of the ‘Vienna formula’ is that it defines the term ‘state’ for the procedural purposes of participation in a treaty regime and does so without any prejudice toward the entity’s territorial legal status. This means that where treaties refer to states party or non-party to that treaty (absent any other treaty definition), the default definition of the word ‘state’ follows the ‘Vienna formula’. This is not to say that either Article 81 or even the VCLT as a whole, are necessarily applicable. It only

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means that the ‘Vienna formula’ is functionally used even outside the VCLT context. While Palestine would not be joining a treaty in this case, it would still be participating in the treaty-established procedures. Treaties cannot adopt different functional definitions of the term ‘state’ when they refer to procedural participation of states party and of states nonparty. In both circumstances the yardstick should be the ‘Vienna formula’. If Palestine can participate in international treaty regimes or in certain procedural mechanisms established by international treaties, this has nothing to do with the statehood criteria or any other substantive rules governing the law of statehood. For these reasons, the ICJ can decide on its jurisdiction without discussing Palestine’s statehood. The ICJ could here once again draw a line between substantive and procedural law. It could say that membership of a specialised agency of the UN gives Palestine the procedural capacity to bring this case, while this has no substantive implications for Palestine’s legal status under general international law. It is sometimes suggested that Palestine’s legal capacity was created by its status as a non-member observer state in the UN in 2012. Attempts have also been made to attach certain implicit meanings to the phrasing ‘non-member state’. However, the status of a non-member observer state in the UN is not grounded in any treaty. This is an informal extra-Charter club. Moreover, some previous members of this informal club were actually not states at all, or at least had contested legal status (e.g. Austria prior to 1955, East Germany between 1972 and 1973, Bangladesh between 1973 and 1974, South Vietnam between 1952 and 1976). What gave Palestine the legal capacity to enter into international treaties and even bring a case to the ICJ is its UNESCO membership. As UNESCO is a specialised agency of the UN, this was Palestine’s window into the ‘Vienna formula’. Note that the status of a non-member observer state in the UN does not have such effects. If one were willing to accept that states can be created as a procedural side-effect of international treaty organs, one could also conclude that a two-thirds majority in the UNESCO General Conference has the power to create states (see Article 2(2) of the UNESCO which uses the phrasing ‘states not members of the [UN]’ and makes new admissions contingent on a two-thirds majority in the General Conference). Again, however, the ‘Vienna formula’ is not about the substantive law of statehood. It is a procedural yardstick. UNESCO membership gave Palestine the legal capacity to participate in international treaty regimes via the ‘Vienna formula’. But the ‘Vienna formula’ is not there to create states or clarify international legal status.

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It understands the term ‘state’ for certain functional purposes of participation in international treaty regimes. Some international treaties create complex procedural mechanisms and independent treaty organs. When an entity becomes a party to these procedural mechanisms, this has no implications for the substantive legal status of the entity. After all, even the UN has had two fully-fledged non-state members, Belarus and Ukraine, while they still were Soviet republics. For these reasons, the ICJ does not need to consider Palestine’s status under the law of statehood when deciding on its jurisdiction in the case at hand; and vice versa, if the ICJ does exercise its jurisdiction, Palestine will not become any more or less of a state than it is now. 3

Looking beyond the Territorial Paradigm: A Call for More Conceptual Clarity

The law of statehood should be seen as being substantive in nature, while the treaty procedures that refer to states party should be seen as being procedural in nature. If an entity is procedurally a state party for the purposes of a certain treaty, this does not create or confirm its statehood. The distinction is not without difficulty, not least because the difference between international procedural and international substantive law on a theoretical level remains somewhat unexplored and undefined. Furthermore, in some borderline examples the line can be ‘hazy’ in all legal systems and their mechanisms of adjudication, not only in international law. The approach does have some doctrinal recognition. The ICC recently explicitly detached the question of Palestine’s statehood from its procedural capacity to join the ICC Statute and participate in its procedures. The ICC’s dealing with Palestine also points to the major problem of the approach whereby the state requirement in international treaties is detached from the statehood requirements under general international law. If an entity is procedurally a state party to a certain treaty, can it be assumed, and if so for which purposes, that it has certain substantive attributes of statehood? While the law of statehood requires a state to have a territory, it is questionable whether it can be automatically assumed that a state party to a certain treaty also has a territory. In other words, can it be assumed that a state party to a treaty must also have a geographical dimension or is ‘state party’ purely a concept of treaty law? After all, the ‘Vienna formula’ does not define a territory. The consequence of detaching the term ‘state party’ to a treaty from the law of statehood is that

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in some situations the procedural term state under treaty law does not overlap with the term ‘state’ under the law of statehood, which in turn leads to the problems of territorial applicability of that treaty. Greater theoretical nuance will be needed in the future to explain the relationship between the two concepts: the procedural state under treaty law and the substantive statehood under general international law. Despite some theoretical uncertainties and practical difficulties associated with the detachment of the treaty law term ‘state party’ from the law of statehood, international treaty practice demonstrates that such a detachment exists in legal doctrine, although it may not always be thoroughly preserved. More conceptual clarity is thus needed in international legal doctrine to prevent further conflations of the term ‘state party’ in the context of international treaties with the presumed territorial attributes of the state under the law of statehood. Professor Jure Vidmar Chair of Public International Law, Maastricht University Editor-in-Chief, Hague Yearbook of International Law

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The Death Knell of Forum Prorogatum or: How the ICJ Missed its Opportunity to Generate its Own Jurisdiction Leoni Ayoub* Abstract

Described as the granting of jurisdiction after the initiation of judicial proceedings, the principle of forum prorogatum was a doctrine that appeared in the earliest of cases before the Permanent Court of International Justice, creating hopes for those who favour a rigorous international court whose jurisdictional powers are not constrained by strict notions of State consent. Nevertheless, rather than taking off and becoming a fundamental jurisdictional tool at the hands of the Court, forum prorogatum has gradually come to be viewed as a dangerous principle that would jeopardise the standing and function of the Court. Even as the principle was incorporated into the Rules of the Court, it eventually retreated into the black and white pages of textbooks on international law, awakening on extremely rare occasions and only as an afterthought to the main decisions on jurisdiction. With an emphasis on the public function the International Court of Justice seeks to fulfil and the potential law-making nature of enhancing the role of unwritten principles, this article examines the journey of forum prorogatum through the use of judicial activism and judicial restraint by the International Court in order to understand its role and function as a judicial institution in the resulting slumber of the principle of prorogated jurisdiction. Keywords Forum prorogatum – judicial activism – judicial restraint – Article 36 jurisdiction – judicial law-making.

* LLM., Ph.D. (Maastricht University). Contact: [email protected]. I would like to express my deepest gratitude to Prof. dr. Jure Vidmar for his help and support.

© Koninklijke BRILL Brill NV, LEIDEN, Leiden, 2022 | DOI:10.1163/9789004518216_003 2022 | doi:10.1163/9789004518216_002 © KONINKLIJKE

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Introduction

The granting of jurisdiction upon the International Court of Justice (ICJ) is considered to be a straightforward affair (though not necessarily so in practice): jurisdiction ratione materiae in contentious proceedings is granted by the consent of the States to which the Court is open and has jurisdiction ratione personae.1 Questions arising out of jurisdiction are traditionally resolved by reference to Article 36 of the Statute of the International Court of Justice (ICJ Statute);2 and, in order to be a party, a State must either be Members of the United Nations (the UN) (Article 34 ICJ Statute), have acceded to the Statute of the Court by virtue of Article 93(2) of the UN Charter (the UNC) or have submitted to the jurisdiction of the Court on a one-off basis under Article 35 of the ICJ Statute. Left out of many introductory courses on the International Court of Justice, however, is a principle that lingers in textbooks on international jurisdiction3 and the Rules of the Court,4 that is brought out and dusted every three decades or so before it returns to its peaceful slumber thereafter: the principle of forum prorogatum.5

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‘Part Three: Jurisdiction of the Court and the Procedure followed by it’, ICJ Yearbook 2017–2018 at p70. It is recalled that jurisdiction has been taxonomised into four separate categories: ratione personae (personal jurisdiction), ratione materiae (subject-matter jurisdiction), ratione temporis (temporal jurisdiction) and ratione loci (special or territorial jurisdiction). Essentially, these four categories allow one to ask and answer the following questions: ‘Who are the parties to the dispute? What are the issues that can be discussed? When did the dispute arise? And where did the events in question occur?’ – see Yuval Shany, ‘Chapter 36: Jurisdiction and Admissibility’ in Cesare P. R. Romano, Karen J. Alter, and Yuval Shany (eds.) The Oxford Handbook of International Adjudication (Oxford University Press 2013). Charter of the United Nations and Statute of the International Court of Justice (adopted 26 June 1945, entered into force 24 October 1945) 892 UNTS 119. Rosalyn Higgins, ‘Speech by H.E. Judge Rosalyn Higgins, President of The International Court Of Justice, To The Sixth Committee of The General Assembly’ (Statements by the President, International Court of Justice, 31 October 2008) last accessed 4 December 2020. Judge Higgins has characterised forum prorogatum as ‘long thought in the textbooks on jurisdiction to be a dead letter’ International Court of Justice, Rules of the Court (adopted 14 April 1978). Ibid.

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What Is Forum Prorogatum?

The principle of forum prorogatum, also known as prorogated jurisdiction,6 is traditionally understood as the extension of a court’s ordinary jurisdiction, by agreement of the parties, to cover certain aspects of their disputes which would otherwise be outside that jurisdiction.7 In the context of the ICJ, it is a doctrine that arises when there is no basis upon which the Court’s compulsory jurisdiction can be invoked and no previous ad hoc agreement exists under Article 36.8 Technically, it is recognised as ‘the jurisdiction to which parties have acquiesced through an ad hoc agreement’9 that is made between the parties and entered into force after (or ex post) the proceedings have been instituted.10 A concept traditionally acknowledged within domestic legal systems,11 in international law, it is considered to make way for the acceptance of the jurisdiction of an international court or tribunal12 in instances where the State has not previously consented to, or where it has not been provided for in any international legal act ex ante, be it in the form of a treaty, a declaration or special agreement, or any text which may attributed the name of ‘title of jurisdiction’.13 In practice, forum prorogatum now appears as a unilateral application inviting a named Respondent State (one that is 6 7

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Found in Ibrahim I. Shihata, The Power of the International Court to determine its own Jurisdiction (The Hague, Martinus Nijhoff, 1965) 129. Mohammed Bedjaoui, ‘The Forum Prorogatum Before the International Court of Justice: The Resources of an Institution or the Hidden Face of Consensualism’ ICJ Yearbook 1996–1997 at p 216 and Sienho Yee, ‘Forum prorogatum returns to the International Court of Justice’ (2003) 16 Leiden Journal of International Law 701–71. Sir Gerald Fitzmaurice, On the Law and Procedure of the International Court of Justice (Vol II, 1986). Definition found in Aaron X. Fellmeth and Maurice Horwitz, Guide to Latin in International Law (Oxford University Press, 2009). Shabtai Rosenne, The Law and Practice of the International Court, 1920–2005 (Brill/ Nijhoff, 2006) – ‘Chapter 11: Treaties and Conventions in Force’ 637–699. Forum prorogatum has its origins in domestic law although it does not necessarily reflect the same principle (see Shabtai Rosenne, ‘International Courts and Tribunals, Jurisdiction and Admissibility of Inter-state Applications’ in MPEPIL (2006). Admittedly, this applies only to the ICJ but this introduction aims to make a more generalised introduction to the principle itself. There has only been on other court that has mentioned forum prorogatum, namely the African Court on Human and Peoples’ Rights in the case of Michelot Yogogombaye v. Republic of Senegal (Judgment) App. No. 001/2008. These are identified in Article 36 of the ICJ Statute that stipulates the methods through which the jurisdiction of the Court may be invoked.

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technically not yet considered a party to the case) to accept jurisdiction over a dispute and claim as formulated by the Applicant State.14 It is worth mentioning here that there are two recognised instances where forum prorogatum may arise. The first instance, when the court already has existing jurisdiction ratione personae but an aspect of the case ratione materiae is not included in the antecedent consent of the parties15 which is thereafter remedied by applying forum prorogatum when the State accedes to the jurisdiction for this additional aspect. In other words, the application of the principle arises when there exists a necessity to set right an instance of defective jurisdictional basis, in instances in which the instrument referred to in order to invoke the jurisdiction of the court was found wanting. The second instance of forum prorogatum is when the court has no jurisdiction over the dispute at all (for whatever reason) and jurisdiction is agreed upon de novo and ex post the application.16 2.1 The Application of Forum Prorogatum in International Law The most fundamental question that arises when considering the application of forum prorogatum in international adjudication is the commonly encountered issue of consent. The consent of the States forms the bedrock to the establishment of jurisdiction and competence before an international tribunal. Notably, it is recalled that international law regulates the behaviour of States, making States the principal actors on the international scene which are independent and sovereign.17 As a result, in order that any action be considered binding (an international treaty or court decision), it must be accompanied by State consent.18 As regards the ICJ, the settlement of international disputes is enshrined in Article 2(3) UNC (obligation of Member States to settle international dispute peacefully) which remains dependent on the consent of the State in question.19 Indeed, if there is one uncontroversial principle in public in14 15 16 17 18 19

Rosenne (n 10). See the next section with regards to the apparition of Article 38(5) of the Rules of the Court. Ibid. Ibid. Antonio Cassese, International Law (2nd Edition, Oxford University Press, 2004) 3. Ibid. This was recognised by the Permanent Court of International Justice (PCIJ), the predecessor of the ICJ, in Status of Eastern Carelia, Advisory Opinion, 1923, PCIJ Series B No.5 where the Court refused to provide an advisory opinion citing the difficulties associated with examining a dispute even in the form of advisory pro-

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ternational law, it is that no State is obliged to submit any dispute to any international adjudicative body without its prior consent, while phrases along the lines of ‘the Court’s jurisdiction depends on the will of the parties’ or that ‘jurisdiction only exists within the limits within which it has been accepted’ appear frequently throughout the PCIJ and ICJ judgments, indicating how the Court cannot proceed in any case without first establishing that the parties have agreed to adjudicate.20 In fact, taking the explanation of the principle of consent a step further, one cannot avoid the very irony of the existence of international courts: States choose whether to create a court in the first place, since the very existence of founding agreements of international courts come about as a result of agreements that States have consented to. Thus, the principle of forum prorogatum which would allow a court to adjudicate in an instance where it was not previously agreed upon, may be seen as a cause for alarm for the integrity of this principle of State consent. In essence, the idea of forum prorogatum as a concept goes against the traditional and agreed methods of establishing jurisdiction as enshrined in the UNC and the Statute and, partly, the Rules of the Court, according to which, as we saw above, the settlement of disputes can only take place under the pre-existing condition that the States have agreed to. The Problem with Forum Prorogatum in International Adjudication As the authority of international courts exists ‘only because and in so far as the parties have so desired’,21 the use of forum prorogatum in international decisions raises questions regarding the limits of what it is that State parties have truly consented to. Thus, even in instances when the State concerned does not explicitly contest the said recognition of the jurisdiction of the Court, questions arise as regards the possible boundaries which the judges in question may overstep by accepting a State’s ‘tacit’ or ‘implied’ consent. In such instances, the actions of the judges or 2.2

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ceedings without the cooperation of one of the parties and tied its concerns about consent to principles of fairness and effectiveness. Such wording is found in many decisions including the cases we shall be examining in the coming pages. Other decisions include but are not limited to: Case of the monetary gold removed from Rome in 1943 (Preliminary Question), (Preliminary Objections) [1954] ICJ Reports 19 and East Timor (Portugal v. Australia), (Merits) [1995] ICJ Reports 90. Declaration of Judge ad hoc Verhoeven, Armed Activities on the Territory of the Congo, (Merits) [2001] ICJ Reports 6.

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the Court are deemed to enter the realm of judicial law-making, rather than remaining within the accepted and strict concept of judicial lawfinding.22 To this extent, this leads us to instances where courts are considered to overstep the powers that are granted to them by their creators (namely, the States), they are frequently accused of engaging in judicial activism: an antonym for the principle of judicial restraint. Judicial activism and judicial restraint have been accorded so many disparate meanings that it is almost impossible to identify one single definition. Judicial activism, for example, has been defined as occurring when a judge deals with issues beyond those directly connected to the facts of the case at hand23 or, in the national context, as a the judge who is willing to overrule prior decisions and depart from stare decisis.24 In the same vein, judicial restraint is reflected in the judge who shows deference to the constitution, statute or the legislative power25 or when the Court ‘willfully abstain[s] from using the opportunity to provide clarification on a matter which is highly controversial’.26 For present purposes, our focus will remain on the more neutral, or commonly accepted, definition of judicial activism, namely that it consists of a ‘sense of judges modifying the law from what it previously was or was previously stated to be in existing legal sources, often thereby substituting their decision for that of elected representative bodies [(the States)]’.27 By extension, judicial restraint mandates that the judge ‘should exercise caution in the interpretation… out of deference to [States] who have the main responsibility… for enacting important legislative changes… [and]… should in particular

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Concepts introduced by Hugh Thirlway in ‘Judicial Activism and the International Court of Justice’, in Edward McWhinney, Nisuke Ando, and Rüdiger Wolfrum (eds.), Liber Amicorum Judge Shigeru Oda (First Edition; Dordrecht: Kluwer Law International 2002). Ibid. Mark Tushnet quoted in Dragoljub Popovic, ‘Prevailing of Judicial Activism over self-restraint in the Jurisprudence of the European Court of Human Rights’ (2008– 2009) 42 Ceighton LRev 361. Lara Pair, ‘Judicial Activism in the ICJ Charter Interpretation’ (2001–2002) 8 ILSA Journal of International and Comparative Law 181. This was in reference to domestic law. HE Judge Pieter Kooijmans, ‘The ICJ in the 21st Century: Judicial Restraint, Judicial Activism or Proactive Judicial Policy’ (2007) 56 ICLQ 4 741–753. Paul Mahoney, ‘Judicial Activism and Judicial Self-Restraint in the European Court of Human Rights: Two Sides of the Same Coin’ (1990) 11 HRLJ 57–88.

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refrain from stating any legal entitlements not already contained in the existing corpus of law’.28 The concepts of judicial activism and judicial restraint, coupled with the problems that arise as a result of the principle of forum prorogatum therefore create room for an analysis regarding the ways in which the PCIJ and the ICJ have dealt with this principle.29 The aim of this article is to examine how forum prorogatum came into the PCIJ’s and ICJ’s case law, how the principle has been applied or evaded, and whether such application (or lack of it) indicates a more proactive or restrained Court. We will begin by setting the stage for our subject but outlining the traditional recognition of consent and how jurisdiction is expressed and recognised by the International Court. We will also define the parameters which we will use to identify judicial activism and judicial restraint in analysing our case. We will then proceed to analyse the case where forum prorogatum was allegedly used through the lens of activism and restraint, before going on to evaluate how the ICJ has created a function as a result. Most notably, we will finally come back to the question of how the ICJ has used the principle to further its judicial agenda, if at all. 3

Recognition of Consent

In truth, the ICJ has been delegated a rather broad jurisdiction with the ability to adjudicate upon a wide spectrum of international disputes. This includes the ability to decide on any subject-matter that is referred to it by the State parties, and, in particular, any dispute arising out of the UN Charter or treaties or conventions in force that make such a reference possible. As noted earlier, the jurisdiction of the Court stems from an acceptance of its jurisdiction through the mechanisms provided for by Article 36(1) of the ICJ Statute, which explicitly states that ‘the jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter… ’. To this end, parties therefore agree to submit an existing dispute to the Court and recognise its jurisdiction explicitly.30 Article 36(2), stipulates that ‘state parties… may at any time 28 29 30

Ibid. Note that any reference to ‘the International Court’ or ‘the Court’ will refer to both these institutions either together or separately. ICJ Yearbook (n 1).

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declare that they recognise as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court’. Thus, since there exists no explicit indication as to how and when this occurs, it is understood that consent can be given ex ante through a compromissory clause, integrated within a treaty or convention, there is no pre-determined form to how consent to the jurisdiction of the ICJ is to be manifested.31 Along with Article 36, there is also Article 40 of the ICJ Statute which defines the manner in which cases are to be initiated before the Court, ‘either by the notification of a special agreement or by a written application’. Thus, again, there is no specific form as to the manner in which consent is to be manifested. Furthermore, we recall Article 34 and Article 35 on the Court’s jurisdiction ratione personae, that set out that parties can either be Members of the UN, acceded to the Statue of the Court by virtue of Article 93(2) or have submitted to the jurisdiction of the court on a one-off basis. Beyond these Articles, the 1978 Revision of the Rules of the Court brought about the introduction of Article 38(5) which now requests that parties specify, as far as possible, the provision on which the jurisdiction of the Court is said to be based. Even further, the change most crucial is that the application shall not however be entered in the General List, nor any action be taken in the proceedings, unless and until the State against which such application is made consents to the Court’s jurisdiction for the purposes of the case.32 31

32

It must be noted that the granting of consent ex ante has been recognised by the Court itself and has become an important component of all examinations of objections to jurisdiction in the proceedings before it. Thus, the Court refers to this type of consent as ‘compulsory jurisdiction’ most notably recognised in its decision Nottebohm case (Liechtenstein v Guatemala) (Preliminary Objection), [1953], ICJ Reports 122, where it refers to Article 36 of the ICJ Statute, stating that this article ‘determines the cases in respect of which the Court shall have jurisdiction’ and ‘indicates that the Court can deal with cases referred to it by agreement of the parties’ and thus ‘determines the field of application of which has come to be called the compulsory jurisdiction of the court’. The Court then defined compulsory jurisdiction as a result ‘from a previous agreement which makes it possible to seise the Court of a dispute without a special agreement, and that in respect of dispute subject to it, the Court may be seized by means of an application by one of the parties’. ICJ Yearbook (n 1).

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This indicates that the Respondent State must accede to jurisdiction in order for the case to be considered as a dispute recognised by the Court. This has arguably been the recognition of the principle of forum prorogatum into the methods of accepting jurisdiction of the court. Up until 2018, of the 17 applications made under this Article, only two were accepted by the Respondent party.33 4

What Does Judicial Activism or Restraint Look Like in Forum Prorogatum?

As we observed above, judicial activism is recognised to exist as a result of certain decisions or legal reasoning of the Court that counter the previously recognised boundaries placed upon its jurisdiction and function by the States that created it. With this in mind, in order to carry out an analysis of whether the Court has been activist or restraint, one must identify the indicators we are to use in order to make such an evaluation. As a result, one indisputable element of identifying judicial activism would be explicitly ruling in contrast to the will of the parties, or in contrast to the principle of State consent. This would not involve merely choosing one possible interpretation of an agreement or act over another but, in fact, explicitly going against what the parties to the dispute had indicated ex ante. Another indication of judicial activism involves changing the judicial procedures in flagrant opposition to the written Rules or Regulations or modifying the law from what it was previously accepted to be. This includes accepting new procedures or another interpretation in a manner that results in uncertainty as to the rules, the law, or the procedure to be followed. Furthermore, a clearly result-oriented decision can be a characteristic of both activism and restraint, since the result sought could indicate the mental state of the members of the Court in taking the decision. Finally, refusing to interpret or expand on a particular legal point raised by the parties would be an indication of judicial restraint. 5

The Historical Court

The first instance where the Court had to consider the consent to jurisdiction that was allegedly lacking at the initiation of the proceedings ap33

Ibid.

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peared as early as the Mavrommatis Palestine Concessions case34 in 1924, where the PCIJ chose to supposedly ‘correct’ a defective jurisdictional basis in order to assume its competence to adjudicate. The dispute relating to the jurisdiction of the Court concerned the extent to which it could decide on the whole of the concessions in the substantive dispute, given that a part of them were accorded by an agreement that had not yet come into force.35 Although the Court recognized that the agreement provided for jurisdiction over a part of the claims, it then found that, as a result of both written and oral proceedings, including the counter-claims and the passage of time, it also had jurisdiction over the remaining ones.36 To do this, the Court maintained that ‘even if the grounds on which the institution of proceedings was based were defective… [they]… would not be an adequate reason for the dismissal of the applicant’s suit’.37 The Court thereafter went on to characterise its function in its now infamous and often-quoted statement that ‘the Court, whose jurisdiction is international, is not bound to attach to matters of form the same degree of importance which they might possess in municipal law’.38 We can see at the outset how the previous expectations regarding form and procedure for applying to the Court were not considered as fundamental to the jurisdiction of the Court, an initial indication of activism. What is notable is the large emphasis given by the Court on the importance of consent as the only foundation of its competence to decide on the matter39 and emphasised that it cannot content itself with the provisional conclusion that the dispute falls or not within the terms of the Mandate. The Court, before giving judgment on the merits of the case, will satisfy itself that the suit before it, in the form in which it has been submitted and on the basis of the facts hitherto established.40

34 35 36 37 38 39 40

The Mavrommatis Palestine Concessions (Greece v United Kingdom), Preliminary Objections, 30 August 1924, PCIJ Publications Series A No. 2. Ibid. Ibid 27–28. Ibid 34. Ibid. Mohammed Bedjaoui and Fatsah Ouguergouz, ‘Le forum prorogatum devant la Cour internationale de Justice : les ressources d’une institution ou la face cachée du consensualisme’ (1997) 5 African Yearbook of International Law 91–114. Mavrommatis Concessions (n 34) emphasis added.

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This was irrespective of what the Respondent Party contended in the course of the proceedings and involved looking at actions of ‘consent’ that occurred after the initiation of the case before it.41 Furthermore, in the judgment on the merits of the case delivered just two years later, the Court reaffirmed that the consent of the parties can be expressed in an informal manner.42 This absence of previous formal consent was cured by subsequent consent given outside and without specific reference to the procedures of the Court43 which raises the question of how consent can be manifested and whether an ex post recognition of its manifestation is adequate judicial practice. This tendency to avoid the recognition of more formal or strict procedures to accept the jurisdiction of the Court and ultimately gave way to allowing adjudication of the matter which would have otherwise been technically difficult. The avoidance of the stricter procedures has shown a clearly judicially activist inception of forum prorogatum before the PCIJ.44 The above is considered to be ‘only an introduction to the leading case in this field’45 that took place a few years later. In the case of Upper Silesia (Minority Schools) the PCIJ took the recognition of the principle of forum prorogatum a step further.46 In this instance, a unilateral application was made on the assumption that the Court had a continued jurisdiction based on a treaty in force.47 In its initial response, the Respondent State argued its counter-claims without explicitly rejecting the jurisdiction of the Court, something it had only done in the subsequent filing of its Rejoinder. Interestingly, despite the objection, the Court went on to find that ‘acceptance… in a particular case is not… subordinated to the 41 42 43 44

45 46 47

Shihata (n 6) at 129. Orfeas Chassapis Tassinis, ‘The Preliminary Issues Posed by the Doctrine of Forum Prorogatum and the Case of Djibouti v France’ (2013) 15 International Community Law Review 483–503. Prof. C.H.M. Waldock, ‘Forum Prorogatum or Acceptance of a Unilateral Summons to appear before the International Court’ (1948) 2(3) International Law Quarterly 377–391. Notably, a similar approach was followed in Interpretation of Judgment No.3, Judgement, 26 March 1925, PCIJ Series A No. 4 where it construed that it had jurisdiction following a unilateral request for interpretation because the Respondent State had submitted observations regarding the request ‘without disputing the Court’s jurisdiction to give such interpretation’. This resulted in an ‘agreement between the parties’. Shihata (n 6) at 129. Rights of Minorities in Upper Silesia (Minority Schools), Judgement, 26 April 1928, PCIJ Series A No. 12 Shihata (n 6) at 129.

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observance of certain forms such as… the previous conclusion of a special agreement’,48 again rejecting the stricter forms of jurisdiction making way for judicial activism. It thereafter held that … there seems to be no doubt that the consent of a State to the submission of a dispute to the Court may not only result from an express declaration, but may also be inferred from acts conclusively establishing it.49 It ultimately stated that the written submissions ‘must be regarded as an unequivocal indication of the desire of a State to obtain a decision on the merits of the suit’.50 In other words, by asking the Court to dismiss the claim, the Respondent allegedly inadvertently asked the Court to examine the dispute, so granting jurisdiction. The PCIJ equated the act of responding to a claim and presenting submissions before the Court (without making reservations) to the act of consenting and accepting jurisdiction as granted by a written and express instrument. It found conduct, irrespective of the intended result, to be of equal probative value to words clearly indicating that a State consented, by describing that conduct as ‘an express declaration, indicated his desire to obtain a decision on the merits’.51 This indicated that the lack of words in themselves also reflect the express absence of an objection to jurisdiction. This reasoning taken by the Court goes to the very heart of the wording as found in the counter arguments of the Respondent, and thus converts the determination of jurisdiction into a question about how a response by the Respondent is to be interpreted.52 Through this lens, jurisdiction exists not as a result of explicit State consent but purely out of the circumstances that

48 49 50

51

52

Minority Schools (n 46) 23. Ibid 24. Ibid 24, where it also added: ‘The Court, however, holds that there is nothing in this Convention or in the principles governing the Court’s jurisdiction to prevent questions not falling within the category of those in respect of which compulsory jurisdiction is established, from being submitted to the Court by agreement between the Parties, notwithstanding the fact that the suit has been brought on the basis of the clause conferring compulsory jurisdiction’. Ibid 25 (emphasis added). Interestingly, this gives way to the acceptance of an offer as found in common law principles of contract law. See the discussion on Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Counter-claims) [1997] ICJ Reports 243, below (n 91). Yee (n 7).

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have resulted by merely appearing before the Court and responding to a claim, as a form of orally agreed consent. This finding of consent rested on the interpretation of the French word ‘débouter’ (to dismiss) which the Respondent had used when asking the Court to consider the claims made by the German Government (the Applicant), and its meaning as can be assumed in French law and applied in the particular case.53 The PCIJ reasoned that the use of the word débouter in the Counter-memorial was attached to the merits of the case, rather than the proceedings as a whole, and thus Poland (the Respondent) had requested a consideration of those individual merits and their dismissal. In interpreting the ‘ordinary meaning’ of the word, it took an approach that seemingly contradicted the intention of one of the parties. Whether this was in fact that ‘ordinary meaning’ or simply a meaning that suited the Court is also a question that arises especially since this was not a view shared by all Judges on the bench.54 Notably, in his Separate Opinion, Judge Huber disagreed with the approach of the Court and called upon the principle of jura novit curia, and argued that ‘when giving judgment in virtue of jurisdiction implicitly or explicitly recognized by the Parties, it must ex officio ascertain on what legal foundation it is to base its judgment upon the claims of the Parties’.55 Thus, ‘the Court’s jurisdiction is determined by the treaty or special agreement establishing that jurisdiction, and not by the contentions maintained by the Parties in the particular case’.56 This does not only recognise consent through the official arguments of the Government representatives before the Court (as opposed to their conduct in the proceedings, as the Court found) but requires a form of written, pre-determined, and explicit consent to jurisdiction negating the possibility of ad hoc consent to jurisdiction. If we compare this to our factors of judicial activism or restraint, we can see that it can be argued that the PCIJ in this instance not only interpreted the possibility of consent in a largely broad manner, beyond what the will of the parties may have been, but also ‘pulled

53 54 55 56

Ibid. Individual Dissenting Opinions to Rights of Minorities in Upper Silesia (Minority Schools) (n 46) were filed by: Judge Huber (at 48); Judge Nyholm (at 56); Judge Negulsco (at 67); and Judge Schucking (at 74). Dissenting Opinion to Minority Schools by Judge Huber at 53. Ibid 54.

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a rabbit out of its hat’57 when it simply proceeded to accept jurisdiction despite the lack of a previous procedural precedent in that regard. The approach the Court took in Minority Schools was subsequently reaffirmed in Chorzow Factory58 where the PCIJ found that the consent was ‘expressly’ granted through both the submissions and agreements of the parties. It arrived to this conclusion by claiming that, while analysing the submissions and contentions put forward, it needed to find ‘whether an intention on the part of the Parties exists to confer jurisdiction upon it’.59 Despite the fact that Poland (the Respondent) had submitted a preliminary objection that the Court had no jurisdiction, the Court found, nonetheless, that ‘this intention [to submit the dispute to the Court] can be demonstrated in a manner convincing to the Court’.60 The Court also stated that ‘[t]he fact that weighty arguments can be advanced to support the contention that it has no jurisdiction cannot of itself create a doubt calculated to upset its jurisdiction.’61 Essentially, the Court held that there is no reason to decide otherwise when the intention of submitting a matter to the Court for decision has been implicitly shown by the fact of arguing for the merits without reserving the question of jurisdiction.62 6

The Arrival of the ‘New’ Court

The principle of forum prorogatum did not take long to appear before the ICJ, when it arose in its very first dispute in the Corfu Channel case.63 The Court found that the Respondent (Albania) had unmistakably accepted 57 58 59 60 61

62 63

A term used by Stefan Talmon, ‘Determining Customary International Law: The ICJ’s Methodology between Induction, Deduction and Assertion’ (2015) 26(2) EJIL 417–443. Case Concerning the Factory at Chorzów (Germany v Poland), Jurisdiction, 26 July 1927, Series A No.9. Ibid 32. Ibid. Ibid. Most notable is that at the time, there was a simultaneous revision of the Rules of the Court, with a proposal suggested that would require unilateral applications to institute proceedings to also mention the basis of jurisdiction upon which the applicant State was proceeding. This was not, however, followed through since the possibility of rejecting an application for lack of treaty basis upon which it is founded would not be the in the ‘interests of international justice’ – see Preparation of the Rules of the Court of January 30th, 1922, PCIJ Series D No. 2 69 Rosenne (n 10). Corfu Channel Case (Preliminary Objections) [1948] ICJ Reports 15.

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jurisdiction through a letter written by the Deputy Foreign Minister within which, although he contested jurisdiction, he also noted that ‘[Albania] is prepared… to appear before the Court’ and appointed an agent for the case. Confusingly, Albania then appeared before the Court contesting jurisdiction, basing its objections not on the absence of consent which seems to have been of secondary importance to it, but instead on the absence of reliance of a specific provision by the Applicant (the United Kingdom) as an obstacle to the formal admissibility64 of the application. In dealing with this matter, the Court maintained its predecessor’s approach of according importance to the actions and statements of Albania rather than the procedural gaps of the ICJ Statute and the Rules of Court. It chose to read the words ‘acceptance of the Court’s jurisdiction for this case cannot constitute a precedent for the future’ 65 as constituting a ‘voluntary acceptance of its jurisdiction’66 and added: While the Consent of the parties confers jurisdiction on the Court, neither the Statute nor the Rules require that this consent should be expressed in any particular form… there is nothing to prevent the acceptance of jurisdiction as in the present case, from being effected by two separate and successive acts, instead of jointly and beforehand by a special agreement.67 It is therefore the letter, in conjunction with Albania’s actions (including appointing an agent) that led to the Court finding an express consent by that Government. Furthermore, and quite notably, the Court also stated that ‘[it] cannot therefore hold to be irregular a proceeding which is not precluded by any provision in these texts’,68 thus taking a position of ‘that which is not prohibited, is permitted’.69 Whether this is reflective of judicial activism, however, is doubtful. The vacillation of the Respondent State, coupled with the duality in the wording of the letter were evident and provided enough clarity as to allow the Court to take the decision 64 65 66 67

68 69

A term used by Tassinis (n 42). Corfu Channel Case (n 63) at 8. Ibid 15. Ibid. The Court went on to add ‘As the Permanent Court of International Justice has said… . “The acceptance by a State of the Court’s jurisdiction in a particular case is not, under the Statute, subordinated to the observance of certain forms, such as, for instance, the previous conclusion of a special agreement.”’ Ibid 15. Yee (n 7).

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that it would not let the indecisiveness of a State allow it to avoid its legal obligations. At the same time, we cannot identify any of the clearly activist characteristics we named above, since precedent was scarce and the will of this particular party was unclear. The final case in which the Court accepted jurisdiction by applying the principle of forum prorogatum without a particular jurisdictional basis70 and transformed a unilateral application into a contrat judiciaire, as it has been called,71 was that of Haya de la Torre72 where the Court was requested to clarify the manner in which the decision of its Asylum73case was to be executed. In the unilateral application, no particular basis of jurisdiction had been indicated through which the case could be admitted to the Court, while the Respondent State made no objection to the jurisdiction. In that regard the Court held that the parties have in the present case consented to the jurisdiction of the Court. All the questions submitted to it have been argued by them on the merits, and no objection has been made to a decision on the merits. This conduct of the Parties is sufficient to confer jurisdiction on the Court.74 The language used in this decision has been held to have been consistent with the case being one of ordinary consent ad hoc while the circumstances, absent of any evidence of prior agreement or understanding between the parties to accept a reference to the Court, makes it permissible to treat the case as one of prorogated jurisdiction.75 Thus, no judicial activism can be identified within the simplicity of this decision. Arguably, it is hardly on the basis of accepting forum prorogatum in these two cases (Corfu Channel and Haya de la Torre) that the ICJ has been criticised with regards to their decision. 76 This is because it has been held that consent, or submission to the jurisdiction of the Court, had in fact been so clear that no tribunal could have arrived at any other 70 71 72 73 74 75 76

This was, of course, prior to the Revision of the Rules in 1978 – since as we saw above States can since apply under Article 38(5) of the Rules in order to activate the forum prorogatum principle. Shihata (n 6) quoting Reuter at 132. Haya de la Torre Case, (Merits) [1951] ICJ Reports 71. Colombian-Peruvian asylum case, (Counter-claims) [1950] ICJ Reports 266. Haya de la Torre (n 72) 78. Fitzmaurice (n 8). Ibid.

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conclusion, but that jurisdiction had been duly conferred.77 Nevertheless, other authors have found it necessary to draw attention to the grave dangerous that such a principle places upon the standing of the Court and its acceptance of jurisdiction.78 This will be considered in further detail below. The Rejection of Jurisdiction by Application of Forum Prorogatum We can also identify cases in which the Court had the opportunity to apply forum prorogatum but chose not to, which were all subsequent to the cases we looked at above. Most prominently, soon after Haya de la Torre appeared the case of Ambatielos79 where the Court had to determine whether it had jurisdiction to pronounce on the arbitrability of a certain dispute before another adjudicative body. Extensive details on the facts of the case are beyond the present analysis. However, during the oral proceedings, as regards consent, the Applicant State argued that it did have the right to seize the Court without having first used its right to recourse to an arbitral tribunal.80 At the same time, the agent of the Respondent Government, while objecting jurisdiction explicitly held that it would accept jurisdiction should it be determined that it were obligated to do so under the principle of forum prorogatum.81 This was a notable indication of the acceptance of the principle in the previous practice of the Court. In analysing the submissions of the parties, the Court found that the discrepancies between the texts in question, and the submissions of the parties ‘[throw] some doubt on the existence of any unequivocal agreement between the Parties upon this matter.’ 82 It went on to hold that there was ‘no doubt that in the absence of a clear agreement between the Parties in this respect, the Court has no jurisdiction to go into all the merits of the present case as a commission of arbitration could do’.83 Through this reasoning we can undoubtedly see the increasing exercise of caution in ascertaining the existence of consent in applying forum 6.1

77 78 79 80 81 82 83

Ibid. Ibid, quoting Rosenne. Ambatielos case (Greece v United Kingdom) (Jurisdiction) [1952] ICJ Reports 28. Shihata (n 6). ICJ Pleadings, Ambatielos Case (Greece v, United Kingdom) 1952 p284. Ambatielos (n 79) at p 39 Ibid – The Court went on to reject jurisdiction on other grounds too as regards the treaty texts at 20 of the decision.

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prorogatum.84 The Court actually placed limitations upon the prorogation of jurisdiction, in that the Applicant was expected to accede to the conditions placed by the Respondent for the acceptance of jurisdiction, something it had not presently done.85 Furthermore, even though there was a lack of ‘unequivocal agreement’ the Court also limited itself to examining the titles of jurisdiction and not the conduct of the States in the proceedings as had been done previously. This unwillingness to go into an analysis of such conduct may in fact be reflect of the judicial restraint of the Court, since it was not willing to clarify the matter. Soon after the case of Ambatielos, the ICJ was again asked to consider the application of forum prorogatum in the case of Anglo-Iranian Oil Co.86 In the preliminary objections, Iran (the Respondent) disputed the jurisdiction of the Court to adjudicate on the matter, primarily because of its Optional Clause Declaration under Article 36 of the ICJ Statute.87 It argued that the Court would only have jurisdiction insofar as the Iranian Declaration allowed, namely upon disputes arising after this Declaration came into effect and upon the condition of reciprocity (namely, those aforementioned conditions). However, although it submitted an objection to the jurisdiction for lack of adequate consent, it also submitted several questions and responses that the Court would only be able to decide upon if it were to have jurisdiction. This led to the Applicant State’s contention that Iran had acquiesced to the Court’s jurisdiction. This was not the route the Court decided to follow. Rather than placing a focus on the written submissions or conduct, the Court proceeded to examine the text of the Optional Declaration made by Iran.88 In doing so, it felt it necessary to explain the limits of the doctrine of forum prorogatum when it clarified that The principle of forum prorogatum, if it could be applied to the present case, would have to be based on some conduct or statement 84 85 86 87 88

Yee (n 7). Rosenne (n 10). Anglo-Iranian Oil Co. case (United Kingdom v Iran) (Jurisdiction), [1952] ICJ Reports 93. The real facts of the case were more complicated, since there was an Optional Declaration that was withdrawn and amended. Nevertheless, they remain outside the ambit of the present discussion. Notably, even in analysing the Optional Declaration it did not grant jurisdiction by claiming it would not ‘base itself on a purely grammatical interpretation of the text’ at 104.

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of the Government of Iran which involves an element of consent regarding the jurisdiction of the Court.89 It found, however, that the Government ‘has consistently denied the jurisdiction of the Court’ and that while it filed objections, some of which ‘have no direct bearing on the question of jurisdiction’, they were ‘clearly designed as measures of defence which it would be necessary to examine only if Iran’s Objection to the jurisdiction were rejected’.90 What is most prominent from this reasoning is the probative value accorded to the ex ante written statements rather than the conduct of the Respondent government. The basic question may have rested on the fact that there as a declaration made prior to the proceedings yet despite the fact that the Iranian State continuously maintained its objection, it also submitted counterarguments, indicating a small element of doubt as to its position with regards to the consent it had given. By contrast to Minority Schools, the Iranian rejections did not reflect a possible acceptance of jurisdiction, as they were considered as ‘measures of defence’, rather than counter-arguments. These were held by the Court to be contingent upon the rejection of the submission on jurisdictional grounds, and not in the alternative.91 This approach of distinguishing between different types of arguments goes to the very heart of interpreting the wording of the responses and submissions made by the parties, just as it had done in the Minority Schools, despite not agreeing with the ultimate result of that decision. What is rather puzzling is the fact that in the application for Provisional Measures, made prior to the decision on Preliminary Objections,92 despite the fact that Iran had equally contested jurisdiction in that Application, the Court had granted the measures (albeit different ones than those requested by the Applicant). To do this, jurisdiction was prima facie found to exist (the test required for provisional measures) since the claim was not a priori ‘outside the scope of international jurisdiction’ without looking into the jurisdictional base for that particular interim measures application.93 The existence of judicial activism again seems interesting: 89 90 91 92 93

Ibid at p 114. Ibid, emphasis added. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Counter-claims), Order of 17 December 1997, ICJ Reports 243, Separate Opinion of Judge Elihu Lauterpacht. Anglo-Iranian Oil Co. Case, Order of 5 July [1951] ICJ Reports 89. Rosenne (n 10).

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while taking a very restrained approach to jurisdiction without wanting to go beyond what it could be safely held to have intended,94 the Court did so by using result-oriented judging toward restraint in conjunction with rejecting a previously stated practice of the importance placed on conduct during the proceedings. Given, however, the fact that forum prorogatum and its case-law had yet to be established in any definitive manner, this decision is undoubtedly reflective of judicial restraint. Most notable was the subsequent silence in the case law regarding forum prorogatum before the issue again arose in the early 1990s in the case of Application of the Genocide Convention. In the case, Bosnia-Herzegovina instituted proceedings before the ICJ by unilateral application against Serbia-Montenegro (still under the name of Yugoslavia at the time) for alleged violations of the Genocide Convention,95 relying upon Article IX of that Convention as the basis for jurisdiction. The possible forum prorogatum was not necessarily to be found in the institution of proceedings which were, of course, also riddled with other jurisdictional issues. Instead, it could be found in the request for further provisional measures by the applicant, that went beyond the limits of the rights protected by the Convention. Provisional measures were also requested by the respondent State which called upon the said principle to ask for such provisional measures. The Court recognised that Yugoslavia granted consent to its jurisdiction under the principle of forum prorogatum with regard to the provisional measures phase, and one that was indeed wider than the jurisdiction initially envisioned by the Genocide Convention. Paradoxically however, it then went on to say: Given the nature of both the provisional measures subsequently requested by Yugoslavia… and the unequivocal declarations whereby Yugoslavia consistently contended during the subsequent proceedings that the Court lacked jurisdiction… the Court finds that it… does not find that the Respondent has given in this case a “voluntary and indisputable” consent which would confer upon it a jurisdiction exceeding that which it has already acknowledged to have been conferred upon it by Article IX of the Genocide Convention.96 94 95 96

Fitzmaurice (n 8). UN General Assembly, Convention on the Prevention and Punishment of the Crime of Genocide, (adopted 9 December 1948; entered into force 12 January 1951) 78 UNTS 277. Application of the Genocide Convention (n 95) para 34 – References from the original omitted.

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Very useful in this instance is Judge ad hoc Elihu Lauterpacht’s Separate Opinion, who applied a contextual analysis to the facts of the case at hand, based on previous decisions of the Court. While it is true that the Respondent State did consistently deny jurisdiction of the Court both during the merits and during the requests for provisional measures, Lauterpacht nevertheless observed that these requests by Yugoslavia could only have been made in response to the Applicant’s same requests, implying a contractual offer to enlarge jurisdiction by the Applicant State and an acceptance of that offer by the Respondent.97 He went on to note that the counter requests by the Respondent that were based on the wider jurisdiction beyond the Genocide Convention (while declining jurisdiction on that basis) which were indicative of an acceptance of jurisdiction of the Court based on the ground that it would otherwise be ‘impossible for the Respondent to justify its clear requests for measures which fall outside the coverage of the Convention’.98 Consequently, the Respondent would not be able to simultaneously request measures while declining jurisdiction as it could not ‘blow hot and cold’.99 Thus, the Court could not then revoke this unwritten agreement that had been made between them, regardless of the jurisdictional basis upon which they made it since it ‘amounts to an acceptance of the Court’s jurisdiction by conduct to the extent that the scope of the subject-matter of the two requests coincide’.100 Through this analysis, we can detect the clear unwillingness on the part of the Court to examine the case in any depth, but instead contended itself with a mere denial of jurisdiction. This resultoriented approach is indicative of judicial restraint. It is also worthy to note that Judge Lauterpacht also compared the instance of this case with the reasoning in Anglo-Iranian Oil Co differentiating between the ‘measures of defence’ against the ‘assertive requests’ that Yugoslavia had made in the present case.101 With this in mind, we can see the discrepancy in the decision-making and the reasoning of the Court. While on one hand, the Respondent did indeed consistently deny jurisdiction on one ground, while it asserted jurisdiction on other grounds (for the benefit of provisional measures). Essentially, the Court decided to render no in-depth decision in that regard. 97 98 99 100 101

Ibid para 35. Ibid. Ibid. Ibid para 27. Ibid para 32.

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6.2 Explicit Forum Prorogatum Just when forum prorogatum was thought to be long lost and relegated to public international law history books, a surprising turn of events occurred in the early 2000s when two unilateral applications were made to and accepted by the Court instituting proceedings against France on the basis of Article 38(5) of the Rules of the Court.102 The Court had the opportunity to analyse and provide some form of decision on the latter of the two cases, namely the case of Certain Questions of Mutual Assistance in Criminal Matters. Notably, France accepted jurisdiction by letter which stated that ‘France “consents to the Court’s to entertain the Application pursuant to, and solely on the basis of… Article 38, paragraph 5”, of the Rules of Court, while specifying that this consent was “valid only… in respect of the dispute forming the subject of the Application and strictly within the limits of the claims formulated therein” by Djibouti’.103 When Djibouti then filed its Memorial to the case, there appeared certain parts of the claim to which France then raised an objection both ratione materiae but also ratione temporis, as not having being part of the original Application to which France had acceded but instead ‘a “hypothetical” new legal basis’.104 The Court was called upon to decide on the extent of the jurisdiction that had been agreed upon by France (since the existence of jurisdiction was uncontested) for a part of the arguments brought forward by Djibouti in its Memorial. In essence, the crux of the issue was for the Court to identify precisely what it was that France had consented to vis-à-vis what Djibouti had initially claimed in its unilateral application, as it held that it was only through this juxtaposition that it would be ‘to arrive at that which is common in their expressions of consent’.105 In carrying out its analysis, the Court distinguished between consent to the ‘subject of the Application’ versus consent to the ‘subject of the dispute’, noting that France had acceded to the former, which would essentially ‘be read as comprising the entirety of the Application’.106 It found that by using the 102

103 104 105 106

This was the first time such an attempt had been accepted since the introduction of the Article in 1978. The first case was Certain Criminal Proceedings in France (Republic of the Congo v. France) which was discontinued; the second case Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), (Merits) [2008] ICJ Reports 177. Certain Questions of Mutual Assistance (ibid) para 4. Ibid para 43. Ibid para 65. Ibid para 83.

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words ‘in respect of the dispute forming the subject of the Application and strictly within the limits of the claims formulated therein,’107 the Respondent merely wished to limit the jurisdiction from any possible new claims that may appear at the later stage of the proceedings. The ‘amended’ claims brought by Djibouti in its Memorial that related to the initial claims found in the Application were within the jurisdiction acceded to by France.108 By extension, it found that the arrest warrants that had been issued after the filing of the Application could not be considered to be part of this consented jurisdiction, because they represented new legal acts in respect of which France could not be considered as having implicitly accepted the Court’s jurisdiction.109 Arguably, what the Court did here was to maintain a subjective view on the French accession to jurisdiction while also employing an ‘objective standard that referred to an impartial reading of the letter of acceptance’.110 It is noteworthy that while the Court examined jurisdiction in a similar manner to examining the existence of consent through an Optional Declaration, it did not use the same standard.111 This was because, while for Optional Declarations, it would examine whether the ‘nature of the dispute’ had been subsequently altered, the forum prorogatum standard seems to have been based on whether there existed ‘new legal acts’, an arguably stricter requirement for consent. Similarly, this approach has been described as finding a satisfactory balance between the interests of justice and that of the State sovereignty of France,112 in what can only be described as a compromise on the part of the Court. This balancing act is evident when we try to identify either activism or restraint: the Court did take a result-oriented approach in trying to balance out the two separate ‘wills’ of the parties, without disappointing either. This shows a very neutral approach that can only reflect a restraint Court. By ‘balancing out’ jurisdiction, it refrained from making any particular statement in its first interpretation of Article 38(5) of the Rules.

107 108 109 110 111 112

Ibid, emphasis added by the Court. Ibid para 83–84 Higgins (n 3) and ibid para 88. Tassinis (n 42). Higgins (n 3). Vincent Pouliot, ‘COMMENTARY: Forum prorogatum before the International Court of Justice – The Djibouti v. France case’ (2008) 3(2) Hague Justice Journal 201–213.

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The Reluctant Public Lawmaker

As we saw at the beginning of this article, the idea of judicial law-making is difficult to reconcile with the traditional understanding of the international legal system and, by extension, international adjudication.113 The focus on State consent and the nature of international law give way to the necessity of certainty and predictability, where ‘judges have to apply the law and they have to apply the law in force – nothing more and nothing less’.114 As a result, as we also saw above, the concept of judicial activism was born out of the perception that at certain times, certain judges overstep this boundary of law-application and walk into the realm of judicial law-making. This is particularly the case for a legal system such as that at international level, where: firstly, it is generally accepted that laws exist only as a result of State consent and not in their own right; and secondly, it is a system that is characterised by its ‘material (in)completeness’.115 This is the presumption that by its very nature, international law is not evolved or detailed enough to be seen as a complete system of laws, rules or norms,116 thus leaving gaps in legal regulation. As Judge Jennings of the ICJ stated: ‘perhaps the most important requirement of the judicial function [is to] be seen to be applying existing, recognised rules or principles of law’ even when it ‘creates law in the sense of developing, adapting, modifying, filing gaps, interpreting or even branching out in a new direction […]’.117 This is even more so when the Court is dealing with a principle or doctrine such as forum prorogatum that was, in effect, either underdeveloped, inexistent, or purely theoreti113

114 115

116 117

Armin von Bogdandy and Ingo Venzke ‘Chapter 1: Beyond Dispute: International Judicial Institutions as Lawmakers’ and ‘On the Democratic Legitimation of International Judicial Lawmaking’ in Armin von Bogdandy and Ingo Venkze (eds.) International Judicial Lawmaking: On Public Authority and Democratic Legitimation in Global Governance (Heidelberg, Springer, 2012). ‘Chapter 5 – Manifestations of Judicial Caution’ in Hersch Lauterpacht, The Development of International Law by the International Court (Grotius Publications Limited, Cambridge, 1982). This is a play on words from Hersch Lauterpacht, The Function of Law in the International Community (first published 1933, Oxford University Press 2011) who referred to ‘The Formal and Material Completeness of International law’ at Chapter 5. This is an idea propagated by H.L.A. Hart that also covers municipal law where these gaps are inevitable and perpetual. See H.L.A. Hart, The Concept of Law (Clarendon, Oxford, 1997, Second Edition). Jennings quoted in Tom Ginsburg, ‘Bounded Discretion in International Judicial Law-Making’, (2005) 45 Virg. J. Int’l. L. 1.

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cal to begin with.118 Despite this approach, however, it has also been accepted that the very act of carrying out of an interpretation of the law carries, in itself, an element of judicial law-making.119 This is because of the nature of the judicial function and judicial interpretation, since undoubtedly ‘[judges] do not pluck [their] rules of law full blossomed form the trees’.120 More eloquently put by Judge Weeramantry of the ICJ, judges need to use principles, and ‘someone’ will have had to develop those principles: a competent law-determining agency, a court.121 Thus, while the outright creation of a law by the Court ab initio would undoubtedly fall into the realm of judicial law-making and judicial activism, the clarification or refinement of the law could form part of the natural course of the day-to-day business of the judicial function. The present article has attempted to distinguish which instances of this latter judicial interpretation have fallen into the realm of judicial activism. At the same time, this alleged ‘incompleteness’ of international law accords the international judicial function an opportunity that is not mirrored in its domestic counterparts: an independent and unrestrained allowance to draw upon the procedures more appropriate for the effective administration of justice.122 As a result, while the International Court has the obligation to serve a private function in the dispute before it, namely, to resolve the dispute between the two parties, it also simultaneously has a public function, which reflects creating adjudicative principles and norms which can generate obedience among the members of the

118 119

120 121 122

See for example Rosenne (n 11) that notes that the concept of forum prorogatum at international law ‘probably does not reflect the forum prorogatum of Roman law’. Judge Christopher G. Weeramantry ‘The Function of the International Court of Justice in the Development of International Law’ (1997) 10 Leiden J Int’l Law 309–340 and Edward McWhinney, The World Court and the Contemporary International Law-Making Process (Springer, 1979). Benjamin N Cardozo, The Nature of the Judicial Process (Yale University Press, 1939). Weeramantry (n 119). This is primarily based on the idea that international judges do not ‘inherit’ Courts of law but instead have to shape them from the ground up, in particularly with regards to the procedural processes of the courts themselves. This is the result of the initial lack of procedural means or instruments (in the form of rules or regulations) that describe the manner in which the adjudication is to take place. Thus, while in domestic systems Rules of Procedure and Evidence are aplenty, this has not always been the case for international courts and even more so for the PCIJ and ICJ which are the longest standing Court, where the judges themselves had to draw up the Rules of the Court. See the preamble of the Rules of the Court that begins: ‘THE COURT’.

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community being regulated by that system of norms.123 To this end, this public function aims to serve ‘societal interests beyond those of the immediate litigants’,124 and to provide a system upon which justice can be achieved through legal predictability and certainty. 7.1 A Guardian of its Own Jurisdiction? 7.1.1 Allegans Contraria Non Audiendus Est125 In our introduction we determined how the application of forum prorogatum can give rise to a concern with regards to how consent to jurisdiction is imputed to States by the ICJ, and the ‘grave dangers to the standing and prestige of the Court’126 that may arise should this occur arbitrarily. This is the major premise upon which those opposed to or wary of the principle of forum prorogatum base their arguments, since it could reflect an unfettered power of the Court should the ‘expansionist tendencies inseparable from the very notion of forum prorogatum’127 be unleashed. As a weapon against this arbitrariness, we saw both the PCIJ and the ICJ focus on the importance of ‘voluntary and indisputable’ consent to jurisdiction in cases such as Minority Schools, Ambatielos or Anglo-Iranian Oil Co where the decisions include extensive analyses as to how the Court arrived to either the existence or the lack of consent. Nevertheless, while consent has retained, in essence, its fundamental position in the initiation of judicial proceedings at the international level, we can also identify the possibility of the use of the public function of the Court to ensure that a party may not be permitted to initially act incongruously and to thereafter benefit from its own inconsistencies.128 This was particularly so in the cases where the Court ruled in favour of jurisdiction on the basis of forum prorogatum. See the case of Corfu Channel, for example, where the Respondent Government vacillated between appointing agents and filing counterarguments while maintaining that it was not bound by the jurisdiction of the Court. Undoubtedly, and unexpectedly, we saw the Court accord probative value to a diplomatic document equal to an express consent in a case that would thereafter influ123 124 125 126 127 128

Chester Brown, ‘Chapter 38: Inherent Powers in International Adjudication’ found in Cesare P. R. Romano, Karen J. Alter, and Yuval Shany (eds.) The Oxford Handbook of International Adjudication (Oxford University Press 2013). McHugh quoted in Mahoney (n 27). In English: a party is not permitted to benefit from its own inconsistencies. Rosenne quoted in Fitzmaurice (n 8). Rosenne (n 10). Ibid at Chapter 9: Jurisdiction and Admissibility: General Concepts.

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ence jurisdiction on the form of accepting jurisdiction in many cases to come.129 This had also been the culmination of the decision of Minority Schools where the Respondent had only remembered to dispute jurisdiction in its Rejoinder, after having set out all its counter arguments. Here, we saw the PCIJ and ICJ act with determination in accepting jurisdiction when the circumstances deemed it necessary, according deference to the idea of a contrat judiciaire as though conduct of the Respondent reflects a tacit acceptance of the offer made by the Applicant. This shows a Court acting so as to maintain predictability amid the actions of the community, thus serving a public function. This, however, has not always been the Court’s approach and even less so during the majority of its life as an international court. Contrast the above cases with that of the Application of the Genocide Convention where we even saw the Court ignore the flagrant inconsistencies of the Yugoslavian State and allowed it to benefit from them by first granting the interim measures and then going on to reject jurisdiction at the Preliminary Objections phase.130 In a more subtle approach, contrast these with the recent case of Djibouti v France, where despite the explicit accession to jurisdiction on the basis of forum prorogatum by the Respondent State, it simultaneously objected to the jurisdiction of the Court with regards to the extent to which jurisdiction was recognised, something that the Court only partially allowed following a detailed analysis of the wording of the letter of acceptance. Despite the fact that this was the first ever case under Article 38(5), the Court refrained from taking a solid stance. Notably, the restrained result-oriented judgments are obvious yet it seems to have ignored the fact that the conclusion of an agreement or the making of a unilateral declaration accepting an obligation to have recourse to judicial settlement are often the result of deliberate operations and the consent given is unlikely to be unreal or vitiated.131 This makes it rather difficult to understand how, for example, the Court seemingly accepted the ‘à la carte’ jurisdiction both Yugoslavia and France chose to follow. 129

130 131

Cases do not concern forum prorogatum but the recognition of jurisdiction of the Court by means other than an ex-ante agreement such as Fisheries Jurisdiction (United Kingdom v. Iceland), Jurisdiction of the Court, Judgment, ICJ Reports 1973, 3 and Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Jurisdiction and Admissibility, (Preliminary Objections) [1994] ICJ Reports 112. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Preliminary Objections) [1996] ICJ Reports 595. Ibid.

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With regard to guarding its own jurisdiction, the Court seems to have failed to establish with certainty when the parties would not be allowed to contradict themselves and benefit from the Court as an institution. The public function of upholding allegans contraria non audiendus est is therefore questionable despite a promising beginning. 7.1.2 Clarifying ‘Jurisdiction’ As we saw above, the incompleteness of international law has not only required the clarification of the already existing legal principles, but also the filling in of gaps in instances where any clarity was lacking. The legal provisions for the institution of proceedings before the Court are also naturally inclined to be filled with lacunae, as the Court has, on numerous occasions, been required to clarify and refine the manner through which its jurisdiction can be invoked.132 This is an act that was not only necessary for the resolution of the disputes directly before it (and whether they were admissible or not) but also for the overall public good of the international legal community, in order to set out in clear terms how jurisdiction could be established. In fact, the very apparition of forum prorogatum reflects how this public function of the Court was more necessary than was initially envisaged. This is because the compatibility between the principles of consent and forum prorogatum and the jurisdictional clause of Article 36(1) ICJ Statute is a cause for debate.133 As regards unilateral applications, Article 36 of the ICJ Statute mentions that ‘the jurisdiction comprises all cases which the parties refer to it’, as an attempt to set certain procedural and admissibility criteria in the application. However, does the term ‘referred to by the parties’ denote ‘each party’, ‘both parties’, or ‘all parties’?134 At the time when the Statute was prepared, it was believed that ‘the consent of both parties is necessary before the case can be taken before the court’,135 while during the negotiations at the time, unilateral applications were not envisioned to be part of invoking the jurisdiction of the Court.136 This would imply, just as we saw above, that any judicial decision would re132 133 134

135 136

See (n 129) above. Yee (n 7). Ibid. Take, for instance, the confusion that occurred in Qatar v Bahrain, where the Arabic version of the word ‘al tarifan’ could, simultaneously mean both parties but also all parties, when there is no clarity as to the nature of the word in question (due to the complexities of tonality in the Arabic language). Lord Phillimore quoted by Yee (n 7). Ibid.

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quire both activism and an element of law-making137 in order to clarify the position of the Court. See, in this regard, the more proactive approach the Court had taken in the cases of Mavrommatis and Minority Schools, while in the Ambatielos and Anglo-Iranian Oil Co decisions, the Court approached jurisdiction in a restrained manner. As the Court itself has claimed and as is supported by the literature, there is ‘no rule of international law… which requires compliance with definite forms in accepting the jurisdiction of the Court or which rules out the conduct of a State or of its representatives as a source of its obligations’.138 Indeed, without any such pre-defined procedure or method, the Court could take any direction it wishes in deciding for or against jurisdiction in a case before it. The method employed, however, often seems confusing: telling is the paradox found in Ambatielos, where the Court gave an ‘unexceptionable reasoning’,139 yet the resulting decision of the Court did little to benefit the public function or the law-making powers of the Court. In the same sense, in Anglo-Iranian Oil Co, the Court remained within what it was certain that the Respondent State agreed to140 despite having carried out an extensive analysis of all the possible jurisdictional bases. Beyond these cases dated in the early 1950s, the Court has had but a few cases to consider the matter, without the opportunity to elaborate on the principle even further.141 Furthermore, we can identify how, even in the only case the Court was called to consider Article 38(5), it refrained from bridging the gap between its previous case law and the particular Article of the Rules of Court. At the same time, even in cases were forum prorogatum was volunteered by the Respondent, the Court stuck to a determination of the formal existence of the rule. The idea of jurisdiction existing as an informal offer and acceptance between States as reflected in the idea of contrat judiciaire which we saw above seems to have been rejected by the Court. The resulting methods of accepting jurisdiction seem to reflect a Court that has succumbed to the fears of the ‘grave dangers’ of forum prorogatum.

137 138 139 140 141

Ibid. Lauterpacht (n 114) at 202–203. Fitzmaurice (n 8). Ibid. This is arguably the result of the introduction of Article 38(5) in 1978.

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Forum Prorogatum: A Failure to launch

The extent to which forum prorogatum is a principle enabling the ICJ’s public function or as a reluctant lawmaker is questionable. Indeed, the lack of any indication of the principle of prorogated jurisdiction in the text of Article 36 shows ipso facto that the apparition of the principle before the Court that is already a flagrant act of judicial activism. At the same time, however, the lack of extensive decision-making with regards to the principle leaves any analysis at a speculative level. It is also clear that there is an evident lack of interest, primarily by Respondent States, to accede to jurisdiction ex post in order to allow for further elaboration of forum prorogatum. The development of international law as a public function of the ICJ goes beyond simply clarifying or refining certain provisions of its Statute or other agreements that are unclear. Indeed, in more than one areas of international law, the ICJ has taken upon itself to expand its substantive and procedural jurisdiction with an aim at creating greater coherence in the law itself.142 In the same vein, the principle of forum prorogatum was introduced to international adjudication by the PCIJ itself, when it assumed jurisdiction in cases when consent was unclear (Mavrommatis and Minority Schools) and despite the fact that the provisions of the Court’s Statute have never reflected such a principle. The extent, however, to which cases that are now almost a hundred years old could form precedent to awake the principle of forum prorogatum is doubtful. This is despite the characteristics of the international judge that encompass public and law-making functions. As a result, the principle has now been returned to the back shelves of international legal principles, as it now seems to fall into an eternal slumber for which a death knell may have to be considered.

142

This has been the case for interim measures for example (See LaGrand (Germany v. United States of America), (Merits) [2001] ICJ Reports 4669) or the principle of compétence de la compétence (See Nottebohm).

2

Provisional Measures of the International Court of Justice: Recapturing the Plausibility Test as Foreshadowed Dimitris Kontogiannis* Abstract

This chapter deals with the legal and factual aspects of the plausibility test upon which the indication of provisional measures is conditioned. In light of their binding nature, the ICJ has elaborated and applied plausibility to avoid frivolous and profoundly unfounded legal requests in preservation of its judicial integrity, the consensual nature of its adjudicative power, and state sovereignty. Legal plausibility focuses on the plausible legal existence of the claimed rights. Factual plausibility concerns the plausible breach of these rights by the respondent state’s conduct. The Court has recently associated the latter with an undefined evidence-sufficiency test under which it essentially determined whether the conduct complained of could have actually and as a matter of fact breached the (plausibly existing) claimed rights. Thus, factual plausibility, being rendered subjective, imposes a higher threshold compared to its legal counterpart. It moves away from an objective legal assessment of the material scope of the invoked treaty and constitutes an in-depth factual analysis of the actual and not probable infringement of the claimed rights touching upon prejudgment. In this context, this paper argues for a slightly different approach to factual plausibility under which both legal and factual plausibility will impose one and the same threshold.

* Ph.D. Candidate in International Investment Law and Doctoral Teaching and Research Assistant in International Arbitration, University of Geneva; Email: dimitris.kontogi [email protected]. This work reflects the law as it stood, to the best of the author’s knowledge, in November 2021, pending the Court's Orders on the requests for the indication of provisional measures made by Armenia and Azerbaijan in the cases concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Armenia v Azerbaijan) and (Azerbaijan v Armenia). The absence of an explicit reference to the contents of these Orders does not affect the arguments expressed in the paper.

© Koninklijke 2022 | doi:10.1163/9789004518216_003 © KONINKLIJKE Brill BRILL NV, Leiden, LEIDEN, 2022 | DOI:10.1163/9789004518216_004

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Keywords ICJ – provisional measures – plausibility – legal plausibility – factual plausibility – the plausibility test – evidence-sufficiency standard. 1

Introduction: In Constant Search of the Golden Thread

The Statutory power of the Court to indicate, if it considers it appropriate, any provisional measures to preserve the respective rights of either party is one of the most important, challenging, and perplexing features of the Court’s judicial function as far as contentious jurisdiction is concerned. On the one hand, the Court has to preserve the respective rights of the parties, which form the subject matter of the dispute, from suffering an irreparable harm pendete lite. On the other, provisional measures enable the Court to safeguard the legal value and significance of its upcoming final judgment.1 In that sense, they ensure the proper administration of justice by sustaining the judicial integrity and effectiveness of the Court’s judicial functioning.2 At the incidental stage of provisional measures, the Court is destined to rule upon a request for provisional measures without having the facts, rights, and obligations of the disputing states determined in final terms, namely without having fully appreciated the case at hand and, most importantly, without having firmly established its jurisdiction over the case.3 It is compelled to exert its judicial function in a bewildering legal environment, and this is compounded by the binding nature of provisional measures.4 1 Robert Kolb, The International Court of Justice (Hart Publishing 2013) 616–621. 2 Chester Brown, A Common Law of International Adjudication (OUP 2007) 128–129; Dapo Akande, ‘Selection of the International Court of Justice as a Forum for Contentious and Advisory Proceedings (Including Jurisdiction)’ (2016) 7 Journal of International Dispute Settlement 320, 333. 3 Akande (n 2) 333–339. 4 As the Court noted in the seminal LaGrand case, by ordering provisional measures, it imposes international legal obligations upon sovereign states and compels them to act accordingly. See LaGrand Case (Germany v United States of America) (Judgment) [2001] ICJ Rep 466, at 503, paras. 102–109. See also Kolb, The International Court of Justice (n 1) 638–650; Malcolm N Shaw, International Law (8th edn, Cambridge University Press 2017) 830–832; Inna Uchkunova, World Court Practice Guide: Summaries and Index of PCIJ and ICJ Cases (Wolters Kluwer 2016) 435–440; Robert Kolb, The Elgar Companion to the International Court of Justice (Edward Elgar Publishing 2016) 350–351.

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Provisional measures do effectively constrain state sovereignty and freedom to act. As a result, the Court should proceed with caution. It can neither ignore the interests and rights of the applicant state, which might face an imminent risk in urgent circumstances, nor disregard the right of the respondent state not to be unreasonably constrained. On the one hand, it cannot condition provisional measures upon an extremely high threshold, rendering their indication a quasi-impossible task. On the other, it cannot order them in an unfettered, discretionary manner and without any prerequisite, simply because a sovereign state has requested the Court to do so. Instead, a fair balance must be maintained. The Court has to concurrently protect its judicial functioning, the interests of the applicant state to protect its rights, which might face an imminent peril, and the respondent state’s sovereignty in light of the binding nature of provisional measures. Moreover, being empowered to conduct an inherently incidental and preliminary conceptual assessment, the Court cannot prejudge the merits of the case. Otherwise, it would undermine its judicial integrity and proper administration of justice. In that regard, provisional measures entail a conceptual struggle for the Court; a conceptual struggle which, if it were to be described in mythological words, can be associated with Theseus’ struggle to escape the Labyrinth and confront Minotaur.5 The Labyrinth was a puzzling, mazelike structure created by Daedalus for Minos. As a living tribute to the ruler of Crete, every year the collectors from Crete selected the seven most handsome Athenian boys and beautiful girls and forced them to wander the Labyrinth. Nobody ever escaped, and due to this humiliating tribute that Athenians had to accept, many sacrifices were made. Theseus, son of the king of Athens Aegeus, decided to kill Minotaur and escape the Labyrinth. He promised his father he would hoist a white sail if he returned from Crete alive. Although he escaped, he did not keep his promise. He used a black sail, and his father, who thought that his son died in Crete, flung himself from the Temple of Poseidon into the sea, and died. In order to escape the Labyrinth, Theseus had to navigate. He had to find the exit in a conceptually challenging and blurring environment. He had to apprehend the circumstances before him and act accordingly. He had to defeat the unknown and survive. Ariadne fell in love with Theseus and helped him escape. The Cretan princess provided him with a golden thread which showed him the exit and paved the way for his salvation. 5 Robert Graves, The Greek Myths: The Complete and Definitive Edition (Penguin Books 2017) 446–461.

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As discussed, the indication of provisional measures, an existential task of utmost importance for the Court, is to be conducted in a bewildering legal context. This justifies the existence of specific requirements upon which their indication is premised. Indeed, the indication of provisional measures is subject to scrutiny, which aims at preserving state sovereignty, the Court’s judicial integrity and effectiveness of its final judgment, and the very nature of its adjudicative power which is consensual and delegated by the disputing states. By virtue of these requirements that act as its golden thread, the Court attempts to navigate through the conceptually demanding legal labyrinth and to overcome the perils associated with the blurry legal context of provisional measures. It orders provisional measures only if particular legal (prima facie jurisdiction) and factual conditions (risk of irreparable harm, urgency) are met. By doing so, it avoids the risk of imposing international obligations on sovereign states without having satisfied itself that this would be – at least – reasonable.6 In this context, the Court elaborated and applied plausibility to avoid frivolous and profoundly unfounded legal requests for provisional measures. This requirement derives from the fact that provisional measures aim at preserving rights, which, being the subject matter of the dispute, may subsequently be adjudged to belong to either the applicant or the respondent.7 Legal plausibility, as developed by way of separate opinions and introduced by the Court,8 focuses on the plausible legal existence of the claimed rights under international law. In that sense, the Court will never order provisional measures if there is no plausible legal basis in international law for the rights sought to be protected, namely if they are manifestly incapable of existing in international law, not plausibly held by the applicant, or do not correspond to international obligations plausibly assumed by the respondent state.9 Otherwise, the Court will run the

6 7

8 9

Case Concerning Pulp Mills on the River Uruguay (Argentina v Uruguay) (Request for the Indication of Provisional Measures: Order) [2006] ICJ Rep 113, 137–141 (Judge Abraham, Separate Opinion). Massimo Lando, ‘Plausibility in the Provisional Measures Jurisprudence of the International Court of Justice’ (2018) 31 Leiden Journal of International Law 641; Cameron Miles, ‘Provisional Measures and the “New” Plausibility in the Jurisprudence of the International Court of Justice’ (2018) British Ybk of IntL L 1. Miles (n 7) 3–7. See Section 3.1 and the references mentioned therein.

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risk of preserving rights that may subsequently be adjudged not existent in international law.10 For the first time in the Ukraine v. Russia11 case, the Court moved from legal plausibility (plausibility of rights) to factual plausibility (plausibility of claims) without drawing a distinction between them. Quite interestingly, after this Order, it has consistently considered factual plausibility a counterpart of the plausibility test which encompasses its legal aspect. To be more precise, it has conditioned (legal) plausibility upon factual plausibility.12 The Court will not order provisional measures if the conduct complained of is not plausibly liable to breach the rights sought to be protected; an issue to be examined against an undefined evidencesufficiency standard. Thus, plausibility has been premised upon a factual assessment of the sufficiency of the evidence presented. In this context, the Court basically examines whether the conduct complained of could plausibly breach the claimed rights, provided not only that they do plausibly exist in international law, but most importantly that the presented evidence suffices and supports such plausible breach. Then, one question ensues: although the Court found its golden thread, did it manage to keep its promise to escape the legal labyrinth of provisional measures without touching upon prejudgment? This paper takes issue with the way in which the Court has applied factual plausibility. Factual plausibility, having been associated with an undefined and indeterminate evidence-sufficient standard,13 is arguably rendered subjective and imposes a higher threshold compared to its legal counterpart. It compels the Court to conduct an assessment both legal and factual, mixing legal and factual questions at the stage of provisional measures when the Court and the parties cannot have a complete overview of the case. In my view, this undefined standard prompts the Court 10

11

12 13

Robert Kolb, ‘Digging Deeper into the “Plausibility of Rights”- Criterion in the Provisional Measures Jurisprudence of the ICJ’ (2020) in Freya Baetens, Régis Bismuth (eds), The Law and Practice of International Courts and Tribunals (Brill Nijhoff 2020) 365–387; Miles (n 7); Lando (n 7). Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v Russian Federation) (Request for the Indication of Provisional Measures: Order) [2017] ICJ Reports 104. Jadhav case (India v Pakistan) (Request for the Indication of Provisional Measures: Order) [2017] ICJ Rep 231; See also Section 3.2 and the references mentioned therein. Kolb, ‘Digging Deeper into the “Plausibility of Rights”- Criterion in the Provisional Measures Jurisprudence of the ICJ’ (n 10) 380.

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to implicitly pronounce on whether the claims of the applicant state are well-supported in terms of evidence and eventually on the probability of success of the disputing parties’ claims; a pronouncement which resembles the Court’s syllogism at the merits, when it applies the law to the relevant facts, and touches upon the actual and not probable infringement of the claimed rights. The Court essentially indicates in advance whether it will, in all probability, dismiss the relevant substantive claims. This standard also informs the parties’ strategy forcing them to plead their case in full at this early stage.14 In a nutshell, the plausibility of claims, as introduced in Ukraine v. Russia and later applied,15 comes perilously close to prejudgment. It will be my argument that the factual plausibility threshold should be lowered and reflect what Judge Abraham noted in Pulp Mills.16 Factual plausibility should concern the plausibility of having the conduct of the respondent state in breach of the plausibly existing in international law rights sought to be preserved. This assessment, which is to be conducted in abstract legal terms, concerns the material scope of the relevant treaty. It should focus exclusively on whether the alleged conduct is such of a kind that it may breach the claimed rights,17 turning on whether this conduct plausibly falls within the ratione materiae scope of the relevant treaty in light of the parties’ arguments and the facts of the case. A review of the sufficiency of the evidence paves the way for a full review of the case touching upon prejudgment. It is also my view that factual plausibility should shy away from the undefined evidence-sufficiency standard. If so, I will contend, it will preclude, as it is supposed to, only those cases where the respondent state’s conduct appears to be manifestly incapable of infringing the plausibly existing claimed rights. To use Judge Abraham’s words, factual plausibility should examine whether the possibility of having the conduct complained of deemed infringing the claimed rights can be manifestly ruled out.18 Similarly, under legal plausibility, rights that are manifestly incapable of existing in international law cannot be preserved. In that sense, both aspects of the plausibility test will impose the exact same threshold,

14 15 16 17 18

Akande (n 2) 337. See, Sections 3.2. and 4. Pulp Mills (Judge Abraham, Separate Opinion) (n 6) 137. Lando (n 7) 652. Pulp Mills (Judge Abraham, Separate Opinion) (n 6).

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and the Court will cautiously maintain a fair balance between the unfetter indication of provisional measures and the risk of prejudgment. In short, this paper’s main argument is that the plausibility test should exclusively focus on whether both the rights sought to be preserved (legal aspect) and the conduct complained of (factual aspect) do plausibly fall within the material scope of the treaty invoked. Simply put, the Court should examine whether the possibility that the claimed rights exist in international law and can be breached by the respondent state’s conduct can be manifestly ruled out. If so, the plausibility test will remain a purely legal assessment, which, although touches upon the facts of the case, exclusively concerns the rights sought to be protected and not the fate of the presented claims. It will constitute a legal assessment of a plausible interpretation of the treaty invoked and not a factual assessment of the sufficiency of the given evidence. Of course, this paper does not suggest that the Court should indicate provisional measures in a legal vacuum and without any consideration of the merits. As Judge Abraham noted this would be illusory.19 Indeed, a limited appreciation of the merits is required.20 Yet, it is the evidencesufficiency standard and its indeterminacy that raise awareness. Simply, the plausibility test is an indispensable prerequisite for the indication of provisional measures. However, the applicable standard for its legal and factual aspects should be one and the same. Meanwhile, here is the itinerary. Firstly, the paper examines the rationale behind provisional measures and their legal significance (2). Secondly, it focuses on legal and factual plausibility, the two aspects of the so-called plausibility test. To be more precise, having examined legal plausibility, the nature of the assessment it entails, and its importance (3.1), the paper turns on factual plausibility (3.2) and the relationship between (legal and factual) plausibility with prima facie jurisdiction (3.3). Then, the paper, while identifying the risks associated with the evidencesufficiency standard as applied by the Court, proposes a slightly different approach to factual plausibility, which provides for legal certainty and conforms with the way in which the plausibility test was initially devel19 20

Ibid. The indication of provisional measures and the effective preservation of the claimed rights sub judice, which presuppose the existence of an imminent risk of irreparable prejudice to these rights in urgent circumstances and, of course, the existence of a plausible legal basis in international law for them, do require a limited appreciation of the merits. See Miles (n 7) 40.

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oped and foreshadowed by virtue of separate opinions and introduced by the Court (4). Lastly, the paper concludes (5). 2

The Rationale behind Provisional Measures and Their Legal Significance

Article 41 of the ICJ Statute provides the Court with the ‘power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party’.21 It is entrusted with preserving certain rights, which may face an imminent risk, from being irreparably harmed. Under Article 75 of the Rules of the Court, the Court is empowered to indicate any provisional measures it considers appropriate and necessary proprio motu and irrespective of whether it has been seised with such request.22 It can also indicate measures in part or in whole different from those requested and even specific measures to prevent the aggravation of the dispute.23 The power to indicate provisional measures aims at safeguarding the respective interests of both parties pendete lite and that irreparable prejudice will not be caused to the rights which are the subject of the dispute in the main proceedings.24 The aim of provisional measures is also to reassure that, while a dispute is pending before the Court, the situation at hand will not be aggravated.25 As the Court, in the recent The Gambia v Myanmar case, confirmed:

21 22 23

24 25

On provisional measures, see also Shabtai Rosenne, Provisional Measures in International Law: The International Court of Justice and the International Tribunal for the Law of the Sea (OUP 2004). LaGrand Case (Germany v United States of America) (Request for the Indication of Provisional Measures: Order) [1999] ICJ Rep 9, at 14, para. 21; See also Uchkunova (n 4) 436 (including footnotes cited therein). LaGrand Case (Order) (n 22) at 14, para. 21; Case Concerning Pulp Mills on the River Uruguay (Argentina v Uruguay) (Request for the Indication of Provisional Measures: Order) [2006] ICJ Rep 113, at 126–127, paras. 49 and 53; See also Shaw (n 4) 24–25. Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation) (Request for the Indication of Provisional Measures: Order) [2018] ICJ Rep 353, at 388, para. 118. Karin Oellers- Frahm, ‘Article 41’ in Andreas Zimmermann, Christian J Tomuschat, Karin Oellers-Frahm (eds), The Statute of the International Court of Justice: A Commentary (OUP 2019) 1145.

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The power (…) to indicate provisional measures under Article 41 of the Statute has its object the preservation of the respective rights claimed by the parties in a case, pending its decision on the merits thereof.26 The Court is mandated to protect the rights that may subsequently be adjudged to belong either to the applicant or to the respondent and prevent them from being irreparably damaged pending the decision.27 This task is of utmost importance. Provisional measures preserve the judicial integrity of the Court and the effectiveness of its proceedings. Their indication is a matter of sound administration of justice since the absence of provisional measures, when the circumstances call for it, could cause the decision or even the dispute to become moot.28 The factual use of the right(s) sought to be preserved may become impossible, or the Court’s final judgment may be rendered without any legal significance and effect if the rights forming the subject matter of the main dispute are irreparably destroyed.29 Provisional measures constrain the respondent state’s sovereignty and freedom to act since the latter must abstain from taking any measures that may affect and prejudice the rights at stake. Simply, they impede the continuation or resumption of the acts complained of which might irreparably affect the rights sought to be protected, the subject matter of the dispute and even the existence of the dispute and consequently the legal significance and value of the final decision. In essence, by ordering provisional measures, the Court protects its own judicial function. It avoids a fait accompli, mootness, and ensures the effectiveness of its upcoming final decision and the proper exercise of its adjudicative function. To be more precise, the purpose of provisional measures is two-fold. On the one hand, they aim at preserving the respective rights of the parties and mainly the (applicant state’s) rights,30 which form the subject matter of the dispute, from being irreparably prejudiced by the acts of 26 27 28 29 30

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v Myanmar) (Request for the Indication of Provisional Measures: Order) [2020] ICJ Rep 3, at 18, para. 43. Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v United Arab Emirates) (Request for the Indication of Provisional Measures: Order) [2018] ICJ Rep 406, at 422, para. 43. Oellers- Frahm (n 25) 1144–1145. Ibid. Robert Kolb, The Elgar Companion to the International Court of Justice (n 4) 75.

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the respondent state pending the final decision.31 The Court, being concerned with the parties’ subjective interests, aims at ensuring that the substance of their rights will not be reduced to nothing, rendered void, sterile, or without any meaningful legal significance.32 On the other hand, provisional measures are concerned with the preservation of the proper administration of justice and the Court’s judicial integrity. In that sense, they exert an existential function of utmost importance for the Court. They shield the legal value, utility, and executory effect of its final judgement.33 Provisional measures ‘enjoin the respondent not to do certain acts which may gravely affect or alienate the subject matter of the dispute’.34 In that sense, the Court’s final judgment will be legally and practically meaningful. Otherwise, the effect of the final judgment would be diminished or undermined. If the respondent state were able to alter, destroy, or extinguish the subject matter of the dispute, the final judgment would be deprived of its proper effect and rendered moot, inoperative, illusory, nugatory, without any object and legal meaning. Simply put, the very legal value and efficacy of the final judgment are preserved.35 As already noted, the Court is destined to rule upon a request for provisional measures, namely, to accept it or reject it, in prima facie jurisdictional terms. It can only do so if the provisions relied on by the applicant state ‘appear prima facie to afford a basis on which its jurisdiction could be founded’.36 The question of prima facie jurisdiction, as Judge Abraham eloquently clarified, refers to whether the Court has jurisdiction to ‘entertain the principal proceedings’ in conjunction with the ‘basis (or bases) of jurisdiction invoked in support of the principal claim’, and it should not be associated with the (existence of the) power of the Court, when seized with a request for provisional measures, to rule upon it. This power is conferred upon the Court by virtue of Article 41 of its Statute.37 31 32 33 34 35 36 37

Zan He, The ICJ’s Practice on Provisional Measures (Peter Lang 2010) 15–20. Kolb, The Elgar Companion to the International Court of Justice (n 4) 346–348. Kolb, The International Court of Justice (n 1) 616. Ibid 613. Uchkunova (n 4) 435. Jadhav (n 12) at 236, para. 15; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Request for the Indication of Provisional Measures: Order) [1984] ICJ Rep 169, at 179, para. 24. Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v United Arab Emirates) (Request for the Indication of Provisional Measures of the United Arab Emirates: Order) [2019] ICJ Rep 361, at 379, para. 9 (Judge Abraham, Separate Opinion).

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If the Court’s power to entertain or rule upon a request for provisional measures were conditioned upon the existence of prima facie jurisdiction over the merits, it would be logically impossible for the Court to reject such a request, as it would not have the power to rule upon it in the first place. Put another way, when the Court examines whether it has prima facie jurisdiction, it does not examine whether it has the power to indicate provisional measures in general. Instead, it considers whether ‘the case is a fit and proper one for exercising that power’,38 namely whether it is competent to exert its general, statutory judicial power to indicate provisional measures in conjunction with the case before it. While examining whether there is prima facie jurisdiction, the Court should satisfy itself in a non-definite manner that there is a legal dispute between the disputing states,39 the disputing states are parties to the legal instrument(s) invoked, the dispute at hand is capable of falling within the material scope of the relevant legal instrument(s), and that, in light of the way in which the disputing states presented their views, the dispute existed on the day of the request and continues to exist. Of course, in case the legal instrument(s) invoked impose(s) additional procedural preconditions upon the Court’s jurisdiction, these preconditions should appear to be met in prima facie terms.40 At this stage, the Court must determine whether the provisions invoked by the applicant state do ‘prima facie confer upon it jurisdiction to rule on the merits of the case, enabling it – if the other conditions are met – to indicate provisional measures’.41 This requirement resonates with the preliminary, incidental nature of provisional measures, their legal effect, and the consensual origins of the Court’s adjudicative power. To use Judge Abraham’s words again, ‘it would be inconceivable for the

38 39

40 41

Case Concerning Passage Through the Great Belt (Finland v Denmark) (Request for the Indication of Provisional Measures: Order) [1991] ICJ Rep 12, at 30 (Judge Shahabuddeen, Separate Opinion). Ukraine v Russian Federation (n 11) at 117–118, paras. 28–31. See also South West Africa (Ethiopia v South Africa; Liberia v South Africa) (Preliminary Objections: Judgment) [1962] ICJ Rep. 319, at 328; Immunities and Criminal Proceedings (Equatorial Guinea v France) (Request for the Indication of Provisional Measures: Order) [2016] ICJ Rep 1148, at 1159, para. 47; Mavrommatis Palestine Concessions (Greece v Great Britain) (Merits) PCIJ Rep Series A No 2, at 11. For instance, see Qatar v United Arab Emirates (n 27) at 417–418, paras. 29–40. Ibid 413, para. 15.

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Court to impose obligations on [states] if its jurisdiction to entertain the principal proceedings was not to some extent likely to be established’.42 In keeping with this syllogism, the Court will indicate provisional measures only if the circumstances at hand urgently require it. It assesses in prima facie terms whether there is a real and imminent risk that irreparable prejudice will be caused to the rights in dispute before its final decision. The indication of provisional measures is conditioned upon a state of urgency, a need for immediate action to preserve the rights at stake from being irreparably prejudiced at any moment pendete lite.43 This conclusion presupposes both that the acts complained of are susceptible to irreparably prejudice the rights at hand and that these rights are of such nature that any prejudice to them can cause irreparable harm. Of course, the Court, being cognizant of the circumstances at hand, ascertains whether it is possible that this harm will be caused. It assesses whether ‘the circumstances require the indication of provisional measures for the protection of rights’ in non-definite terms.44 It should not pronounce on whether the rights aimed to be protected have been actually breached by the acts complained of and allegedly attributed to the respondent state. Underlying this logic is that the indication of provisional measures presupposes a link between the rights sought to be protected and the measures requested or imposed.45 To put it differently, the ICJ, at this stage, is entrusted to protect the rights invoked by the applicant state from the acts complained of and allegedly attributed to the respondent. And it should abstain from making any definite determination that might directly or indirectly influence, shape, or affect its decision on the merits. It should only assess whether the rights appear to be in danger of irreparable harm pendete lite, and this assessment is to be conducted in a prima facie jurisdictional context presupposing an imminent risk of irreparable harm, namely an urgent need for provisional measures. It is the urgent circumstances, which mandate the Court to order provisional measures, along with their two-fold purpose that signal their significance, which eventually dictates their legal nature and effect. Provisional measures sustain the integrity and efficiency of the Court’s ju42 43 44 45

Qatar v United Arab Emirates (Judge Abraham, Separate Opinion) (n 37) at 379, para. 10. Immunities and Criminal Proceedings (Equatorial Guinea v France) (Request for the Indication of Provisional Measures: Order) [2016] ICJ Rep. 1148, at 1169, para. 90. Qatar v United Arab Emirates (n 27) 428, para. 62. For instance, see The Gambia v Myanmar (n 26) 18–24.

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dicial proceedings. They safeguard its judicial functioning by preserving the invoked rights, which are subject to final adjudication, from being prejudiced and legally extinguished. In short, they ensure that the Court’s final decision will be legally and practically meaningful. If so, provisional measures must be able to effectively constrain the respondent state’s sovereignty; they should be legally binding only upon the parties and not the Court. Their incidental, prima facie, and non-final nature suggests they should neither determine nor affect in any way the Court’s final decision. However, they are binding upon the parties and particularly upon the state towards which they are addressed. As the Court noted in the seminal LaGrand case, their indication, despite their non-final character, creates international obligations of compliance imposed upon states, any violation of which triggers their international responsibility. They are genuine legal obligations imposed upon the state to which they are addressed. By ordering provisional measures, the Court imposes international obligations upon sovereign states and compels them to act accordingly. Simply, provisional measures effectively constrain the freedom of states to act as they please. As the Court put it, they are ‘binding, inasmuch as the power in question [to indicate provisional measures] is based on the necessity, when the circumstances call for it, to safeguard, and to avoid prejudice to, the rights of the parties as determined by the final judgment of the Court.’46 Their binding nature also derives from the object and purpose of the Statute47 and Article 41 read in its context (Articles 31 to 33 of the Vienna Convention on the Law of Treaties48). The Court examined the object and purpose of Article 41 to reconcile the discrepancy between the English and French text of the Statute and noted that ‘ The context in which Article 41 has to be seen is to prevent the Court from being hampered in the exercise of its functions because the respective rights of the parties to a dispute before the Court are not preserved’.49 Logically, the effective preservation of the rights at stake and the Court’s judicial function through provisional measures presupposes their legally binding nature.

46 47 48 49

LaGrand Case (Judgment) (n 4) at 503, para. 102. Ibid. 1969 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331 (VCLT) articles 31–33. LaGrand Case (Judgment) (n 4) at 503, para. 102.

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In this context, it has been argued that provisional measures constitute an ‘autonomous legal regime’.50 They impose certain legal obligations upon states that are distinct and different in nature from the obligations emanating from a judgment. Although they are destined to survive only for a certain period, namely until the Court renders its final decision,51 their legal importance is apparent. Their indication not only imposes legal obligations of compliance upon states but also states that complied with provisional measures eventually found unjustified, unnecessary, or not compelled by the circumstances cannot be remedied. Overall, the legal importance of provisional measures for the realisation of justice and the major legal consequences they entail for states cannot be disregarded.52 An order for provisional measures is binding upon the parties and not the Court due to their legal significance, the need to effectively preserve the Court’s judicial functioning and the vulnerable rights forming the subject matter of the main dispute in prima facie jurisdictional terms and in light of the exceptional circumstances needed as prerequisites for their indication (urgency, risk of irreparable harm).53 3

Provisional Measures as a Matter of Law and Fact: The Plausibility of Rights and Claims

Vindicating the Purpose of Provisional Measures: Legal Plausibility and the Risk of Illusory Rights The Court, at the stage of provisional measures, aims at preserving certain rights from being irreparably harmed pending its final decision. Being the subject matter of the dispute, these rights ‘may subsequently be 3.1

50

51 52 53

Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v Russian Federation) (Request for the Indication of Provisional Measures: Order) [2017] ICJ Rep 104, at 158–160 and 181–184 (Judge Cançado Trindade, Separate Opinion). ‘(…) [I]ncidental procedures are always extinguished with the conclusion of the main case- that is, with the merits judgment.’ See Kolb, The Elgar Companion to the International Court of Justice (n 4) 350. Ukraine v Russian Federation (Judge Cançado Trindade, Separate Opinion) (n 50) at 158, para. 6. Shabtai Rosenne, The Law and Practice of the International Court 1920–2005 (4th edn, Martinus Nijhoff 2006) 1377.

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adjudged (…) to belong either to the Applicant or Respondent'.54 They are subject to final adjudication, and the Court aims at preserving the status quo until the rights of the parties are determined in action and rules upon them in a final manner.55 On the one hand, the protection of these rights is a matter of an ad hoc examination of the circumstances at hand (urgency, risk of irreparable harm). On the other, it is a matter of law which directly concerns the claimed legal rights. As discussed, the provisional protection of certain rights presupposes that the Court is empowered to rule upon it (Article 41 of the ICJ Statute) and competent to do so in the case at hand (prima facie jurisdiction). However, a legal quest, the scope of which goes beyond the prima facie jurisdictional context of provisional measures and the existence of the Court’s statutory powers, ensues. The preservation of the claimed rights is premised upon their plausible legal existence.56 In other words, the assessment of whether the alleged rights might suffer irreparable harm and their protection presuppose not only that the requesting state holds these rights, but most importantly, that they do legally exist in the first place and – at least – in probable terms. In this context, it is the Court’s duty to assess whether the rights asserted by the applicant state do plausibly exist in international law. The rights sought to be protected shall exist under international law and correspond to an existing legal obligation assumed by the respondent state in plausible terms. As Robert Kolb recently noted, ‘(…) it must be shown that there is a certain probability that the rights exist; and this probability is summed up in the concept of plausibility’.57 While examining legal plausibility, the Court inevitably touches upon the inherent contradiction and correlation between the rights claimed by the requesting state along with its obligations and the rights and obligations of the opposing state examining their plausible legal existence in international law. Simply, the Court, being compelled by its Statute, cross-examines the respective rights of both parties and their obligations 54 55

56 57

Georgia v Russian Federation (n 24) at 388, para. 118. Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v Russian Federation) (Request for the Indication of Provisional Measures: Order) [2017] ICJ Rep 104, at 143, para. 4 (Judge Owada, Separate Opinion). Lando (n 7) 645–648. Kolb, ‘Digging Deeper into the “Plausibility of Rights”- Criterion in the Provisional Measures Jurisprudence of the ICJ’ (n 10) 373.

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since the rights of the applicant state may correspond to certain obligations owed by the respondent state.58 Thus, the rights and obligations of the disputing states are inseparable and interrelated; and this is even more apparent in a bilateral treaty setting.59 Legal plausibility touches upon the legal validity of the rights asserted and sought to be protected. It prompts the Court to examine ‘whether there is some arguable possibility – be it high or low – that the asserted rights exist, justifying the exercise of the Court’s power to indicate provisional measures.’60 The Court cannot pronounce on whether the rights sought to be protected definitely exist, but whether the requesting state has shown any possibility of their existence.61 The definite existence of a right and the necessary proof in support of it do not form part of the circumstances that allow the Court to indicate provisional measures. Instead, they are a matter of the merits. Legal plausibility concerns the possible and not definite existence of the rights sought to be preserved and claimed to be held by the requesting state. In his Separate Opinion appended to the Pulp Mills case, Judge Abraham eloquently clarified the plausibility test. He perceived legal plausibility as the necessary, minimum, of limited extent review of the merits of the case as regards the existence of the claimed rights. The Court will not develop a firm opinion about their legal existence, namely whether a legal basis for these rights can be found in international law (treaty, customary international law, general principles of law). Instead, it examines the prima facie legal validity of the requesting party’s case as regards the existence of the rights claimed. It turns on whether the applicant state managed to ‘establish a particular degree of probability that it holds the right claimed’ and ‘that the right is likely to be infringed through the other party’s conduct’.62 Both presuppose that the right in question does probably exist in legal terms. In other words, the rights should not be ‘patently non-existent’, and the possibility of having them infringed by the conduct complained of 58 59 60 61 62

Pursuant to Article 41 of the ICJ Statute, the aim of provisional measures is the preservation of the respective rights of the parties involved pending the decision. See Kolb, The International Court of Justice (n 1) 616–621. Kolb ‘Digging Deeper into the “Plausibility of Rights”- Criterion in the Provisional Measures Jurisprudence of the ICJ’ (n 10) 372–373. Ukraine v Russian Federation (Judge Owada, Separate Opinion) (n 55) 144, para. 10. Case Concerning Passage through the Great Belt (Judge Shahabuddeen, Separate Opinion) (n 38) at 30. Pulp Mills (Judge Abraham, Separate Opinion) (n 6) at 140, para. 10.

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should not be ‘manifestly ruled out’.63 This perception of legal plausibility does not differentiate from the way in which Judge Shahabuddeen earlier described it. To use his words, states should ‘show a prima facie case in the sense of demonstrating a possibility of the existence of the specific right (…) claimed’.64 The indication of provisional measures requires a ‘prima facie showing of probable right and probable injury’.65 In short, legal plausibility requires a reasonable prospect that a party will succeed in establishing that it has the right which it claims and that that right is applicable to the case. Otherwise, it cannot be said that the right might be adjudged to belong to the applicant or even the respondent.66 In that regard, the indication of provisional measures has been conditioned upon a limited (neither complete nor final) review of the merits of the case in both terms of law and facts.67 Concerning the former, the rights claimed should be legally plausible, namely, a plausible case for their legal existence in international law should be shown. Concerning the latter, the rights should be liable to be violated in the interim and in such a way that the final judgment would be rendered ineffective. Although this syllogism touches upon the facts of the case, the review the Court has to make is legal in nature and extremely superficial. This syllogism implies that legal plausibility concerns a three-pronged test. Firstly, the rights claimed by the applicant state have to plausibly exist under international law and be plausibly held by the applicant. Secondly, these rights have to correspond to certain legal obligations plausibly assumed by the respondent state, and, lastly, the conduct of the respondent state has to be seen as plausibly capable of breaching these rights in a sense that this possibility should not be manifestly ruled out. Under this purview and the way in which Judge Abraham outlined plausibility, the plausibility test entails a review of the probable and possible legal existence of the claimed rights and their probable and possible infringement by the respondent state’s conduct. It is a matter of reasonable possibility,68 and the Court focuses on whether the possibility that

63 64 65 66 67 68

Lando (n 7) 644–645. Case Concerning Passage through the Great Belt (Judge Shahabuddeen, Separate Opinion) (n 38) at 28. Edward Dumbauld, Interim Measures of Protection in International Controversies (Martinus Nijhoff 1932) 160–161. Miles (n 7) 11. Pulp Mills (Judge Abraham, Separate Opinion) (n 6) at 138, para. 9. Lando (n 7) 650–651; Miles (n 7) 11–12.

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the claimed rights exist in international law and can be breached by the alleged conduct is to be manifestly ruled out. The Court has applied legal plausibility in a similar way. It explicitly introduced the plausibility test, namely legal plausibility, in the Belgium v. Senegal case.69 It conditioned provisional measures and the preservation of the rights in question, which are subject to final adjudication, upon their (legal) plausibility. Therefore, it examined whether ‘the rights asserted by the requesting party are at least plausible’70 and confirmed that (legal) plausibility exclusively concerns the possible and not definite existence of the rights claimed by the requesting state. At this stage, the Court’s duty is neither to examine the definite existence of the claimed rights in international law nor the applicant state’s capacity to assert them before it.71 The syllogism legal plausibility prompts the Court to make is purely legal. It is all about a legal quest, which focuses on whether the rights claimed could be ‘grounded in a possible interpretation’ of the invoked legal instrument or at least derive from the other sources of international law.72 The Court examines whether the claimed rights are founded on a plausibly valid legal basis under international law (for instance, a treaty), and it is not called upon to determine their existence definitely.73 In short, it turns on whether it is possible or arguable that the asserted rights fall within the material scope of the legal instrument invoked in light of the arguments presented. However, quite interestingly, the plausible legal existence of a claimed right can be founded not only on a treaty but also on 69 70 71 72 73

Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) (Request for the Indication of Provisional Measures: Order) [2009] ICJ Rep 139, at 151, para. 57. Ibid. Ibid para. 60. Alain Pellet, ‘Article 38’ in Andreas Zimmermann, Christian J Tomuschat, Karin Oellers – Frahm (eds) The Statute of International Court of Justice: A Commentary (OUP 2006) 677–792. Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua) (Request for the Indication of Provisional Measures: Order) [2013] ICJ Rep 398, at 402–403, paras. 15–19; Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v Australia (Request for the Indication of Provisional Measures: Order) [2014] ICJ Rep 147, at 152–153, paras. 22, 26; Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v Thailand) (Request for the Indication of Provisional Measures: Order) [2011] ICJ Rep 537, at 545, para. 33; Immunities and Criminal Proceedings (Equatorial Guinea v France) (Request for the Indication of Provisional Measures: Order) [2016] ICJ Rep 1148, at 1165, 1167, paras. 71, 78.

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customary international law or general principles of law74 and even on a previous judgment.75 Thus, the Court may proceed with a legal assessment of the sources of international law in general. To be more precise, as initially perceived and described by the esteemed Judges Abraham and Shahabuddeen and answered by the Court, this quest does not compel the Court to make a thorough analysis, interpretation, and application of the legal instrument invoked in conjunction with the evidence presented and the facts of the case. Otherwise, it might go beyond what is required at this stage. As Judge Owada concluded, a detailed application of the instrument invoked (for instance, its relevant articles) ‘would require a thorough analysis of the evidence that would go well beyond what is required at this stage of proceedings’.76 Arguably, the Court profoundly appreciated such risk when, in its most recent pronouncement, it noted that it did not have to proceed with an examination of the existence of genocidal intent,77 which would prompt the Court to make a thorough application of the relevant treaty in order to assess the legal plausibility of the rights claimed by The Gambia under the Genocide Convention.78 This was contrary to the Ukraine v. Russia precedent when the Court insisted on the existence of proper proof of the plausibility of all the substantive elements of the offences claimed.79 As discussed, legal plausibility touches upon the scope of the Court’s ratione materiae jurisdiction. It concerns the preliminary preservation of the rights that, being the subject matter of the main dispute, are subject to final adjudication, and inevitably touches upon the underlying correlation between the rights possibly held by the requesting state and the legal obligations possibly assumed by the respondent state under international law (and possibly under the same legal instrument), provided that there is prima facie jurisdiction. In that sense, legal plausibility is compelled by logic as it conforms with the consensual origins of the Court’s adjudicative power, state sovereignty, and the binding nature of provisional measures. It is the neces74 75 76 77 78 79

Timor-Leste v Australia (n 73) para. 27. Case concerning the Temple of Preah Vihear (n 73) at 546, paras. 38–39. Ukraine v Russian Federation (Judge Owada, Separate Opinion) (n 55) para. 23. The Gambia v Myanmar (n 26) at 23, para. 56. Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951) 78 UNTS 277 (‘Genocide Convention’). Kolb, ‘Digging Deeper into the “Plausibility of rights”- Criterion in the Provisional Measures Jurisprudence of the ICJ’ (n 10) 368.

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sary corollary of the need for the rights, which are subject to adjudication on the merits, to be protected.80 Indeed, ‘[i]f prima facie jurisdiction is required, it could also be reasonable to require that the rights invoked are not manifestly unfounded or inapplicable in the circumstances of the case’.81 Put bluntly, since the Court does not suggest but orders provisional measures, as confirmed in the LaGrand case, it cannot compel a state to act in a certain way and significantly limit the exercise of its sovereign rights only because another sovereign state argued that its rights were at risk. States are sovereign, legally entitled to act as they prefer, provided that they do not breach international law, at least, pursuant to a first-glance interpretation of the Lotus principle.82 In that sense, the Court has to examine whether there is a reasonable possibility that the claimed rights do legally exist and could be harmed. This preliminary assessment requires the Court to touch upon the merits of the dispute to a limited extent and examine whether the rights sought to be protected are plausibly existent in international law or at least not patently non-existent or that the possibility of their existence should not be manifestly ruled out. The Court can compel a state to act in a certain way only if it reasonably believes that the acts of that state correspond to a legal obligation assumed by it under international law, provided that the rights sought to be protected and claimed by the applicant state are legally plausible. By doing so, the Court wears away the risk of unfounded legal requests and illusory rights. Otherwise, the integrity and efficiency of its judicial functioning would be jeopardized since the Court could end up ordering provisional measures in preservation of legal rights that could subsequently be adjudged not held by the applicant state or even non-existent in law. In this context, the mere assertion of a right by the requesting state does not suffice. To use Judge Greenwood’s words in his Declaration appended to the Border Area order for provisional measures, the applicant state must show that there is ‘(…) at least a reasonable possibility that the right it claims exists as a matter of law and will be adjudged to

80 81 82

Miles (n 7) 36. Kolb, The International Court of Justice (n 1) 632; See also Case Concerning Passage through the Great Belt (Judge Shahabuddeen, Separate Opinion) (n 38) at 36. For an analysis of the Lotus principle, see An Hertogen, ‘Letting Lotus Bloom’ (2015) 26(4) European Journal of International Law 901, 901–926.

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apply to that party’s case’.83 Thus, a reasonable possibility that the rights asserted do legally exist in abstracto and as a matter of law, namely that there is a plausible legal basis for them in international law, is necessary to the exclusion of rights that are manifestly incapable of existing in international law. A realistic prospect that the relevant rights will be adjudged to exist under international law paves the way for the indication of provisional measures. In that regard, the Court is entitled to exercise its judicial function only under the reasonable assumption that the rights claimed do possibly exist, that the requesting State possibly possesses them and that these rights correspond to possibly existing legal obligations assumed by the respondent state under international law. It also examines whether it is possible that these rights are liable to be harmed by the conduct complained of in the absence of provisional measures, without having to determine, at this stage, whether such a breach has actually and as a matter of fact occurred. Lastly, Professor Kolb has recently argued that the scope of legal plausibility is broader and includes not only the probability that the claimed rights exist in international law and are held by the applicant, but also that they are actually at its disposal, namely ‘exercisable’.84 Under this purview, the applicant state must be legally entitled to exercise the claimed rights, and legal plausibility touches upon the actual possession and exercise of the claimed rights.85 In short, if, in the circumstances of the case, the applicant is not legally capable of exercising its claimed rights, then provisional measures cannot be ordered since there is ‘no applicable right upon which a measure can be erected’.86 Although this argument draws upon the idea that legal plausibility aims at preserving the rights, which, being the subject matter of the dispute, may subsequently be adjudged to belong to either party, it sheds light on a different aspect of legal plausibility. It uses a slightly different premise: it is the exercise, factual use, implementation, and enforceability of rights that may suffer irreparable harm and be impaired through

83 84 85 86

Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua) (Request for the Indication of Provisional Measures: Order) [2011] ICJ Rep 6, 45; See also Miles (n 7) 11. Kolb, ‘Digging Deeper into the “Plausibility of rights”- Criterion in the Provisional Measures Jurisprudence of the ICJ’ (n 10) 373. Ibid. Ibid.

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unilateral action and not their existence per se.87 In that sense, legal plausibility should also protect the realisation of the rights in legal terms and not their existence and possession in abstracto. Simply, the Court is mandated to safeguard the claimed rights so that they are not ‘rendered sterile’.88 And this protection should include the possibility to exercise them. Otherwise, the Court runs the risk of ordering provisional measures to protect rights that are entirely fictional. Thus, legal plausibility should be concerned with the substance of the claimed rights, which, apart from the existence of these rights, includes their exercise. The mere, abstract, out-of-context existence of a right does not suffice. Instead, the preservation of rights presupposes that an applicable right does plausibly exist, namely that the claimed right exists, is at the applicant’s disposal, and the applicant state is legally entitled and able to exercise it. In so doing, the Court would effectively ‘preserve the factual situation necessary to the meaningful exercise of the disputed rights’ and the practical utility of its final judgment.89 It will not preserve rights that are moot and cannot be enforced by the applicant state. Simply, provisional measures aim at preserving certain rights that may be harmed by the time of the final judgment. If the applicant is not legally entitled to benefit from them and exercise them, it would be pointless to preserve them in the first place. The preservation of rights and their value and effect presuppose the existence of a right applicable to the case. It is true that the idea and purpose of provisional measures are premised upon the existence of a right applicable to the case. However, this does not necessarily mean that the Court has to pronounce on the applicant state’s capacity to exercise its rights under international law and legally benefit from them. Arguably, a right applicable to the case is a right that probably exists in international law (enjoying a plausible legal basis) and is probably held by the applicant state, namely at the disposal of the applicant state. Whether such a right is indeed exercisable is a matter to be dealt with at the merits. As the Court in Belgium v. Senegal noted, at this stage of the proceedings it does not have to ‘consider Belgium’s capacity to assert such rights [the rights claimed] before the Court’.90 In addition, the plausible existence of a claimed right also signals the probability of its realisation. If the claimed rights are found plausible in legal 87 88 89 90

Ibid 374–375. Kolb, The International Court of Justice (n 1) 620–621. Ibid 621. Belgium v Senegal (n 69) at 152, para. 60.

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terms, then there is a plausible legal basis for them in international law, they are probably existing and held by the applicant state. Thus, the applicant is plausibly able to exercise them. Otherwise, the Court would have conditioned legal plausibility upon examining the applicant state’s ability to actually exercise the claimed rights. Although such an assessment would ensure the effectiveness of the Court’s order, it would also constitute a determination of the success of the applicant state’s claim; a matter pertaining to the merits. Under this view, the Court may indeed protect rights that are later found non-exercisable at the merits. However, the Court is empowered to pronounce on whether the applicant state is able to exercise the claimed rights only when it has established its jurisdiction in final terms. Although unilateral acts may indeed harm not the existence of the right per se or in general terms but the use of the right by the applicant state and the possibility for the latter to benefit from it, the Court’s syllogism has focused on the plausible legal existence of the claimed rights. It has focused on whether there is a valid legal basis in international law for the claimed right and whether the latter is held by the applicant state and not on the applicant’s capacity to exercise them. In that sense, provisional measures, due to their incidental character, encompass the possibility to protect rights that may subsequently and at the merits be found nonexercisable by the applicant state. Arguably, the Court’s assessment of legal plausibility should be limited to whether the claimed rights do plausibly exist and are plausibly held by the applicant state. If so, the Court would proceed under the presumption that the claimed rights are plausible and therefore possibly enforceable by the applicant state. Of course, it remains to be seen whether in the near future the Court will explicitly touch upon the applicant state’s capacity to assert the claimed rights and perceive it as a condition for legal plausibility and therefore the indication of provisional measures. In conclusion, legal plausibility appears to be an objective legal assessment with a low threshold. The Court does not have to determine the existence of the claimed rights in a definite, final, or complete manner. Instead, an arguable possibility of the existence of these rights in international law suffices. Otherwise, the Court might end up prejudging the merits of the dispute. Moreover, we should not ignore that, at this stage, neither the parties may and should be able or even required to support their claims in a detailed manner and to a full extent, nor the Court to have a complete overview of the entire case before it.

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Lastly, the purpose, impact, and binding nature of provisional measures suggest that their indication, being an exceptional remedy, should not result from an arbitrary and unpredictable conceptual process.91 Instead, it should be based on solid legal grounds in conformity with international adjudication’s consensual nature and provisional measures’ incidental nature. In that sense, legal plausibility is compelled by logic and the need for an objective legal assessment in support of the Court’s judicial functioning. It not only safeguards the validity of the Court’s forthcoming final decision in terms of efficiency and legal significance but, most importantly, it preserves the fundamental principle on which the inherently consensual international adjudication and international law are premised upon, state sovereignty. 3.2 Factual Plausibility: A Higher Threshold Imposed? Although the Court has consistently focused on the legal aspect of the plausibility test, namely the plausible and non-definite existence of the claimed rights, it has recently changed its approach slightly. For the first time, the Court, in the Ukraine v. Russia92 case, imposed a higher threshold.93 Having explicitly acknowledged that it may exercise its power ‘(…) only if it is satisfied that the rights asserted by the party requesting such measures are at least plausible’,94 the Court conditioned the indication of provisional measures in preservation of the (alleged) rights of Ukraine under the CERD95 upon an examination of whether the ‘(…) acts complained of by Ukraine fulfil the condition of plausibility’96 in conjunction with the sufficiency of the presented evidence. In a similar trajectory, it rejected the provisional protection of the rights claimed by Ukraine under the ICSFT97 due to the absence of ‘(…) evidence which affords a sufficient basis to find it plausible’98 that all the elements of the Articles claimed were present. 91 92 93 94 95 96 97 98

Dumbauld (n 65) 184. Ukraine v Russian Federation (n 11). Lando (n 7) 643. Ukraine v Russian Federation (n 11) paras. 63–64. International Convention on the Elimination of All Forms of Racial Discrimination (adopted 21 December 1965, entered into force 4 January 1969) 660 UNTS 212 (CERD). Ukraine v Russian Federation (n 11) at 135, para. 83. International Convention for the Suppression of the Financing of Terrorism (adopted 9 December 1999, entered into force 10 April 2002) 2178 UNTS 197 (ICSFT). Ukraine v Russian Federation (n 11) at 132, para. 75.

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Apart from the fact that, arguably, the Court did not have to examine thoroughly whether the elements of intent or knowledge existed in plausible terms, it is important to point out that the Court introduced and applied a different standard. It proceeded with a factual assessment of whether the relevant acts complained of could plausibly breach the claimed rights in light of the sufficiency of the evidence presented. The Court moved from the plausibility of rights (legal plausibility) to the plausibility of claims (factual plausibility) without even examining the former. To be more precise, it conditioned the former upon the latter. It departed from the objective legal assessment of whether the claimed rights do plausibly exist in international law as a matter of law and examined whether the conduct complained of is capable of breaching the claimed rights as a matter of fact in conjunction with the evidence presented. Put another way, the ICJ examined, against the sufficiency of the evidence presented, whether the respondent’s acts could plausibly breach the treaties invoked, namely whether they could plausibly constitute acts of racial discrimination and acts of terrorism. Although this assessment concerns whether the conduct complained of could plausibly fall within the material scope of the invoked treaties, the Court did not examine it in abstract legal terms, but it used an evidence-sufficiency standard which was undefined and amounted to or at least was perilously close to an assessment of whether such a breach may have actually occurred. The Court neither elaborated further on this nor stated the reasons that determine what makes the presented evidence sufficient. It did not determine with precision the applicable standard.99 Instead, it referred only to the respondent state’s conduct and its capability of infringing the rights at stake against the sufficiency of the evidence provided.100 It basically required a degree of probability that the rights sought to be protected through provisional measures are likely to be infringed by the conduct complained of on the basis of the sufficiency of the given evidence. In that sense, the scope of the syllogism that the Court constructs has been broadened, and a higher threshold compared to legal plausibility imposed. Under this test, the Court should satisfy itself, while considering the sufficiency of the evidence presented, that the conduct complained of is liable of breaching the rights at stake (factual aspect) and 99 100

Miles (n 7) 38–39. Kolb ‘Digging Deeper into the “Plausibility of rights”- Criterion in the Provisional Measures Jurisprudence of the ICJ’ (n 10) 380.

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the international obligations plausibly assumed by the respondent and owed to the applicant (legal aspect). Under factual plausibility, the Court is prompted to make findings of facts in relation to the applicant state’s claim and evidence. It seems that the factual aspect of plausibility concerns the material scope of the treaties invoked neither in prima facie jurisdictional terms nor in an abstract legal context. Instead, it constitutes a purely factual analysis, a scrutiny in terms of evidence that mirrors an assessment of the probability of the success of the presented claims since a degree of probability based on the facts adduced that the invoked rights are likely to be infringed by the respondent’s conduct is necessary. The plausibility of claims requires the Court to consider aspects of the merits and assess them against the presented evidence and its sufficiency. As a result, the requesting state is called upon to provide the Court with reasons in support of the fact that the conduct complained of could breach the claimed rights as a matter of fact and not that it is capable of infringing them in abstracto and as a matter of law. The latter exclusively focuses on whether the acts complained of fall within the material scope of the treaty at hand. The former constitutes a thorough examination of the evidence presented and its sufficiency. It focuses on whether, as a matter of fact, the plausibly existing rights could have been breached by the conduct complained of provided that sufficient evidence in support of this conclusion exists.101 Thus, under this perception of factual plausibility, a different question ensues. Factual plausibility implies that neither the plausible legal existence of the rights at stake and the fact that these rights could correspond to international obligations plausibly assumed by the respondent state nor the fact that the respondent’s conduct could plausibly fall within the material scope of the treaties invoked do suffice. Instead, the conduct complained of should be plausibly liable to breach these rights as a matter of fact provided that sufficient evidence was presented. Arguably, the Court has altered the character of the plausibility test. The plausibility test is to be determined under the lens of a breach since the Court requires a finding of a breach of the relevant rights and associated obligations by the respondent state’s conduct in light of the evidence presented.102 The respondent’s conduct should not just fall within 101 102

Lando (n 7) 650. Kolb ‘Digging Deeper into the “Plausibility of rights”- Criterion in the Provisional Measures Jurisprudence of the ICJ’ (n 10) 375.

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the relevant treaty’s material scope, a fact which would signal that it is capable of breaching the claimed rights under the relevant treaty in abstracto and as a matter of law, but it should be shown that it could actually breach the plausible rights in factual terms via sufficient evidence.103 The Court has essentially established a new, higher threshold as regards plausibility. The plausibility test, it turns out, has become a fourprong test imposing a higher threshold, which differs from plausibility as it has been originally perceived and developed by way of separate opinions.104 The asserted rights not only have to be legally existing and held by the applicant in plausible terms, as discussed, but also, as a matter of fact. The Court, in light of the sufficiency of the evidence presented, must also conclude that they could have been breached by the respondent’s conduct. This assessment constitutes an assessment of ‘mixed law and facts’105 since the Court goes beyond a purely legal examination of the invoked rights and the possibility of having them breached in the absence of provisional measures. In short, the acts complained of should not only fall within the material scope of the treaty from which the plausible rights arise; a legal assessment which superficially focuses on the facts of the case implying that probably the conduct complained of could breach the claimed rights. Instead, as applied, factual plausibility introduced a thorough factual analysis of the sufficiency of the evidence presented, which focuses on the claims of the disputing parties (primary of the applicant state), constituting an implicit pronouncement on their factual validity, credibility, and probability of success. In other words, the Court proceeds with a preliminary pronouncement on the legal fate of the disputing parties’ claims, namely whether they are factually (un)founded. This preliminary assessment implicitly signals whether the rights, which have been sought to be preserved, have been actually breached in non-final terms; an assessment that touches upon the probability of having these claims dismissed at the merits. In the Jadhav case, although the parties did not contest the factual basis of the request for provisional measures106 and the Court was not 103 104 105 106

Miles (n 7) 18–31. Ibid 3–7. Akande (n 2) 337. The Court noted that Pakistan did not challenge these assertions, namely the facts claimed by India that ‘(…) one of its nationals has been arrested, detained, tried, and sentenced to death in Pakistan without having been notified by the same State or afforded access to him’ and that ‘(…) Mr. Jadhav has not been informed without

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called upon to pronounce on the sufficiency of the presented evidence, the Court confirmed that the rights invoked were plausible ‘(…) taking into account the legal arguments and evidence presented’.107 Arguably, the Court, by explicitly referring to the Ukraine v. Russia case, embraced its previous stance as regards factual plausibility.108 Yet, quite interestingly, in Qatar v. United Arab Emirates,109 the Court perceived the plausibility test in a slightly different manner. Indeed, it focused on whether the conduct complained of ‘appear[s] to constitute acts of racial discrimination (…)’110 under the CERD and associated the plausibility of rights with the facts of the case and the conduct complained of. However, it slightly departed from the undefined evidencesufficiency test. It examined the evidence presented superficially and focused on whether the acts allegedly attributed to the respondent appeared to fall within the material scope of the CERD. This assessment was conducted without any thorough examination of the sufficiency of the evidence provided. Instead, the Court only examined whether the facts of the case could reveal that the conduct complained of appeared to fall within the material scope of the treaty invoked and, as a result, to be able to infringe the claimed rights. Similarly, in the recent Iran v US111 case, the Court examined whether the measures complained of by Iran and allegedly attributed to the US could constitute exceptionally permitted actions under Article XX of the treaty invoked. Again, the Court did not focus on the sufficiency of the evidence presented. It noted that the ‘measures complained of by Iran could relate to “fissionable materials (…) or could be necessary to protect essential security interests” of the United States’,112 a fact which could affect some of the rights invoked by Iran. Once again, the Court assessed only whether the acts complained of could fall within the material scope of the treaty invoked.

107 108 109 110 111 112

delay of his rights with regard to consular assistance or allowed to exercise them’. See Jadhav Case (n 12) at 242, para. 44. Ibid 242–243, para. 45. Ibid 240, 242, paras. 35, 42. Qatar v United Arab Emirates (n 27) at 427, para. 54. Ibid para. 52. Alleged Violations of the 1955 Treaty of Amity, Economic Relations and Consular Rights (Islamic Republic of Iran v United States of America) (Request for the Indication of Provisional Measures: Order) [2018] ICJ Rep. 623, at 643, paras. 67–70. Ibid.

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In The Gambia v. Myanmar, the Court’s most recent pronouncement, the Court examined the plausibility of the rights sought to be protected in conjunction with the ‘facts and circumstances (…)’ presented.113 The Gambia noted that a genocidal intent was plausibly present since the acts complained of were ‘capable of being characterized at least plausibly genocidal (…)’ in conjunction with the ‘evidence and material placed before the Court (…)’.114 The Court affirmed that the claimed rights were plausible in conjunction with the ‘facts and circumstances mentioned’,115 again, without any reference to the evidence-sufficiency standard. In light of the above, it seems that the Court lies between the undefined evidence-sufficiency standard and the superficial assessment of the conduct complained of. Both assessments concern whether the respondent’s acts can fall within the material scope of the treaty invoked. However, the former, being a factual assessment, goes beyond that, examining whether the claimed rights could have actually been breached on the basis of sufficient evidence. The latter, instead, remains superficial, legal, and abstract in nature. It focuses on whether the possibility of having these rights breached by the respondent’s acts can or cannot be ruled out; an assessment which exclusively depends on whether the alleged conduct can plausibly fall within the material scope of the treaty invoked, namely whether the alleged conduct ‘is such of a kind that it might violate’ the claimed rights.116 It is my view that factual plausibility and the undefined evidence-sufficiency standard, as applied, challenge the outer limits of the prima facie jurisdictional context in which the Court rules upon a request for provisional measures. By perceiving the factual aspect of the plausibility test as being tantamount to an assessment of the evidence presented and its sufficiency, the Court changes the nature of the plausibility test. It mainly conditions provisional measures, namely whether the rights claimed will be deemed plausible, upon a pronouncement on the factual background of the case at hand and on whether the applicant state’s claims have been sufficiently supported in terms of facts. In that sense, the indication of provisional measures, being premised upon a factual assessment permeated by an undefined standard, has been rendered subjective.117 The 113 114 115 116 117

The Gambia v Myanmar (n 26) at 23, para. 56. Ibid para. 46. Ibid para. 56. Lando (n 7) 651. As Professor Kolb noted, ‘So long as this standard is not further elaborated upon, the Court exercises some degree of a discretionary power. In effect, the Court has

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Court shied away from an objective legal determination of the plausibility of rights as a matter of law and turned on whether the rights claimed could have actually been breached by the conduct complained of as a matter of fact and against the sufficiency of the presented evidence. In addition, due to the undefined evidence-sufficiency standard, the legal and factual aspects of the plausibility test impose different and uneven thresholds. Legal plausibility compels the Court to proceed with a legal assessment of the material scope of the claimed rights, which is objective in nature. In contrast, factual plausibility, being rendered subjective, focuses on the actual breach of the claimed rights on the basis of the adequacy, sufficiency of the relevant evidence and indicates the probability of success of the applicant and (inevitably) the respondent states’ claims. In this context, I argue below that the plausibility test should remain a purely legal assessment and its legal and factual aspects impose one and the same threshold. Logically, factual plausibility presupposes legal plausibility. Indeed, whether the respondent’s conduct is capable of breaching the claimed rights, even plausibly, presupposes that the relevant rights legally exist at least plausibly (legal plausibility). In that sense, the alleged conduct, which must be capable of breaching these rights, has also to be covered by the material scope of the legal instrument from which the plausible rights arise. As already noted, legal plausibility aims at safeguarding that the rights preserved will not be subsequently found non-existent in international law or not held by the applicant. Consequently, factual plausibility should only require the applicant state to show that the respondent’s conduct plausibly falls within the material scope of the relevant legal instrument, namely that the facts presented show that it is legally possible that these rights could be breached by the conduct complained of. Although it seems that the Court has promisingly attempted to shy away from the ambiguous evidence-sufficiency standard, it has yet to clarify its final stance. There is no clear indication that the Court has abandoned the evidence-sufficiency standard.118 Furthermore, it remains unclear what is the applicable threshold when the Court assesses

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not yet been clear as to what plausibility entails: it has swung from the notion of “possibility” to the mere and blank assertion of plausibility whatever that may exactly mean. The latter has not become the standard formula (…)’. See Kolb, ‘Digging Deeper into the “Plausibility of rights”- Criterion in the Provisional Measures Jurisprudence of the ICJ’ (n 10) 380. Ibid 368.

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the plausibility of rights, not least its factual aspect. Will the Court exert a superficial, purely legal in nature assessment of the plausibility of rights as recently attempted to do or apply the undefined standard of the sufficiency of the evidence presented implicitly associating two distinct, uneven thresholds with the plausibility test? It is also unclear whether the plausibility test, as applied so far, introduces a question of mixed law and facts, as we assume, or it remains an abstract legal question, as this paper suggests it should be. Does factual plausibility or even the plausibility test in general concern the parties’ claims, the facts presented and/or the asserted rights per se? Simply put, ‘It is unclear what the threshold of plausibility should be and how that threshold relates to other threshold questions the Court has to decide upon at the provisional measures stage’.119 If the plausibility test were directly concerned with the actual infringement of the claimed rights, the evidence-sufficiency standard would indeed appear appropriate despite its indeterminacy. However, this assumption and the associated-with-it assessment do not conform with the incidental nature of provisional measures. On the other hand, if factual plausibility exclusively concerns, as originally suggested, the asserted rights and the possibility of having them breached by the respondent’s acts in light of the facts of the case, the undefined evidence-sufficiency standard lies on the edge of prejudgment challenging the Court’s outer jurisdictional limits. The Relationship between Prima Facie Jurisdiction and (Legal and Factual) Plausibility The legal and factual aspects of plausibility and their scope, as perceived by the Court, shed light on the relationship between prima facie jurisdiction and plausibility.120 Let us now briefly examine this relationship. Quite interestingly, legal plausibility can be associated with the requirement for prima facie jurisdiction. They both concern the material scope of the legal framework within which the Court exercises its judicial function and exerts its adjudicative power. The assessments the Court conducts when examining whether it is entitled to exercise its statutory power to indicate provisional measures (prima facie jurisdiction) and legal plausibility, namely the plausibility of the rights claimed, are both legal and objective in nature. In both contexts, the Court constructs a legal syllogism, which touches upon its ratione materiae jurisdictional 3.3

119 120

Akande (n 2) 336. For a slightly different analysis with a similar conclusion, see Lando (n 7) 658–662.

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limits without enjoying any discretionary power granted to it. As far as legal plausibility is concerned, the Court objectively examines whether the rights claimed do plausibly exist. This propels it not only to inquire whether there is a plausible legal basis for these rights in international law but also to examine whether these rights are plausibly held by the applicant state and correspond to plausible international legal obligations assumed by the respondent state. When ascertaining its prima facie jurisdiction, the Court deals with a quite similar legal question. As discussed, ‘The Court may indicate provisional measures only if the provisions relied on by the Applicant appear, prima facie to afford a basis on which its jurisdiction could be founded (…)’.121 Arguably, prima facie jurisdiction and legal plausibility are the different sides of the same coin. However, they exert different functions and impose different thresholds. Legal plausibility aims at preventing the imposition of legal obligations upon sovereign states without any plausible legal basis under international law, whereas prima facie jurisdiction preserves the consensual nature of the Court’s jurisdiction.122 The former imposes a lower threshold than the latter.123 In other words, it is hardly possible to pass the prima facie threshold and, at the same time, for the relevant rights to be found plausibly nonexistent under international law, since the title of jurisdiction and the claimed rights and obligations concerned will probably derive from the same treaty. When the Court assesses its prima facie jurisdiction, apart from the prima facie existence of the dispute, it examines whether the disputing states are parties to the treaty concerned, namely whether they do possibly hold rights and voluntarily assumed legal obligations under the same legal instrument. In that sense, the assessment of prima facie jurisdiction touches upon legal plausibility. As Judge Owada noted: [I]n order for the Court to be able to indicate provisional measures that ‘preserve the respective rights of either party’ the Court must ascertain that jurisdiction to deal with the alleged rights exists, at least prima facie, on the basis of the Convention in question, and

121 122 123

The Gambia v Myanmar (n 26) at 9, para. 16. Lando (n 7) 661. Kolb, ‘Digging Deeper into the “Plausibility of rights”- Criterion in the Provisional Measures Jurisprudence of the ICJ’ (n 10) 363–384.

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that the rights whose protection is sought must exist on the basis of the provisions prescribed in the [same] Convention (…).124 In short, there is a conceptual distinction between the ‘probable existence of jurisdiction (…)’ and the probable ‘existence or not of concrete rights probably falling within the scope of jurisdiction (…)’.125 The former, which concerns state consent, precedes the latter, which concerns the legal claims made by the parties. The Court will only examine legal plausibility if there is prima facie jurisdiction. In that sense, although they may sometimes come to narrow confines, they are essentially neatly separated. Similarly, the Court will examine factual plausibility only if prima facie jurisdiction exists. However, factual plausibility, as applied so far, imposes a higher threshold compared to prima facie jurisdiction and legal plausibility. The jurisdictional assessment takes place on a more abstract level, whereas factual plausibility entails an examination of the sufficiency of the evidence presented, which, due to its indeterminacy, is subjective and touches upon the probable success of the disputing states’ claims.126 It presupposes that the alleged conduct falls within the material scope of the treaty invoked and focuses on whether such conduct might have breached the claimed rights on the basis of sufficient evidence. Thus, this assessment goes beyond a pure examination of the relevant treaty’s ratione materiae scope imposing a higher threshold than prima facie jurisdiction and legal plausibility.127 It is my argument that factual plausibility, as applied in conjunction with the undefined evidence-sufficiency standard, imposes an extremely high threshold that touches upon prejudgment. I also argue that this standard should be lowered, and factual plausibility should focus exclusively on whether the alleged conduct falls within the material scope of the treaty invoked. If so, the Court will not pronounce on whether the applicant’s claim is well-supported but on whether there is a reasonable possibility that the alleged conduct might harm the claimed rights or at least that this possibility cannot be manifestly ruled out.

124 125 126 127

Ukraine v Russian Federation (Judge Owada, Separate Opinion) (n 55) para. 7. Kolb ‘Digging Deeper into the “Plausibility of rights”- Criterion in the Provisional Measures Jurisprudence of the ICJ’ (n 10) 383–384. Ibid. Lando (n 7) 658- 663.

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Bringing the Past out of the Closet: Assessing Factual Plausibility as Initially Prefigured

As discussed, at the stage of provisional measures, the Court is in constant search of the golden thread. It has to maintain a fair balance. It can neither order provisional measures unfetteredly and without any requirements rendering the threshold for the indication of provisional measures too low, nor condition their indication upon an extremely high threshold which may touch upon the merits of the dispute. Instead, it aims at safeguarding the integrity of its judicial function by avoiding prejudging the merits and unnecessarily imposing international obligations upon sovereign states. In this context, the Court is compelled to consider the opposing interests of the disputing states in non-definite terms. On the one hand, the applicant state aims at shielding its allegedly own (and legally existing) rights from an imminent risk associated with the conduct allegedly attributed to the respondent. On the other, the Court cannot overlook the respondent state’s interest in showing that the request for provisional measures is legally or factually unfounded and therefore it should not be legally constrained. Thus, the fact that the respondent state can oppose the existence of prima facie jurisdiction, the plausible legal existence of the claimed rights (the legal aspect of provisional measures), and, of course, the existence of urgent circumstances (factual aspect) hardly leads to a prejudgment a priori and per se. As discussed, when it comes to the indication of provisional measures, a limited appreciation of the merits is required especially in light of their binding nature.128 In that sense, factual plausibility, namely the idea of examining whether the conduct complained of is plausibly liable of infringing the claimed rights, does not a priori and by default compels the Court to overstep its contours and touch upon prejudgment. Instead, it is neither the way in which factual plausibility was perceived in the first place nor its underlying reasoning, but merely its application and the associated-with-it undefined standard of appreciation that raise awareness.129 The plausibility of rights suggests that the rights invoked by the requesting state should be legally existent in plausible terms. As noted, 128 129

Miles (n 7) 40; Akande (n 2) 336. As Miles noted, ‘[n]or did it [the Court] specify the precise evidence that Ukraine [the applicant state] would need to supply in order to meet the standard (…)’. See Miles (n 7) 38.

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this assessment is compelled by logic as it efficiently accommodates the Court’s duty to exert its judicial function sensitively and cautiously.130 The Court cannot order provisional measures against another state without any requirement, not least without ascertaining that there is a plausible legal basis in international law for the rights invoked. If so however, it would not have been shielded from profoundly unfounded and frivolous legal requests. Instead, it would order provisional measures in preservation of rights which subsequently could either be found non-existing in international law or not held by the requesting state. The Court’s judicial functioning would be harmed and its premise, namely state sovereignty and consent, undermined. Put it differently, the fumus boni juris test, as initially introduced by the Court,131 which paves the way for a limited prima facie review on the merits (legal existence of the invoked rights that, arguably, are at risk) is necessary. Yet, the ICJ has recaptured the plausibility test slightly differently. It has conceptually moved from legal plausibility to factual plausibility. It has associated the plausibility of rights with an assessment of the facts of the case and conditioned the plausibility of rights upon an (undefined) evidence-sufficiency test. It turns on the fate of the claims presented. Put differently, the Court examined whether the applicant’s claims have been sufficiently substantiated, namely whether the evidence provided do indeed suffice to show that the (plausibly existing) rights could have been violated. The Court basically focused on whether ‘on the basis of the evidence presented certain acts could be said to have breached (…)’ the claimed rights.132 Although this logic helps the Court avoid frivolous and completely unfounded claims, it arguably amounts to an implicit assessment of the fate of the applicant’s and, as a result, of the respondent’s claims which touches upon prejudgment or at least challenges the outer limits of the Court’s prima facie jurisdiction. Factual plausibility amounts to a test of the probability of the success of the presented claims presupposing an examination of the merits of the dispute against an indeterminate standard, the sufficiency of the evidence provided. The Court, in reality, examines whether the claims presented are factually well-founded. The so-called plausibility of claims appears to be an additional requirement rendering the threshold for provisional measures 130 131 132

Akande (n 2) 336–337. For instance see Belgium v Senegal (n 69) at 151, paras. 56–57. Miles (n 7) 32.

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even higher.133 It is a conceptually different test compared to legal plausibility. Although it is premised upon the plausible existence of the rights invoked, it focuses on whether the respondent state’s conduct could have actually breached the already plausibly existing right. This test implies that the Court should conduct an assessment of the relevant facts which might or might not support that the rights under scrutiny are likely to be infringed by the respondent state’s conduct. Factual plausibility essentially requires a degree of probability that this scenario is plausible against the adduced facts. It goes, then, beyond the mere need for a plausible legal basis for the invoked rights which should correspond to international obligations plausibly assumed by the respondent state under international law. Arguably, the application of the law to the relevant facts, the Court’s syllogism at the merits, has been transposed into the stage of provisional measures under the disguise of factual plausibility. To be more precise, factual plausibility, as applied, constitutes an assessment of both facts and law resembling the Court’s syllogism (decision-making) at the merits, when its jurisdiction is firmly and in final terms established. In the main proceedings and ‘In accordance with its practice, the Court will first make its own determination of the facts and then apply the relevant rules of international law to the facts which it has found to have existed’.134 This assessment and the evidence-sufficiency standard, as applied, do not conform with contours of the prima facie jurisdictional context of provisional measures. The examination of the sufficiency of the evidence is neither preliminary in nature nor compatible with an a priori non-definite determination needed at this stage. As professor Akande noted in a slightly different context: This concern arises from the fact that action at the provisional measures stage is taken, by definition, before the facts or rights and obligations of each party have been determined, and in many cases even before it is determined that the Court has jurisdiction over the case at all.135

133 134 135

Lando (n 7) 642–644. Armed Activities on the Territory of Congo (Democratic Republic of Congo v Uganda) (Judgment) [2005] ICJ Rep 168, at 200, para. 57. Akande (n 2) 333.

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In addition, factual plausibility makes the threshold for provisional measures extremely difficult to bypass in such a way that either a risk of irreparable harm of the claimed rights or a prejudgment arises. As regards the former, the Court may overlook the possible vulnerability of the plausibly existing rights at stake and decide not to preserve rights that should and could have been protected if the threshold were lower.136 As a result, it jeopardizes the legal and practical efficiency of its final judgment. On the other hand, by premising provisional measures upon such a high threshold, the Court implicitly influences not only its future stance but also the strategy of the disputing states. As discussed, neither the threshold the evidence-sufficiency test provides for nor the criteria based on which the evidence is considered sufficient have been determined.137 Thus, due to the questionable contours and inherent indeterminacy of this standard, the parties are forced to plead their case in full. In that sense, the risk of having the legal and factual issues of the case overly addressed or even prejudged and the proceedings overburdened is apparent.138 In addition, the evidence-sufficiency standard entails a thorough factual assessment, attributing a discretionary power to the Court, which resembles the discretion it enjoys when assessing whether the circumstances at hand require provisional measures or even the merits. Such a pronouncement may give the impression that the Court has reached a de facto conclusion as regards the applicant state’s claim and the evidence in support of it. In short, under the evidence-sufficiency standard, the risk of prejudgment looms large. The Court goes into questions of merits at this early stage of proceedings. It seems that, through this evidencesufficiency standard, the Court has transported the consideration of aspects of the merits into the stage of provisional measures.139 Although the plausibility test remains a prima facie test (its outcome is neither final nor binds the Court), the application of the evidence-sufficiency standard lies on the edge of prejudgment since, due to its inherent indeterminacy, there is no way to have it surpassed without having the entire dispute pleaded by the disputing states and examined by the 136 137 138 139

For a brief analysis on the distinction between vulnerability of rights and plausibility, see Ukraine v Russian Federation (Judge Cançado Trindade, Separate Opinion) (n 50) at 169–171. Akande (n 2) 333–339. Ibid 337; Miles (n 7) 43. Kolb ‘Digging Deeper into the “Plausibility of rights”- Criterion in the Provisional Measures Jurisprudence of the ICJ’ (n 10) 369.

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Court, or at least without forcing the states to do so. Arguably, such a discretion contradicts the objective nature of plausibility originally attributed to it. Plausibility, as it was initially perceived and foreshadowed, was destined to focus on the legal rights claimed, their capability of being existent and infringed under international law. However, the evidencesufficiency assessment paves the way for a mini trial of the entire dispute at the stage of provisional measures blurring the distinction between incidental and main proceedings.140 Of course, this does not necessarily imply that the indication of provisional measures should be unfettered. Indeed, it is an existential task of utmost importance for the Court which concerns its judicial integrity and proper administration of justice. Provisional measures constrain state sovereignty, and the Court is compelled to rule upon such requests in a blurred legal environment without a firmly established jurisdiction. As a result, they should be subject to specific requirements. The Court has to maintain a fair balance between their unfetter indication and the imposition of an extremely high threshold in order to respect the rights of the disputing states and the consensual nature of its jurisdiction. In that sense, a relatively high threshold for provisional measures and, of course, the need for plausibility are justified.141 Yet, this does neither imply that the threshold should be extremely high nor the requirements undetermined or quasi-impossible to satisfy in such a way that the disputing states are ‘forced’ to have their case pleaded and eventually assessed to its full extent. Arguably, the evidencesufficiency test can hardly be distinguished from an analysis of the case to its full extent at the merits. Of course, the Court’s stance at provisional measures does not bind itself or signal a resolution of the dispute in final legal terms. However, the risk of prejudgment encompasses exactly this scenario. It does not refer to a conclusion made by the Court in binding for itself legal terms. Instead, it has to do with the possibility of having the Court’s stance on certain legal issues unconsciously predetermined during incidental proceedings, a fact which might influence its stance later, at the merits. Plainly, the argument that the Court’s stance during incidental proceedings does not legally determine in final terms its stance at the merits and, as a result, the risk of prejudgment is eliminated, seems less convincing. The Court is not legally obliged to conceptually follow or confirm 140 141

Ibid. Akande (n 2) 335–336.

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its findings during provisional measures at the merits stage. Indeed, any determinations made while indicating provisional measures are not ‘(…) constitutive of an internal res judicata’.142 However, it is my view that this can neither justify a preliminary full review of the (facts of the) case and an assessment of the probability of success of the parties’ claims by the Court at this stage nor does prevent it from being unconsciously influenced during incidental proceedings and de facto prejudging the merits. At least, this is what a legal realist would easily argue.143 Thus, the risk of prejudgment looms large when the Court filters the request for provisional measures through an examination of the sufficiency of the evidence presented, not least without having previously explained what makes the relevant evidence sufficient.144 In the author’s view, factual plausibility should not entail a review of the sufficiency of the evidence presented at all, not least under an undefined standard of appreciation. Instead, it should entail a prima facie assessment of whether the alleged conduct of the respondent state could breach the plausibly existing claimed rights under international law if the factual circumstances were indeed as pleaded. Of course, the Court should not take as plausible everything the applicant state alleges. Instead, this assessment is premised upon the idea of not examining the sufficiency of the evidence per se, but whether the conduct allegedly attributed to the respondent is capable of breaching the rights of the applicant state in abstracto and in legal terms. The evidence-sufficiency test leads to the application of the facts to the law, which increases the risk of prejudgment. On the other hand, the capability of the respondent state’s conduct to violate international law in abstracto and especially the plausibly existing legal rights concerns the possibility of the conduct at stake to be unlawful under international law and the instrument invoked in general terms, leaving room for a further review at the merits without any appearance or risk of prejudgment. 142 143

144

Miles (n 7) 35. On legal realism, see Brian Leiter, Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal Philosophy (OUP 2007); Daniel Bodansky, ‘Legal Realism and its Discontents’ (2015) 28 Leiden Journal of International Law, 267–281. As Professor Akande noted, ‘In particular, does plausibility simply mean that there is some chance of success at the merits stage? Or is it something similar to the test that is applied in some domestic systems that there is a serious issue to be tried or perhaps even an arguable case, or reasonable prospect of success on the merits? It would appear that the threshold of plausibility is low but clarity on this point would be welcome (…)’. See Akande (n 2) 336.

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By doing so, the Court will assess whether the respondent’s conduct is legally (legal plausibility) and factually capable of breaching international law without touching upon whether such breach could have been plausibly or even actually occurred against the sufficiency of the evidence presented. In essence, the Court will have to examine whether the conduct complained of as presented and in light of the facts at hand does plausibly fall within the material scope of the invoked treaty under which the rights sought to be protected are legally plausible. The Court will essentially pronounce on whether the respondent state’s conduct is such of a kind that might breach the claimed rights.145 To the author’s mind, this slightly different angle conforms with the prima facie context within which the plausibility test along with the other requirements for provisional measures are to be examined. It basically shields the Court’s judicial functioning not only from the risk of prejudgment but also from profoundly meritless, unreasonable, or frivolous claims. Brutally simplified, the plausibility threshold is surpassed only when the conduct complained of, and the rights sought to be protected fall within the material scope of the invoked instrument. If so, the rights in question probably exist in international law, and the conduct complained of is probably capable of breaching them. In short, this conclusion cannot be manifestly ruled out. Of course, the Court does not exercise its judicial power in a legal vacuum and completely abstract terms.146 The Court cannot exercise its power under the assumption of a clear separation between the existence of the disputed rights, a matter to be definitely resolved not before the merits, and questions relating to the need for provisional measures, which can and should be examined without any thought to the merits of the arguments presented in the main proceedings. Instead, the indication of provisional measures is a matter of a fair balance in legal terms (prima facie jurisdiction, legal plausibility) and facts (factual plausibility, circumstances at hand), and the Court cannot indicate binding provisional measures without any thought to the merit of the arguments advanced.147 Simply, the Court cannot constrain a sovereign state’s freedom to act without having a reason to believe that the requesting state has a valid claim. However, this should not pave the way for the Court to conduct, when examining factual plausibility, a full 145 146 147

Lando (n 7) 651. Pulp Mills (Judge Abraham, Separate Opinion) (n 6) at 138, para. 5. Miles (n 7) 43.

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review of the evidence presented resembling a complete, thorough determination of the arguments and facts presented and their sufficiency and (possibility of) success. A thorough analysis of factual plausibility in evidence-sufficiency terms inevitably implies that the claims of either the applicant or the respondent appear to be not plausible, factually unsupported, or meritless. In the same vein, factual plausibility does not and should not impose a different or even higher threshold than legal plausibility. They were not supposed to differentiate and impose uneven thresholds. Instead, the plausibility test has always been about one legal quest. Both its legal and factual counterparts should impose one and the same threshold, as Judge Abraham, in a detailed act of foreshadowing, implicitly suggested when he clarified the plausibility test.148 On the one hand, legal plausibility concerns the possible legal existence of the rights claimed and possibly held by the requesting state. On the other, factual plausibility concerns the possibility of considering the respondent’s conduct as capable of breaching the plausibly existing rights. Indeed, as initially perceived, the plausibility test had a factual aspect requiring the Court to touch upon the facts of the case at hand and go beyond the mere plausible legal existence of the rights claimed. However, this assessment should conform with the contours within which the Court has to exercise its judicial function at the stage of provisional measures, namely in a prima facie context. In that sense, it has to be superficial. Of course, this neither suggests that factual plausibility is not necessary and compelled by logic nor renders it moot. Instead, factual plausibility also sustains the efficiency of the Court’s judicial functioning and the preservation of state sovereignty. However, its threshold should not be extremely high. Simply put, the higher the imposed threshold is, the closer the (risk of) prejudgment appears to be. Factual plausibility should not necessarily imply an examination of the facts of the case under an evidence-sufficiency test. Instead, it should focus exclusively on whether the possibility that the conduct complained of could breach the (plausibly existing in international law) rights cannot be manifestly ruled out. The Court should proceed with a legal determination of the facts in abstracto, turning on whether it would be impossible or unthinkable that the conduct complained of could infringe these rights in light of the facts presented. If so, the Court would not pronounce on whether the evidence supported that the breach may or could have occurred, but whether such 148

Pulp Mills (Judge Abraham, Separate Opinion) (n 6) at 138, para 4.

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conduct could possibly and in general legal terms breach these rights. The former assessment inevitably touches upon the success of the claims presented. The latter concerns the conduct complained of and its capability of breaching the claimed rights in abstract terms. In other words, whether such a possibility is to be manifestly ruled out. This lower threshold compared to the evidence-sufficiency standard requires the Court to examine only whether the conduct complained of as presented by the parties appears to fall within the material scope of the instrument invoked. In so doing, the Court will be shielded from ordering provisional measures and constraining the respondent state not only when there is no plausible legal basis under international law for the claimed rights (when they are manifestly incapable of existing in international law), but also when the respondent’s conduct is manifestly incapable of breaching these rights (when it does not fall within the material scope of the relevant treaty). In short, when it is legally impossible for the conduct complained of to breach the claimed rights. In addition, the risk of prejudgment, associated with the evidencesufficiency standard factual plausibility has come to entail, will be eventually worn away, and the application of factual plausibility will be in conformity with the preliminary nature of provisional measures. It will not resemble the Court’s judicial assessment in the main proceedings implicitly pronouncing on whether the applicant’s claims are factually plausible, a fact which evidently constitutes a preliminary determination of the probability of the success of the presented claims. Under this approach, the legal and factual aspects of the plausibility test will impose one and the same threshold. Arguably, the plausibility test has always been about one threshold. It has always been perceived as a purely legal assessment of the scope of the Court’s ratione materiae jurisdiction. Both its legal and factual aspects concern a plausible interpretation of the (material scope of the) legal instrument invoked, which touches upon the applicable law (claimed rights) and the facts presented (conduct complained of). In that regard, the plausibility test basically examines whether the possibility of having the claimed rights existing under international law and the relevant instrument and infringed in conjunction with the conduct complained of can be manifestly ruled out.

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Conclusion

This paper focused on the distinction between legal and factual plausibility, the two aspects of the so-called plausibility test, upon which provisional measures are premised. As argued, the Court, at the provisional measures stage, is compelled to maintain a fair balance between their unfetter indication and the risk of prejudgment. It cannot indicate provisional measures unfetteredly and unconditionally. On the other hand, it should not impose an extremely high threshold rendering their indication an almost impossible task. The threshold for provisional measures should thus be neither too low nor too high. Otherwise, the efficiency of the Court’s final judgment, its judicial integrity, and proper administration of justice may be endangered. The Court, being empowered to decide the legal and factual issues before it in prima facie jurisdictional terms, is compelled to preserve the efficiency and integrity of its judicial function in light of the binding nature of provisional measures, their limited ‘lifespan’ (their legal significance), and the consensual origins of its adjudicative power (state sovereignty). Provisional measures, being legally binding, do constrain states’ freedom to act as they please, and the Court must cautiously avoid unnecessary restrictions upon states. Simply put, it has to protect the sovereignty of the respondent state. At the same time, it cannot overlook the rights of the applicant state, which may face an imminent risk, by rejecting their preservation due to an extremely high threshold which is quasi-impossible to have it surpassed. Both the unfettered indication of provisional measures, which will lead to the unnecessary protection of rights that may subsequently be found even non-existent in international law, and the imposition of an extremely high threshold, which will pave the way for a prohibited provisional examination of the merits, undermine the Court’s judicial integrity. In this context, the Court, being cognizant of the inherent risks and limitations associated with the nature of provisional measures, conditioned their indication upon specific requirements including plausibility. This paper examined the factual and legal aspects of the plausibility test, as it has been initially perceived and evolved by way of separate opinions and eventually applied by the ICJ. I subscribed to the view that legal plausibility is compelled by logic since it concerns the probable and non-definite legal existence of the claimed legal rights to the exclusion of those that are profoundly and manifestly incapable of existing in international law. In short, the pro-

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visional preservation of certain rights presupposes their plausible existence and that the applicant state does plausibly hold them. Yet, although the factual aspect of the plausibility test, namely the idea of considering the conduct complained of as possibly capable of breaching these rights, was initially foreseen, the – undefined and undetermined – evidence-sufficiency standard that the Court recently elaborated and applied raises concerns. Arguably, it goes beyond what the Court is supposed to do at the incidental stage of provisional measures and touches upon prejudgment. As pointed out, it compels the Court to conduct a thorough examination of the presented evidence in terms of its sufficiency, and by virtue of this assessment, to pronounce on the probability of the success of the presented claims. It basically implies that the claims of either the requesting or the respondent state are factually implausible and unsupported. Factual plausibility, under this indeterminate standard, exclusively focuses on the claims of the disputing parties, and the Court by essentially requiring sufficient proof of whether the respondent’s conduct could have actually breached the claimed rights, turns on a legal quest, which, although conducted in non-definite terms, inherently resembles the application of the law to the facts, the syllogism the Court constructs in the main proceedings. In my view, factual plausibility, as applied, introduces a mini trial at the stage of provisional measures touching upon prejudgment. Quite interestingly, the Court, in its very recent pronouncements, avoided any reference to the sufficiency of the evidence presented when examined the plausibility of rights. It seems that it has adopted a slightly different approach. It exclusively focused on whether the acts complained of could fall within the material scope of the treaties invoked. However, it remains to be seen whether this indeed signaled a departure from the evidence-sufficiency standard, as I am inclined to think, or not. The Court has yet to clarify its final stance. The core argument of this paper was that the applicable standard, as far as factual plausibility is concerned, should be lowered, and mainly reflect what Judge Abraham noted in Pulp Mills. Factual plausibility should prevent only the cases where the conduct complained of is manifestly incapable of breaching the claimed rights. If so, the Court would conduct a legal assessment in abstract terms and determine whether the respondent’s conduct, as presented, could in principle breach the claimed rights. This assessment is to be conducted without any thorough analysis of the sufficiency of the evidence presented, but it proceeds from the assump-

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tion that the acts complained of could possibly breach the claimed rights if the conduct complained of falls within the material scope of the treaty invoked provided that the presented facts appear to be true and accurate. If so, the respondent state’s conduct would appear to be able to breach the claimed rights in legal terms, or at least this scenario would not be beyond unthinkable. In that sense, the Court will only have to satisfy itself that the conduct complained of falls within the material scope of the treaty invoked. By doing so, the Court avoids the risk of prejudgment associated with a high threshold, extremely difficult to meet, which compels the parties to plead their case in full. At the same time, it safeguards state sovereignty and the efficiency of its judicial function since provisional measures will not be ordered unfetteredly. Instead, their indication will be impossible when the respondent’s conduct is found to be manifestly incapable of breaching the rights sought to be protected, for instance, when such conduct does not fall within the material scope of the treaty invoked (factual plausibility), or when the claimed rights are manifestly incapable of existing in international law (legal plausibility). In that sense, the threshold imposed by the legal and factual aspects of the plausibility test will be one and the same. To conclude, under the proposed approach to factual plausibility, the plausibility test, although it touches upon the facts of the case, remains a purely legal assessment that concerns a plausible, preliminary interpretation of the relevant treaty and its material scope, involving both the claimed rights and the conduct complained of. In short, this approach amply reflects what the plausibility test (its legal and factual aspects) has always been about, namely, a purely legal and objective assessment of the probable existence and probable infringement of the claimed legal rights.

3

Outside the Margin for Error:

The Invalidity of the Philippines’ Withdrawal from the Rome Statute Gemmo Bautista Fernandez* What is the cause for all of this struggle? Very succinctly, I believe that no man, how brilliant this man, can dictate the welfare and the direction of forty-eight million Filipinos.

Benigno S Aquino, Jr, Speech delivered at the Freedom Rally Symposium of the Movement for Free Philippines, Los Angeles, 15 February 1981

∵ Abstract This article submits that the Philippines’ withdrawal from the ICC is invalid under municipal law and ineffective under international law. Notwithstanding the silence of the Philippine Constitution, the principles embodied under it do not allow for a unilateral executive withdrawal from the Statute. Nothing under the president’s plenary executive or foreign affairs power allows him to perform such an act. Moreover, the doctrines of transformation, separation of powers, and the principle of checks and balances require a concurrent legislative act in denouncing a treaty. The withdrawal being invalid under municipal law, it arguably produces no effect under international law. While the regime governing the law of treaties is silent as to the effect of domestic law concerning the competence of a state organ to withdraw, there exists ample authority to suggest that fundamental violations under the latter invalidate the competence to denounce treaties under the former.

* Sessional Academic and PhD Candidate, The Australian National University.

© Koninklijke 2022 | doi:10.1163/9789004518216_004 © KONINKLIJKE Brill BRILL NV, Leiden, LEIDEN, 2022 | DOI:10.1163/9789004518216_005

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Keywords Philippines – International Criminal Court – Rome Statute – Law of Treaties – Treaty Withdrawal. 1

Introduction

On 14 March 2018, the Philippine President announced the country’s withdrawal from the International Criminal Court (‘ICC’ or ‘Court’) and triggered Article 127 of the Rome Statute (‘Statute’). In a 15-page statement, Mr Duterte pointed to the ‘baseless, unprecedented, and outrageous attacks’ purportedly committed by the officials of the United Nations (‘UN’) against him and the alleged failure of the Court to observe the principle of due process and the presumption of innocence in its attempt to place him under its jurisdiction.1 The statement came a month after the Court’s Prosecutor announced that she had opened a Preliminary Examination over supposed crimes committed in the Philippines that potentially fall under the Court’s jurisdiction.2 The decision also marked a stunning turn-around by Mr Duterte who in the past dared the Court to go after him affirming his readiness to defend his deadly campaign against illegal narcotics and ‘rot in jail’.3 Mr Duterte’s move had several implications. In the domestic plane, a President elected without a majority of the popular vote withdrew the Philippines from a major instrument designed to ‘put an end to the impunity of the perpetrators of crimes of the most serious concern’.4 To re1

2

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4

‘Full Text: Duterte’s Statement on Int’l Criminal Court Withdrawal’ Rappler (14 March 2018) accessed 1 June 2021. ‘Statement of the Prosecutor of the International Criminal Court on opening Preliminary Examinations into the situations in the Philippines and in Venezuela’ International Criminal Court (8 February 2018) accessed 1 June 2021. Manuel Mogato & Martin Perry, ‘Philippines’ Duterte hit by new ICC complaint over deadly drug war’ Reuters (28 August 2018) accessed 1 June 2021. Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3 (‘Rome Statute’), Preamble. See Otto Triffterer, Morten Bergsmo, & Kai Ambos, ‘Preamble’ in Otto Triffterer & Kai Ambos (eds),

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call, the international community created the Court recognising the need to provide ‘supplementary protection by the international legal order to counter the threat of abuse of state power’.5 The withdrawal of the Philippines from the Court thus amounted to a ‘setback to the protection of human rights in the country’ as it removed an important recourse for victims of crimes including the alleged cases of extrajudicial killings. In the international sphere, the withdrawal sent a message that the Philippines turned its ‘back on the rule of law and international justice’.6 As a result, the move had significant repercussions on the Philippines’ ‘international relationships and standing on the world stage’.7 This is problematic considering that participation in international organisations forms a ‘critical component of the nation’s foreign relations’.8 The withdrawal also raises legal issues of vital importance concerning the rules governing international agreements. Under Philippine municipal law, the question of procedure in entering into treaties and executive agreements and their effects has been largely settled,9 however, the subject of how withdrawals are effected has virtually never been discussed. The same is true in the case of international law.10 Although internation-

5 6

7 8 9

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The Rome Statute of the International Criminal Court: A Commentary (3rd ed, Hart Publishing, London 2016), 2. Triffterer, Bergsmo, & Ambos (n 4) 8. See also Tadić (Jurisdiction) ICTY-IT-94–1AR-72 (2 October 1995), [59]. ‘Letter from the International Commission of Jurists, to President Rodrigo Duterte’ International Commission of Jurists (19 March 2018) < https://www.icj.org/wp-content/uploads/2016/07/Philippines-Letter-to-President-Duterte-2-Advocacy-Openletters-2016-ENG.pdf > accessed 1 June 2021. See Catherine Amirfar & Ashika Singh, ‘The Trump Administration and the Unmaking of International Agreements’ (2018) 59 Harv Intl LJ 443, 459. Compare with Laurence Helfer, ‘Exiting Treaties’ (2005) 91 Va L Rev 1579, 1587–91, 1610, 1627. See Harold Koh, ‘Presidential Power to Terminate International Agreements’ (2018) 128 Yale LJF 432, 455. See Bayan Muna v Executive Secretary, GR159618, 1 February 2011; Salonga v Executive Secretary, GR 175888, 11 February 2009; Suplico v National Economic and Development Authority, GR. 178830, 14 July 2008; Pharmaceutical Health Care Association of the Philippines v Duque III (2007) 561 Phil 386; Pimentel v Executive Secretary, GR 158088, 6 July 2005; Secretary of Justice v Lantion, GR 139465, 18 January 2000; Bayan v Executive Secretary, GR 138570, 10 October 2000; Tañada v Angara, GR 118295, 2 May 1997; Gonzales v Hechanova, GR L-21897, 22 October 1963; Commissioner of Customs v Eastern Sea Trading, GR L-14279, 31 October 1961. James Crawford, ‘The Current Political Discourse Concerning International Law’ (2018) 81(1) Modern L Rev 1, 14; Annalisa Ciampi, ‘Invalidity and Termination of Treaties and Rules of Procedure’ in Enzo Cannizzaro (ed), The Law of Treaties beyond the Vienna Convention (OUP, Oxford 2011); Yogesh Tyagi, ‘The Denunciation of

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al law, specifically the Vienna Convention on the Law of Treaties (‘VCLT’), details at length the regime concerning the conclusion of treaties, the substantive framework governing withdrawals ‘may not be comprehensive or particularly clear’.11 The article contributes to clarifying the issue of the validity of treaty withdrawals under both Philippine municipal law and international law. Within the former, it seeks to address the question of who has the competence to denounce treaties. Under the latter, it intends to provide a perspective about the validity of a withdrawal from an international agreement done in violation of a municipal law of fundamental importance. The article begins by contextualising the Philippines’ withdrawal from the ICC. After providing this background in Section 2, it argues in Section 3 that Mr Duterte’s withdrawal from the ICC is invalid and unconstitutional. The article submits that notwithstanding the silence of the Philippine Constitution (‘Constitution’), the principles embodied under it do not allow for a unilateral executive withdrawal from international agreements. Accordingly, it notes that nothing under the president’s plenary executive or foreign affairs power allows him to perform such an act. Moreover, the doctrine of transformation and the principle of checks and balances require a concurrent legislative act in denouncing a treaty. The withdrawal being invalid under municipal law, the article submits in Section 4 that it is ineffective under international law. It argues that while the regime governing the law of treaties provides no guidance as to the effect of domestic law concerning the competence of a state organ to withdraw, fundamental violations under the latter should, as in the case of entry to agreements, invalidate the competence under the former. It thus submits that the disregard of the violation of important rules of domestic law is ‘inconsistent with contemporary expectations of respect for the rule of law’, principles of representative government and ‘with the framework of the law of treaties as a whole’.12

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Human Rights Treaties’ (2008) 79 Brit YB Intl L 86; Charles Rousseau, Droit International Public (Sirey, Paris 1970); György Haraszti, Some Fundamental Problems of the Law of Treaties (Akadémiai Kiadó, Budapest 1973); Giuliana Capaldo, La Competenza A Denunciare I Tratrati Internazionali (Edizioni Scientifiche Italiane, Napoli 1983), 63. Crawford (n 10) 11, 13; Hannah Woolaver, ‘Domestic and International Limitations on Treaty Withdrawal: Lessons from South Africa’s Attempted Departure from the International Criminal Court’ (2018) Am J Intl L Unbound 450, 454–5. Woolaver (n 11) 455.

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Contextualising the Philippines’ Withdrawal from the Statute

The Government’s Campaign against Illegal Drugs and the Court’s Preliminary Examination In July 2016, following his election, Mr Duterte launched an anti-illegal drugs campaign built on his campaign promise to rid the Philippines of illegal drugs.13 The strategy consists of two prongs: one directed towards high-value targets and another aimed at street-level personalities.14 The campaign consists of police visits to suspected drug users and operations against suspected illegal drug syndicates and personalities. The police also maintain a list of suspected drug personalities provided by local informants without clear procedures for verification.15 After three years, reports estimate that more than 29,000 persons have been killed in police operations or vigilante executions.16 However, despite the reactions from the international community,17 the government continues to respond with marked tolerance if not support for these activities. There exists a manifest ‘inaction on the part of the government to investigate’ the killings.18 It has often denied claims regarding extrajudicial killings asserting that the victims died as ‘a result of shootouts between the police officers and suspects or violent resistance’ on the part 2.1

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14 15

16 17 18

See Philippine National Police, ‘Anti-Illegal Drugs Campaign Plan: “Double Barrel”’, CMC 16–2016 (1 July 2016); ‘President Rodrigo Duterte urges people to kill drug addicts’ Associated Press (1 July 2016) accessed 1 June 2021. Bea Cupin, ‘Warning to drug dealers: PNP has “double barrel” plan’ Rappler (29 June 2016) accessed 1 June 2021. ‘Summary & Extrajudicial Killings in the Philippines, Alternate Submission to the Universal Periodic Review of the Philippines’ Ateneo Human Rights Centre (2017) accessed 1 June 2021, [18]–[20]. Emmanuel Tupas, ‘29,000 deaths probed since drug war launched’ Philippine Star (6 March 2019) accessed 1 June 2021. Human Rights Committee, Report of the Office of High Commissioner on Human Rights (2017) UN Doc A/HRC/WG.6/27/PHL/2, [7]–[8], [133.13] ff. Ateneo Human Rights Centre (n 15) [30]–[32]; Human Rights Committee, Report of the Working Group on the Universal Periodic Review–Philippines (2017) UN Doc A/ HRC/36/12.Add1, [4(b)].

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of the latter.19 It has also dismissed reports that the police have ‘planted’ guns, ammunition, and drug packets on victims’.20 Moreover, it has ‘frustrated efforts by the media and independent observers to verify the tally of deaths’ and has resorted to the manipulation of the ‘online information landscape’ to generate a façade of support for the government.21 Even worse, Mr Duterte himself vowed to ‘pardon any police or military personnel involved in the extrajudicial killings and stated that he ‘would stand trial on behalf of police officers if they were accused of unlawful killing’.22 In April 2017, a Communication was filed with the Office of the Prosecutor of the ICC alleging that the killings committed under Mr Duterte’s campaign against illegal narcotics qualified as a crime within the jurisdiction of the Court.23 Less than two months after, a Supplemental Communication followed with the aim of ‘affirming the veracity of the allegations’ embodied in the earlier Communication and ‘providing additional information’ to prove the ‘widespread and systematic’ killings allegedly committed in the country.24 In response to these allegations, the Office of the Prosecutor announced in February 2018 that it had opened a Prelimi-

19

20

21

22 23 24

Ateneo Human Rights Centre (n 15) [30]–[32]; Gerg Cahiles, ‘PNP defends police in drug-related killings’ (14 July 2016) CNN Philippines accessed 1 June 2021; Cecille Felipe, ‘Bato to cops: I will kill you too, if (…)’ Philippine Star (20 June 2016) accessed 1 June 2021. ‘Philippines: Events of 2017’ Human Rights Watch (2017) accessed 1 June 2021; ‘Annual Report 2017/8’ Amnesty International (2018) accessed 1 June 2021, 299 ff. Ibid; Human Rights Committee (n 17) [7]-[8]; ‘Freedom on the Net – Philippines 2017’ Freedom House (2017) accessed 1 June 2021, 8; Samantha Bradshaw & Philip Howard, ‘Global Inventory of Organised Social Media Manipulation’ Computational Propaganda Working Paper 2017.12, 11. Ateneo Human Rights Centre (n 15) [26]-[27]. Patricia Viray, ‘Criminal case vs Duterte filed before International Criminal Court’ Inquirer (24 April 2017) accessed 1 June 2021. Nikko Dizon, ‘Trillanes, Alejano file complaint at ICC vs Duterte’s drug war’ Inquirer (6 June 2017) accessed 1 June 2021.

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nary Examination to determine whether the situation in the Philippines meets the legal criteria to warrant an investigation.25 The announcement of the ICC Prosecutor was not well received by Mr Duterte and his allies. The executive branch ‘belittled the development, expressing confidence that the complaint would not prosper because the narcotics crackdown was a legitimate law enforcement effort’.26 The Duterte administration further alleged that the move amounted to a ‘waste of the Court’s time and resources’.27 Mr Duterte maintained that he would not allow himself to be investigated by the Court. Moreover, he ‘maintained that the anti-drug campaign would continue despite the ICC’s move until the last day of his term’.28 Remarkably, these remarks stand in stark contrast with his earlier pronouncements that he would accept the consequences of his actions.29 The Philippines’ Withdrawal and Petitions before the Philippine Supreme Court A little over a month after the announcement of the Office of the Prosecutor, Mr Duterte declared that he was withdrawing the Philippines from the International Criminal Court.30 Curiously, this was a move that he had threatened to make months before the Prosecutor opened the Preliminary Examination. 31 Mr Duterte cited several reasons for this 2.2

25

26 27 28 29

30 31

‘Statement of the Prosecutor of the International Criminal Court on opening Preliminary Examinations into the situations in the Philippines and in Venezuela’ (n 2); Felipe Villamor, ‘International Criminal Court Will Investigate Duterte Over Drug War’ New York Times (8 February 2018) accessed 1 June 2021. Alexis Romero, ‘Duterte reiterates resolve to fight drugs’ Philippine Star (26 February 2018) accessed 1 June 2021. ‘Statement of the Prosecutor of the International Criminal Court on opening Preliminary Examinations into the situations in the Philippines and in Venezuela’ (n 2). Jhoanna Ballaran, ‘Duterte to ICC: You can’t acquire jurisdiction over me not in a million years’ Inquirer (6 March 2018) accessed 1 June 2021. ‘Philippine leader unfazed by ICC murder complaint, vows no let-up in drugs war’ Reuters (27 April 2017) accessed 1 June 2021. See ‘Full Text: Duterte’s Statement on Int’l Criminal Court Withdrawal’ (n 1). Jhoanna Ballaran, ‘Palace threatens to withdraw from Int’l Criminal Court’ Inquirer (5 December 2017) accessed 1 June 2021; Leila Salaverria, ‘ICC warned vs meddling in PH affairs’ Inquirer (9 December 2017) accessed 1 June 2021. ‘Full Text: Duterte’s Statement on Int’l Criminal Court Withdrawal’ (n 1). Civil Code of the Philippines, art 2 (‘The article states that: “Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided. This Code shall take effect one year after such publication”. Whether this article equally applies to international agreements is doubtful.’). Department of Foreign Affairs, ‘PH Officially Serves Notice to UN of Decision to Withdraw from the ICC’ (16 March 2018) accessed 1 June 2021; ‘Petition of Pangilinan et al’, Pangilinan et al v Cayetano et al, GR 238875 (16 May 2018), [24]. Gaea Cabico, ‘Minority senators ask SC to declare ICC withdrawal invalid’ Philippine Star (16 May 2018) accessed 1 June 2021. See ‘Petition of Senator Pangilinan et al’ (n 34) 14. Dona Pazzibugan, ‘SC urged to reverse Duterte order pulling country out of ICC’ Inquirer (14 June 2018) accessed 1 June 2021. See ‘Petition of the Philippine Coalition for the International Criminal Court’ (n 39) 47. See ‘Petition of the Integrated Bar of the Philippines’, IBP v Executive Secretary et al (22 August 2018).

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In sum, the petitioners argue that the withdrawal of the Philippines from the Statute, conducted unilaterally by the executive and without legislative concurrence, contravenes the Philippine Constitution. While the Constitution contains no provisions on the subject, dealing only with the procedure of entry into treaties, the petitioners submit that the proper interpretation of the law nevertheless requires the concurrence of the Senate. The petitioners argue that as with the entry into treaties, the power to denounce the same was not solely lodged with the executive branch but rather shared with the legislative.38 Furthermore, as a treaty validly entered into by the Philippines has the effect of law, a withdrawal is equivalent to a repeal of law which in turn requires legislative action.39 Moreover, the petitioners also argue that the principle of checks and balances contained in the Constitution requires legislative concurrence. Allowing the executive to unilaterally withdraw from a treaty would be an ‘undemocratic concentration of power’ in one branch of the government, contrary to the design of the Constitution.40 Finally, the petitioners argue that as the executive did not submit the question to the Senate for discussion, they were ‘deprived of their right to take part in public deliberations’.41 In its answer, the government alleged, among other things, that the decision to break from the ICC amounts to a question of policy that concerned the paramount interest of the nation.42 It being a political question, the subject is non-justiciable. It further submitted that Mr Duterte made the denunciation pursuant to his foreign relations power.43 As treaty relations fall under the sphere of the external affairs of the country, the withdrawal from the Statute was solely an executive function.44 By requiring the President to submit the decision to the Senate for concur38 39

40 41 42 43 44

Ibid [38]. ‘Petition of Senator Pangilinan et al’ (n 34) [27], [29], [31], [34]; ‘Petition of the Integrated Bar of the Philippines’ (n 37) [41], [43]; ‘Petition of the Philippine Coalition for the International Criminal Court’, PCICC et al v Executive Secretary, GR 238875 (8 June 2018), [70], [81]. ‘Petition of Senator Pangilinan et al’ (n 34) [2]; ‘Petition of the Philippine Coalition for the International Criminal Court’ (n 39) [82]. ‘Petition of the Philippine Coalition for the International Criminal Court’ (n 39) [59], [89]. ‘Consolidated Comment of the Office of the Solicitor General’, Pangilinan et al v Cayetano, Philippine Coalition for the International Criminal Court v Executive Secretary, GR 238875, 239483 (5 July 2018), [61]. Ibid [48], [57], [97]–[101], [119], [127]. Ibid [58]–[59].

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rence, the petitioners were arrogating to the Senate a function which it does not possess.45 Furthermore, unlike the entry into treaties, the Constitution does not require Senate concurrence for the denunciation of these agreements. Such a requirement should not be extended to withdrawals without express direction from the fundamental law.46 Finally, as the withdrawal does not amount to an abrogation or repeal of the law,47 and as the Statute did not create new duties, there was no requirement for legislative participation.48 It took almost three years for the Supreme Court to rule upon the petitions. During this period, the withdrawal of the Philippines had become effective.49 Finally, in March 2021, the Supreme Court released a press statement stating that it had decided upon the issues. It noted that as the Philippines had already left the Rome Statute, the issue has been rendered moot and academic. Further, it submitted that as the President is the ‘primary architect of foreign policy’, he or she may unilaterally withdraw from international agreements unless limited by certain conditions stated in the Senate concurrence or expressed under existing laws.50

45 46 47 48 49

50

Ibid [40]. Ibid [108], [60], [102]–[104]. Ibid [106]. Ibid [105]. See Rome Statute (n 4) art 127 (‘[…] The withdrawal shall take effect one year after the date of receipt of the notification, unless the notification specifies a later date’); Jason Gutierrez, ‘Philippines Officially Leaves the International Criminal Court’ New York Times (17 March 2019) accessed 1 June 2021. ‘Press Release’ Philippine Supreme Court (16 March 2021) < https://sc.judiciary.gov. ph/17760/> accessed 1 June 2021 (The full decision has not yet been publicly available at the time of writing).

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Invalidity of a Unilateral Executive Treaty Withdrawal under Philippine Municipal Law

The rules under international law governing withdrawals from agreements are generally straightforward.51 After a competent state organ ratifies the agreement, the duties embodied in the instrument become effective under both municipal and international planes. Under the same set of rules, efforts to terminate such a duty are governed by the agreement itself, or in case of its silence, by the VCLT.52 Nonetheless, these wellsettled set of laws provide little guidance as to the effect of withdrawals done in contravention of domestic law.53 With regard to municipal law, the subject of the power to withdraw from or denounce international agreements is principally an issue concerning the separation of powers.54 While virtually untouched in the Philippines, it is a debate that has become ‘highly controversial’ elsewhere.55 It is a subject that then turns to the theoretical underpinnings of the functions of state organs and the concomitant distribution of authority in the making, implementation, and denunciation of treaties.56 In the case of the Philippines, these are the executive, legislative, and arguably, the judicial branches.

51 52 53

54 55

56

Jean Galbraith, ‘The President’s Power to Withdraw the United States from International Agreements, Present and in the Future’ (2017) Am J Intl L Unbound 445, 445. Oona Hathaway, ‘Treaties’ End: The Past, Present, and Future of International Lawmaking in the United States’ (2008) 117 Yale LJ 1236, 1324. Ibid; Brandon Murill, ‘The President’s Authority to Withdraw the United States from the North American Free Trade Agreement (NAFTA) Without Further Congressional Action’ (Congressional Research Service, 5 March 2019), 4; Woolaver (n 11) 454–5. Amirfar & Singh (n 7) 444. Joshua O’Donnell, ‘The Anti-Ballistic Missile Treaty Debate: Time for Some Clarification of the President’s Authority to Terminate a Treaty’ (2002) 35 Vand J Transnatl L 1601, 1625 citing Karin Lawson, ‘The Constitutional Twilight Zone of Treaty Termination: Goldwater v Carter’ (1979) 20 Va J Intl L 147, 165. Kristen Eichensehr, ‘Treaty Termination and the Separation of Powers’ (2013) 53 Va J Intl Law 247, 250; Kenneth Randall, ‘The Treaty Power’ (1990) 51(5) Ohio St L J 1089, 1091. See Edward Gaffney Jr, ‘Goldwater v Carter: The Constitutional Allocation of Power in Treaty Termination’ (1978) 6(1) Yale Stud World Ord 81, 96; David Gottenborg, ‘Treaty Termination and the Separation of Powers: The Constitutional Controversy Continues in Goldwater v Carter, 100 S. Ct. 533 (1979) (Mem.)’ (1980) 9 Denv J Intl L & Poly 239, 239.

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Background on Philippine Municipal Law Concerning Treaty Withdrawals The Treaty clause of the Philippine Constitution provides for the process for making treaties effective under municipal law. The clause requires legislative concurrence, after executive ratification, via a two-thirds vote of the Senate.57 Thus, it could be said that entry into treaties under Philippine law is a shared function of the legislative and the executive. Parenthetically, the judiciary also serves a role in this realm as it has the power to review and resolve questions concerning the constitutionality or validity of international agreements.58 While the law concerning the entry to treaties is relatively straightforward, it is silent as to the issue of the allocation of the power to terminate treaties. Thus, it begs the question that lies at the centre of this article: whether the President has the power to unilaterally denounce treaties or whether the said act requires the involvement of the legislative. Philippine jurisprudence on the matter similarly offers little guidance as it deals with the question rather tangentially.59 Likewise, the records of the Constitutional Convention, at first glance, offer little help as it did not discuss the question of which state organ has the power to denounce treaties. The discussion of the Constitutional Commission of 1986 related to treaty denunciation seems to have been limited to the question of the propriety of the abrogation of the Philippine-US Military Bases Agreement and the appropriateness of arrogating power to the Senate to renew or extend existing treaties.60 Similarly, it is difficult to derive answers from the practice of state organs. Worth noting, however, is the recent practice of the Senate in attaching to its concurrence in treaties a condition requiring the President to secure its concurrence before withdrawing from the treaty.61 3.1

57 58 59 60

61

1987 Philippine Constitution, art VII, §21. See n 9; J Malaya & Maria Mondoza-Oblema, ‘Philippine Treaty Law and Practice’ (2011) 85 Phil LJ 505, 513. 1987 Philippine Constitution, art VIII, §1; Saguisag v Executive Secretary, GR 212426, 12 January 2016. See Suplico v National Economic and Development Authority (n 9); Secretary of Justice v Lantion (n 9). See Constitutional Commission of 1986, Records of the Constitutional Commission: Proceedings and Debates Vol IV (1986), 594 ff; Constitutional Commission of 1986, Records of the Constitutional Commission: Proceedings and Debates Vol V (1986), 463 ff. See eg S Res 33, 17th Cong, 1st Sess (2016) Resolution concurring in the Ratification of the Articles of Agreement of the Asian Infrastructure Investment Bank; S Res 42, 17th Cong, 1st Sess (2017) Resolution concurring in the Accession to the Paris Agree-

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The aforementioned notwithstanding, guidance on the matter may be taken by making recourse to the case law of the United States. The Philippine Treaty clause, as well as other constitutional provisions, bears striking resemblance with that of the US due to the influence of the latter to the former being a former unincorporated territory. As with most laws influenced by the US, US case law retains persuasive weight in the Philippines.62 However, at the onset, US law on the matter appears to run into the same problems as that of Philippine law. The US Constitution, while express as to the manner of the ratification of treaties, is also silent on the question of the abrogation of these agreements.63 Likewise, the records of the US Constitution contain no references to the question of treaty termination.64 Nonetheless, unlike the case of the Philippines where the question is relatively new, the issue of the power to terminate treaties in the US has long been a ‘highly controversial topic’ enriched by the practice of state organs, comments of academics, and pronouncements from case-law.65 3.2 Historical Precedents under US Domestic Law Proponents of unilateral executive withdrawal and those in support of Congressional involvement frequently turn to historical precedents to

62

63 64

65

ment; S Res 100, 17th Cong, 2nd Sess (2018) Resolution concurring in the Accession to the Agreement on Port State Measures to Prevent, Deter, and Eliminate Illegal, Unreported, and Unregulated Fishing. Note PS Res 289, 17th Cong, 1st Sess (2017) Resolution expressing the sense of the Senate the Termination of, or Withdrawal from, Treaties and International Agreements concurred in by the Senate shall be valid and effective only upon Concurrence by the Senate. Gemmo Fernandez, ‘Regulating Philippine Internet Hate Speech’ (2019) 23 Media & Arts L Rev 236, 239. See People v Marti, GR 81561, 18 January 1991; Alzua v Johnson, GR 7316, 31 January 1912; In re: Max Shoop (1920) 19 OG 766. Note Chavez v Gonzales, GR No 168338, 15 February 2008 (Carpio, concurring); US v Bustos (1918) 37 Phil 731, 740; Planas v Gil (1939) 67 Phil 81; US v Perfecto (1922) 43 Phil 58, 62; Fermin v People, GR No 157643, 28 March 2008; Buatis v People, GR No 142509, 24 March 2006; People v Sario, GR No L-20754, 30 June 1966; Philippine Blooming Mills Employment Organisation v Philippine Blooming Mills (1973) 151 Phil 656, 674–6. Amirfar & Singh (n 7) 444; Eichensehr, (n 56) 255 citing Green Hackworth, Digest of International Law Vol 5 (US Government Printing Office, DC 1943), 330. Eichensehr (n 56) 252 citing Marjorie Whiteman, Digest of International Law Vol 14 (US Government Printing Office, DC 1970), 461; Louis Henkin, Foreign Affairs and the United States Constitution (2nd, Clarendon Press, Oxford 1996), 443–4; Koh (n 8) 461; O’Donnell (n 55) 1631 citing Michael Glennon, Constitutional Diplomacy (Princeton University Press, Princeton 1990), 151 O’Donnell (n 55) 1625 citing Lawson (n 55) 165. Note Galbraith (n 51) 445.

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support their claims.66 On the one hand, the latter argue that early instances of treaty termination involved some semblance of Congressional participation. On the other, the former submit that subsequent instances reveal that a semblance of practice has crystallised allowing the executive to denounce treaties without legislative approval.67 While the utility of arguing based on such precedents, as will be discussed subsequently, may be questionable, a brief account of these precedents is set forth below. Early historical practice in the US suggests an ‘understanding’ that the termination of treaties required ‘congressional or senatorial approval’.68 The Congress or the Senate, more often than not, participated in denunciations and the ‘presidents generally acted as if they needed such involvement’.69 In some of these cases, the executive procured Congressional authorisation or directive. For instance, the treaties with France, terminated prior to the Quasi-War, were made pursuant to Congressional authorisation.70 The same was done with the US treaties with Great Britain in 1865 and 1875.71 In other instances, the Congress expressly directed the president to denounce treaties as in 1871 and 1915.72 Still, in several cases, treaties were terminated based on prior authorisation solely from the Senate. For example, in 1855 the Senate unanimously passed a resolution authorising the president to withdraw from the Treaty of Friendship, Commerce, and Navigation with Denmark.73 A similar method was used in the withdrawal from the International Sanitary Convention of 1903 the resolution for which was given after a request from the president.74 Finally, in at least two instances, denunciations were made with ex post Senatorial or Congressional approval. Such was done with the 1864 Great 66 67 68 69 70

71 72 73 74

Ibid 1628. See Louis Henkin, ‘“A More Effective System” for Foreign Relations: The Constitutional Framework’ (1975) 61 Va L Rev 751, 751. Curtis Bradley, ‘Treaty Termination and Historical Gloss’ (2014) 92 Tex L Rev 773, 800. Ibid. Hooper v United States (1887) 22 Ct Cl 408, 418. See Alexander De Conde, The QuasiWar: The Politics and Diplomacy of the Undeclared War with France (Scribner, New York 1966), 102; David Currie, The Constitution in Congress: The Federalist Period (1789–1801) (University of Chicago Press, Chicago 1997), 250–3. Bradley (n 68) 791. Ibid. David Wolff, ‘Reasserting its Constitutional Role: Congress’ Power to Independently Terminate a Treaty’ (2012) 46 USF L Rev 953, 966 Ibid. 967.

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Lakes Agreement with Great Britain, though after procuring approval from the Congress, the agreement was ultimately not terminated.75 In 1911, the president communicated a notice of termination with Russia and submitted the same to the Senate with the aim of procuring its approval.76 While it was understood in the years preceding that treaty termination required Congressional participation, this pattern fell out of practice during the early parts of the twentieth century.77 In 1927, the US terminated a smuggling agreement with Mexico without procuring a prior or subsequent authorisation from the legislative marking one of the first instances in which a president unilaterally terminated a treaty.78 Subsequent presidents followed suit although, in some cases, denunciations were made due to potential conflicts with legislation.79 By the late 1930s, presidents claimed a ‘broader use of the claimed withdrawal power’ and increasingly asserted pure unilateral authority.80 Thus began the marked shift to executive unilateralism. For example, relying on the dictum in Curtis-Wright that referred to the president as the ‘sole organ of the federal government in the field of international relations’,81 the US terminated a commercial treaty with Japan although this was done after resolutions had been introduced in both houses of Congress supporting withdrawal.82 Relying on the national security interest and having control over both houses of Congress, the president unilaterally suspended the London Naval Treaty and the International Load Lines Convention.83 The unilateral executive terminations that followed were made in the context of ‘low-profile situations that did not generate much attention’.84 Thus, ‘despite this uncertain context and dubious precedent’, little attention was directed towards the subject of unilateral executive withdrawals until the unilateral termination of the Sino-American Mutual Defence Treaty that sparked the case of Goldwater v Carter.85 The move withdrew 75 76 77 78 79 80 81 82 83 84 85

Bradley (n 68) 794. Ibid. 795. Koh (n 8) 437. Chris Mullen, ‘Pushing Back: Reasserting a Role for Congress in the Withdrawal from International Agreements’ (2019) 51 NYU J Intl L & Pol 493, 517. Ibid. Ibid; Bradley (n 68) 794. United States v Curtis-Wright Export Corp (1936) 299 US 304, 320. Bradley (n 68) 807. Ibid 808–9. Ibid 809–10. Mullen (n 78) 518.

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US recognition from the Republic of China (Taiwan) and recognised the People’s Republic of China, prompting a suit from several senators challenging the constitutionality of the president’s action. The case was ultimately dismissed on the ground of non-justiciability.86 Since Goldwater, the US has terminated several treaties through ‘unilateral presidential action’.87 Thus, it could be said that modern practice has shifted from denunciations with Congressional approval, be it ex ante or ex post, to unilateral executive terminations.88 More recent examples involve the termination of the Optional Protocol to the Vienna Convention on Consular Relations Concerning the Compulsory Settlement of Disputes and the Anti-Ballistic Missile Treaty.89 The aforementioned notwithstanding, it is submitted that the precedents cannot be taken at face value. Several factors must be considered in dealing with historical precedents. In most cases, unilateral terminations by presidents appear to have been legitimated by way of Congressional acquiescence or silence.90 Under these instances, Congress failed to ‘protest presidential terminations even with “soft law” measures such as one-house resolutions or statements by congressional leadership’.91 This failure of Congress to assert its authority ‘subsequently permitted the augmentation of executive power’.92 Thus, the executive, ‘unhindered by the collective action challenges that constrain Congress’, has been able to ‘push the boundaries repeatedly’.93 Moreover, the context surrounding the termination also has to be considered.94 Terminations were made, with the exception of the Taiwan Treaty, ‘during times of both unified and undivided government’.95 Such can be seen in the 1930s during which one

86 87 88 89 90 91 92 93 94 95

See Goldwater v Carter (1979) 444 US 996. Bradley (n 68) 814. Jean Galbraith, ‘Treaty Termination as Foreign Affairs Exceptionalism’ (2013) 92 Tex L Rev 121, 121; Daniel Hessel, ‘Founding-Era Jus Ad Bellum and the Domestic Law of Treaty Withdrawal’ (2016) 125 Yale L J 2394, 2396. Ibid. Gaffney (n 56) 144. Bradley (n 68) 821; David Scheffer, ‘Law of Treaty Termination As Applied to the United States De-Recognition of the Republic of China’ (1978) 19 Harv Intl LJ 931, 986. Mullen (n 78) 524; Amirfar & Singh (n 7) 446; Jean Galbraith, ‘International Law and the Separation of Powers’ (2013) 98 Va L Rev 987, 1004. Amirfar & Singh (n 7) 444. Bradley (n 68) 821.

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party had landslide victories dominating both houses of the Congress.96 Finally, the reluctance of the US Supreme Court to interfere in these cases may have contributed to the gradual accretion of power to the executive. The case of Goldwater, where there had been a chance to ‘address the President’s constitutional power to terminate treaties [and yet] the court squarely declined to do so’ provides a prime example.97 Accordingly, the critique concerning the utility of the appeal to historical precedents appears to be reasonable considering that the approach presents several challenges. For instance, there is difficulty in ascertaining what counts as relevant practice. Moreover, ‘customary practice is not self-liquidating’ as ‘it requires interpretation and description’ that ‘inevitably involves an element of judgment and subjectivity’.98 Furthermore, without a judicial pronouncement on the issue, the account becomes that of politics rather than law – a ‘result of the push and pull of the political process’. Simply, the approach turns to a ‘pattern of behaviour’ without a concrete legal normative significance.99 3.3 Analysis under the Functionalist Approach In the wake of the uncertainty surrounding the appeal to historical precedents, recourse may then be made to the structure of the Constitution. In this examination, arguments in support of unilateral executive withdrawals and those against it consider whether the provisions of the fundamental law assign the function of terminating treaties solely to the president or concurrently with the legislative. The examination considers the structure of government, functions of the institutional actors, and principle of separation of powers.100 Proponents of the power of the executive to denounce treaties without the concurrence of the legislative frequently appeal to the plenary executive powers of the president and the Constitutional silence as to the authority to denounce agreements. The Constitution, or so the argument goes, does not limit the power of the executive to the enforcement of laws. As the head of the government, ‘whatever power inhere in such positions

96 97 98 99 100

Ibid. 808. Galbraith (n 88) 126; Bradley (n 68) 822. Bradley (n 68) 828. Ibid. 831 citing Daryl Goldsmith & Jack Levinson, ‘Law for States: International Law, Constitutional Law, Public Law’ (2009) 122 Harv L Rev 1791, 1836; Eric Posner & Adrian Vermeule, ‘Constitutional Showdowns’ (2008) 156 U Pa L Rev 991, 1002. Gaffney (n 56) 127; Galbraith (n 93) 997.

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pertain to the office unless the Constitution itself withholds it’.101 Thus, the power of the president is not limited to the specific powers enumerated by the fundamental law.102 The president possesses powers, though unstated, implied from the grant of executive power and necessary to comply with the duties set forth under the Constitution.103 This plenary power of the executive extends so far as to claim that powers which are ‘neither judicial or legislative in character is surely executive’.104 As the termination of treaties is not arrogated to any of the branches of the government, it follows that it is a power belonging to the executive.105 The argument based on the plenary powers of the government is problematic. First, it assumes that the Constitution does not arrogate, or at least share, the power to terminate treaties with another state organ. Second, ‘the silence of the Constitutional text on power to denounce treaties does not mean that it is vested exclusively in the executive’.106 Third, while the president does indeed possess powers not enumerated under the fundamental law, these powers have been considered to have belonged to the executive not because of the absence of its grant to any other state organ but because it was implied from the authority of the office. For instance, the power of the executive to declare a state of rebellion springs from the president’s Commander-in-Chief powers and the accompanying duty to maintain peace and order.107 In another case, the 101 102 103 104

105

106 107

See Marcos v Manglapus, GR 88211, 15 September 1989. Note Ople v Torres (1998) 354 Phil 948; Biraogo v Philippine Truth Commission GR 192935, 7 December 2010. Marcos v Manglapus (n 101) citing Springer v Government of the Philippine Islands (1928) 277 US 189. Sanlakas v Executive Secretary, GR 159085, 3 February 2004. Note Zabal v Duterte GR 238467 12 February 2019 (Caguioa, dissenting). Gonzales v Marcos (1975) 160 Phil 637 citing Springer v Government of the Philippine Islands (n 102). See C Sabis, ‘Congress and the Treaty Power: An Originalist Argument against Unilateral Presidential Termination of the ABM Treaty’ (2003) 31 Denv J Int’l L & Pol’y 223, 239 citing Myers v United States (1926) 272 US 52. Note Ocampo et al v Enriquez GR 225973, 8 November 2016 (Leonen, dissenting). Bradley (n 68) 780. See Saikrishna Prakash & Michael Ramsey, ‘The Executive Power over Foreign Affairs’ (2001) 111 Yale LJ 231; John Yoo, ‘War and the Constitutional Text’ (2002) 69 U Chi L Rev 1639, 1677–8; Michael Ramsey, The Constitution’s Text in Foreign Affairs (Harvard University Press, Cambridge 2007), 158. Compare with Crutis Bradley & Martin Flaherty, ‘Executive Power Essentialism and Foreign Affairs; (2004) 102 Mich L Rev 545, 551; Robert Reinstein, ‘The Limits of Executive Power’ (2009) 59 Am U L Rev 259, 263–4; Youngstown Sheet & Tube Co v Sawyer (1952) 343 US 579, 640–1 (Jackson, concurring). Gaffney (n 56) 148 noting Youngstown Sheet & Tube Co v Sawyer (n 105); New York Times v United States (1971) 403 US 713 United States v Nixon (1974) 418 US 683. Sanlakas v Executive Secretary (n 103).

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power to prohibit the return of the remains of a former dictator results from the responsibility of the president to protect the general welfare of the people.108 Still, the authority of the president to reorganise departments, offices, and bureaus stems from the control that the chief executive possesses over the executive branch.109 Another argument supporting the power of the president to unilaterally withdraw from treaties concerns the foreign affairs power. As the head of state, he or she is deemed as the ‘sole organ and authority in external relations and is the country’s sole representative with foreign nations’.110 Moreover, the president also ‘acts as the country’s chief architect of foreign policy’.111 This power, very delicate and plenary, belongs to president exclusively and does not require, ‘as a basis for its existence, an act of Congress’.112 Furthermore, this authority, unlike the powers conferred upon Congress, speaks of no limitation save for those inherent in the Constitution.113 As treaty termination is an international act,114 and because the president has plenary powers over foreign affairs and a vast degree of independence,115 it is argued that the president has the sole authority to denounce treaties.116

108 109 110

111 112 113 114 115 116

Marcos v Manglapus (n 101). Malaria Employees and Workers Association of the Philippines v Executive Secretary, GR 160093, 31 July 2007. Pimentel v Executive Secretary (n 9) citing United States v Curtis-Wright (1934) (n 81); Bayan v Executive Secretary (n 9); Irene Cortes, The Philippine Presidency (University of the Philippines Law Centre, Quezon City 1966), 187; Isagani Cruz, Philippine Political Law (Central Books, Quezon City 1996), 223. Note Sale v Haitian Centres Council (1993) 509 US 155, 188; Dames & Moore v Regan (1981) 453 US 654, 66; Hessel (n 88), 2403; Mullen (n 78) 512 citing Jefferson Powell, The President’s Authority over Foreign Affairs: An Essay in Constitutional Interpretation (Carolina Academic Press, Dunham 2002), 53; Stephen Mulligan, ‘Withdrawal from International Agreements: Legal Framework, the Paris Agreement, and the Iran Nuclear Agreement’ (Congressional Research Service, 9 February 2017) citing John Yoo, ‘Rejoinder: Treaties and Public Law-making: A Textual and Structural Defence of Non-Self-Execution’ (1999) 99 Colum L Rev 2218, 2242; Ramsey (n 105) 158; Prakash & Ramsey (n 105). Ibid. O’Donnell (n 55) citing United States v Curtis-Wright (n 81) 319–20. Goldwater v Carter (1979) 199 US App DC 115. Henkin (n 67) 751. Murill (n 53) 7; American Insurance Association v Garamendi (2003) 539 US 396, 414. Louis Henkin, ‘Litigating the President’s Power to Terminate Treaties’ (1979) 73 Am J Intl L 647, 652; Eichensehr (n 56) 263–4.

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The recourse to the foreign affairs power is equally unpersuasive. To consider the president as the ‘sole organ’ in international relations is an overstatement if not outright inaccurate.117 For one, the ‘sole organ’ dictum in Curtis-Wright, echoed in Philippine cases,118 appears to have been taken out of context from a speech before the US House of Representatives in 1800.119 A few paragraphs after the passage quoted, the speech went on to state that the ‘Congress, unquestionably, may prescribe the mode [of developing a treaty] and Congress may devolve on others the whole execution of the contract; but, [until this is done], it seems the duty of the Executive (…) to execute the contract by any means it possesses’.120 Undeniably the president is vital in the country’s foreign relations.121 He or she, after all, is the primary person through which communications with other nations are made.122 However, it does not follow that the conduct of foreign affairs is solely an executive power.123 Simply being the nation’s primary representative cannot serve as a basis for the grant of vast authority in international affairs.124 Nor can it imply that the president may unilaterally denounce treaties.125 At most, this means that ‘it is the President who must communicate the message terminating a treaty’.126 Nevertheless, the foregoing does not intend to serve as an argument to relegate the share of presidential authority over foreign relations to a mere spokesperson. The independence of the president in making policy

117 118 119 120 121 122 123 124

125 126

Gaffney (n 56) 138. See eg Bayan v Executive Secretary (n 9); Pimentel v Executive Secretary (n 9). Mullen (n 78) 522. Ibid. citing Louis Fisher, Studies on Presidential Power in Foreign Relations: Study No 1: The ‘Sole Organ’ Doctrine (Law Library of Congress, 2006), 23. Gaffney (n 56) 138; Leonard Levy, Original Intent and the Framers’ Constitution (Macmillan Publishing, New York 1988), 52 Gaffney (n 56) 138 noting Alexander Hamilton, ‘Pacificus No 1’ in Harold Syrett et al (eds), The Papers of Alexander Hamilton (Columbia University Press, New York 1969), 38. Ibid.; O’Donnell (n 55) 1629; David Adler, The Constitution and the Termination of Treaties (Garland Publishing, New York 1986), 206 noting Reid v Covert (1957) 354 US 1; Kinsella v United States ex rel Singleton (1960) 361 US 234, 261; Zemel v Rusk (1965) 381 US 1, 17. Adler (n 124) 92. J Emerson, ‘The Legislative Role in Treaty Abrogation’ (1978) 5(1) J Legis 46, 75, fn 219; Westel Willoughby, The Constitutional Law of the United States (Baker, Voorhis & Company, New York 1929), 587.

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decisions,127 as in the case of treaty negotiations,128 is equally recognised. However, while the president may have authority in crafting foreign policy, it does not mean that the executive is its sole maker.129 The responsibility in designing such a policy is arguably shared with the legislative.130 The fact that the president alone cannot enter into a treaty but requires the participation of Senate serves to suggest that the Constitution also entrusts important policy functions to the Congress.131 In this regard, the Supreme Court could not have been more explicit in stating that the ‘1987 Constitution returned the Senate’s power [in the administration of treaties], and with it, the legislative’s traditional role in foreign affairs’.132 Thus, this overlapping responsibility over foreign affairs ‘should presumptively dictate that powers be shared between Congress and the executive’ and militate against the claim that the foreign such is solely within the prerogative of the executive.133 Based on these, it appears that nothing in the powers of the executive operate to justify the claim for unilateral executive withdrawal. A proper interpretation of the Constitution requires congressional participation, as in the case of entry into international agreements, as it shares the responsibility over the conduct of international relations. Considering the silence of the Constitution regarding the denunciation of treaties, ‘reversal by those branches participating in the adopting process’ may be

127

128 129 130 131 132 133

Gottenborg (n 56) 241, 250; Lawson (n 55) 154–5, 162–8 noting J Fulbright, ‘American Foreign Policy in the 20th Century Under an 18th-Century Constitution’ (1961) 47 Cornell LQ 1, 2–3; Arthur Goldberg, ‘A Constitutional American Foreign Policy’ (1976) 3 Hastings Const LQ 63; Anna Pappas, ‘The Constitutional Allocation of Competence in the Termination of Treaties’ (1981) 13 NYU J Int’l L & Pol 473, 523; Scheffer (n 91) 987 citing Clark v Allen (1946) 331 US 503, 514; Charlon v Kelly (1913) 229 US 447, 473–76; Terlinden v Ames (1902) 184 US 270, 285–88. Pimentel v Executive Secretary (n 9); Bayan v Executive Secretary (n 9). Goldwater v Carter (DDC 1979) 481 F Supp 949, 961 citing Youngstown Sheet & Tube Co v Sawyer (n 105) 641. Galbrait (n 93) 1002; Mullen (n 78) 502 citing Medellin v Texas (2008) 552 US 491, 505; Igarttia-de la Rosa v United States (1st Cir 2005) 417 F3d 145, 150; Adler (n 124) 93; Murill (n 53) 7; Goldwater v Carter (n 113) (MacKinnon, dissenting). Gaffney (n 56) 138–9; Randall (n 56) 1109 Saguisag v Executive Secretary (n 58). See Constitutional Commission of 1986, Records of the Constitutional Commission: Proceedings and Debates Vol II (1986), 388, 400. Koh (n 8) 450; Harold Koh, The National Security Constitution: Sharing Power After the Iran-Contra Affair (Yale University Press, New Haven 1990), 69–71; Bradley (n 68) 824.

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the logical procedure of effecting withdrawals.134 The proposal springs from the principle that the ‘power to unmake is corollary of the power to make’.135 Accordingly, because the Constitution requires the participation of the Congress to commit the country to an international duty, the same is required to undo the country’s commitment.136 This view was indeed the conclusion of the South African High Court in another case concerning a withdrawal from the Statute. In ruling that legislative participation is required, the High Court stated that ‘where a constitutional or statutory provision confers a power to do something, that provision necessarily confers the power to undo it as well’. Thus, because ‘the power to bind the country to the Rome Statute is expressly conferred on parliament’, it likewise ‘has the power to decide whether an international agreement ceases to bind the country’.137 As sensical as the justification may be, it is not without criticism. It has been raised that the ‘constitutional institution of advice and consent of the Senate’ is a ‘special and extraordinary condition’ that should not be ‘extended in instances not set forth in the Constitution’.138 The concurrence of Senate is ‘not an independent source of legislative power’ but a ‘restriction superimposed on the president’s power’ from which no powers should be inferred.139 Such an authority is a mere ‘negative check’ and is ‘meaningless, in and of itself, for the purpose of treaty termination’.140 To illustrate, while Congressional participation is required in a declaration of war, no Constitutional provision requires the same to terminate hostilities.141 Similarly, while senatorial consent is required for the ap134 135

136 137 138 139 140 141

J Emerson, ‘Treaty Termination Revisited’ (1982) 4 Woodrow Wilson J L 1, 9; Goldwater v Carter (n 113) (MacKinnon, dissenting). Emerson (n 134) 10 citing W Blackstone, Commentaries on the Laws of England (4th, Clarendon Press, Oxford 1770), 160–1, 185–6; Scheffer (n 91) 976 citing Stefan Riesenfeld, ‘The Power of Congress and the President in International Relations: Three Recent Supreme Court Decision’ (1937) 25 Calif L Rev 643, 658. Compare with Woolaver (n 11) 452; Anthony Aust, Modern Treaty Law and Practice (3rd, Cambridge University Press, Cambridge 2013), 12. Eichensehr (n 56) 267 citing Sean Murphy, ‘Contemporary Practice of the United States Relating to International Law: Suit by Congressmen Regarding Withdrawal from ABM Treaty’ (2003) 97 Am J Intl L 205, 207; Koh (n 8) 461, 453. Democratic Alliance v Minister of International Relations and Cooperation 2017 (3) SA 212 (GP), [53] citing Masetlha v President of the Republic of South Africa 2008 (1) SA 566 (CC), [68]. Goldwater v Carter (n 113); Henkin (n 64) 169. Lawson (n 55) 156; Henkin (n 116) 169. Pappas (n 127) 518. Ibid. See 1987 Philippine Constitution, art VI, §23(1).

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pointment of some officers of the executive, the president maintains unilateral authority to remove these officers.142 The problem with the above criticism is that it treats the concurrence of Senate as a mere condition in conjunction with the prerogative of the president. However, such a characterisation is not entirely accurate. The Congress, having a share over the responsibility in the conduct of international relations, acts not just a ‘negative check’ on the acts of the executive. Congressional participation functions more than how it is depicted. While the president has the authority to negotiate and sign treaties pursuant to his foreign affairs power, it is only the legislative that has the power to make these treaties effective in the domestic sphere.143 Moreover, it is an error to construct parallelisms with the examples mentioned above. These powers cannot be analogised with denunciation as the authority for the forwarded instances are matters largely within the control of the executive branch.144 The authority to declare war springs forth from the president’s commander-in-chief powers. The authority to remove subordinates, though their appointments were made with the concurrence of Congress, stems from the president’s control over the executive branch.145 The argument for legislative involvement in the termination of treaties is further strengthened by the nature of its constitutional powers, role in the administration of treaties, and the effect of its concurrence. The examination then turns to how treaties are made effective and applicable under domestic law the premises of which are extended, by analysis, to the denunciation of treaties. When it comes to treaty or conventional international law, the Philippines, like other jurisdictions,146 subscribes to the dualist view of the 142 143 144 145 146

Randall (n 56) 1111 citing Myers v United States (n 104); Mulligan (n 110) 7. See De Perio Santos v Executive Secretary, GR 94080, 10 April 1992; 1987 Philippine Constitution, art VII, §16. See eg Bayan Muna v Executive Secretary (n 9). Koh (n 8) 461. See Tondo Medical Center Employees Association v Court of Appeals GR 167324, 17 July 2017; Villaluz v Zaldivar GR L-22754, 31 December 1965; Buklod ng Kawaning EIIB v Executive Secretary GR 142801, 10 July 2001; Koh (n, 458); Sabis (n 104) 251. See eg Australia: (Bradley v Commonwealth) [1973] HCA 34, [26]; Chow Hung Ching v R [1948] HCA 37, [6]; Deitrich v R [1992] HCA 57, [17]; Mabo v Queensland (No 2) [1992] 175 CLR 1; Minister of State for Immigration and Ethnic Affairs v Teoh [1995] 183 CLR 273); United Kingdom: (R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5; J H Rayner (Mincing Land Ltd) v Department of Trade and Industry (1990) 2 AC 418; Ex parte Pinochet (1999) 2 All ER 97; R (European

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interaction between municipal law and international law.147 Under this theory, both sets of laws operate on distinct levels. Even if the international law confers rights or duties to actors, the legislative must transform it into a rule of national law for it to be effective under municipal law.148 Accordingly, under Philippine law, a treaty, after executive ratification, must be concurred in by the Senate for it to be effective and applicable.149 Once this process is complete, the treaty becomes ‘a part of the law of the land’.150 From the foregoing, the act of transforming treaties into municipal law may be viewed as analogous to the making domestic law,151 if not the same.152 This observation springs forth from the fact that the treaties, concurred with by the Senate, have the effect of domestic statutes.153 The relationship between the transformed treaty law and domestic statute

147 148

149 150 151

152 153

Roma Rights Centre and others) v Immigration Officers at Prague Airport and another (UN High Commissioner or Refugees Intervening) [2004] UKHL 55. Colin Warbrick, ‘The Governance of Britain’ (2008) 57(1) Int’l & Comp L Q 209; Germany: (Brunner v European Union Treaty [1994] 1 CMLR 57, [55]; 2 BvR 2/08, 30 June 2009; 2 BvR 148/04 (14 October 2004); 1 BvR 1664/04 (5 April 2005); 1 BvR 2790/04 (10 June 2005); Dinah Shelton, International Law and Domestic Legal Systems (OUP, Oxford 2011), 240; Monroe Leigh & Meritt Blakeslee (eds), National Treaty Law and Practice Vol 1 (Kegan Paul International, New York 1995); South Africa: Glenister v President of the Republic of South Africa and others 2011 (3) SA 347. Poe-Llamanzares v Commission on Elections GR 221697, 8 March 2016 citing Razon v Tagitis (2009) 621 Phil 536, 600; Pharmaceutical Health Care Association of the Philippines v Duque III (n 9) 398. Eileen Denza, ‘The Relationship Between International law and National Law’ in M Evans (ed), International Law (4th, OUP, Oxford 2014), 418; Hersch Lauterpacht, Oppenheim’s International Law Vol 1 (8th edn, Longmans, Green and Co, London 1955); Gerald Fitzmaurice, ‘The General Principles of International Law Considered from the Standpoint of the Rule of Law’ (1957) 92 Recueil des Cours 5, 70–1, 79–80. Pharmaceutical Health Care Association of the Philippines v Duque III (n 9) 398. Tañada v Angara (n 9); Bayan Muna v Executive Secretary (n 9); Poe-Llamanzares v Commission on Elections (n 147). Bradley (n 68) 781; Mulligan (n 110) 9 citing Barry Goldwater, ‘Treaty Termination is a Shared Power’ (1979) 65 Am Bar Assoc 198; Michael Glennon, ‘The Constitutional Power of the United States to Condition its Consent to Treaties’ (1991) 67 Chi-Kent L Rev 533, 554–66; See Wolff (n 73). Emerson (n 134) 9 citing Alexander Hamilton, ‘The Federalist No 75’ in Michael Genovese (ed), The Federalist Papers: Alexander Hamilton, James Madison, and John Jay (Palgrave Macmillan, London 2009), 224. Bradley (n 68) 781; Hamilton (n 152) 224; Emerson (n 134) 9 citing Thomas Jefferson, A Manual of Parliamentary Practice for the Use of the Senate of the United States (1801), §LII.

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further strengthens this analogy. In the sphere of statutory interpretation, it has been held that if a treaty and a statute are inconsistent with each other, the conflict is resolved in favour of the one which is latest in point in time.154 More explicitly, it has been ruled that a treaty may amend or repeal a prior statute in the same way as a domestic statute may repeal a treaty insofar as municipal law is concerned.155 Accordingly, the concurrence of the Senate has a function beyond being a negative check on the foreign affairs power of the president. In other words, treaties are part of the law of the land because of the participation of the legislative, through the Senate, in the exercise of the legislative powers.156 The fact that the Senate exercises such authority by itself, instead of acting concurrently with the House of Representatives as required by the Constitution for domestic laws,157 does not militate against this conclusion. For all intents and purposes, the framers of the Constitution consigned the power to the Senate due to its scope,158 by tradition,159 and despite the arguments for the participation of the House of Representatives.160 The same appears to be true for the exclusion of the US lower house. The framers of the US Constitution purposely excluded the House of Representatives from the process of making treaties because of its large membership which ‘may not be conducive for taking quick actions or engaging in secret deliberations’; the short tenure of its members which ‘did not suit the development of expertise in the complex and delicate area of foreign affairs’; and the view that it may be an unwieldy body, compared to the Senate, which ‘could prove disruptive in the complex and sensitive area of treaty relations’.161 Interestingly, because of the similarities in the 154 155

156 157 158 159 160 161

Gonzales v Hechanova (n 9). Suplico v National Economic and Development Authority (n 9); Secretary of Justice v Lantion (n 9). See Constitutional Commission of 1986, Vol V (n 60) 463, 465. Note Goldwater v Carter (1979) (n 113) (MacKinnon, dissenting) citing Taylor v Morton (CCD Mass 1855) 23 Fed Cas P 784, No 13, 799; The Cherokee Tobacco (1871) 20 L Ed 227; United States v Forty-Three Gallons of Whiskey (1883) 108 US 491, 496; The Chinese Exclusion Case (1889) 130 US 581, 600; Whitney v Robertson (1888) 124 US 190, 194; Fong Yue Ting v United States (1893) 149 US 698, 721; La Abra Silver Mining Co v United States (1899) 175 US 423, 460. Note Sei Fujii v State of California (1952) 19 ILR 312 citing Foster v Nelson (1829) 27 US 253, 314. 1987 Philippine Constitution, art VI, §§26–7. Constitutional Commission of 1986, Vol IV (n 60) 274. Constitutional Commission of 1986, Vol II (n 132) 117, 781. Ibid 116, 410. Pappas (n 127) 506.

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structures of the Philippine and US Congresses, the same reasons may be applied to the former. As treaties transformed into domestic law are equivalent to domestic statutes, the legislative should also have participation in its abrogation as in the case of repealing domestic law.162 If treaty-making is a shared role of the legislative, in the exercise its law-making power, and the executive, pursuant to its foreign affairs power, treaty termination likewise requires a joint act of the two under their respective authorities.163 To conclude otherwise would lead to an absurd situation where the president could denounce a treaty, arrogating competence to himself or herself in the international plane, and yet, the domestic effects of the agreement would remain because the process requires the inclusion of the legislative in the process.164 Bearing in mind that the tenets of legal construction abhor absurdity,165 the acceptable interpretation is that, as in the entry into treaties where executive ratification requires a concomitant Senate concurrence, the denunciation of treaties should also require the approval of the legislature.166 Finally, it is worth noting that the Constitution also limits the powers of the president in relation to the administration of treaties – it requires an attendant act with that of legislative. For instance, the president alone cannot amend a treaty, thereby modifying the associated rights and duties, without the concurrence of legislative.167 Moreover, the Constitution also restricts scope of his or her authority over executive agreements.168 162 163 164

165 166 167 168

Koh (n 8) 458, 454; Gaffney (n 56) 136 citing Jefferson (n 153) §LII; Emerson (n 126) 77. See Eichensehr (n 56) 267. Goldwater v Carter (1979) (n 113) (MacKinnon, dissenting). Mulligan (n 110) 15 citing Hathaway (n 52) 1362 fn 268; Julian Ku & John Yoo, ‘The Treaty Power and the Overlooked Value of Non-Self Executing Treaties’ (2015) 90 Notre Dame L Rev 1607, 1628; John Setear, ‘The President’s Rational Choice of a Treaty’s Preratification Pathway: Article II, Congressional-Executive Agreement, or Executive Agreement?’ (2002) 31 J Leg Stud S 15, fn 20; Note Peter Spiro, ‘Treaties, Executive Agreements, and Constitutional Method’ (2001) 79 Tex L Rev 961, 1005; Eichensehr (n 56) 308, fn 245; Bradley (n 68) 781. See also Wolff (n 73) 955 citing Pigeon River Involvement, Slide & Boom Co v Charles W Cox, Ltd (1934) 291 US 138, 160; Willoughby (n 126) 324; Democratic Alliance v Minister of International Relations and Cooperation (n 137) ¶¶51, 54. Saguisag v Executive Secretary (n 58) citing Green v Bock Laundry Machine Co (1989) 490 US 504. See Bradley (n 68) 781; Mulligan (n 110) 9, 15; Democratic Alliance v Minister of International Relations and Cooperation (n 137) ¶51. Emerson (n 134) 17. Bayan Muna v Executive Secretary (n 9).

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This begs the question: if the president cannot unilaterally amend a treaty or go beyond its bounds in entering into executive agreements, how could it be claimed that the president could annul one? Simply put: ‘if the lesser act is wrong, how can the greater be right?’.169 3.4 Analysis under the Originalist Approach The argument against unilateral executive denunciations finds further support in the examination of the intent of the framers of the Constitution. Of course, in this analysis, it is understood that utmost care must be observed in using the records of the Constitutional Commission.170 In some cases, it is difficult to ‘glean the intention of the framers from a few isolated pronouncements’. In others, the statements may simply ‘lack sufficient specificity’.171 Moreover, the Constitutional Commission appears to have treated the issue of the denunciation of treaties in a similar fashion as that of the US – the framers simply did not discuss the subject nor provide for comparable procedures.172 Nevertheless, a survey of the records of the Constitutional Commission reveals two important concerns of its members pertaining to treaties: the first relates to the allocation of powers in the government pursuant to the organising principle of checks and balances; the second pertains to upholding democratic principles made possible by ensuring public participation through the members of the legislative. The first concern becomes more apparent considering the historical roots of the Constitution and the concomitant aspirations of the members of the Constitutional Commission. As the framers emphatically put it, ‘intensive and exhaustive study’ of proposals were made with the intention of preventing a ‘repetition of the misuse and abuse of executive power’.173 More explicitly, the framers ‘were always on guard and careful 169 170 171 172

173

Gaffney (n 56) 138. Chavez v Judicial and Bar Council GR 202242, 16 April 2013; Civil Liberties Union v Executive Secretary (1981) 194 SCRA 317, 325. O’Donnell (n 55) 1631 citing Pappas (n 127) 508. Emerson (n 134) 9 citing Arthur Bestor, ‘Respective Roles of Senate and President in the Making and Abrogating of Treaties, The Original Intent of the Constitution Historically Examined (1979) 55 Wash L Rev 1; Sabis (n 104) 250; Wolff (n 73) 957 citing Max Farand, The Framing of the Constitution of the United States (Yale University Press, New Haven 1913), 171. Constitutional Commission of 1986, Records of the Constitutional Commission: Proceedings and Debates Vol I (1986), 105; Vol II (n 132) 220, 495; Vol V (n 60) 930; Joaquin Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary (Rex Bookstore, Quezon City 2009), 903.

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in their intense desire to undo and correct the misdeeds and mistakes of the Marcos regime’.174 The Supreme Court confirms this view by stating that the 1987 Constitution restored the separation of the branches of government under the principles of checks and balances.175 It is within this context that the Constitutional Commission ensured the participation of the legislative in the administration of treaties.176 Of course, the framers were aware of the dangers of imposing safeguards and restrictions that may be ‘unreasonable and unduly harsh’ such that it might ‘emasculate future presidents in the exercise of executive power’.177 But such a recognition should not be taken as to concede to the submission that the president should have an ‘unfettered power to abrogate a treaty’ on the mere basis that scope and flexibility should be granted to the president in the field of treaty relations.178 The same applies to the claim that requiring legislative participation, which in turn requires greater consensusbuilding, makes the process cumbersome.179 The foregoing instead reinforces the requirement of Congressional participation in the administration of international agreements.180 The 174 175 176 177 178 179 180

Constitutional Commission of 1986, Vol II (n 132) 385. See Gemmo Fernandez, ‘Rise of Illiberal Democracy, Weakening of Rule of Law, & Implementation of Human Rights in the Philippines’ (2021) 36(2) Am U Intl L Rev 181. Marcos v Manglapus (n 101). Note In re: Petition of Habeas Corpus of Umil et al GR 81567, 9 July 1990 (Padilla, dissenting). Constitutional Commission of 1986, Vol II (n 132) 387–8. Ibid., 385. See Lawson (n 55) 168, 154; Pappas (n 127) 523; Scheffer (n 91) 987; Gottenborg (n 56) 241, 250 Hathaway (n 52) 1315 citing Robert Dahl, Congress and Foreign Policy (Harcourt, Brace, & Co, New York 1950), 24; Jesse Reeves, ‘The Jones Act and the Denunciation of Treaties’ (1921) 15 Am J Intl L 33, 459. There may be at least four ways for this. First, it has already been observed previously that the roots of Congressional ex ante participation may be taking hold in the Philippines. The Senate has recently developed a practice of including, in its concurrence resolutions, a condition that the withdrawal from the treaty may only be effected with its concomitant agreement [See n 61]. However, it remains to be seen whether such conditional concurrence by the Senate is valid under the Philippine Constitution [Note Eichensehr (n 56) 288 ff; Sabis (n 104) 263]. Second, the Congress may provide a framework legislation laying out the process in which its concurrence to denunciations may be procured [Gottenborg (n 56) 241, 258]. Nonetheless, such a method also attracts the question of whether the Congress may enact laws prospectively limiting the executive’s discretion in this manner [Koh (n 8) 478, 480]. Third, the Congress may state its position ex post. The Senate may express its consent or disagreement with the denunciation by passing a resolution. Such has been done in the US in some instances in the past [See eg Bradley

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legislative branch, tasked with concurrence, ‘partakes a principal, yet delicate, role in keeping the principles of separation of powers and of checks and balances alive and vigilantly ensures that these cherished rudiments remain true to their form in a democratic government’.181 The involvement of the Congress serves as a safeguard so no single branch could assume absolute power in the field of international relations.182 Thus, while the framers said nothing as to the subject of withdrawal, bearing in mind their intent, it would appear ‘wholly unrealistic to believe that [they] would have unbalanced this carefully drafted system by not providing that the treaty-making power included the power to terminate treaties as well’.183 Disregarding this danger not just risks the stability of the country’s treaty relations,184 its standing in the international community,185 but also the welfare of the people relying on such instruments for protection.186 Second, it is important to note that the framers involved the Congress in the procedure in recognition of the system of government that allows for a deliberative process that permits the representatives of the electorate to participate in the crafting of foreign policy.187 Legislative participation in the administration of treaties ensures that policies are thoroughly debated and that the actions of the government are made ‘in the best interests of the entire nation’ properly represented.188 Thus, if the Con-

181 182 183 184

185 186 187 188

(n 68) 793–4; Emerson (n 134) 19]. While this may appeal to the principle of acte contraire, it is worth asking whether the rationale for the exclusion of the House of Representatives continues to be true [Note Pappas (n 127) 506]. Finally, another option is for both chambers to act concurrently with the president. If both agree with the termination of the treaty, Congress could enact a statute repealing the effectivity of the treaty [See Emerson (n 134) 20; Mulligan (n 110) 15; Wolff (n 73) 969]. Bayan v Executive Secretary (n 9); Constitutional Commission of 1986, Vol II (n 132) 410. Emerson (n 134) 16 citing Hamilton, ‘Federalist No 75’ (n 152); Fisher (n 120) 5; Gaffney (n 56) 141; Goldwater v Carter (n 113) (MacKinnon, dissenting). O’Donnell (n 55) 1631 citing Adler (n 124) 112; Sabis (n 104) 245, 249, 255; Bradley (n 68) 800. Amirfar & Singh (n 7) 459; Sabis (n 104) 224, 252. See John Sims, ‘The Asymmetrical Nature of the US Treaty Processes and the Challenges that it Poses for Human Rights’ (2008) 30 Hamline J Pub L & Poly 223, 229 citing Tom Ginsburg, ‘Locking in Democracy: Constitutions, Commitment, and International Law’ (2005) 38 NYU J Intl L & Pol 707, 718. Koh (n 8) 477; Murill (n 53) 9. Note Sims (n 184) 229. Constitutional Commission of 1986, Vol II (n 132) 109, 410; Vol IV (n 60) 781, 788; See Hessel (n 88) 2407 Sabis (n 104) 245, 257.

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stitution requires an act in the enactment or repeal of domestic statutes, it also makes sense to require the same for the entry to and withdrawal from of treaties.189 The need for public participation becomes more apparent considering the nature of international agreements. As treaties increasingly have implications in domestic affairs, as in the case of agreements conferring protections upon individuals such as the Rome Statute, public participation through Congressional involvement in the termination of international agreements becomes all the more necessary.190 Such ensures that the executive cannot deprive individuals of rights without their approval manifested through their representatives.191 Moreover, it must be noted that treaties tend not to be one-off transactions but ‘generate deeply interconnected’ sets of rights, duties, and expectations.192 In this regard, withdrawals tend to effect fundamental changes in municipal law and affect domestic rights and expectations.193 This is especially true in the case of treaties that have been deeply internalised into municipal law.194 Consequently, it is inconceivable that the framers left the sole discretion to withdraw from treaties that have such and effect to one branch of the government without consultation with those who are affected by such a move.195 4

Ineffectiveness under International Law of a Treaty Withdrawal Invalid under Municipal Law

Regulating different sets of actors and involving two distinct sets of duties and norms, some would say that international and municipal law share no common field.196 Each asserts its supremacy in its own area thereby negating the relevance of the discussion of co-ordination or sub189 190

191 192 193 194 195 196

Ibid. Galbraith (n 88) 126; See Constitutional Commission of 1986, Vol II (n 132) 116; See Alison Young, ‘Brexit, Miller, and the Regulation of Treaty Withdrawal: One Step Forwards, Two Steps Back’ (2018) Am J Intl L Unbound 434, 436; Michael Waibel, ‘Brexit and Acquired Rights’ (2018) Am J Intl L Unbound 440, 442. Democratic Alliance v Minister of International Relations and Cooperation (n 137) ¶52. Koh (n 8) 455. Ibid. Ibid. 454. See R (Miller) v Secretary of State for Exiting the European Union (n 146) ¶¶72, 82. Fitzmaurice (n 148) 79.

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ordination of one with regard to the other.197 Further, neither prescribes its method of implementation concerning the other.198 Thus, in the same way that international law would not declare national laws as invalid but would only declare that the latter or its application is inconsistent with it,199 national law would also not claim to govern the actions of or relations with other states.200 The aforementioned notwithstanding, it appears that the relationship between the two spheres of law are no longer impermeable. While traditionally concerned with mere results rather than the method of implementation, international law, has exercised a more intrusive approach into municipal law. For instance, in the field of international human rights law, treaties have created bodies endowed with their own respective procedures in monitoring and reporting; addressing complaints of individual human rights violations; accepting inter-state complaints procedure; and initiating motu proprio inquiries.201 As to international criminal law, it is now common for treaties to require detailed changes in national law, enforcement of effective measures, and establishment of extraterritorial jurisdiction.202 In the same way, municipal law has adopted the same porous boundary with international law. At times, the latter plays a role of an input for interpretative principles supplementing interpretative approaches or act as a method of maximising the conformity

197 198

199 200 201

202

Ibid. See Martin Dixon, Robert McCorquodale, & Sarah Williams, International Law (5th, OUP, Oxford 2011), 103. Denza (n 148) 412; Exchange of Greek and Turkish Populations (Advisory Opinion) [1925] PCIJ Ser B No 10; IACHR, International Responsibility for the Promulgation and Enforcement of Laws in Violation of the Convention (Advisory Opinion) OC14/94 Ser A No 14 (9 December 1994), ¶35; La Grand (Ger v USA) (Merits) [2001] ICJ 466; Avena and other Mexican Nationals (Mex v USA) (Merits) [2004] ICJ 12, ¶121. Fitzmaurice (n 148) 80; Denza (n 148) 414. Gemmo Fernandez, ‘Within the Margin for Error: Derogations, Limitations, and the Advancement of Human Rights (2019) 92 Phil LJ 1 citing Diane Desierto, Necessity and National Emergency Clauses (Martinus Nijhoff, Leiden 2012), 254; Scott Dolezal, ‘The Systematic Failure to Interpret Article IV of the International Covenant on Civil and Political Rights: Is There a Public Emergency in Nigeria?’ (2000) 15 Am U Intl L Rev 1163, 1174; P Gandhi, ‘The Human Rights Committee and Derogation in Public Emergencies’ (1989) 32 Ger YB Intl L 323, 328. Denza (n 148) 414 citing UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entry 26 June 1987) 1465 UNTS 85.

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of domestic law with that of national law.203 In others, international law offers a ‘mantle of legitimacy’ where governmental actions are justified as appropriate under international law.204 This porous boundary also characterises how international law relates to municipal law as to the conclusion of international agreements. While the Law of Treaties generally views municipal law as irrelevant, it nevertheless offers a narrow field of application for its invocation. Specifically, it considers the manifest violation of a municipal law of fundamental importance, related to the procedural and substantive restrictions on the conclusion of treaties, as a ground for invalidating the consent of the state to be bound by the international agreement.205 Rules concerning the Municipal Law Limitations on Entry into Agreements Under Article 27 of the VCLT, international law solely determines the binding force of a treat such that its execution cannot depend on the internal law of the parties to the agreement.206 This follows from the principle of pacta sunt servanda embodied in Article 26 that requires parties to perform its conventional duties in good faith. Thus, the VCLT prohibits states parties from invoking their respective internal laws ‘to evade the binding force of a treaty and justify the non-performance of conventional obligations’.207 However, the rule admits an exception by expressly stating that the provision is without prejudice to Article 46. The reference to the latter means that a state has the right to ‘invoke the nullity of a 4.1

203

204 205

206 207

Galbraith (n 93) 995, 994 citing Arizona v United States (2012) 132 S Ct 2492, 2513; Youngstown Sheet & Tube Co v Sawyer (n 105) 635–8 (Jackson, concurring); Roper v Simmons (2005) 43 US 551, 575–8; Graham v Florida (2010) 130 S Ct 2011, 2034; Lawrence v Texas (2003) 539 US 558, 573–7; Atkins v Virginia (2002) 536 US 304, 316–7; Thompson v Oklahoma (1988) 487 US 815, 831, fn 34. See Vinuya v Executive Secretary GR 162230, 28 April 2010; MVRS v Islamic D’wah Council of the Philippines GR No 135306, 28 January 2003 (Carpio, dissenting). Galbraith (n 93) 998. Vienna Convention on the Law of Treaties (adopted 23 May 1969, entry 27 January 1980) 1155 UNTS 331, art 46; Thilo Rensmann, ‘Article 46’ in Oliver Dörr & Kirsten Schmalenbach (eds), Vienna Convention on the Law of Treaties: A Commentary (Springer, New York 2009), 787. VCLT (n 205) art 27; Annemie Schaus, ‘Article 27’ in Olivier Corten & Pierre Klein (eds), The Vienna Convention on the Law of Treaties (OUP, Oxford 2011), 689. Ibid 689, 693 citing Greco-Bulgarian Communities [1930] PCIJ Ser B No 17, 32; Wimbledon [1923] Ser A No 1, 29; Certain German Interests in Polish Upper Silesia [1926] Ser A No 7, 19; Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory [1932] PCIJ Ser A/B No 44; Aust (n 135) 138.

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treaty due to a manifest breach of a provision of its internal law concerning the competence for the conclusion of treaties of fundamental importance’.208 Accordingly, the provision refers back to the municipal law, if only to a limited extent.209 The formulation of Article 46 affirms the exceptional character of the ground for invalidating consent.210 This stringency springs from the intention to strike a delicate balance between the security of international agreements and the respect for the internal regulations of the state concerning its treaty-making power, in turn, considered to be ‘an expression of a state’s sovereignty’.211 First, it requires that the law should be of ‘fundamental importance’ excluding minor legal and administrative provisions.212 To be ‘fundamental’, the rule must relate to its superior position in the hierarchy of norms in the given domestic sphere.213 Rules pertaining to the ‘institutional and political structure of the state and for the relationship between the state and its citizens’ fall under this description as with those that relate to the right to democratic governance.214 The article likewise requires that the violation be ‘manifest’. This means that the violation should be ‘objectively evident to any state conducting itself in accordance with normal practice and good faith’.215 Hence, the limitation on the authority of the state organ concluding the agreement

208 209

210

211 212 213 214 215

Ibid. 697. Mark Villeger, Commentary on the 1969 Vienna Convention on the Law of Treaties (Martinus Nijhoff, Leiden 2009), 588. Schaus (n 206) 1093 citing Luzius Wildhaber, Treaty-making Power and the Constitution (Wilandser, Helbing & Lichtenhahn, Stuttgart 1971), 147. See Land Maritime Boundary (Cameroon v Nigeria; Equatorial Guinea Intervening) (Judgment) [2002] ICJ 303. Rensman (n 205) 783 citing International Law Commission, ‘Draft Articles on the Law of Treaties with Commentaries’ (1966) II YB Intl L Comm, 187, 242; W Geck, ‘The Conclusion of Treaties in Violation of the Internal Law of a Party’ (1967) 27 ZaöRV 429, 438; Wildhaber (n 209) 348. Rensman (n 205) 850 citing Geck (n 210) 438; Wildhaber (n 209) 348. UN Conference on the Law of Treaties, First Session, ‘Records of the Plenary Meetings and of the Meetings of the Committee of the Whole’ (Vienna, 26 March–24 May 1968) UN Doc A/CONF.39/11, 240 ff. Rensman (n 205) 789. Ibid. 852, 853; Michael Bothe, ‘Article 46’ in Corten & Klein (n 206) 1090–9. Humphrey Waldock, ‘Fourth Report on the Law of Treaties’ (1965) II YB Intl L Comm 3, 70.

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must be ‘easily ascertainable’, ‘a matter of common knowledge’,216 or was ‘properly publicised’.217 Nevertheless, some claim that special circumstances may establish a higher standard of care on the part of the third state requiring the latter to examine the authority of the other party’s competence. If a state ‘is put on notice of the fact that the other state’s representative may lack the required constitutional authority, a higher burden of verification of the representative’s authority may apply’.218 The same has been suggested in the case of ‘treaty relations amongst pluralistic democracies’ where the ‘violation of a constitutional requirement of legislative approval “may more readily be considered manifest”’.219 The issue concerning the competence of a state organ to conclude caused much division throughout the nineteenth and early twentieth century.220 The debate became pronounced during the discussions within the International Law Commission (‘ILC’ or ‘Commission’) and the subsequent UN Conference on the Law of Treaties (‘Conference’).221 According to the ‘constitutionalists’, the ‘sovereignty principle’ requires respect of municipal law rules concerning competence to conclude international agreements. 222 As Lauterpacht puts it, the principle forbids the ‘acceptance of the view that a state may become bound, in matters affecting its vital interests and in others, by acts for which there is no warrant or authority in its own law’.223 Thus, international law should turn to the internal law of states in order to determine which state organ has the capacity to speak on behalf of the state and bind it to an international 216 217 218 219 220 221

222 223

Humphrey Waldock, ‘Second Report on the Law of Treaties’ (1963) II YB Intl L Comm 3, 36. See International Law Commission, ‘Summary Records of the Fifteenth Session’ (1963) I YB Intl L Comm 203, 207. Land Maritime Boundary between Cameroon and Nigeria (n 209) ¶265. Rensman (n 205) 794; Waldock, Second Report on the Law of Treaties’ (n 216) 46. Ibid. 857 citing Gregory Fox, ‘Constitutional Violations and Validity of Treaties: Will Iraq Give Lawful Consent to a Status of Forces Agreement?’ (2008) (Wayne State University Law School Research Paper No 08–25), 32–43. Rensman (n 205) 788; James Brierly, Special Rapporteur, ‘Report on the Law of Treaties’ (1950) II YB Intl L Comm 222, 231. Hannah Woolaver, ‘From Joining to Leaving: Domestic Law’s Role in the International Legal Validity of Treaty Withdrawal’ (2019) Eur J Intl L 73, 84; Hersch Lauterpacht, Special Rapporteur, ‘Report on the Law of Treaties’ (1953) II YB Intl L Comm 90, 142. Woolaver (n 221) 84; Maria Frankowska, ‘Competence of State Organs to Denounce a Treaty: Some Internal and International Legal Problems’ (1975) 7 Pol YB Intl L 277, 308. Lauterpacht (n 221) 143.

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agreement.224 If the organ binds the state in disregard of internal procedures thereby lacking authority, the consent is ‘void on the domestic as well as on the international plane’.225 While the view garnered support during the early stages of the drafting of the VCLT,226 subsequent developments tempered the approach by referring only to a ‘violation of a constitutional provision’ and by rendering its effect to make consent merely voidable.227 The ‘internationalist’ view, on the other hand, emphasised the need to maintain the security of international agreements by ensuring clarity in the competence to conclude treaties.228 It submits that the security of international agreements would be jeopardised if parties to treaties cannot rely on the ostensible authority of the organs accepting binding duties on behalf of their state’ and ‘if they were compelled to probe into the often uncertain and obscure provisions of constitutional law’ of other contracting parties.229 Consequently, representatives of states are required to ensure that they are acting within the authority granted to them by domestic law. Should they fail to do so, ‘that is a matter for internal resolution, not a matter for international law’.230 Thus, the violation of constitutional regulations would not affect the validity of the treaty.231 After three successive rapporteurs, the opposing sides agreed to a compromise that protected both the security of treaties and recognised the sovereignty of states.232 Thus, while the VCLT acknowledges the argument in favour of the irrelevance of municipal law provisions, the exception does not apply if the other party was aware that the state representative lacked authority to establish the state’s consent to be bound or if the 224 225 226 227 228 229 230 231

232

Frankowska (n 222) 305. Ibid; Waldock, Second Report on the Law of Treaties’ (n 216) 41; Robert Kolb, Good Faith in International Law (Hart Publishing, London 2017), 54. Woolaver (n 221) 85 noting Brierly (n 220) 231. Ibid citing Lauterpacht (n 221) 143. Woolaver (n 221) 84; Maria Frankowska, ‘Competence of State Organs to Denounce a Treaty: Some Internal and International Legal Problems’ (1975) 7 Pol YB Intl L 277, 308. Lauterpacht, ‘Report on the Law of Treaties’ (n 221) 142. Woolaver (n 221) 87; Gerald Fitzmaurice, ‘Do Treaties Need Ratification’ (1934) 15 Brit YB Intl L 113, 132–3. Frankowska (n 222) 305 citing Hans Blix, Treaty-Making Power (Stevens & Sons, New York 1960), 370 ff; Kaye Holloway, Modern Trends in Treaty Law (Stevens & Sons, 1967), 119 ff; Haraszti (n 10) 250–1. See Gerald Fitzmaurice, Special Rapporteur, ‘Report on the Law of Treaties’ (1956) II YB Intl L Comm 104, 108; ‘Third Report on the Law of Treaties’ (1958) II YB Intl L Comm 20, 33–4. See Waldock, ‘Fourth Report on the Law of Treaties’ (n 215) 45.

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representative’s want of authority is manifest.233 Subsequently, another proposal was put forward requiring that the only internal law that could be invoked and considered to vitiate the consent of the state is one of fundamental importance.234 It has to be stressed, however, that the term ‘competence to enter into treaties’ is not limited to the authority of the state organ to conclude agreements. Rather, it broadly encompasses both the procedural and substantive limitations in municipal law concerning the conclusion of treaties.235 The travaux prepatoires confirm that this was the understanding of both the Commission and governments during the formation of the VCLT. Indeed, early on, the Commission referred to the ‘law of the state regarding the procedures for entering into treaties’.236 The phrase ‘competence to enter into treaties’ was only used to ‘to clarify that the relevant internal law also extended to substantive limitations on the treatymaking power’.237 Of course, there were proposals to simply refer to the ‘violation of internal of international law without any qualification’.238 Nevertheless, the Commission decided to maintain the phrase ‘competence to conclude treaties’ with the understanding that it refers to procedural and substantive limitations under municipal law related to the conclusion of treaties.239

233 234 235 236 237 238

239

Ibid. 41 Rensman (n 205) 782 citing UN Conference on the Law of Treaties, ‘Documents of the Conference, First & Second Sessions’ (Vienna, 26 March–24 May 1968, 9 April–22 May 1969) UN Doc A/CONF.39/11/Add.2, 165. Ibid. 787. See International Law Commission, ‘Summary Records of the Fifteenth Session’ (n 216) 203, 207, 288; International Law Commission, ‘Revision of the Draft Artgicles in Light of the Comments of Governments’ (1965) II YB Intl L Comm 7, 67, 69. Rensman (n 205) 787 citing International Law Commission, ‘Summary Records of the Fifteenth Session’ (n 236), 289; Ibid citing Waldock, ‘Fourth Report on the Law of Treaties’ (n 215) 71 [‘The Commission was fully aware that constitutional restrictions upon the competence of the executive to conclude treaties are not limited to procedural provisions regarding the exercise of the treaty-making power but may also result from provisions of substantive law entrenched in the constitution. It is also the understanding of the Special Rapporteur that the Commission intended the words “(…) internal law (...) regarding competence to enter into treaties (…)’ to cover both forms of restrictions’]. Ibid. See International Law Commission, ‘Report of the International Law Commission on its Fifteenth Session (1963) II YB Intl L Comm 187, 190; Waldock, ‘Fourth Report on the Law of Treaties’ (n 215) 71.

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Extending the Rules to Cover Municipal Law Limitations on Withdrawal from Agreements While the VCLT provides detailed guidance on the conclusion of treaties, it does not do so in the case of denunciation.240 Of course, the law of treaties contains provisions on the question of the grounds, process, and effects of withdrawals.241 Yet, it appears to be silent, compared to the rules governing entry into agreements, as to the effect of procedural and substantive restrictions in municipal law.242 This is unfortunate considering that domestic actors increasingly consider the denunciation of treaties to be ‘just as central to their expression of national sovereignty as the joining of treaties’.243 Accordingly, the VCLT appears to disregard the relationship between international law and municipal law. Unlike in the case of the conclusion of treaties, it seems to oversimplify such a relationship and does not ‘reflect state practice’ nor the ‘complexities of domestic law procedures’ governing the administration of treaties.244 However, the apparent silence of the VCLT on this question should not be construed to mean that the Law of Treaties provides no guidance on the matter. This apparent lacuna may be filled by means of treaty interpretation and recourse to the policy behind its design. It is thus submitted that considering the text of the VCLT and the intention of the drafters as culled from the travaux préparatoires, ample authority exists to argue that in cases of treaty denunciations, fundamental violations of the limitations in municipal law makes the withdrawal ineffective under international law. 245 In turn, this lends credence to the argument that the Philippines’ withdrawal from the ICC, done in contravention of the Constitution thereby invalid under Philippine law, is also ineffectual under international law. To begin with, the travaux préparatoires show that the drafters intended for the limitations of municipal law in the conclusion of treaties be extended to the rules on denunciation. For instance, Fitzmaurice, a 4.2

240 241 242 243 244 245

Crawford (n 10) 11. Galbraith (n 51) 446 citing Helfer (n 7) 1582; Barbara Koremenos, The Continent of International Law: Explaining Agreement Design (Cambridge University Press, Cambridge 2016), 143. Crawford (n 10) 13; Frankowska (n 222) 277. Woolaver (n 221) 96. Tyagi (n 10) 100. Woolaver (n 221) 96–7; Haraszti (n 10) 252–3. Compare with Frankowska (n 222) 311 et seq; Ciampi (n 10) 368; Antonios Tzanakopoulos, ‘Article 67’ in Corten & Klein (n 206) 1557; Scheffer (n 91) 976.

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proponent of the internationalist view, stated that, as with his view pertaining to the conclusion of treaties, ‘the act and process of terminating or withdrawing from a treaty by any party is an executive one, and, on the international plane, the function of the executive authority of the state’.246 Similarly, Waldock, an advocate of the intermediate view, proposed in his Second Report that the rules laid down pertaining to competence to conclude agreements ‘shall also apply, mutatis mutandis, to the authority of a representative (…) to annul, denounce, terminate, withdraw from or suspend a treaty (…)’.247 During the discussions, it was observed that ‘anything relating to the procedure for amendment, denunciation, termination, withdrawal from, or suspension of, a treaty raises exactly the same problem as the constitutionality of treaty-making powers and the international effects of a breach of internal law on that subject’.248 Thus, ‘either the article itself or the commentary should say what were the international effects of the national authority exercised by the organs in question’.249 Responding to the concerns raised concerning the competence to denounce treaties, the Special Rapporteur stated that the it ‘would require some thought’.250 While the developments that occurred afterwards appear to have overtaken these concerns,251 the foregoing nonetheless supports the application of the acte contraire principle. This principle submits that the act of withdrawing from a treaty is a derivative act of its conclusion.252 As it is a ‘product of a process’, logically, the manner of denunciation should likewise ‘match the procedure of acceptance of a treaty’.253 Accordingly, if the VCLT allows for an exception in reverting to municipal law when it comes to the conclusion of treaties, the same should be applied in their denunciation.254 To this end, three arguments are offered. First, it 246 247 248 249 250 251 252 253 254

Gerald Fitzmaurice, Special Rapporteur, ‘Second Report on the Law of Treaties’ (1957) II YB Intl L Comm 16, 34. Waldock, Second Report on the Law of Treaties’ (n 216) 85. International Law Commission, ‘Summary Records of the Fifteenth Session’ (n 216) 164. Ibid. Ibid. Frankowska (n 222) 307 (‘[The final draft articles appear to have] abandoned the construction envisaging the extension of the provisions connected with the competence to conclude treaties to the competence to denounce them’). Ibid. 278 Tyagi (n 10) 94; Pappas (n 127) 480. See Capaldo (n 10) 63. But see Tyagi (n 10) 94 citing International Law Commission, ‘Draft Articles on the Law of Treaties with Commentaries’ (n 210) 249 [‘international law does not ac-

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is submitted that a state organ that denounces a treaty in contravention of a municipal law of fundamental importance does not have the ‘full powers’, within the meaning of the law of treaties, to do so. Second, it is argued that as in the case of an improperly ratified treaty that does not evince a state’s consent to be bound, the denunciation of a treaty by a state organ in violation of the limitations set by municipal law similarly does not evince the state’s consent to withdraw. Lastly, as a matter of policy, it is submitted that this interpretation accords more closely with the rationale of Article 46 which pertains to the security of treaties and respect for the sovereignty of states. To begin with, while it is observed that no subsequent discussion took place regarding the issue, the Commentaries on the final Draft Articles nevertheless are illuminating. In the Commission’s view with regard to Draft Article 63 concerning instruments for the declaring the invalid, terminating, withdrawing from or suspending the operation of a treaty, the ‘rule concerning evidence of authority to denounce, terminate (…) should be analogous to that governing “full powers” to express the consent of a State to be bound by a treaty’.255 To recall, Article 2(c) sets out the definition of ‘full powers’, which culling from the intention of drafters, should be applied to both Articles 7, pertaining to the requirement of production of full powers in the context of the conclusion of agreements, and Article 67, concerning the termination or withdrawal from treaties. ‘Full powers’ under Article 2 refers to instruments ‘for expressing the consent of the state to be bound by a treaty, or for accomplishing any other act with respect to a treaty’. Such a definition ‘clearly includes acts concerning both the conclusion and termination of treaties’.256 As the ‘motif of the formulation of the rules is a statement of the conditions under which a person is considered in international law as representing his state for the purpose of performing acts relating to the conclusion of a treaty’,257 the restriction on the authority of a state organ to bind its state should apply to all acts concerning the administration of treaties whether it be the conclusion, amendment, extension, suspension, or ter-

255 256 257

cept the theory of acte contraire (…) states concerned are always free to choose the form in which they arrive at their agreement to terminate the treaty’]. International Law Commission, Draft Articles on the Law of Treaties with Commentaries (n 210) 264. Woolaver (n 221) 96–7 citing Aust (n 135) 72. International Law Commission, Draft Articles on the Law of Treaties with Commentaries (n 210) 192.

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mination.258 This being the case, the provisions of Article 46 concerning the boundaries of international law and municipal law should likewise be applicable.259 More importantly, it must be remembered that in most cases, treaties do not automatically enter into force insofar as states are concerned by virtue of the signature of a state organ. Indeed, many agreements, ‘particularly those that place onerous requirements on states, are made subject to procedures in addition to signature by the state representative vested with ostensible international law authority’.260 It is to this end that the VCLT creates the distinction between a treaty that is signed and one that is subject to ‘ratification, acceptance, or approval’.261 It is also in these instances that Article 46 finds another application. As stated above, it does not only cover the competence of a state organ but rather the procedural and substantial limitations contained in municipal law pertaining to the conclusion of treaties. Accordingly, just as a treaty signed by a state organ that possess no authority, in violation of manifest and fundamental rules of municipal law, does not bind the state,262 the same goes for treaties that have been improperly ratified, approved, or acceded. In both cases, the violation of domestic law invalidates or vitiates the consent of the state under consent under international law’.263 Applying the acte contraire principle, the same effect may be extended to treaty withdrawals. That is, a treaty denounced by a state organ, in violation of the state’s internal law, legislative concurrence in the case the Philippines, renders the withdrawal ineffective under international law. In the same way that a treaty that has been improperly ratified or approved does not 258 259 260

261 262

263

Woolaver (n 221) 96–7. Ibid; But see Laurence Helfer, ‘Treaty Exit and Intra-branch Conflict at the Interface of International and Domestic Law’ in Curtis Bradley (ed), The Oxford Handbook of Comparative Foreign Relations Law (OUP, Oxford 2019), 371–2. Woolaver (n 221) 98 citing International Law Commission, ‘Draft Articles on the Law of Treaties with Commentaries’ (n 210) 241–2 [‘(I)nternational law has devised a number of treaty-making procedures – ratification, acceptance, approval, and accession – specifically for the purpose of enabling Governments to reflect fully upon the treaty before deciding whether or not the state should become a party to it, and also of enabling them to take account of any domestic constitutional requirements’]. VCLT (n 205) art 18(a). Hop Xuan Dang, ‘Ultra Vires State Contracts under International Law’ (2012) HK LJ 143, 143. See United States Senate, Committee on Judiciary, Panama Canal Treaties: The United States Senate Debate (1977–8) Part 3 (US Government Printing Office, DC 1978), 5429–30. Woolaver (n 221) 93.

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reflect the consent of the state, an agreement that has been improperly denounced has the same effect.264 Finally, the argument finds support not just in the text of the VCLT and its travaux préparatoires, but also the overarching policy that precipitated the design of Article 46: the balance between the security of treaties and the sovereignty of states. With regard to the first, it has been repeatedly stressed that states must be able to rely on the ostensible authority of state representatives in entering into international agreements.265 Moreover, it mandates parties to act in good faith with regard to their treaty relations by providing that only notorious and fundamental violations, which other states can be reasonably expected to have taken account, would be considered.266 By extending the rules on the competence of state organs to conclude treaties to denunciations, the approach upholds the emphasis placed on the continuity of treaties by including strict substantive and procedural requirements in their suspension or denunciation.267 As to the second, the policy accords respect to the sovereignty of the state by considering its internal law in relation to its consent to be bound by conventional law should an organ act without authority or against its fundamental limitations.268 None of these principles are upheld by the application of a purely internationalist view in the case of competence to denounce a treaty.269 It gives the executive an unfettered authority to withdraw their respective state from treaties without considering, as in the case of the conclusion of treaties, whether such is in accord with the intent and interests of the withdrawing state manifested through its internal processes.270 Thus, there appears to be no justification in policy for providing safeguards in the form of recourse to the limi264

265 266 267 268 269 270

At least one author argues that the ‘analogical application (…) does not necessarily entail identical application’. While the contravention of the internal law must be ‘manifest’ to invalidate its consent in the conclusion of treaties, a different standard may be needed in the case of denunciations. In these cases, ‘circumstances may make it more reasonable to expect a state to inquire into the domestic rules of its treaty partners and thus increase the likelihood of a violation of domestic law being objectively evident’ [Woolaver (n 221) 100]. Rensman (n 205) 779; Lauterpacht (n 221) 142. Frankowska (n 222) 308. Woolaver (n 221) 100 citing International Law Commission, ‘Summary Records of the Fifteenth Session’ (n 216) 8, 10, 18, 42, 54, 86–7, 101, 123; Waldock, Second Report on the Law of Treaties’ (n 216) 43–5, 52, 80, 87. Lauterpacht (n 221) 143. See Woolaver (n 221) 97–102. Ibid 99, 100.

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tations of municipal law in the conclusion of treaties but disregarding the same for purposes of denunciation.271 5

Conclusion

The article began by contextualising the withdrawal of the Philippines from the Rome Statute. It provided a brief background of the domestic intricacies surrounding the act including the government’s campaign against illegal drugs and the concomitant allegations of extra-judicial killings. The article noted that such a withdrawal, carried out unilaterally by Mr Duterte, is a setback to the protection of human rights in the Philippines as it withdraws an important recourse for victims of crimes of the most serious concern in the country. Such a withdrawal also undermines the role of the legislative in the administration of the treaties to which the country is a party to. The article then argued that such an act is invalid under Philippine municipal law. The appeal to the plenary and foreign affairs powers of the executive does not justify arrogating the authority to withdraw solely on the president. The article submits that contrary to the position of the government, such an authority is shared with the legislative. An examination of the fundamental law serves to prove that it likewise grants power to the Congress in the administration of treaties. Moreover, the principle of separation of powers empowers it to act concurrently with the executive in designing the policy concerning international relations. Finally, an analysis of the records of the Constitutional Commission, in view of its historical roots, confirms the submission that the legislative plays a vital role in upholding the principle of checks and balances and that right to public participation. Finally, the article argued that the unilateral denunciation of the president is likewise ineffective under international law. While the governing law appears to be silent as to the issue of competence to withdraw from treaties, an analysis of text of the Convention and its travaux préparatoires reveal ample authority to argue for an analogous extension of the rules on recognising the procedural and substantial limitations contained in municipal law on the conclusion of treaties to that of denunciation. If the security of international agreements is to be upheld and the sovereignty of states, respected, the governing law should likewise consider 271

Ibid 98.

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the competence of state organs in treaty denunciations rather than grant unfettered authority to ostensible organs.

4

A Dual Threshold:

Understanding the Test for Apprehended Bias at the ICC Jennifer Keene-McCann* Abstract

This article examines the origins and application of the International Criminal Court’s test for apprehended bias. It analyses the nineteen publicly-available requests for excusals or disqualifications. It finds that, in practice, the Court’s reasoning collapses the test for actual bias – a rebuttable presumption of the actor’s impartiality – into the test for apprehended bias – the reasonable observer. It argues that, in this collapse, the Court renders moot the lower threshold of the reasonable observer. It concludes that while it is important that any test for apprehended bias should be high enough to prevent frivolous requests, it should not be so high as to equal the test for actual bias. Keywords Apprehended bias – excusal – disqualification – reasonable observer – International Criminal Court.

* International lawyer and solicitor admitted to the Supreme Court of Victoria and High Court of Australia. She holds a Master’s in public international law and international security from The Fletcher School of Law and Diplomacy, Tufts University, and a Juris Doctor from the University of Melbourne.

© Koninklijke 2022 | doi:10.1163/9789004518216_005 © KONINKLIJKE Brill BRILL NV, Leiden, LEIDEN, 2022 | DOI:10.1163/9789004518216_006

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Introduction

Impartiality is expected of judicial officers1 and prosecutors2 (hereafter, court actors) because of the impact their decisions may ultimately have on an individual’s liberty.3 The ability to challenge for bias – either for actual bias or the appearance of bias (hereafter, apprehended bias) – is a crucial part of ensuring decisions are made in an impartial manner.4 Because apprehended bias ‘countenances the possibility that justice might not be seen to be done, even where it is undoubtedly done’,5 it requires a test stringent enough to prevent abuse of process. Yet, that threshold cannot be so high as to be equal to the test for actual bias. If it were there would be no difference left between apprehended and actual bias – thereby making it less likely that any challenge on the basis of bias may be brought. This article focuses on the International Criminal Court’s (hereafter, ICC or the Court) reasoning on apprehended bias articulated in nineteen requests for excusals or disqualifications.6 The study that informs this article examined more than fifty-five requests for excusals or disqualifications across the ICC, the ad hoc tribunals, and the hybrid tribunals.7 The study found that in the majority of fifty-five examples in total, the reasoning utilised what will be referred to as a “dual threshold” test for apprehended bias. This dual threshold concept holds that the test for apprehended bias was whether a reasonable observer, properly informed, would objectively observe the appearance of bias; however, this test then utilised a rebuttable presumption of impartiality in deciding what the reasonable observer observed. This article finds that, in practice, both thresholds collapse into one test. The question becomes whether the applicant – the individual alleg1 2 3 4

5 6 7

United Nations Office of Drugs and Crime ‘Commentary on the Bangalore Principles of Judicial Conduct’ (September 2007) para 82. See UNGA Res 40/34 (29 November 1985) UN Doc A/RES/40/34. HLA Hart, The Concept of Law (3rd ed OUP 2012) 159. Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217A (III) art 10; International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 art 14. See also UNHCR Human Rights Committee ‘General Comment No 32’ (23 August 2007) UN Doc CCPR/C/GC/32. Commentary on the Bangalore Principles (n 1) para 86. These include excusals or disqualifications for judges, the Prosecutor, or a Deputy Prosecutor. While the entire list of cases is omitted here, a list is available with the author.

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ing the appearance of bias – can rebut the presumption that court actors are generally impartial. With this the reasonable observer test is rendered moot. This is because an objective test is a lower threshold than a rebuttable presumption; it requires less evidence to make out a mere objective appearance of bias than it does to rebut a presumption of impartiality. If the objective, reasonable observer test is rendered moot, then the test for apprehended bias becomes the same test as for actual bias – necessarily a much more serious, and therefore more difficult, test to make out. This is particularly concerning for requests for disqualification by the Defence, where the actor at issue has a previous association or made external comments that cause apprehended bias to be raised. It is in these instances that the Court’s Rules of Evidence and Procedure (RPE) Rule 34(1)(c) and (d) require excusal or disqualification where the circumstances, ‘objectively, could adversely affect the required impartiality of the person concerned’.8 This article first explores the need to maintain a distinction between actual and apprehended bias. Second, it examines the ICC’s legal framework for preventing bias. Third, it analyses the reasoning of nineteen disqualification or excusal requests before the ICC. Ultimately, it argues that this dual threshold risks thinning the line between the tests for actual and apprehended bias. In so doing, it argues that the dual threshold undermines the need for maintaining a separate test for apprehended bias. 2

Maintaining a Distinction between Actual and Apprehended Bias

For the purposes of this article, tests for bias can be divided into two: a test for actual bias and a test for apprehended (or apparent) bias.9 In general, actual bias requires making out that the impugned actor’s mind is ‘incapable of alteration’10 – a high bar demanding a subjective test regarding the ‘actual state of mind [of the] actual decision-maker’ (empha-

8 9

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Rules of Procedure and Evidence, ICC-ASP/1/3 (ICC Rules) r 34(1)(c) and (d). In his book, former judge Sir Grant Hammond divides this further to actual, apparent, and automatic disqualification, but notes that further categorisation is somewhat arbitrary and unfruitful. See Grant Hammond, Judicial Recusal: Principles, Process and Problems (Hart 2009) 16. For example in the common law jurisdiction of Australia, see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 [69].

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sis in original).11 The purpose of preventing actual bias is clear: under the rule of law, an Accused is entitled to the right to an impartial decision maker. Where a supposedly impartial court actor’s mind is made up prior to hearing the facts of a case, there can be no impartiality. Alleging actual bias is rare; 12 in fact the high bar for evidence in alleging actual bias has caused some judicial officers and legal scholars to argue that actual bias is an ‘ineffective method of ensuring judicial impartiality’.13 Thus was developed an alternate test as a way to address concerns regarding impartiality that nevertheless cannot meet the high bar for actual bias. Indeed, the development of this less-than-actual bias test has led some judges to remark that such claims ‘may be no more than a polite fiction for no doubt unintended, unconscious and ultimately unprovable, but nonetheless actual bias’.14 This alternate test – the test for apprehended bias – therefore sets a lower bar than the test for actual bias. Where in general the test for actual bias is a subjective test, the test for apprehended bias is an objective one.15 This is because apprehended bias deals with perception; it suggests that particular circumstances may cast doubt on whether the actor can decide fairly.16 As is oft repeated particularly in common law jurisdictions, ‘it is not merely of some importance but is of fundamental importance that

11 12 13

14 15 16

Michael Wilson and Partners Ltd v Nicholls (2011) 244 CLR 427 [33] cited in Matthew Groves, ‘Clarity and Complexity in the Bias Rule’ (2020) 44 Melbourne University Law Review 1, 7. Commentary on the Bangalore Principles (n 1) para 82. See also Grant Hammond, ‘Judicial Recusal: The Legislature Strikes Back?’ (2015) 4 British Journal of American Legal Studies 19, 20. Raymond J McKoski, ‘Giving Up Appearances: Judicial Disqualification and the Apprehension of Bias’ (2015) 4 British Journal of American Legal Studies 35, 50. See also Locabail (UK) Ltd v Bayfield Properties Ltd, [2000] QB 451, 472; Anne Richardson Oakes and Haydn Davies, ‘Justice Must Be Seen To Be Done: A Contextual Reappraisal’ (2016) 37 Adelaide Law Review 461, 483. Johnson v Johnson (2000) 201 CLR 488, 517 [79] cited in Groves (n 11) 7. Groves also states ‘[t]he same concerns were evident in the majority opinion in [the US case] Caperton v AT Massey Coal Co Inc (2009) 556 US 868, 883.’ See Andrew Higgins and Inbar Levy ‘What the Fair Minded Observer Really Thinks about Judicial Impartiality’ (2021) 84(4) Modern Law Review 811, 814–818. Mark Aronson, Matthew Groves, and Greg Weeks, Judicial Review of Administrative Action and Government Liability (6th ed Thomson Reuters 2017) 652–654.

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justice should not only be done, but should be manifestly and undoubtedly be seen to be done’. 17 Addressing apprehended bias fulfills several purposes. By utilising an objective test – a type of hypothetical reasonable or fair-minded observer – it ‘bring[s] the public into the room’.18 By requiring the court to consider and articulate how a fair-minded member of the public would view the impartiality of the impugned actor, the test promotes public confidence that the decision-making process is fair.19 Moreover, where actual bias remains so difficult to prove, a lower test for apprehended bias may be the only opportunity to challenge an actor for partiality. This in turn protects the right to a fair trial. While both protections for fair trial and promotion of public confidence are important for domestic courts, they are all the more important for the world’s only permanent international criminal court.20 As noted by the ICC’s Appeals Chamber, addressing both actual and apprehended bias ‘is what legitimizes a judicial body to administer justice’.21 This need for legitimacy is potentially even greater on the international level compared to the domestic level for several reasons. First, the relevant court needs to be seen as a ‘depoliticized alternative to diplomatic dispute resolution’ and ‘[t]he democratic deficit in the operation of international judicial bodies (ie, their lack of accountability to an 17 18 19

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Rex v Sussex Justices, Ex parte McCarthy [1924] 1 KB 256, 259 (Lord Hewart CJ). However, for a brief critique of Lord Chief Justice Hewart’s remarks see Oakes and Davies (n 13) 461 and McKoski (n 13) 43. McKoski (n 13) 53 citing Lori Ann Foertsch, ‘Scalia’s Duck Hunt Leads to Ruffled Feathers: How the U.S. Supreme Court and Other Federal Judiciaries Should Change Their Recusal Approach’ (2006) 43 Houston Law Review 457, 466. Prosecutor v Bemba (Dissenting Opinion of Judge Anita Ušacka regarding the Decision on Requests for the Disqualification of the Prosecutor, the Deputy Prosecutor, and the Entire OTP Staff) ICC-01/05–01/13 (21 October 2014) [3]. See also Andrew Field, ‘Confirming the Parting of Ways’ [2001] Singapore Journal of Legal Studies 388. ‘[I]f the perception of the public is important in national courts, how much greater, “in the overall amalgam of jurisprudence and lay confidence,” is the need for a positive international perception of an international tribunal.’ Howard Morrison, ‘Judicial Independence: Impartiality and Disqualification’ in Richard May et al (eds), Essays on ICTY Procedure and Evidence in Honour of Gabrielle Kirk MacDonald (Brill 2000) 115. See also on the use of apprehended bias for the protection of public confidence, Hauschildt v Denmark App no 10486/83 (ECHR 24 May 1989) [48]. Prosecutor v Katanga (Judgment in Appeal by Mathieu Ngudjolo Chui against the Decision for Interim Release) ICC-01/04–01/07 (9 June 2008) [10].

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identifiable constituency)’. 22 In other words, States need to trust a court in order to take disputes to it. Second, it supplements the ‘weakness of international enforcement procedures’ – or put positively, States need to agree to cooperate with the court including, for example, assisting with arrest warrants.23 Third, the international courts have a role in setting examples or standards for domestic legal systems.24 Finally, the positive public perception is necessary as a potential reflection of the international processes on any domestic transitional justice mechanisms operating concurrently or following the hybrid or international court’s decisions. President of the Mechanism for International Criminal Tribunals and former President of the ICTY Judge Theodor Meron summarized this heightened need for legitimacy: On the international plane, the political environment in which international courts, especially international criminal courts, function brings greater attention to the credibility of the institution, and the performance of the international judge as an independent and impartial arbiter is constantly under scrutiny.25 Reasoning backwards from the existence of a right to a fair trial, it follows that a court is legitimate because it is fair, and it is fair because it is competent, independent, and impartial. Further, a court is considered legitimate because it is seen to be fair, based on its competence, independence, and impartiality. Thus, it is not just important for the ICC to prevent actual bias, but to be attentive to and manage claims of the perception or appearance of bias. Maintaining both the tests for actual and apprehended bias is therefore crucial.26 22 23 24

25 26

Yuval Shany and Sigall Horovitz, ‘Judicial Independence in The Hague and Freetown: A Tale of Two Cities’ (2008) 21 Leiden Journal of International Law 113, 120. Ibid, citing Dinah Shelton, ‘Legal Norms for Independence and Accountability of International Tribunals’ (2003) 2 Law and Practice of International Courts and Tribunals 27. Ibid, citing Nancy Kaymar Stafford, ‘A Model War Crimes Court: Sierra Leone’ (2003) 10 ILSA Journal of International & Comparative Law 117, 133; see also David Cohen, ‘Hybrid Justice in East Timor, Sierra Leone, and Cambodia: Lessons Learned and Prospects for the Future’ (2007) 43 Stanford Journal of International Law 1, 37. Theodor Meron, ‘Judicial Independence and Impartiality in International Criminal Tribunals’ (2005) 99 American Journal of International Law 359, 361. This is not to say that there are not valid critiques regarding the existence or use of a test for the ‘perception’ of bias. See further in Abimbola A Olowofoyeku, ‘Bias and

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ICC Legal Framework to Prevent Apprehended Bias

The ICC has a robust statutory framework for preventing and managing claims of apprehended bias. Within this framework are three layers of this protection provided by the Rome Statute and the RPE. First, the Court’s judges, the Prosecutor, and the Deputy Prosecutors are all selected because they are ‘persons of high moral character [who are] highly competent’.27 In particular, each judge must ‘possess the qualifications required in their respective States for appointment to the highest judicial offices, presuming such individuals are accustomed to the duties of independence and impartiality required of the judicial office’.28 Second, each of these actors are required to proactively avoid the possibility of apprehended bias. This includes avoiding circumstances that might ‘affect confidence in [their] independence’29 and refraining from participating in cases where ‘his or her impartiality might reasonably be doubted on any ground’.30 Third and finally, there are two processes to relieve the actor where the appearance of bias may arise: excusal and disqualification. This article examines decisions dealing with both of these processes and their results. 3.1 Excusal Excusal (or more commonly in academic discussion recusal) is the removal of a judge31 or the Prosecutor or a Deputy Prosecutor32 on his or her own request. Under Rule 33, a request for excusal is to be made ‘in writing to the Presidency, setting out the grounds upon which he or she should be excused’.33 The Presidency decides on the merits of the request

27 28 29 30 31 32 33

the Informed Observer: A Call For a Return to Gough’ (2009) 68(2) Cambridge Law Journal 388–409; McKoski (n 13); Andrew Higgins and Inbar Levy, ‘Judicial Policy, Public Perception, and the Science of Decision Making: A New Framework for the Law of Apprehended Bias’ (2019) 38(3) Civil Justice Quarterly 376–399. Regarding Judges: Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 90 (Rome Statute) art 36(3)(a), (b); regarding the Office of the Prosecutor: Rome Statute art 42(3). Rome Statute, art 36(3)(a). Regarding Judges, Rome Statute, art 40(2); regarding the Office of the Prosecutor, Rome Statute, art 42(5). Regarding Judges, Rome Statute, art 41(2)(a); regarding the Office of the Prosecutor, Rome Statute, art 42(7). Rome Statute, art 41(1). Rome Statute, art 42(6). ICC Rules r 33(1).

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and is required to keep such requests confidential unless the individual concerned gives consent to publish the request and decision.34 Thus, it is not possible to know for sure how many confidential requests for excusal have been denied or granted, although one granted request will be addressed below. Of these requests, Judge Meron noted extra-judicially regarding actual and apprehended bias: The [scenario of apprehended bias] is more complicated… Here, the judge recuses himself not because he cannot exercise his judicial function, but to preserve the integrity of his court and the concept of law.35 Therefore, Court actors appear to have a duty of prudence – to remove themselves from acting in cases, not where they identify that they have prejudged the matter, but where they identify that others may believe they have prejudged the matter. The trigger for requesting excusal, however, appears to be how reasonably the actor believes that the others have reached their conclusion. 3.2 Disqualification Disqualification is the removal of a judge36 on the request of a party, or the removal of the Prosecutor or a Deputy Prosecutor37 on the request of the individual under investigation or prosecution.38 An absolute majority of judges decides on a request for disqualification.39 The Appeals Chamber decides on a request for disqualification of the Prosecutor or a Deputy Prosecutor.40 Regarding both judges and the Prosecutor or a Deputy Prosecutor, the Rome Statute states: [The relevant individual] shall be disqualified from a case in accordance with this paragraph if, inter alia, [that individual] has previously been involved in any capacity in that case before the Court 34 35 36 37 38 39 40

ICC Rules r 33(2). Meron (n 25) 365–366. Rome Statute, art 41(2)(a). Rome Statute, art 42(7). Rome Statute, art 42(8)(a). Rome Statute, art 41(2)(c). Rome Statute, art 42(8).

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or in a related criminal case at the national level involving the person being investigated or prosecuted.41 Rule 34(1) of the RPE complements Articles 41 and 42 by providing a further non-exhaustive list of additional grounds for disqualification.42 These grounds include a ‘personal interest’ in the case (Rule 34(1)(a)) or involvement in any capacity with an opposing party to the Accused (Rule 34(1)(b)). However, they also include performance of previous functions ‘during which he or she could be expected to have formed an opinion on the case in question, on the parties or on their legal representatives’ (Rule 34(1)(c)), or expressing opinions, including in public media appearances (Rule 34(1)(d)). These latter two grounds both are to be judged, according to the RPE, as whether ‘objectively’, these actions ‘could adversely affect the required impartiality of the person concerned’.43 It is interesting to note how these five grounds – one in the Rome Statute, four in the RPE – relate to the different manifestations of bias. The Rome Statute prohibits circumstances that could lead to prejudgment related specifically to the case at hand. Grounds (a) and (b) in Rule 34(1) address personal conflicts of interest. Grounds (c) and (d) in Rule 34(1) address broader circumstances ‘that, objectively, could adversely affect the required impartiality of the person concerned’ – notably expressly suggesting the need for an objective test. 4

Origins of the ICC Apprehended Bias Test: Thresholds in Furundžija

The origin of the Court’s reasonable observer test can be traced to the ICTY Appeals Chamber decision in The Prosecutor v Anto Furundžija (Furundžija).44 In that case the Appeals Chamber considered, inter alia, whether Judge Florence Mumba’s prior involvement with the United Nations Commission on the Status of Women (UNCSW), her related association with a Prosecution lawyer, and her related association with 41 42 43 44

Rome Statute, art 41(2)(a) and art 42(7) respectively. ICC Rules r 34. ICC Rules r 34(1)(c) and (d). ‘[T]he Appeals Chamber notes that, although the issue of impartiality of a Judge has arisen in several cases to date, before both the Bureau and a Presiding Judge of a Trial Chamber, this is the first time that the Appeals Chamber has been seized of the matter’. Prosecutor v Furundžija (Appeals Judgment) IT-95–17/1-A (21 July 2000) [178].

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authors of an amicus brief created an unacceptable appearance of bias. Judge Mumba’s prior involvement with UNCSW was of relevance to the case because the case concerned crimes of sexual violence and violence against women. The ICTY Appeals Chamber laid the foundation for its test by stating that there is a ‘general rule that a Judge should not only be subjectively free from bias, but also that there should be nothing in the surrounding circumstances which objectively gives rise to an appearance of bias’.45 It then stated: [T]he following principles should direct [the Appeals Chamber] in interpreting and applying the impartiality requirement of the Statute: A. A Judge is not impartial if it is shown that actual bias exists. B. There is an unacceptable appearance of bias if: i) a Judge is a party to the case, or has a financial or proprietary interest in the outcome of a case, or if the Judge’s decision will lead to the promotion of a cause in which he or she is involved, together with one of the parties. Under these circumstances, a Judge’s disqualification from the case is automatic; or
 ii) the circumstances would lead a reasonable observer, properly informed, to reasonably apprehend bias.’46 Restated, the Chamber divided the test into two circumstances: first, that of actual bias; second, that of ‘the unacceptable appearance of bias’, or apprehended bias. The ‘unacceptable appearance of bias’ is then divided into two further circumstances: first, conflicts of interest that result in the appearance of bias; and second, a remaining flexible provision for instances where a reasonable observer apprehends bias. Both actual bias and a conflict of interest result in automatic disqualification. In contrast, the reasonable observer is left to determine the unacceptable appearance of bias on a case-by-case basis in all other circumstances. This leaves relatively open the question who the reasonable observer is and what she must ‘observe’ based on being ‘reasonably informed’. 45 46

Ibid [189]. Ibid [189], citing Prosecutor v Talić (Decision on Application by Momir Talić for the Disqualification and Withdrawal of a Judge) IT-99–36-PT (18 May 2000) [15].

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In describing the ‘reasonable observer’, the Appeals Chamber cited a decision given two months earlier in the ICTY Trial Chamber II. In The Prosecutor v Radoslav Brdanin and Momir Talić (Talić), the Defence requested that, because she sat on an earlier appeal in a different case, Judge Mumba had ‘an association which might affect... her impartiality’.47 There, the Presiding Judge of the Chamber Judge David Hunt stated, without further citation, that: The question raised by the Request is, then, whether the reaction of the hypothetical fair-minded observer (with sufficient knowledge of the actual circumstances to make a reasonable judgment) would be that Judge Mumba, having participated in the… Appeal Judgment, might not bring an impartial and unprejudiced mind to the issue [of the case].48 Judge Hunt ultimately decided that his ‘fair-minded observer’ would not apprehend bias – and therefore denied the request49 – on the basis that the ‘observer’ would know how the Court had decided cases before50 and would know that professional judges regularly sit on cases that ‘arise out of similar events’.51 In Furundžija, the Appeals Chamber depicted the reasonable observer similarly to Judge Hunt, but went a step further. In applying the test, the Chamber noted that there exists a ‘presumption of impartiality which attaches to a Judge’ – a presumption recognised by the ICTY and in domestic municipal law – through which the reasonable observer observes (hereafter, the rebuttable presumption).52 Here, the Chamber cited the ICTY case of The Prosecutor v Dario Kordić et al (Kordić), and the South African Constitutional Court case of South African Rugby Football Un-

47 48 49 50 51

52

Talić (n 46) [1] (further citation omitted). Ibid [19]. Ibid [20]. Ibid [16]. Ibid [17]: ‘Finally, this observer would know that the judges of this Tribunal are professional judges, who are called upon to try a number of cases arising out of the same events, and that they may be relied upon to apply their mind to the evidence in the particular case before them’. Furundžija (n 44) [196], citing Prosecutor v Kordić (Decision on the Accused’s Application Requesting Disqualification of Judges Jorda and Riad) IT-95–14/2-PT (4 May 1998) 2.

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ion.53 Like in Talić, the Defence in Kordić requested the disqualification of two judges who were also sitting in another case with similar facts.54 Deciding the request, the ICTY Bureau55 stated that: [I]t does not follow that a judge is disqualified from hearing two or more criminal trials arising out the same series of events, where he is exposed to evidence relating to these events in both cases. This applies also to the situation where an accused in the later case was previously named as a co-accused in the first indictment. A judge is presumed to be impartial. In this case there is nothing to rebut that presumption.56 Discussing a rebuttable presumption in Kordić is understandable – although it is notable that no rebuttable presumption was mentioned by Judge Hunt in addressing the similar facts in Talić. In both cases it was necessary to consider what the limited number of judges must do regularly: sit on multiple cases with similar facts. This conduct is a necessity in international criminal tribunals and it relates specifically to the ability of a judge to look at each case afresh. Provided she has not already decided on the same facts in another matter, a high threshold to disqualify a judge is warranted. Thus, the rebuttable presumption, whether standing alone or a presumption imputed to a reasonable observer, is fit for purpose. The Bureau’s reasoning in Kordić highlights precisely this: The nature of the Tribunal’s jurisdiction is such that the cases before it inevitably overlaps. On the one hand, the same issues and the same evidence are often involved. On the other hand, the Tribunal possesses a finite number of judges. On a view opposite to that reached in this case, the work of the Tribunal would soon grind to a halt.57

53 54 55 56 57

President of the Republic of South African Rugby Football Union, Judgment on Recusal Application 1999 7 BCLR 725 (CC) [48]. Kordić (n 52) 1. The ICTY Bureau was composed of the President, Vice-President, and presiding Judges of the Trial Chambers. Furundžija (n 44) [196] and Kordić (n 52) 2. In Talić (n 46), Judge Hunt does not cite a presumption of impartiality. Kordić (n 52) 2.

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In other words, because cases will naturally overlap it is only practical to trust that judges know this and will treat each case with care. Again however, Judge Hunt did not find it necessary to describe a rebuttable presumption in Talić – the reasonable observer sufficed. Further, although Talić and Kordić are used in defining the test in Furundžija, the circumstances of the disqualification request were fundamentally different. Where in Talić and Kordić, the circumstances regarding disqualification were extremely common to judicial office – sitting in separate cases with related facts – the circumstances in Furundžija were more unique. In Furundžija, the disqualification request noted that Judge Mumba had a prior association with a relevant organization and an alleged association with a party’s representative and an amicus. Extrajudicial associations – rather than the practical functioning of the court – are open to greater external misunderstanding. Such associations recall the need for justice to be seen to be done and for bolstering confidence, and therefore legitimacy, in rigorous international criminal tribunal processes. They call for an objective test, like that created by Rule 34(1)(c) discussed above. Ultimately, apprehended bias was not made out in Furundžija. The Appeals Chamber found that Judge Mumba’s role with UNCSW was as an official of Zambia – representing her government, not herself58 – and that the link with the Prosecution lawyer and authors of the amicus brief was ‘tenuous’.59 This raises the question, however: was the rebuttable presumption necessary? With the onus of sufficient evidence on the applicant regardless, would not a reasonable observer have decided the same way? 5

Critical Consideration of Thresholds in Furundžija

The test for apprehended bias in Furundžija can be interpreted, as it was in the more recent ICTY decision of Mladić,60 as one test with two elements. The first element involves articulating what the reasonable observer observes – understanding the observer will be ‘reasonable’ because 58 59 60

Furundžija (n 44) [199]. Ibid [194]. Notably, in this decision, Judge Jean-Claude Antonetti found disqualification was appropriate. Prosecutor v Mladić (Decision on Defence Motions for Disqualification of Judges Theodor Meron, Carmel Agius, and Liu Daqun) MICT-13–56-A (3 September 2018).

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she will see through a prism of being ‘properly informed’ of the context in which the court operates and the basics of qualifying for and fulfilling the functions of judicial office. The second element involves determining whether that observation itself is reasonable – ‘reasonableness’ judged by whether the evidence provided by the applicant can overcome the presumption of impartiality. Alternatively, the two thresholds can be interpreted as a cautionary mention of a presumption of impartiality, followed by the reasonable observer test. This interpretation first requires establishing that the bias, either actual or apprehended, cannot be made out easily by reference to a presumption of impartiality. Then, second, it requires determining whether the reasonable observer properly informed would have apprehended bias. Notably, this interpretation is the formulation in the latest three disqualification decisions at the ICC.61 Whichever relationship between the reasonable observer and the rebuttable presumption is applied, the existence of both creates a concern: how can there be a lower, reasonable observer threshold that also includes a higher threshold of a presumption? Logically, does not the higher threshold – the threshold which requires greater evidence – trump the lower threshold? There is a good reason to set a high threshold test for determining apprehended bias. The ICTY62 and the Special Court for Sierra Leone (SCSL)63 cite with approval Justice Anthony Mason in the Australian High Court case of Ex Parte CJL, who stated: Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualifica-

61

62 63

Prosecutor v Ntaganda (Decision of the Plenary of Judges on the Defence Request for the Disqualification of Judge Ozaki) ICC-01/04–02/06–2355-AnxI-Red (20 June 2019); Prosecutor v Al Hassan (Decision of the Plenary of Judges on the Defence Application for the Disqualification of Judge Marc Perrin de Brichambaut) ICC01/12–01/18–398-AnxI (8 July 2019); Prosecutor v Al Hassan (Decision of the Plenary of Judges on the Defence Application for the Disqualification of Judges of Pre-Trial Chamber I) ICC-01/12–01/18–458-AnxI-Red (12 September 2019). Furundžija (n 44) [197]. Prosecutor v Sesay (Decision on Motion for Voluntary Withdrawal or Disqualification of Hon Justice Bankole Thompson) SCSL-04–15-T (6 December 2007) [58].

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tion of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.64 Furthermore, in arguing that the reasonable observer test alone sufficed for apprehended bias, Judge Anita Ušacka nevertheless stated the concern of allowing too flexible a test: [A] high threshold must be satisfied to rebut the presumption of impartiality [because] there is a danger that ill-founded allegations of bias could be raised against judges of the Court, not least because of the great public interest in the Court and its high-profile status.65 In other words, just as inappropriate associations or comments by Court actors could taint the image of the Court, so too could unsubstantiated claims of bias. Following Justice Mason and Judge Ušacka’s logic, the lower threshold of the reasonable observer alone could allow more challenges to, and potentially invite greater criticism of, the Court’s actors. However, a rebuttable presumption alone gives considerable latitude to the Court’s actors to decide the question of their own excusal – latitude that is already provided by the Rome Statute and the RPE. However, the Court’s framework already provides the opportunity for Court actors to make their own judgment as to their ability to participate, and to be seen to participate, impartially. In practice, the ability to raise the question of apprehended bias occurs after a Court actor has already decided that she can participate. Moreover, if the two thresholds are collapsed such that the presumption prevails, the test for apprehended bias is fundamentally the same as the test for actual bias. Effectively transplanting this higher threshold makes it just as unlikely that an applicant could succeed in a claim for disqualification on the basis of apprehended as actual bias.66 The onus is the same in both thresholds for an applicant to adduce sufficient evidence to support their request. But with the ‘reasonable observ64 65 66

Re JRL; Ex parte CJL (1986) 161 CLR 342, 352 (Mason, J). Prosecutor v Lubanga (Notification of the Decision on the Disqualification of Judge Sang-Hyun Song) ICC-01/04–01/06–3040 (11 June 2013) [63]. Steven W Becker, ‘The “Presumption of Impartiality” and Other Errors in the International Criminal Court’s Plenary Decision Concerning Judicial Disqualification of the President of the Court in The Prosecutor v. Thomas Lubanga Dyilo’ (2014) I The Global Community Yearbook of International Law and Jurisprudence 2013 111.

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er’, that evidence only needs to make out that the circumstances could lead an informed hypothetical observer to reasonably be concerned ‘that unconscious bias [exists] even where the judge is acting in good faith’.67 The emphasis is on what is ‘seen’, and not whether the actor herself believes she is free from bias. This enquiry is fundamentally different from the evidence needed for a rebuttable presumption. It also upholds the important distinction between enquiries of actual and apprehended bias. 6

Examination of Nineteen Requests at the ICC

In understanding the Court’s framework and the origins of its test to address apprehended bias, it is helpful to turn to how that framework and test have been utilised. The study that underpins this article examined both requests for excusal by Court actors themselves as well requests for disqualification.68 The analysis found that while some requests for excusal were granted, no requests for disqualification had succeeded in the ICC to date. In total, both the reasonable observer test and the rebuttable presumption were mentioned in nine of the nineteen ICC decisions examined.69 This is in line with the broader study – both thresholds were also mentioned in the majority of the examined decisions across the other international criminal tribunals.70 This higher bar for apprehended bias 67 68 69

70

Commentary on the Bangalore Principles (n 1) para 82. The following analysis omits requests for excusal of an impugned judge from plenaries where the plenary will be deciding the outcome of a disqualification request. Lubanga Decision on Disqualification of Judge Song (n 65) [10], [37]; Prosecutor v Banda and Jerbo (Decision of the Plenary Judges on the Disqualification of a Judge) ICC-02/05–03/09–344-Anx (5 June 2012) [13]-[14] and [37]; Prosecutor v Katanga (Decision of the Plenary of Judges on Disqualification of Judge Van den Wyngaert) ICC-01/04–01/07–3504-Anx (22 July 2014) [39]-[40]; Prosecutor v Lubanga (Decision on Disqualification of Judge de Gurmendi) ICC-01/04–01/06–3154-AnxI (3 August 2015) [29]-[38] where the Majority notes concern that does not rise to apprehended bias, and [39] where the Minority alludes to the importance of prudence. Furundžija (n 44) [197]; Prosecutor v Delalić (Appeals Judgment) IT-96–21-A (20 February 2001) [707]; Prosecutor v Rutaganda (Appeals Judgment) ICTR-96–3-A (26 May 2003) [42]; Prosecutor v Karemera (Decision on Motion by Karemera for Disqualification of Trial Judges) ICTR-98–44-T (17 May 2004) [19]; Prosecutor v Karemera (Decision on Motion by Nzirorera for Disqualification of Trial Judges) ICTR-98–44-T (17 May 2004) [11]; Prosecutor v Norman (Decision on the Motion to Recuse Judge Winter) SCSL-2004–14-PT (28 May 2004) [25]; Prosecutor v Brdja-

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– the inclusion of both the reasonable observer and the rebuttable presumption – raises potential concern for the Defence and the Accused. Although each decision is dependent on its circumstances and context, it appears Defence disqualification requests generally have a greater hurdle to make out apprehended bias than Prosecution disqualification requests or requests for excusal. Across the nineteen ICC decisions examined, eight of the nine decisions that mentioned both thresholds were in response to requests by the Defence. Six decisions mentioned solely the ‘reasonable observer;’ of these six, only one was a request for disqualification by the Defence and the rest were requests for excusal. The one Defence disqualification in these six still adhered to the higher threshold in practice, without explicitly referencing it. None of these decisions found apprehended bias to be made out. In contrast, three decisions found that the risk of apprehended bias had been made out. However, two of these decisions regarded judges’ own requests for excusal and one regarded a request from both the Prosecution and Defence for ‘separation’. In these three decisions it was determined that ‘prudence’ mattered. Lastly, one decision found that the circumstances made the request for disqualification moot – this last decision will not be discussed further. 71

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nin (Decision on Application for Disqualification) IT-99–36-R77 (11 June 2004) [7]; Prosecutor v Ntahobali (Decision on Motion for Disqualification of Judges) ICTR97–21-T (7 March 2006) [9]; Prosecutor v Galić (Appeals Judgment) IT-98–29-A (30 November 2006) [41]; Prosecutor v Bagosora (Decision on Motion for Disqualification of Judges) ICTR-98- 41-T (28 May 2007) [8]; Prosecutor v Sesay (Decision on Appeal against Decision Voluntary Withdrawal or Disqualification of Hon Justice Bankole Thompson) SCSL-04–15-T (24 January 2008) [9]-[11]; In the Case against Florence Hartmann (Public Redacted Version Decision for Disqualification of Two Members of the Trial Chamber and Senior Legal Officer) IT-02–54-R77.5 (27 March 2009) [25]; Prosecutor v Karadžić (Public Decision on Motion to Disqualify Judge Picard) IT-95–05/18-PT (22 July 2009) [17]; Prosecutor v Mladić (Order Denying Defence Motion Seeking Disqualification of Judge Orie) IT-09–92-PT (15 May 2012) [33]; Prosecutor v Šešelj (Decision on Defence Motion for Disqualification of Judge Harhoff) IT-03–67-T (28 August 2013) [7]; Prosecutor v Stanšić and Župljanin (Decision on Motion Requesting Recusal) IT-08–91-A (3 December 2013) [17]; In the Case against Akhbar Beirut SAL; Ibrahim Mohamed Ali Al Amin (Decision on Motion for the Disqualification of Judge Fransen) STL-14–06 (12 August 2014) [34]. In the Situation in the Republic of Kenya (Decision on the Request for Disqualification of the Prosecutor in the Investigation against Mr David Nyekorach-Matsanga) ICC-01/09 OA 2 (11 July 2012).

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6.1 Nine Dual Threshold Decisions – No Apprehended Bias As noted above, nine decisions of the nineteen examined utilised both the reasonable observer and the rebuttable presumption to create the test for apprehended bias and found that the test was not made out. In six of the nine decisions that discussed these two thresholds,72 the Court stated first that the relevant test for apprehended bias is the ‘reasonable observer’, and then stated in the following paragraph that there is a strong presumption of impartiality imputed to the relevant actor. This suggests that it is the reasonable observer who presumes – until that presumption is rebutted – that the actor is impartial. It is important to note in one of these matters, the Bemba Request for Disqualification of the Prosecutor, the Court found that the presumption of impartiality attaches to the Prosecutor just as it does judges.73 In the other three of these nine decisions – notably, the three most recent – the Court states first that it has emphasised that there is a high threshold in disqualification requests to rebut the presumption of impartiality, and then states that the test for apprehended bias is the reasonable observer.74 In one decision, the Plenary decision states that there is a rebuttable presumption,75 gives the test for apprehended bias as the ‘objective perspective of whether a fair-minded and informed observer, having considered all the facts and circumstances’76 would find bias and then ‘emphasises that any decision must begin from the principle that the impartiality of a judge is presumed and that the threshold for over72

73 74 75 76

Prosecutor v Al Bashir (Decision on the Request of Judge Monageng to be Excused) ICC-02/05–01/09–76-Anx2, 19 March 2010) 6 cited in Banda and Jerbo (n 69) [11]. See also at [14], citing Prosecutor v Lubanga (Decision on the Request to be Excused from Sitting in the Appeals) ICC-01/04–01/06–2138-AnxIII (23 September 2009) 6; Delalić (n 70) [707]; Prosecutor v Blagojević (Decision on Motion for Disqualification) IT-02–60-R (2 July 2008) [3]; Prosecutor v Lukić and Lukić (Decision on the Motion for Disqualification) IT-98–32/1-T (12 January 2009) [3]; Prosecutor v Šešelj (Decision on Motion to Disqualify Judge Orie) IT-03–67-R77.3 (7 October 2010) [11]; Prosecutor v Bemba (Decision on Defence Applications for the Disqualification of Judge Tarfusser) ICC-01/05–01/13–511-Anx 23–06–2014 (20 June 2014) [17]- [18]; Katanga (n 69) [39]-[40]; Prosecutor v Bemba (Decision on Requests for Disqualification of the Prosecutor, the Deputy Prosecutor, and the Entire OTP Staff) ICC01/05–01/13 (21 October 2014) [24]-[25]; Lubanga Decision on Judge de Gurmendi (n 69) [28]-[29]. Bemba Decision on Requests regarding the OTP (n 72) [26]. Ntaganda Decision on Judge Ozaki (n 61) [31]-[32]; Al Hassan Decision on Judge Perrin de Brichambaut (n 61) [19]-[21]. Al Hassan Decision on Judge Perrin de Brichambaut (n 61) [19]. Ibid [20].

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coming this presumption is high’.77 In these decisions, it appears that it is the rebuttable presumption, rather than the reasonable observer that is the actual mechanism for determining the existence of bias. 6.1.1

Dual Threshold Decisions – No Apprehended Bias – Normal Court Processes This higher threshold makes sense in circumstances like those in Kordić discussed above. In three of the nine dual threshold decisions, the issue at hand involved the impugned judge or Prosecutor engaging in conduct that was part of practical court practices. For example, in the Bemba Request for Disqualification of Judge Tarfusser, the Defence request related to the Judge’s management, and language in that management, of court processes. 78 In the Katanga Request for Disqualification of Judge Wyngaert – although the request submitted by the Legal Representative for Victims was dismissed for lack of standing – the Judges’ Plenary noted it would have been dismissed on its merits. This was because an appearance of impartiality in deciding on victim reparations could not be made out based on Judge Wyngaert’s dissent in the merits-stage judgment.79 Finally, in the Bemba Request for Disqualification of the Prosecutor, the Defence request concerned the Prosecutor simultaneously prosecuting both the primary Bemba case and interlocutory proceedings regarding violations of Article 76.80 As noted above regarding Kordić, it can make sense to default to a higher threshold if circumstances of the request are closely related to the regular performance of Court actors’ duties. Citing both the objective test and the presumption of impartiality, the presumption acts as a support to the objective test – a way of modifying what the reasonable observer takes into consideration. This higher threshold makes it harder to disqualify a Court actor who is going about accepted court processes. Thus, to make out apprehended bias, the actor must be seen to be misusing or degrading those processes in some way. However, it is suggested that reasoning applied to instances where a Court actor is performing their regular duties should not be the same reasoning applied to instances where there may be a previous as77 78 79 80

Ibid [21], further citations omitted. Bemba Decision regarding Judge Tarfusser (n 72) [17]-[18]. Ibid [17]-[18]; Katanga (n 69) [39]-[40]; Bemba Decision on Requests regarding the OTP (n 72) [24]-[25]; Lubanga Decision on Judge de Gurmendi (n 69) [28]-[29]. Bemba Decision on Requests regarding the OTP (n 72) [20].

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sociation or previous commentary that appears too related to the case at hand. 6.1.2

Dual Threshold Decisions – No Apprehended Bias – Associations and Comments A Court actor’s previous associations or public comments are covered by Rule 34(1)(c) and (d) in the ICC RPE respectively. Notably, the rules expressly contemplate circumstances ‘that, objectively, could adversely affect the required impartiality of the person concerned’. In these circumstances, the objective test alone should be sufficient. Nevertheless, six of the nine decisions that cite both thresholds concern these circumstances. For example, in the Lubanga Request for Disqualification of Judge Silvia Fernández de Gurmendi,81 the Defence argued that the judge should be disqualified because she worked for and with the Office of the Prosecutor during the period in which the application for a warrant of arrest of the Accused was prepared.82 In the Banda/Jerbo Request, the Defence argued that Judge Chile Eboe-Osuji might not be impartial: ‘on three grounds: (1) his nationality; (2) the endorsement of his candidacy as a judge by a regional body and by his state of nationality; and (3) [notable for this analysis] the comments made in a blog written by him prior to his election as a judge’.83 In the Lubanga Request for Disqualification of Judge Song, to which Judge Ušacka’s above dissent relates, the Defence argued both the judge’s extra-judicial speeches and association with UNICEF/ Korea could constitute apprehended bias.84 In the Ntaganda Request for Disqualification of Judge Ozaki, the Defence argued primarily that Judge Ozaki’s brief concurrent appointment as Ambassador of Japan to Estonia – and thus a government agent – violated her independence and could lead to an appearance of partiality.85 In the Al Hassan Request for Disqualification of Judge Alapini-Gansou specifically as well as the Pre-Trial Chamber I in its entirety, the Defence request primarily concerned Judge Alapini-Gansou’s role in two non-governmental fact-finding missions on 81 82 83

84 85

Lubanga Decision on Judge de Gurmendi (n 69) [28]-[29]. Lubanga Decision on Judge de Gurmendi (n 69) [9] and [12] respectively. Banda and Jerbo (n 69) [2]; see also Hirad Abtahi, Odo Ogwuma, and Rebecca Young, ‘The Composition of Judicial Benches, Disqualification and Excusal of Judges at the International Criminal Court: A Survey’ (2013) 11 Journal of International Criminal Justice, 381. Banda and Jerbo (n 69) [11] cited in Lubanga Decision on Disqualification of Judge Song (n 65) [9]. Ntaganda Decision on Judge Ozaki (n 61) [8]-[11].

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Mali’s human rights situation. These fact-finding missions, the Defence argued, potentially touched on ‘live issues’ in Al Hassan.86 Finally, in the Al Hassan Request for Disqualification of Judge Perrin de Brichambaut, the Defence argued that the Judge’s on-going involvement in associations in France and those associations’ public statements – tangentially touching on events in Mali related to Al Hassan – could constitute apprehended bias.87 Notably here, the Plenary states that prudence is necessary on the part of the requesting party to limit requests strictly to ‘presently existing legal or factual issues and not be based on issues a party claims might be raised in the future’.88 This suggests that Plenary intended to narrow the scope of relevant disqualification requests with links directly to the case’s current stage. None of these matters were made out. Consideration of these cases is not to say that apprehended bias should have been made out, but rather to question the need for the rebuttable presumption to address an objective appearance. In fact, it is notable that in the Ntaganda Request for Disqualification of Judge Ozaki, it would have been difficult for even the reasonable observer alone to make out apprehended bias – presumption or no. This is because the Plenary found that the Defence failed to link to Judge Ozaki’s brief ambassadorial appointment to her duties in Ntaganda;89 the Presidency had already stated her appointment did not violate her independence or impartiality;90 and Judge Ozaki had resigned the posting shortly after appointment ‘to safeguard public confidence in the Court’, as well as a desire to avoid potential delays in the Ntaganda proceedings.91 Although the Plenary referenced the reasonable observer as the appropriate test,92 they nevertheless concluded that the request ‘fails to demonstrate that the circumstances… [satisfy] the high threshold necessary to rebut the presumption of impartiality’93 and thereby found there was no ‘a reasonable appearance of bias’.94 Thus, it again raises the question of whether the reasonable observer was necessary in the first place. 86 87 88 89 90 91 92 93 94

Al Hassan Decision on PTC (n 61) [12]-[13]; [37]. Al Hassan Decision on Judge Perrin de Brichambaut (n 61) [8]-[9]; [44]-[48]. Ibid [50]. Ntaganda Decision on Judge Ozaki (n 61) [36]-[40]. Prosecutor v Ntaganda (Decision on the Request for Reconsideration of the Decision of the Judges Concerning Judge Ozaki) ICC-01/04–02/06–2337 (14 May 2019). Ntaganda Decision on Judge Ozaki (n 61) [41]. Ibid [32]-[33]. Ibid [55]. Ibid.

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Where the reasonable observer is described, she is imputed considerable hypothetical knowledge. In the Al Hassan Request regarding Judge Alapini-Gansou, the Plenary cites the high threshold and rebuttable presumption, before citing the reasonable observer.95 Here, the reasonable observer is described as: ‘a fair-minded and informed observer, having considered all the facts and circumstances… whose consideration of facts and circumstances includes an understanding of the nature of the judge’s profession’.96 Yet, further in the reasoning, an absolute Majority of the Plenary (eleven judges) found that this ‘fair-minded observer’ would understand that, ‘[i]nvestigations aimed at establishing human rights violations apply standards which are significantly different from those applied for establishing criminal responsibility in the context of criminal cases’.97 This suggests that the reasonable observer understands more than the nature of the judge’s profession – particularly a judge in the ICC who is not herself a fact-finder. Instead, the reasonable observer also understands how facts are ‘found’ in the Court versus how ‘human rights violations in northern Mali [are noted and how] recommendations [are made] to the Malian Government as to how to address these issues’ by an NGO.98 Even with this considerable knowledge, it was still important that the applicant did not ultimately ‘rebut the ordinary presumptions of judicial impartiality’.99 Yet, Judge Alapini-Gansou’s prior association with these fact-finding missions and their reports fits squarely into the grounds for disqualification in Rule 34(1)(c) and (d) of the ICC RPE. Circumstances regarding associations or statements constitute grounds for disqualification where ‘objectively, [they] could adversely affect the required impartiality of the person concerned’.100 In other words, according to the RPE it is the objective test in these circumstances, and not a higher threshold of a rebuttable presumption, that should determine whether disqualification is necessary. Using solely the ‘fair-minded reasonable observer’,101 the Minority in the Al Hassan Request regarding Judge Alapini-Gansou found appre95 96 97 98 99 100 101

Lubanga Decision on Disqualification of Judge Song (n 65) [34] cited in Al Hassan Decision on PTC (n 61) [23]-[25]. Al Hassan Decision on PTC (n 61) [25] (further citation omitted). Ibid [35], see also [37]. Ibid [37]. Ibid [41]. ICC Rules rr 34(1)(c), (d). Al Hassan Decision on PTC (n 61) [42].

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hended bias to be made out. In their one paragraph addressing their finding, the Minority stated: [C]ertain statements in the reports prepared by Judge Alapini-Gansou, appear to make conclusions on alleged crimes committed by Ansar Dine in Timbuktu, which Mr Al Hassan, as an alleged member of Ansar Dine, is charged with in the context of the proceedings. As a result, the Minority considers that, a fair-minded reasonable observer, having assessed the content of the relevant statements and their linkage to the charges of the Al Hassan case, could reasonably conclude that Judge Alapini-Gansou’s appearance of impartiality is undermined [citations omitted].102 Ultimately, if the ability to challenge for apprehended bias promotes the perception of justice being done, the intention of an objective test is to enquire whether there could be doubt in that perception. Thus, the reasoning of the Minority appears in line with the purpose of apprehended bias – without impugning the actual ability of the judge to do her job, it is important to remove any doubt that justice will be done, especially where there is a potential link to the matter at hand. In examining all nine of these decisions, at best the dual threshold makes it more difficult to make out apprehended bias. At worst, the dual threshold does away with the objective test for apprehended bias in favour of evidence necessary to make out actual bias. Either is particularly concerning for the rights of the Accused as each of these requests were made by the Defence in challenge to the perception of impartiality. Furthermore, doubts about upholding the rights of the Accused could also potentially impact upon the public confidence in the Court. 6.2 Six Reasonable Observer Decisions – No Apprehended Bias In the six decisions that cite only the reasonable observer, and in which apprehended bias was not made out, only one was a request for disqualification by the Defence103 while the other five were internal requests for excusal.104 Examination of these decisions is particularly useful for 102 103 104

Ibid. Prosecutor v Gaddafi and Al-Senussi (Decision on the Request for Disqualification of the Prosecutor) ICC-01/11–01/11 OA 3 (12 June 2012). Al Bashir Excusal Request (n 72); Prosecutor v Lubanga (Decision to be Excused from Sitting in the Appeals against the Decision of Trial Chamber I of 14 July 2009) ICC-01/04–01/06–2138-AnxIII (23 September 2009); Prosecutor v Ntaganda (Public

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understanding what knowledge is imputed to the reasonable observer when the test is used alone. 6.2.1

Reasonable Observer Decision – No Apprehended Bias – Five Excusal Requests Only one of the five excusal requests provides considerable insight into who the reasonable observer is and what knowledge is imputed to her. Cited in later requests with approval by the Court, 105 this one excusal request is that of Judge Sanji Mmasenono Monageng in The Prosecutor v Omar Hassan Ahmad Al Bashir (Al Bashir Request). In it, Judge Monageng requested to be excused from reconsidering whether a warrant of arrest for the crime of genocide should be issued after previously serving as one of eleven Commissioners in preparation of a fact-finding mission report in Darfur.106 As above, the previous association required consideration of Rule 34(1)(c)’s ground for disqualification regarding whether the judge’s ‘[p]erformance of functions, prior to taking office, during which he or she could be expected to have formed an opinion on the case in question… could adversely affect the required impartiality of the person concerned’.107 The request for excusal was denied because: The Presidency is of the view that, when assessing the appearance of bias in the eyes of the reasonable observer, it is presumed that the judges of the Court are professional judges, and thus, by virtue of their experience and training, are capable of deciding on the issue before them while relying solely and exclusively on the evidence adduced in the particular case, whilst excluding any information that was available to them in other capacity [emphasis added, citation excluded].108

105 106 107 108

Notification of Decisions on Requests for Excusal) ICC-01/04–02/06 (11 November 2010); Prosecutor v Banda and Jerbo (Decision on the Requests of Judge Kuenyehia and Judge Ušacka to be Excused from the Appeal) ICC-02/05–03/09–191-Anx2 (08 August 2011); Prosecutor v Ntaganda (Public Decision Replacing a Judge in the Appeals Chamber) ICC-01/04–02/06 (04 December 2013). Al Bashir Excusal Request (n 72) 6 cited in both Banda and Jerbo (n 69) [11]; Gaddafi and Al-Senussi (n 103) [20]. Talić (n 46) [17]. ICC Rules r 34(1)(c). Al Bashir Excusal Request (n 72) 6.


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It is notable that the phrase used here – ‘and thus, by virtue of their experience and training, are capable of deciding on the issue before them while relying solely and exclusively on the evidence adduced in the particular case’ – is attributed to Judge Hunt in Talić, where the rebuttable presumption was not considered.109 In addition to this citation of Talić, the Presidency cites two other cases, one at the ICTY110 and the other at the International Criminal Tribunal for Rwanda (ICTR).111 These do rely on the presumption of impartiality in their reasoning. However, in these same cited paragraphs, the decisions refer with approval to Judge Hunt’s formulation of belief in the Judge’s competence. It is possible to read the use of these additional citations to argue that the Presidency’s decision in the Al Bashir request is an endorsement of the presumption of impartiality. However, it is equally plausible to argue that the intended emphasis was on the Judge’s training and experience – a faith in the statutory requirements for the Judge, and something lower than a rebuttable presumption of impartiality. Because requests for excusal are a mechanism by which the actor themselves can raise concerns as to the perception of their involvement, it makes sense that decisions on such requests do not cite a rebuttable presumption – it would be unnecessary to cite back to the actor that she is presumed to be impartial. However, this is in contrast to the one Defence request for disqualification in which solely the reasonable observer is cited. In the Defence request, it appears that the observer presumes impartiality – even where the Court found that the conduct in question ‘not only reflects poorly on the [impugned actor] but also… may lead observers to question the integrity of the Court as a whole’.112 Thus, considered with the Defence requests above in circumstances where ‘objectivity’ is required, it appears that the presumption still operates as the de facto test – and that the presumption is weighted against finding apprehended bias.

109 110 111 112

Talić (n 46) [17]; Galić (n 70) [41], [44]; Prosecutor v Akayesu (Appeals Judgment) ICTR-96–4 (1 June 2001) [269]. Galić (n 70) [41], [44]. Akayesu (n 109) [269]. Gaddafi and Al-Senussi (n 103) [33].

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6.2.2

Reasonable Observer Decision – No Apprehended Bias – Imputing a Presumption Despite the Court citing the appropriate test as solely that of the reasonable observer, the one decision based solely on the reasonable observer test, requested by the Defence, appears to have nevertheless utilised a presumption of impartiality. On its face, the application in The Prosecutor v Gaddafi and Al-Senussi to disqualify the Prosecutor appears to be a tailored example of circumstances falling under Rule 34(1)(d). The Defence argued that statements made to the media by the then-Prosecutor Luis Moreno-Ocampo, constituted a ‘reasonable basis for concluding that there is an objective perception that [he lacked] the requisite impartiality to direct the investigations and prosecutions’ in the case.113 Moreno-Ocampo’s statements included being quoted extensively regarding the evidence against, and culpability of, the Accused in the magazine Vanity Fair in August 2011114 and in various other media outlets between November 2011 and April 2012.115 The Defence argued that the Prosecutor’s actions created the objective perception on two grounds: first (and most relevantly to this article), that the Prosecutor’s statements indicated that he had pre-determined the applicants’ guilt;116 and second, that there were ‘reasonable grounds to believe’ the Prosecutor objectively appeared affiliated with the viewpoint of the Libyan government.117 As regards the first ground, the Defence argued that the Prosecutor’s statements indicated that the Prosecutor ‘failed to respect the presumption of innocence’ owed to the defendant.118 This failure to respect the presumption of innocence, as the Appeals Chamber interpreted Gaddafi’s argument, indicated that ‘there [was] a reasonable appearance that the Prosecutor [would] not act impartially’.119 To reach its conclusion, the Chamber distinguished the presumption of innocence from the Prosecutor’s duty to be impartial by finding that, ‘while related, [each] protect different interests and are evaluated by different standards’.120 The presumption of innocence, the Chamber

113 114 115 116 117 118 119 120

Ibid [12] citing [27] in the Defence Request for Disqualification. Ibid [9]. Ibid [10]. Ibid [13]. Ibid [14]. Ibid [13] citing [28], [34]-[55] in the Defence Request for Disqualification. Gaddafi and Al-Senussi (n 103) [22]. Ibid [29].

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noted, in part protects the defendant’s interests from prejudgment.121 The Chamber did not elaborate on what it believed the requirement of impartiality protected. To describe the ‘evaluation by different standards’, the Chamber stated that whether an action was in violation of the presumption of innocence needed ‘to be considered in light of all the relevant circumstances’.122 It also noted that ‘expressing any opinion on the guilt or innocence of the accused or the merits of issues which are sub judice, [but] outside of court proceedings’ was generally frowned upon by ‘codes of conduct or prosecution standards of other international jurisdictions’.123 Regarding whether an action indicated a lack of impartiality, the Chamber used Article 42(7) – the Rome Statute’s prohibition against the Prosecutor or Deputy Prosecutor acting ‘in any matter in which their impartiality might reasonably be doubted on any ground’ – and particularly Rule 34(1)(d), or the potential ground for disqualification as: ‘[e]xpression of opinions, through the communications media, in writing or in public actions’.124 This ground explicitly states that the circumstances are to be considered to determine whether ‘objectively, [extra-judicial statements] could adversely affect the required impartiality of the person concerned’.125 The Chamber reiterated that the relevant test for the appearance of impartiality ‘should be based on the perspective of a reasonable observer, properly informed’ – citing the Presidency’s response in the Al Bashir Request.126 The Chamber noted that while both the presumption of innocence and the duty of impartiality are undertaken by

121 122 123

124 125 126

Ibid [26]. Ibid [28], citing Butkevicius v Lithuania App no 48297/99 (ECHR, 26 March 2002) [49]; Karakas and Yesilirmak v Turkey App no 43925/98 (ECHR, 28 June 2005) [51]; Fatullayev v Azerbaijan App no 40984/07 (ECHR 22 April 2010) [160]. Ibid [28], citing International Criminal Tribunal for the former Yugoslavia and International Criminal Tribunal for Rwanda, Standards of Professional Conduct for Prosecution Counsel (14 September 1999) para 2(k); Code of Professional Conduct for Counsel with the Right of Audience before the Special Court for Sierra Leone (14 May 2005) art 24(A); Prosecutor v Sesay (Decision on Complaint Pursuant to Article 32 of the Code of Professional Conduct for Counsel with the Right of Audience before the Special Court for Sierra Leone) SCSL-4–15-CCC32 (20 February 2006) [31]-[33] (finding the Code of Professional Conduct applicable to the Prosecutor).
 Gaddafi and Al-Senussi (n 103) [19]. Ibid [19]. Al Bashir Excusal Request (n 72) 4–5 cited in Gaddafi and Al-Senussi (n 103) [20].

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the Prosecutor, only a question of impartiality could result in the Prosecutor’s disqualification.127 Ultimately, the Chamber found that ‘the Prosecutor’s behaviour was clearly inappropriate in light of the presumption of innocence’ but that the appearance of impartiality was not made out.128 Interestingly, the Chamber noted both that the Prosecutor was the ‘public face of the Court, [and] there is a risk that public statements of the Prosecutor will be imputed to the Court as a whole’,129 and that ‘[s]uch behaviour not only reflects poorly on the Prosecutor but also, given that the Prosecutor is an elected official of the Court and that his statements are often imputed to the Court as [a] whole, may lead observers to question the integrity of the Court as a whole’.130 Recalling the justification for addressing apprehended bias discussed above, it would appear that ‘behaviour [that] reflects poorly on the Prosecutor… and may lead observers to question the integrity of the Court as a whole’, would put into jeopardy apparent absence of bias and the legitimacy of the Court to administer justice.131 Nevertheless, the Chamber found disqualification – available only in cases of doubt of the Prosecutor’s impartiality – was not necessary. Although this would follow if the question was one of actual bias, it is difficult to understand where the question regards the appearance of bias. Likewise, this would follow if the Chamber argued that there is a difference between the need for the appearance of impartiality by a judge versus the appearance of impartiality by a Prosecutor; however, the Chamber does not discuss this. Instead, the Chamber found that the reasonable observer was ‘aware of the functions of the Prosecutor’ and that she would have ‘understood that the Prosecutor’s statements were based on the evidence available to him and that the judges would ultimately take the relevant decisions on the evidence. That the Prosecutor manifested a certain conviction about the evidence is to be expected’.132 In other words, that the Prosecutor appeared to prejudge the matter was not at issue; the reasonable observer understood it was the Trial Chamber, and not the Prosecutor, who would judge the accused. However, without impugning the decision’s validity, 127 128 129 130 131 132

Gaddafi and Al-Senussi (n 103) [29]. Ibid [33]-[34]. Ibid [30]. Ibid [33]. Katanga (n 21) [10]. Gaddafi and Al-Senussi (n 103) [34].

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the request was not for disqualification of the judges, nor was the question whether the judges themselves appeared to be acting impartially. Moreover, the decision imputes to the reasonable observer that she ‘would not conclude that the Prosecutor’s conviction was not based on the evidence, was otherwise biased or would lead to the neglect of his duties under Article 54(1)(a) and (c) of the Statute’,133 yet states that ‘the Prosecutor’s behaviour was clearly inappropriate in light of the presumption of innocence’.134 This contradiction suggests that what the reasonable observer understood is therefore essentially what the reasonable observer presumed – and the reasonable observer would not conclude that the Prosecutor would not conduct his duties impartially, even if his statements had been imprudent.135 In sum, the decision appears to rely on an implied presumption of impartiality to the Prosecutor by reasoning around the reasonable observer. As such, the decision suggests that the reasonable observer test is not applicable in practice, and the Court prefers the higher threshold of the rebuttable presumption. This is largely in line with the requests addressed above citing the dual threshold and raises the same concerns regarding whether the test for apprehended bias could be made out. 6.3 Three ‘Prudence’ Decisions – Apprehended Bias Made Out While apprehended bias was not made out in any of the above fifteen decisions, the risk of apprehended bias was made out in three. None of the three decisions elaborate on the reasonable observer or the rebuttable presumption – and none of the decisions were based on requests solely from the Defence. Instead, two were requests for excusal by judges themselves and one was a request by both the Prosecution and Defence for ‘separation’. Instead of the reasonable observer or the rebuttable presumption, these three decisions rely on ‘prudence’, or ‘an abundance of caution’ to make out the risk of apprehended bias. Recalling the need to have a test for apprehended bias in the first place, ‘prudence’ and ‘an abundance of caution’ are appropriate analogues for the reasonable observer. Perhaps even a lower threshold than an objective test, excusing or disqualifying an actor because it is prudent to do so speaks directly to the need for the

133 134 135

Ibid. Ibid [33]-[34]. Ibid [34].

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Court to maintain public faith in its processes and the legitimacy of its output. In the first of these three requests, Judge Akua Kuenyehia was granted an excusal from participating in the Appeals Chamber for The Prosecutor v Bosco Ntaganda because she had previously sat on pre-trial proceedings for Ntaganda’s arrest.136 The Presidency found that, although it had denied a more general request from Judge Kuenyehia previously, it was important that Judge Kuenyehia be excused because ‘the [present] appeal is likely to be directly related to issues she previously addressed’ [emphasis added].137 The Presidency did not need to consider the reasonable observer because Article 41(2)(a) of the Rome Statute specifically prohibits sitting where the judge has ‘previously been involved in any capacity in that case before the Court’. In Judge Sanji Mmasenono Monageng’s Request in the appeal of The Prosecutor v William Samoei Ruto and Joshua Arap Sang (Ruto and Sang Request), the Court’s Presidency granted the Judge’s request for excusal on the basis that there were media allegations that she ‘gave assurances’ regarding the non-retroactive application of an amended rule that was material to the case. Although the Judge stated that the allegations were ‘entirely without foundation or merit’, she did state that she met with various states parties and discussed the rule amendment.138 Adopting but not elaborating on the reasonable observer test, the Presidency ‘consider[ed] it prudent to grant the Request… in order to ensure that there can be no appearance of grounds to doubt her impartiality’.139 Finally, like the Ruto and Sang Request, the President of the Pre-Trial Chamber also found it prudent to separate its Senior Legal Adviser from the cases of The Prosecutor v Thomas Lubanga Dyilo and The Prosecutor v Joseph Kony et al. This was in response to a request by the Prosecution, later joined by the Defence, which noted that the Senior Legal Adviser had previously worked in the Office of the Prosecutor as a Legal Adviser while the Office had prepared cases regarding the situations in the Democratic Republic of Congo and Uganda.140 The decision itself did not com136 137 138 139 140

Ntaganda Public Decision Replacing a Judge (n 104) 2. Ibid. Prosecutor v Ruto and Sang (Decision on Request for Excusal) ICC-01/09–01/11– 1968-Anx (18 September 2015) 2. Ibid 3. Prosecutor v Lubanga and Prosecutor v Joseph Kony (Decision on the Prosecutor’s Application to Separate the Senior Legal Adviser to the Pre-Trial Division from Rendering Legal Advice regarding the Case) ICC-01/04–01/06 (27 October 2006).

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ment on whether the Senior Legal Adviser’s association with the Pre-Trial Chamber judges would be sufficient for judicial disqualification. Instead, the President of the Pre-Trial Chamber ordered, acting on letters from the Presiding Judges of Pre-Trial Chambers I and II, that the Advisor should be temporarily removed from giving advice on the cases ‘ex abundanti cautela’.141 It makes sense that the presumption of impartiality was not cited in these instances – as with the other internal requests noted above, there is unlikely to be a need to reiterate that the individual requesting excusal is presumed to be impartial (nor is a duty of impartiality a statutory expectation of a legal advisor). However, it is still notable that the consideration of what would be ‘imprudent’ is a much easier threshold to satisfy than that which would rebut the presumption of impartiality. Further, none of these requests originated with the Defence and none directly requested their disqualification. 7

Analysis of ICC Request Decisions

In examining the nineteen decisions, a few observations can be made. First, in disqualification requests, the Court has largely recognised a dual threshold for addressing apprehended bias: a reasonable observer test and a rebuttable presumption of impartiality. Second, in requests for excusal, the rebuttable presumption is not relied on, but is also not likely required or useful. Third, in most requests for disqualification, both thresholds are cited but ultimately the threshold applied appears to be the rebuttable presumption. This is the case even where only the reasonable observer test is the stated test. Finally, no requests for disqualification have been granted. That no request for disqualification has been granted does not necessarily indicate a problem. However, it warrants close attention and critique. This is because disqualification is a more dramatic decision than excusal. Disqualification appears to override the judgment of the individual who, as the statutory layers of protection against bias provide, has sworn to be mindful of their competence, independence, and impartiality. Put differently, the actor has had the opportunity to avail herself of these layers of protection. By the time a party raises disqualification, the actor has already decided that she is capable of making the decision in 141

Ibid [17]-[21].

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accordance with her duties and the application explicitly claims the opposite. In the ten requests for disqualification examined, the higher threshold prevailed. The Defence made each of these requests; none of the requests were granted. In nine, both thresholds were cited and the reasoning depended on whether the evidence could rebut presumption – even where the circumstances discussed the actor’s associations or comments.142 In the tenth, the reasoning cites solely the reasonable observer, though the observer forgave the Prosecutor even where the Court found his conduct ‘may lead observers to question the integrity of the Court as a whole’.143 This suggests that the jurisprudence collapses the objective test and the rebuttable presumption into whether the applicant can rebut the presumption – thus, the reasonable observer is rendered moot. 8

Conclusion

Justice, as achieved by the process of a fair trial, is one-part ‘being done’ and one-part ‘being seen to be done’.144 This ‘being seen to be done’ is what is promoted where there is a clear legal framework and dedicated test for apprehended bias. While it is important that this threshold is high enough a hurdle to prevent frivolous requests, it should not be so high as the threshold for actual bias. In her dissent in the Bemba Request for Disqualification of the Prosecutor, Judge Anita Ušacka stated that the reasonable observer test alone was sufficient for determining apprehended bias: This standard, which does not require evidence of actual bias nor impose a rebuttable presumption, ensures fair proceedings by, on the one hand, inspiring confidence (through the standard of requiring only an “appearance”), while, on the other hand, precluding frivolous litigations (by requiring that the appearance must be per-

142

143 144

Banda and Jerbo (n 69); Lubanga Decision on Disqualification of Judge Song (n 65); Bemba Decision regarding Judge Tarfusser (n 72); Katanga (n 69); Bemba Decision on Requests regarding the OTP (n 72); Lubanga (n 69); Ntaganda Decision on Judge Ozaki (n 61); Al Hassan Decision on Judge Perrin de Brichambaut (n 61); Al Hassan Decision on PTC (n 61). Gaddafi and Al-Senussi (n 103) [33]. Sussex Justices (n 17).

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ceived by a “reasonable” and “fully informed” observer) [citations omitted].145 An objective test alone for apprehended bias makes sense given that this test is a lower threshold than a rebuttable presumption and because apprehended bias deals with perception. However, this reasoning has thus far only been found in dissent. This examination of ICC jurisprudence indicates that, at best, this dual threshold makes it difficult to make out apprehended bias. At worst, it does away with the objective test by collapsing the threshold such that the presumption prevails. This is concerning for the rights of all parties, but especially the Accused, as well as for the perception of the Court, now and into the future.

145

Bemba (n 19) [3].

5

Jurisprudential Failures: How Systemic Judicial Errors in Both the United States Supreme Court and the European Court of Human Rights Perpetuate Law Enforcement’s Racially Motivated Violence Mary Levine* Abstract

Issues of discrimination are global in scope, that is, no country may escape the permeating effects of discrimination on citizens within its jurisdiction. Consequently, both domestic and regional systems of justice have developed working judiciaries that – in theory – offer a means of relief for individuals subjected to racially motivated discrimination and violence. Despite these purported judicial protections, however, both historical and contemporary evidence suggest that the judiciary has failed to fulfill this expectation for individual claimants. Accordingly, this article critically assesses the methods of redress in both the United States Supreme Court and the European Court of Human Rights for instances of discrimination towards Black Americans and Roma Europeans, respectively. In particular, this article analyses claims of discrimination brought by individual litigants stemming from excessive use of force by law enforcement. Generally, this article proposes that long-held systemic practices within the judiciary, namely qualified immunity in the United States Supreme Court and the merely ancillary recognition of discriminatory protections in the European Court of Human Rights, perpetuate racially motivated violence by law enforcement. Moreover, this article suggests that both Courts should more explicitly address racially moti* Juris Doctor Candidate, 2022, Suffolk University Law School, Boston, Massachusetts, United States. The author would like to thank Daniel Rietiker, PhD, Senior Attorney, European Court of Human Rights, and Professor of Law at the University of Lausanne and Suffolk University Law School, for inspiring and assisting in the drafting and completion of the chapter.

© Koninklijke 2022 | doi:10.1163/9789004518216_006 © KONINKLIJKE Brill BRILL NV, Leiden, LEIDEN, 2022 | DOI:10.1163/9789004518216_007

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vated excessive use of force in order to reduce instances of violence at the hands of government actors. Keywords Police brutality – discrimination – Black Americans – Roma Europeans – systemic judicial errors. 1

Introduction

In her speech during the 10th anniversary of the drafting of the Universal Declaration of Human Rights (UDHR), Eleanor Roosevelt – a drafter of the UDHR and former chair of the UN Commission on Human Rights – proclaimed, [w]here, after all, do universal human rights begin? In small places, close to home – so close and so small that they cannot be seen on any maps of the world… Such are the places where every man, woman and child seek equal justice, equal opportunity, equal dignity without discrimination.1 Abiding by this sentiment, prohibitions on discrimination have become a cornerstone to most contemporary human rights treaties.2 Accordingly, judicial bodies bound by these treaties – and judicial bodies bound by Constitutions, legislation, and the like – are similarly required to ensure equal access to justice free of discrimination. This article seeks to discover just how effective the judiciary is in maintaining these anti-discrimination mandates.

1 ‘What Is The Universal Declaration Of Human Rights?’ (Amnesty.org.uk, 2021) accessed 11 February 2021. 2 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR); International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3 (ICESCR); International Convention on the Elimination of All Forms of Racial Discrimination (adopted 21 December 1965, entered into force 4 January 1969) 660 UNTS 195 (CERD).

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The Council of Europe (CoE) is an international human rights organisation, comprising 47 member states, including 27 members of the European Union.3 The member states have all ‘signed up to the European Convention on Human Rights (ECHR), a treaty designed to protect human rights, democracy, and the rule of law.’4 The European Court of Human Rights (ECtHR) is charged with overseeing the implementation of the ECHR in the 47 member states.5 The ECHR requires the ECtHR ensure that individuals are protected from discrimination, providing that ‘[t]he enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.’6 While distinct in many ways, the United States similarly operates as 50 ‘member-like’ states bound by the United States Constitution (U.S. Constitution).7 The Supreme Court of the United States (Supreme Court) is charged with interpreting and upholding the language of the U.S. Constitution.8 Like the ECHR, the Constitution contains a provision protecting individuals subjected to discrimination, mandating that no state shall ‘deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.’9 3 ‘Who We Are’ (The Council of Europe in brief, 2021) accessed 11 February 2021. 4 Ibid. 5 Ibid. 6 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) art 14. 7 ‘U.S. Senate: Constitution Of The United States’ (Senate.gov, 2021) accessed 11 February 2021. 8 Ibid. 9 U.S. Const. amend. XIV (1789). Because the 14th Amendment was adopted after the official ratification of the Constitution, originalist interpreters of the Constitution – those who suggest that the text must be read in accordance with original writer’s intent and understandings – oftentimes argue that the 14th Amendment should apply exclusively to black Americans because the amendment was adopted in response to vicious and widespread discrimination towards this group. See ‘On Originalism In Constitutional Interpretation | The National Constitution Center’ (Constitutioncenter. org, 2021) accessed 11 February 2021. While this paper does center around the discrimination of black Americans – therefore rendering any arguments against the 14th Amendment’s applicability baseless – it is worth noting that the 14th Amendment has since been extended to protect varying discriminatory classifications, including sex, gender, age, marital status, and so on. ibid.

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However, despite both the United States and the CoE incorporating provisions binding their judiciaries to provide equal access to justice without discrimination, there remains consistent and pervasive discrimination both in CoE member states and the United States.10 Therefore, this article addresses the judiciary’s role in the perpetual nature of discrimination. Namely, this article specifically addresses and compares racially based excessive use of force by law enforcement exhibited toward Black Americans in the United States, and towards Roma Europeans in CoE member states. In sum, this article suggests that the Supreme Court’s practice of qualified immunity, and the ECtHR’s inconsistent practice of utilising Article 14 of the ECHR, exacerbates the prolonged existence of discrimination in each jurisdiction. First, this article will address each jurisdiction’s historical development of discrimination towards Black Americans and Roma Europeans, including the origins and consequences of this practice. Next, this article will review use of force discrimination specifically, and the judicial mechanisms by which Black Americans and Roma Europeans may address both covert and overt violations at the hands of government officials. Finally, this article will analyse the distinctions between redress in the American courts and the ECtHR and discuss the shortcomings of both judicial systems. Overall, this article will reveal both courts’ hesitancy to fully address discrimination claims for excessive use of force, and will further propose that both courts shift their approach to employing Article 14 more frequently or closing procedural loopholes in order to adequately prevent discrimination globally.11 10

11

See ‘Systematic Inequality And American Democracy – Center For American Progress’ (Center for American Progress, 2021) accessed 11 August 2021; David Simpson, ‘The Roma: A Thousand Years Of Discrimination Continues, Advocates Say – CNN’ (CNN, 2021) accessed 13 August 2021. This article does not address, yet acknowledges, the increased impact of discrimination and systemic failures during the COVID-19 pandemic. For additional resources on increased discrimination towards Black Americans and Roma Europeans during COVID-19, as well as both America and Europe’s failure to adequately address this discrimination, please see the following sources: ‘Research Roundup: How COVID-19 Impacts African Americans’ (https://www.apaservices.org, 2021) accessed 6 August 2021; Leonard E. Egede and Rebekah J. Walker, ‘Structural Racism, Social Risk Factors, And Covid-19 – A Dangerous Convergence For Black Americans | NEJM’ (New England Journal of Medicine, 2021) accessed 6 August 2021; Jonathan Lee, ‘Police Are Using The COVID-19 Pandemic As An Excuse To Abuse Roma’ (Aljazeera.com, 2021) accessed 6 August 2021; Amber Milne, ‘Roma Across Europe Seen As Police Target In Lockdown’ (Reuters, 2021) accessed 6 August 2021. For information utilised in this table, please see ‘Supreme Court Procedures’ (United States Courts, 2021) accessed 7 August 2021; ‘European Court Of Human Rights’ (International Justice Resource Center, 2021) accessed 7 August 2021.

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U.S. Supreme Court

Jurisdiction

The ECtHR serves the 47 member states in the CoE. The Court has jurisdiction to hear and decide complaints concerning violations of the ECHR. The Court may not take a case on its own prerogative. The Court also has advisory jurisdiction under Protocol 16 of the ECHR.

The Supreme Court was established by federal law (the Judiciary Act of 1789) and is responsible for upholding the national law in all 51 (+ territories) states in the U.S. The Supreme Court has discretionary appellate jurisdiction, meaning that the Court primarily reviews decisions from lower domestic courts. The Court also has original jurisdiction over certain matters found in Article III, Section 1 of the U.S. Constitution. Article III gives the Court original jurisdiction over disputes between states or disputes between ambassadors or other high-ranking officials.

Claimants

Claimants for the ECtHR may be individuals (including groups and NGOs) or states. The individual does not have to be a citizen of a state party.

Claimants for the Supreme Court may be individuals, organisations, groups, or state parties.

Structure

The Court is organised into five sections, each with a judicial chamber. Within each group are different “judicial formations.” The formations are categorised as: Single Judge – hears admissibility questions Committee (3 judges) – hears admissibility and well-developed meritorious cases Chamber (7 judges) – hears admissibility and not well-decided meritorious cases Grand Chamber (17 judges) – hears appeals and novel questions relinquished by Chamber

The Supreme Court is made up of nine, unelected judges (called “Justices”) who serve for life.

Judge Selection Procedure

The 47 judges are selected by the Parliamentary Assembly of the CoE from a list of applicants proposed by member states.

Each of the nine Justices must be appointed by the President of the U.S. and confirmed by the U.S. Senate.

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ECtHR and U.S. Supreme Court (cont.) ECtHR

U.S. Supreme Court

Proceedings

Proceedings are primarily in writing. The Court reviews two criteria: (1) the admissibility of a complaint; and (2) the merits of a complaint. Admissibility Before the Court will hear the case, it makes a finding on admissibility per the Court’s admissibility requirements. To be admissible, the applicant must have exhausted domestic remedies, met the sixmonth application deadline, made a complaint against a State party for a violation of the ECHR, and have suffered a significant disadvantage. There are no appeals to an inadmissible finding. Merits Once admissibility is established, the case will be assigned to one of the five sections and the State will be notified of the complaint. Both parties may then submit observations to the court, containing any specific information requested by the Chamber or President of section, or any other materials.

If a party is not satisfied with a lower court’s decision on their case, they may petition to the Supreme Court asking the Court to grant a writ of certiorari. The Court typically grants certiorari where the case has national significance, may harmonise conflicting decisions at the appellate level, or could have precedential value. When the Justice grants a petition for certiorari, the case is placed on the docket. Both parties have an opportunity to write a brief to submit to the court. After each brief is submitted, the parties have time allotted to write a response to the other party’s brief. The Court will then hear oral arguments for all cases granted certiorari. These arguments are open to the public and are primarily an opportunity for the Justices to ask questions regarding each party’s case.

Appeal

After the Court issues a judgment on the merits, parties have three months to appeal to the grand chamber.

The judgments from the Supreme Court are final and binding upon parties in the United States.

Relief

The Court may award just satisfaction (monetary compensation).

The Court may grant monetary, injunctive, and other forms of relief.

Enforcement

The Committee of Ministers of the CoE is responsible for enforcing the Court’s judgments. While parties are bound by the Court’s decision, the Court does not have the authority to overrule a national decision or national laws.

Under Marbury v. Madison, the Court holds the power of “judicial review,” whereby the Court may invalidate a statute for violating the Constitution or may strike down presidential directives.

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Despite their notable distinctions, the ECtHR and the Supreme Court also have a number of similarities. For example, both courts require an exhaustion of ‘lower-level’ remedies prior to obtaining jurisdiction: in the ECtHR, applicants must show an exhaustion of domestic remedies, and in the Supreme Court, litigants may only apply for certiorari after appealing to all available lower courts.13 In addition, both the ECtHR and the Supreme Court require specific factual pleadings, as discussed in their rules of procedure.14 Another notable similarity is that both the ECtHR and the Supreme Court permit parties with no direct stake in the outcome of the case to submit a brief of their own recommendations and arguments for what the court should decide (coined ‘amicus curiae’ by each court).15 Nonetheless, the principal justification for drawing a comparative analysis of the two courts originates from their primary functions, that is, both courts serve numerous ‘member-like’ states within its jurisdiction, and both courts are bound by one guiding document.16 Under both the ECtHR and the Supreme Court, individuals may bring a claim alleging that the government violated either the ECHR, or the U.S. Constitution.17 Thus, while the courts remain structurally and procedurally quite different, their functionalities are comparable. Most notably, under both Article 14 of the ECHR and the 14th Amendment of the U.S. Constitution, the ECtHR and the Supreme Court are required to ensure equal access to justice without discrimination to all members within its jurisdiction18 – this alone qualifies as a basis for this comparative analysis. Finally, for purposes of this article, the author defines ‘discrimination’ as per the United Nation’s Convention on the Elimination of All Forms of Discrimination (CERD), articulating ‘racial discrimination’ as any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental free-

13 14 15 16 17 18

‘Supreme Court Procedures’ (n 12); ‘European Court Of Human Rights’ (n 12). ‘Supreme Court Procedures’ (n 12); ‘European Court Of Human Rights’ (n 12). ‘Supreme Court Procedures’ (n 12); ‘European Court Of Human Rights’ (n 12). ‘Supreme Court Procedures’ (n 12); ‘European Court Of Human Rights’ (n 12). ‘Supreme Court Procedures’ (n 12); ‘European Court Of Human Rights’ (n 12). Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) art 14; U.S. Const. amend. XIV (1789).

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doms in the political, economic, social, cultural or any other field of public life.19 Therefore, having discussed the methodology and bases of this article, a review of historical discrimination towards Black Americans and Roma Europeans is presented. 3

History 20

Historical Development of Discrimination Against Black Americans African Americans have faced persistent discrimination since their forced migration from Africa to America to be sold and held as slaves.21 As a result of the rapid need for labour in 1619, the British colony in Jamestown, Virginia, brought a Dutch ship of 20 Africans to be sold, thus prompting this practice all throughout the North American colonies.22 Historians estimate roughly six to seven million Africans were forced to migrate and were enslaved during the 18th century.23 Slavery remained a consistent and profitable practice for colonists in America, adding rights to possess any ‘person held to service or labour’ in the founding documents following the American Revolution.24 While slavery remained a contentious issue between northern and southern colonists, the practice skyrocketed in the South during the rise of the cotton industry.25 As a result of Eli Whitney’s cotton gin invention in 1793, the need for enslaved labour grew exponentially.26 Simultaneously, however, enslaved persons around the world were beginning to inspire rebellion – notably the slave rebellion in 3.1

19 20

21 22 23 24 25 26

Convention on the Elimination of All Forms of Racial Discrimination 1969 art. 1(1). This section does not fully address historical origins, developments, and examples of discrimination towards both Black Americans and Roma Europeans. Instead, this section serves as a brief overview of the historical roots of discrimination. Please see sources cites below for fuller discussions of the history of discrimination towards both Black Americans and Roma Europeans. See ‘Black History In The United States: A Timeline’ (HISTORY, 2021) accessed 13 February 2021. Ibid. Ibid. Ibid. Ibid. Ibid.

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Haiti in 1791.27 This prompted fear in American slaveowners, hence the passing of legislation, such as the Fugitive Slave Act,28 to ensure the practice of slavery remained.29 After years of enslavement, an abolition movement subsequently began in the North, beginning to provide freedom to more enslaved African Americans.30 As a response, the federal Government issued numerous acts of legislation and judicial decisions to again legitimise the practice of slavery.31 Most notably, in 1857, the Supreme Court issued the Dred Scott v. Sanford decision, which held that African Americans were not considered ‘persons’ under the law, but rather, exclusively property to be held by white slaveowners.32 Finally, after years of slavery and discrimination, a Civil War erupted between northerners seeking abolition and southerners hoping to elongate their exploitation of labour.33 In 1864, at the conclusion of the war, Abraham Lincoln issued the ‘Emancipation Proclamation,’ which freed nearly all slaves in the south.34 While a seemingly historic moment, discrimination and systemic racism continued to persist throughout the United States.35 The newly freed slaves in the South saw somewhat trivial progress during Reconstruction – a period in which the government sought to reduce discrimination in the South.36 This period quickly ended; however, and immediately resulted in the Jim Crow era – a period of time recognised by the use of ‘black codes,’ the formation and development of the Ku Klux Klan (KKK), the widespread disenfranchisement of black voters, and the consistent practice of lynching Black Americans.37 This again resulted in the federal government’s issuance of discriminatory judicial decisions – specifically Plessy v. Ferguson – which held that Black Americans could be segregated 27 28

29 30 31 32 33 34 35 36 37

Ibid. The Fugitive Slave Act made it a federal crime for any person to assist an enslaved person from trying to escape – this act was meant to discourage northerners and any sympathetic White American from freeing slaves, as well as continue to legitimise slavery in America: ibid. Ibid. Ibid. Ibid. Ibid. Ibid. Ibid. Ibid. Ibid. Ibid.

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while still being considered ‘equal’ under the law.38 ‘Separate but equal’ continued to be a prominent notion moving forward, and was not explicitly overruled until 1954.39 World War II (WWII) provided some protection for African Americans, as America sought the perception of ‘unity’ in the United States to the international community.40 However, discrimination towards Black Americans persisted throughout the 20th century, prompting numerous civil rights movements, often characterised by the development of equal rights organisations and their subsequent execution of civil rights protests.41 The peak of these movements – properly named the Civil Rights Movement – occurred during the 1950s and 1960s, where Black Americans orchestrated numerous forms of direct action, such as protests, sit-ins, and marches.42 This time period also saw the rise of notable civil rights leaders, including Martin Luther King, Jr. John Lewis, Rosa Parks, Ella Park, Malcolm X, and more.43 While this movement concluded with the passing of important acts, namely the Civil Rights Act of 1964 and the Voting Rights Act of 1965, discrimination towards Black Americans continued to persist throughout America.44 The Civil Rights Movement quickly developed into the Black Power movement, which introduced the notable Black Panther Party (BPP) – a group highly stigmatised and targeted by the federal government and White Americans.45 Jim Crow, the Civil Rights Movement, and the Black Power Movement, were all characterised as periods with significantly high rates of police violence and discrimination.46 This historical foundation of racism towards Black Americans remains relevant today, as many of our founding documents and systems were premised on these early understandings of race in America.47 38 39

40 41 42 43 44 45 46 47

Ibid. Ibid. In Plessy v. Ferguson 163 US 537 (1896) the Supreme Court reviewed the Separate Car Act, which required separate railway cars for blacks and white. ibid. The Court upheld the Act, holding that segregation was not unlawful discrimination. ibid. In his dissent, Justice Marshall insisted that there was no class system, and all citizens must have equal access to civil rights; however, Plessy remained good law despite his assertions. ibid. [Marshall]. See ‘Black History in the United States: A Timeline’ (n 20). Ibid. Ibid. Ibid. Ibid. Ibid. Ibid. Ibid.

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Historical Development of Discrimination against Roma Europeans Roma Europeans – often referred to as ‘gypsies’ – are Europe’s largest minority, comprising nearly 12 million persons in all of Europe.48 ‘Roma’ translates to ‘man,’ and refers to racial subgroups across Europe, including, but not limited to, the Kalderash in the southeast,49 the Romanichals in England,50 the Sinti in Germany, Italy, and France,51 the Kale in Wales, Finland, Spain, and Portugal,52 the Gitano from Spain,53 and others.54 Roma Europeans share the language of Rromanes, but identify themselves differently depending on ‘history, language, and profession.’55 Historians believe that Roma Europeans came from northern India, what is currently Iran, Armenia, and Turkey.56 Roma Europeans were initially welcomed to the continent after the fall of the Byzantine Empire in 1453; however, they were quickly forced into slavery in Wallachia and Moldavia (modern-day Romania) throughout the 19th century.57 Those who were not enslaved attempted to avoid persecution by masking as Christian pilgrims and travelling throughout Europe; however, in 1504, King Louis XII of France enacted the first expul3.2

48

49

50 51 52 53 54 55 56 57

Catrinel Motoc, ‘The Roma In Europe: 11 Things You Always Wanted To Know, But Were Afraid To Ask’ (Amnesty International, 2021) accessed 6 August 2021. Kalderash are a subgroup of Roma that were traditionally smiths or metal workers, and speak a number of Romani dialects. ‘Kalderash – Wikipedia’ (En.wikipedia.org, 2021) accessed 6 August 2021. Romanichals are a Roma subgroup from England. See ‘Roma – Sub Ethnic Groups [Rombase]’ (Rombase.uni-graz.at, 2021) accessed 6 August 2021. Sinti are a Roma subgroup largely from Germany. See ‘Roma – Sub Ethnic Groups [Rombase]’ (n 49). Kale are a Roma subgroup from Finland. See ‘Roma – Sub Ethnic Groups [Rombase]’ (n 49). Gitano are a Roma subgroup of Spanish origin. See ‘Roma – Sub Ethnic Groups [Rombase]’ (n 49). See Motoc (n 47). Ibid. Ibid. See ibid.; Andrew M. Korando, ‘Roma Go Home: The Plight of European Roma,’ [2012] 30 L&I 125, 128.

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sion of ‘gypsies.’58 This discrimination towards gypsies continued in Italy, where the Duke of Milan threatened execution if Romas did not leave.59 Similarly, Romas were soon characterised as criminals, with notable anthropologists releasing studies that showed Roma as ‘the living example of a whole race of criminals.’60 As eugenics became popular in the 20th century, Roma were subjected to severe discrimination, including both forced sterilisation and the later opening of a ‘Gypsy Affair Office’ to surveil Roma citizens.61 The start of World War II (WWII) and the reign of the Nazi regime similarly imperiled Roma Europeans through further discrimination.62 The Nazi regime categorised Roma Europeans as ‘racially inferior,’ resulting in excessive use of Roma internment camps, forced labour, and mass murder.63 While Roma were initially considered ‘above’ Jewish persons during Hitler’s regime, by 1943, both Roma and Jewish Europeans were targeted with equal weight.64 Over 23,000 Roma were kept at the Auschwitz-Birkenau concentration camp, with 19,000 of these Roma losing their lives there.65 Also during this regime, Germany passed the ‘Cooperative Interstate Agreement to Combat the Gypsy Plague,’ incorporating and expanding upon a Bavarian law that ‘stigmatized Roma and Sinti as habitual criminals, social misfits, and vagabonds.’66 The Holocaust and the Nazi regime took in total 220,000 Roma lives – nearly twenty-five percent of the Roma European population – and these early conceptions of gypsies as criminals remains well intact today.67 Roma Europeans also faced discrimination in other European regimes, including the Vichy French government and the Italian dictatorship un-

58

59 60 61 62 63 64 65 66 67

See Korando (n 56) 128. The term ‘gypsy’ developed as a racial epithet targeted to discriminate against and suppress the Roma minority. See Motoc (n 47). The term ‘gypsy’ will be used interchangeably with Roma Europeans throughout this piece so as to remain consistent with historical sources. See Korando (n 56) 128. Ibid. Ibid 129. Ibid. Ibid. Ibid. Ibid 130. Ibid 129–30, citing Sybil H. Milton, Social Outsiders In Nazi Germany: ‘Gypsies’ As Social Outsiders In Nazi Germany (Robert Gellately & Nathan Stoltzfus 2001). Korando (n 56) 130. This mass murder is also considered the ‘Roma Genocide’ by many historians today. ibid.

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der Mussolini.68 Both French and Italian governments during WWII collaborated with the Nazi regime, implementing concentration camps, deporting Roma citizens, and murdering innocent Roma under the guise of ridding the world of the ‘political and racial undesirables.’69 The fall of the Nazi regime did not mark the end of Roma discrimination, as many of those German leaders remained in power after the war.70 Roma citizens began migrating westwards toward Italy, France, Austria, Germany, and the Netherlands, resulting the creation of Roma ‘settlements,’ often with less than adequate conditions.71 Today, Roma Europeans are consistently discriminated against and often subject to random deportation orders.72 This Roma discrimination has impacted the social, cultural, and economic lifestyles of Roma Europeans, largely left unresolved by the international community.73 Social, Cultural, and Economic Results of Discrimination: Comparative Impacts on Roma Europeans and Black Americans The above history reveals the similarities between Black Americans and Roma Europeans, that is, each have been subjected to centuries worth of systemic and government-influenced prejudice and discrimination, most of which still exists today. As a result of this persistent discrimination, Roma Europeans and Black Americans face significant disparities in modern life.74 The table below provides a comparative look at the 3.3

68 69 70 71 72

73

74

Ibid 131. Ibid, citing Omer Bartov, Social Outsiders in Nazi Germany: Outcasts in War and Genocide, Robert Gellately & Nathan Stoltzfus 2001). Korando (n 56) 133. Ibid 132–33. Ibid 133–35, describing the widespread deportation and removal of Roma citizens in France in 2010. Korando discusses the legal implications of the attempted widespread expulsion of Roma citizens of France, arguing that this was explicitly in violation of Article 4 of Protocol 4 of the European Convention on Human Rights, stating that ‘[c]ollective expulsion of aliens is prohibited.’ ibid. Korando further discusses the case of Conka v. Belguim ECHR 2002-I 93, in which the ECtHR held that collective expulsion of a particular group with noted animus violated the ECHR. ibid. Ibid 148. This article does not discuss, but recognises, some recent trends within the EU to protect the Roma minority. For a more thorough discussion of EU trends towards protection of the Roma, please see: Peter Vermeersch, The European Union And The Roma: An Analysis Of Recent Institutional And Policy Developments (Koninklijke Brill 2013). See Korando (n 56) 148; ‘Black History in the United States: A Timeline’ (n 20).

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consequences of discrimination for both Black Americans and Roma Europeans. These consequences extend beyond the social impacts of discrimination, and have likewise resulted in racial disparities within crime, healthcare, education, job security, and more. Table 2

Comparative effects of discrmination against black Americans and Roma Europeans.75 Roma Europeansa

Black Americansb

Size

~12 million Roma Europeans in Europe (5–10% of population)

~37 million Black Americans (12% of the population)

Prevalence of discrimination

1 in 4 Roma Europeans have experienced racial discrimination

7 in 10 Black Americans have experienced some form of racial discrimination

Reports of iscrimination

Between 66% and 92% of Roma (depending on country) did not report their most recent experience of discrimination

31% of Black Americans have avoided calling the police for fear of discrimination

Victims of assault or harassment

81% of Roma were victims of assault, threat, or serious harassment in one year

51% of Black Americans have experienced racial slurs and 42% have experienced racial violence

Socioeconomic status

80% of Roma Europeans live below the poverty line

18.8% of Black Americans live in poverty, as compared to 7.3% of White Americans

Jobs

Only 1 in 4 Roma Europeans have a job

Black unemployment rate (6.5%) is twice as high as white unemployment rate (3.1%)

Mortality

Roma Europeans have a life expectancy of 10 years less than average European and a significantly higher child mortality rate

Black Americans have the highest mortality rate of any race in America

75

NOTE: This table by no means represents the full extent of discrimination experienced by Black Americans and Roma Europeans, but rather, serves as an illustration of the similarities and distinctions in major areas of discrimination.

170 Table 2

5 – Levine Comparative effects of discrmination against black Americans and Roma Europeans. (cont.) Roma Europeansa

Black Americansb

Health

1 in 10 Roma have experienced direct discrimination when accessing healthcare

10.6% of Black Americans are uninsured compared to 5.9% of White Americans

Housing

More than half of Europeans said they would not want to have ‘gypsies’ as neighbours

45% of Black Americans experienced racial discrimination when trying to rent an apartment or buy a home

Education

Fewer than 1 in 4 Roma Europeans finish school and 20% of Roma European adults cannot read or write

White Americans are 1.5x more likely to have a bachelor’s degree as compared to Black Americans (23%)

Law enforcement

1 in 3 Roma were stopped by police, with every second person indicating discriminatory intent

4 in 10 Black Americans have been stopped by police and 3 in 10 have been a victim of police violence

a Yasmin Mills, ‘Roma People: 10 Ways Europe’s Biggest Minority Faces Discrimination’ (Reuters, 2020) accessed 7 August 2021; Vlagyiszzlav Makszimov, ‘Data Reveals ‘Shocking Hardship’ Of Romani People In Western Europe’ (www.euractiv.com, 2020) accessed 7 August 2021; Data In Focus Report: The Roma (1st edn, European Union Agency for Fundamental Rights 2009) accessed 7 August 2021. b ‘Poll: 7 In 10 Black Americans Say They Have Experienced Incidents Of Discrimination Or Police Mistreatment In Their Lifetime, Including Nearly Half Who Felt Their Lives Were In Danger’ (KFF, 2020) accessed 7 August 2021; ‘Discrimination In America: Experiences And Views’ (RWJF, 2017) accessed 7 August 2021; ‘Products – Health E Stats – Homepage’ (Cdc.gov, 2002) accessed 7 August 2021; Valerie Wilson, ‘Black Unemployment Is At Least Twice As High As White Unemployment At The National Level And In 14 States And The District Of Columbia’ (Economic Policy Institute, 2019) accessed 7 August 2021; ‘Demographic Trends And Economic Well-Being’ (Pew Research Center’s

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Social & Demographic Trends Project, 2016) accessed 7 August 2021; ‘Health Disparities By Race And Ethnicity – Center For American Progress’ (Center for American Progress, 2020) accessed 7 August 2021; John Creamer, ‘Poverty Rates For Blacks And Hispanics Reached Historic Lows In 2019’ (The United States Census Bureau, 2020) accessed 7 August 2021.

Thus, it is clear that the long held discriminatory practices and behaviours of American and European governments has resulted in an inequitable lifestyle for both jurisdiction’s largest minorities.76 Even while acknowledging these pervasive inequities and shocking histories of discrimination, both Black Americans and Roma Europeans are still subjected to racial profiling and discrimination by law enforcement, specifically with regard to excessive use of force.77 4

Facts

Excessive Use of Force: Black Americans Historical Review of Policing and Police Violence towards Black Americans Despite early recognitions of official police forces not occurring until 1844, the United States exercised similar ‘policing’ tactics towards slaves, setting the stage for excessive use of force once police departments were 4.1 4.1.1

76 77

‘Discrimination In America: Experiences And Views’ (RWJF, 2021) accessed 11 August 2021; Mills (n 76). ‘Poll: 7 In 10 Black Americans Say They Have Experienced Incidents Of Discrimination Or Police Mistreatment In Their Lifetime, Including Nearly Half Who Felt Their Lives Were In Danger’ (KFF, 2021) accessed 6 August 2021; ‘New EU Roma Framework Falls Short On Police Brutality, Justice, & Segregation – European Roma Rights Centre’ (European Roma Rights Centre, 2021) accessed 29 August 2021, discussing how EU report on police brutality towards Roma Europeans fails to adequately describe its impact.

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formalised.78 Beginning in the mid-1660s, white plantation owners determined that the ‘wild, barbarous, and savage’ slaves must be met with legislation to regulate their behaviour.79 Upon adopting slave codes in America, ‘a colonial act granted any white person the right to apprehend, chastise, and order home any slave who was off his master’s plantation without a pass.’80 These early practices again provided foundational roots in the establishment of white superiority in America, and further recognised discriminatory and abusive policing practices as the norm.81 This attachment to preventing slaves from escaping their masters through use of legislation quickly prompted a more formalised ‘police’ force in the United States.82 Beginning as ‘watch’ systems to locate escaped slaves, these quasi-police forces in America were often notably corrupt and cruel given their lack of bureaucracy.83 While these early watch systems sought to promote public order during the 1830s and 1840s, they instead illustrated white men’s feelings of racial superiority, with members of the watch systems often inciting violence against current slaves, escaped slaves, and even freed slaves.84 Moreover, even while police forces were typically generalised ‘public order’ establishments rather than formalised policing units, Black Americans quickly became targets of violence, specifically under Jim Crow regimes in the South.85 Once formalised, police forces exercised similar tactics, that is, targeting, beating, and murdering Black Americans, all under the justification of promoting ‘public order.’86 This historical backdrop of police excessive use of force partially motivated the Civil Rights Movement; these efforts were often matched,

78 79 80 81 82 83 84 85 86

Ernest Cashmore and Eugene McLaughlin, Out Of Order? (Routledge Revivals): Policing Black People (Routledge 2013). Ibid. Ibid. Notably, this act went even further so as to require white persons to apprehend and chastise these slaves, fining anyone who refused to do so forty shillings. ibid. Ibid 68. ‘The History Of American Police Brutality – The National Trial Lawyers’ (The National Trial Lawyers, 2021) accessed 16 August 2021. Ibid. Ibid; Hawkins & Thomas, White policing of black populations: A history of race and social control in America (published in Out of order, 2013) 65–86, discussing power dynamics of policing and race in America. See ‘The History Of American Police Brutality – The National Trial Lawyers’ (n 81). See Hawkins & Thomas (n 86).

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however, with additional police violence.87 In recounting the impactful statements by Civil Rights leaders and their subsequent influences on the fight for equality, one scholar notes, “We can never be satisfied as long as the Negro is the victim of the unspeakable horrors of police brutality,” said Martin Luther King, Jr. in 1963. “We want an immediate end to police brutality and murder of black people,” [which] was covered within the ten points in the 1966 Black Panther Party Platform.88 Movements against police violence peaked, however, in 1991 after the videotaped beating of Rodney King by four police officers was released to the public.89 This horrifying video was the ‘first of its kind and enduringly altered [the] discussion about race and policing in the United States.’90 The interaction began as a routine traffic stop for speeding while intoxicated; however, police quickly pulled all four black individuals out of the car, and subsequently applied tasers, kicked, and beat Rodney King with a baton more than 50 times.91 This violent behaviour was met with zero resistance by King.92 Despite this explicit display of police brutality towards an unarmed black male, all four officers were acquitted by a mostly white jury.93 Given this history, police excessive use of force has had unsurprisingly disproportionate impacts on the Black community, with Black Americans being 2.5 times more likely to fall victim to fatal police shootings.94 While Black Americans currently make up only 13% of the United States population, Black Americans make up 24% of all fatal police shootings.95 Expectedly – given the historical criminalisation of Black Americans – this problem is hardly a recent phenomenon; in 1929, the Illinois Asso87 88 89 90 91 92 93 94

95

See ‘The History Of American Police Brutality – The National Trial Lawyers’ (n 84). Ibid. Ibid. Ibid. Ibid. Ibid. Ibid. This lack of conviction subsequently sparked riots and protests all throughout Los Angeles, begging for police reform and accountability. Katie Nodjimbadem, ‘The Long, Painful History Of Police Brutality In The U.S.’ (Smithsonian Magazine, 2021) accessed 6 August 2021. Ibid.

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ciation for Criminal Justice published the ‘Illinois Crime Survey,’ noting that despite African Americans making up only 5% of the population, 30% of the victims of police killings were African American.96 In accordance with the history of police excessive use of force – beginning before policing was even legitimised – Black Americans have sought domestic methods of redress to adequately resolve these issues. 4.1.2 Domestic Relief – § 1983 Claims against Officers In order to seek justice as to excessive use of force in the United States, Black Americans must raise a claim under the Civil Rights Act of 1871 (codified as 42 U.S.C. § 1983) – often referred to as a § 1983 claim by most American courts.97 § 1983 was adopted during the era of Reconstruction, and ‘the purpose of the statute was to enable former slaves and others to enforce their rights created by the Reconstruction Amendments, primarily the Fourteenth.’98 This served as an important remedy during the peak of white supremacist groups, such as the Ku Klux Klan (KKK), who worked to undermine the rights conferred to newly freed Black Americans.99 According to this legislation, individuals must allege an officer violated their constitutional rights ‘under the colour of law.’100 An individual, under § 1983, must show that: (1) an officer deprived them of their rights under the Constitution; and (2) they were harmed by that deprivation.101 This legislation established jurisdictional standing for Black Americans, permitting victims of civil rights abuses to bring constitutional claims against individual officers for excessive use of force, unlawful stop and frisk, unconstitutional conditions of confinement, wrongful convictions, discrimination, malicious prosecution, and more.102 As a result of this legislation, in 2018 alone, private litigants filed over 15,000 § 1983 actions in federal courts, and prisoners filed over 30,000.103 Of these actions, major allegations of police brutality – such as the case of Michael Brown 96 97 98 99 100 101 102 103

Ibid. The Civil Rights Act of 1871, 42 U.S.C. § 1983 (1871). Lynn Adelman, ‘The Erosion Of Civil Rights And What To Do About It’ (2018) 2018 Wisconsin Law Review. Ibid 4. Ibid; ‘Section 1983 Lawsuit – How To Bring A Civil Rights Claim’ (Shouse Law Group, 2021) accessed 6 August 2021. Ibid. Ibid; Adelman (n 100) 3. Adelman (n 100) 3.

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– were among the claims brought in federal court.104 Therefore, § 1983 provides an important mechanism for redress for Black Americans in the face of police misconduct; however, the Supreme Court has attached a number of limitations and impositions on § 1983, making these claims increasingly more difficult for Black Americans to prove successful.105 Excessive Use of Force: Roma Europeans Historical Review of Policing and Police Violence towards Roma Europeans Roma Europeans have similarly been subjected to a long history of excessive use of force by law enforcement.106 Police brutality originated immediately upon Roma migration to European countries, and has extended to verbal abuse, physical abuse, excessive use of force, and discriminatory and degrading attitudes towards Roma Europeans.107 There have long been documented abuses by law enforcement with explicit racial animus towards Roma Europeans.108 Reports to the EU Observer note that the extent to which they receive police misconduct reports are ‘routine,’ and they range from testimonies of collusion between law enforcement and far-right paramilitaries, ethnic profiling, over-policing in certain districts while under-policing in others, violent raids, beatings while in custody, and more.109 Because of the deliberate and consistent corruption within law enforcement, statistics are minimal, with some researchers finding that, ‘there are no effective mechanisms to protect victims of police violence, little reliable information or data to give a pre-

4.2 4.2.1

104

105 106 107 108 109

Ibid. In the infamous Michael Brown – or Ferguson – case, a police officer confronted two young black men walking down the street, ordered them on the sidewalk, and had a brief verbal altercation through the window. After the verbal altercation, the officer exited his vehicle, and when Michael Brown turned back around to face the officer, the officer fired twelve shots, six of which hit Brown. See ‘Michael Brown Is Killed By A Police Officer In Ferguson, Missouri’ (HISTORY, 2021) accessed 21 August 2021. Adelman (n 100) 4–6. Ana-Maria Negrescu, ‘Police Officials And Roma In Romania: International Standards Vs. Practice’ (Masters, Tillburg University 2018). Ibid 6–7. Bernard Rorke, ‘Pandemic: Roma At Receiving End Of Racist Policing’ (EUobserver, 2021) accessed 24 August 2021. Ibid.

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cise account of the scale of the problem, and a low success rate in cases investigated.’110 One of the most recent instances of police excessive use of force towards Roma Europeans took place in Slovakia, where four girls and one boy – ages seven through eleven – were beaten with a truncheon by a police officer.111 In their complaint, one of the four girls reported, ‘[w] e went for wood and the cop began to chase us and shouted at us that if we didn’t stop, he would shoot us. We stopped and he took us into a tunnel and beat us there.’112 Another more recent – and highly publicised – attack surfaced just days earlier, with video of Romanian police beating Roma citizens while they were laying in the dirt with their hands and feet bound.113 In the video, ‘[t]he screams of one victim w[as] clearly audible, as four officers set about him, two striking him all over his body, and two others beating the soles of his bare feet.’114 Sadly – yet expectedly – when the two men reported the attack, they were again beaten by special forces.115 International organisations, including the European Commission Against Racism and Intolerance, have recognied this pervasiveness of this issue, stating, [...] grave problems [...] persist throughout the country as regards police attitudes and behaviour towards members of the Roma/ Gypsy community. ECRI deplores in particular that cases of police violence against members of the Roma/Gypsy community, including the use of firearms, continue to occur, and have led to serious and sometimes lethal injuries [...] Such abuses, although well-documented and reported to the authorities by the non-governmental organisations and individuals, do not appear to be thoroughly investigated or sanctioned: cases which are investigated are usually dismissed...’116 110

111 112 113 114 115 116

Ibid. The EU Observer also notes the increasing number of complaints reported during the COVID-19 pandemic. Because Roma citizens were often required to work during the pandemic, they were often out more frequently, forcing additional interactions with police. ibid. Ibid. Ibid. Ibid. Ibid. Ibid. Ibid 7, citing ‘ERRC Submission To UN CAT On Romania (April 2015) – European Roma Rights Centre’ (European Roma Rights Centre, 2021) accessed 18 August 2021. Negrescu (n 108) 7. Ibid, citing UN, Report of the Committee on the Elimination of Racial Discrimination, Supplement no. 18 (A/65/18), 2010, p. 107. Negrescu (n 108) 8, citing ‘ERRC Submission To The European Commission On The EU Roma Framework (February 2016) - European Roma Rights Centre’ (European Roma Rights Centre, 2021) accessed 21 August 2021.

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police misconduct and excessive use of force by law enforcement, yet are often offered little remedy to hold officers accountable for their actions. 4.2.2

International Relief – European Convention on Human Rights (ECHR) Many scholars argue that the persistent discrimination and mistreatment towards Roma citizens, particularly deportation orders, but also extending to discrimination by law enforcement, violates the ECHR.120 One scholar notes that ‘[t]he European Convention on Human Rights applies to all people under a contracting state’s jurisdiction, including illegal immigrants,’ and ‘[immigrants] may bring cases against the states before the European Court of Human Rights;’ however, ‘many Roma do not know of or understand their rights as Europeans.’121 Even though the CoE has provided legal aid for Roma, and many nongovernmental organisations (NGOs) – such as the European Roma Rights Centre – have frequently fought for the eradication of racial discrimination towards Roma in Europe, the ECtHR must take a more targeted approach to adequately address this issue in the international community.122 Article 14 of the ECHR reads: ‘[t]he enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.’123 Thus, Roma Europeans are protected against discrimination ‘in the enjoyment of the rights and freedoms set out in the Convention.’124 The Court has held that Article 14 is ancillary in nature, i.e., that Article 14 ‘merely complements the other substantive provisions of the Convention and the protocols.’125 As such, Article 14 requires the existence of an additional substantive violation.126 120 121 122 123

124 125 126

Korando (n 56) 145. Ibid. Ibid 145–46. Guide On Article 14 Of The European Convention On Human Rights And On Article 1 Of Protocol No. 12 Of To The Convention (European Court of Human Rights 2020) accessed 7 August 2021. Ibid. See ibid, citing Molla Sali v. Greece App no 20452/14 (ECHR, 18 June 2020); Carson and Others v. the United Kingdom (2010) 2010 ECHR; E.B. v. France App no 43546/02 (ECHR, 22 January 2008); Marckx v. Belgium (1978) Series A no 31. Guide On Article 14 Of The European Convention On Human Rights And On Article 1 Of Protocol No. 12 Of To The Convention (n 125).

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Nonetheless, the ECtHR has recognised Article 14 violations – read in conjunction with another substantive provision – without the finding of a violation of the substantive right.127 Procedurally, the Court has both dealt with the alleged substantive violation first, then addressed the Article 14 violation,128 and it has found a violation of Article 14 and the substantive violation read in conjunction.129 Given the ancillary nature of Article 14, however, the Court may also decide not to examine a case under Article 14 when it has already found a separate breach of another Article of the Convention.130 The ECtHR has provided relief for individuals based on discriminatory violence by law enforcement, holding that law enforcement is ‘required to conduct an effective and adequate investigation by ascertaining whether there were discriminatory motives and whether feelings of hatred or prejudice based on an individual’s personal characteristic played a role in the event.’131 While the ECtHR cannot deem a state’s laws invalid, it can instead hold a state member accountable for their actions under the Convention, thus proving to be persuasive in changing domestic law and practice. Therefore, Roma Europeans should be able to effectively seek redress for widespread discrimination prevalent throughout many of the 47 member states.

127 128 129

130 131

Sommerfeld v. Germany (2003) 2003-VIII; Marckx (n 127). Marckx (n 124); Bączkowski and Others v. Poland App no 1543/06 (ECHR, 3 May 2007); Aziz v. Cyprus (2004) 2004-V; Nachova and Others v. Bulgaria (2005) ECHR 2005-VII. Molla Sali (n 127); Rangelov v. Germany App no 5123/07 (ECHR, 22 March 2012); Andrejeva v. Latvia (2009) 2009 ECHR; Barrow v. the United Kingdom App no 42735/02 (ECHR, 22 November 2002); Sidabras and Džiautas v. Lithuania (2004) ECHR 2004VIII; Rasmussen v. Poland (2009) ECHR 2006-I. Dudgeon v. the United Kingdom (1983) Series A no 59; Norris v. Ireland (1987) Series A no 142; Evans v. the United Kingdom (2007) ECHR 2007-I; V.C. v. Slovakia (2011) 2011 ECHR. Guide On Article 14 Of The European Convention On Human Rights And On Article 1 Of Protocol No. 12 Of To The Convention  (n 117), citing Abdu v. Bulgaria App no 26827/08 (ECHR, 11 March 2014); Milanović v. Serbia App no 44614/07 (ECHR 14 December 2010); Opuz v. Turkey (2009) 2009 ECHR.

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Analysis

Procedural Loopholes and the Use of Qualified Immunity in American Courts As noted above, regardless of the proffered constitutional protections afforded to Black Americans under § 1983, the Supreme Court has subsequently narrowed the reach of this statute for litigants.132 First, the Supreme Court has deemed §1983 cases to be of greater ‘weight’ than most other civil claims, and in response, have determined that § 1983 excessive use of force claims require a higher standard of proof for plaintiffs.133 In alleging a § 1983 allegation, plaintiffs must show that officers used excessive force with ‘clear and convincing evidence,’134 instead of the typical ‘preponderance of the evidence’ standard for civil claims.135 Moreover, the Court has held that § 1983 only applies to individuals, and as such, courts have refused to apply the doctrine of respondeat superior to any agency or municipality.136 Therefore, when a law enforcement officer uses excessive force against an American, police departments cannot be held liable under § 1983 – only individual officers.137 This practice depletes any incentive for police departments to ensure legal uses of force, thereby prolonging longstanding discriminatory practices. Furthermore, the Supreme Court has also determined that § 1983 actions will not apply to states or state agencies, as they are not considered ‘persons’ under the statute.138 Accordingly, these procedural restrictions have only limited the scope of § 1983, making it significantly harder for Black Americans to hold law enforcement accountable for discriminatory acts. In addition to these procedural findings that limit the scope of § 1983 to only individuals, the Supreme Court has further afforded these individual police officers immunity from § 1983 claims.139 Section 1983 pro5.1

132 133 134 135 136 137 138 139

Adelman (n 100) 5–6. ‘Section 1983 Lawsuit – How to Bring a Civil Rights Claim’ (n 102). Ibid. Clear and convincing evidence requires a showing of greater than 51%, but less than beyond a reasonable doubt. ibid. Ibid. Preponderance of the evidence requires a showing of at least 51%. Adelman (n 72) 4–5. Respondeat superior is a widely utilised tort practice, whereby a plaintiff may also sue an employer for negligence if the employee was working within the scope of employment during the alleged negligence. Ibid 5. Ibid. Kathryn R. Urbonya, ‘Problematic Standards Of Reasonableness: Qualified Immunity In Section 1983 Actions For A Police Officer’S Use Of Excessive Force’ (2021) 62 Temple Law Review.

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vides that ‘every person,’ who deprives a person of Constitutional rights, ‘shall be liable.’140 In spite of this clear indication that law enforcement should remain liable for discriminatory acts protected by the U.S. Constitution, the Supreme Court has promulgated the concept of ‘qualified immunity’ for law enforcement from suits seeking monetary damages.141 The Supreme Court has defined qualified immunity as ‘government officials performing discretionary functions, generally [will be] shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory of constitutional rights of which a reasonable person would have known.’142 The Supreme Court has held this immunity to be essential, as it traces back to the immunities available to government officials for common law torts during the 19th century.143 First, under Harlow v. Fitzgerald, the Court held that officer’s actions will be reviewed using an ‘objective good faith’ test, therefore holding that a plaintiff may only surpass the qualified immunity defence if they show that a reasonable officer would not have made that same calculation.144 However, even while providing this objective standard, qualified immunity has been interpreted by the Court to afford ‘significant’ deference to government officials, making it difficult for plaintiff’s claims to even reach the Court on its merits. Moreover, the Court’s interpretation of how to apply § 1983 has made it nearly impossible for Black Americans to obtain relief. First, the Court has required that a plaintiff show a law was ‘clearly established,’ only by introducing judicial precedent with substantially similar facts.145 This ‘substantially similar facts’ requirement means that even though certain laws may seem clearly established based on their history and application in the Court – for example, the Fourteenth Amendment – this does not also mean every violation of that law will be deemed a violation of a ‘clearly established law.’146 This presents a nearly unattainable burden, 140 141 142 143

144 145 146

The Civil Rights Act of 1871, 42 U.S.C. § 1983 (1871). Urbonya (n 141) 65. Ibid, citing Harlow v. Fitzgerald, 457 US 800 (1982). Nathanial Sobel, ‘What Is Qualified Immunity, And What Does It Have To Do With Police Reform?’ (Lawfare, 2021) accessed 7 August 2021. Ibid. Ibid. Adelman (n 100) 8.

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and plaintiffs with unique factual circumstances alleging discrimination in excessive use of force will therefore have no relief.147 Second, under Pearson v. Callahan, the Court added to the plaintiff’s burden, holding that § 1983 claims cannot be reviewed on a violation of constitutional merits alone.148 As such, even though § 1983 requires a constitutional allegation, it must be substantiated with other non-constitutional allegations. This determination was made without regard to the procedural burdens placed on plaintiffs, and has hereafter made it significantly more difficult for Black Americans to obtain relief. Finally, the Supreme Court’s recent review of a ‘reasonable officer’ has afforded significant deference to government officials, with the court holding that qualified immunity protects ‘all but the plainly incompetent or those who knowingly violate the law.’149 Because of the high standards plaintiffs are required to meet, ‘[i]n recent years, the Supreme Court has dismissed cases based on the doctrine of qualified immunity more aggressively than ever before.’150 Thus, despite providing for explicit protections for Black Americans under § 1983, the Court has permitted procedural loopholes for law enforcement to avoid liability for discriminatory conduct. As a result, the historically long practice of discrimination towards Black Americans that has resulted in excessive use of force by police officers will struggle to be adequately addressed until § 1983 interpretations are reformed. 5.2

The ECtHR’s Reluctance to Acknowledge and Apply Article 14 Alongside Other Articles Roma are getting very distrustful of all legal actions and reporting. Why? ... Roma have not seen any change whatsoever coming from all this action. ECRI, CERD, FRA, dozens of [Council of Europe] commissions … have tramped through the ... Roma camps for years and written terrific reports, but nothing has come of it … Some

147 148 149 150

Ibid. Sobel (n 145). Ibid. Adelman (n 100) 8. The author specifies by writing: ‘In fact, in sixteen of its last eighteen decisions involving qualified immunity, the Court found for the defendant on the ground that the plaintiff had failed to provide a precedent with facts sufficiently similar to the case at bar. The Court last ruled in a civil rights plaintiff’s favor on a qualified immunity issue in 2004. Also, in many of the qualified immunity cases, the Court summarily reversed lower court rulings in favor of plaintiffs’ (at 8–9).

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[law] suits have been started, but with little result … When it comes to living conditions hardly anything has changed.151 As the foregoing text makes clear, Roma Europeans have experienced severe and pervasive discrimination throughout history. While the ECtHR has offered protections for Roma Europeans, even specifically for excessive use of force, the ECtHR is reluctant to issue Article 14 evaluations, likely due to Article 14’s ancillary scope. As such, the ECtHR has repeatedly refused to review violations under Article 14, or instead, has found only procedural violations. While attempting to remain in line with the text of the doctrine, the ECtHR’s lack of substantive findings on discrimination towards Roma only serves to perpetuate the longstanding discrimination present in nearly all 47 member states. 5.2.1

Use of Force Discrimination and Procedural Violations – Nachova v. Bulgaria and Other Roma Discrimination Cases The ECtHR has regularly reviewed excessive use of force claims, as well as claims of discrimination brought by Roma Europeans.152 Through those judicial interpretations, the Court clearly laid out the procedural and substantive guidelines for excessive use of force against Roma citizens in Nachova v. Bulgaria.153 In Nachova, an applicant alleged that her two relatives of Roma descent were targeted and murdered by police following their escape from detention.154 Police knew the individuals were unarmed and not dangerous, yet police approached the scene of their alleged location heavily armed.155 Officers were instructed by their commander to use ‘all necessary means’ to arrest the two men.156 Upon arrival to the scene, both Roma men began to flee, to which one officer shot both men down using 151

152 153 154 155 156

James A. Golston, ‘The Struggle For Roma Rights: Arguments That Have Worked’ (2011) 32 Human Rights Quarterly. A longtime Italian advocate for Roma rights recently commented on the state of Roma rights, observing the lack of movement in equality for Roma citizens. ‘ECRI is the European Commission Against Racism and Intolerance of the Council of Europe. CERD is the UN Committee on the Elimination of Racial Discrimination. FRA is the Fundamental Rights Agency of the European Union.’ ibid 312 n.1. Factsheet – Roma And Travellers (European Court of Human Rights 2021) accessed 7 August 2021. Nachova (n 130). Ibid. Ibid. Ibid.

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an automatic rifle; both men were pronounced dead upon arrival to the hospital.157 An eyewitness claimed that when he approached the scene, the officer that had shot the weapon and yelled, ‘You damn gypsies!’ while aiming the gun at the applicant’s relatives.158 The criminal investigation concluded that all officers used ‘appropriate’ force, as the senior officer followed all relevant regulations requiring a warning shot and promotion of public safety.159 A Chamber judgment first unanimously found that there had been violations of both Article 2 (right to life) and Article 14 (prohibition against discrimination). The Chamber held that the failure to conduct a thorough investigation led to procedural violations of both Article 2 and Article 14, and further found that there was likely discriminatory biases, thus prompting a substantive violation of Article 14.160 On appeal, however, the Grand Chamber found that there was no substantive violation under Article 14, instead holding that the officers’ adherence to domestic protocols – even though they were questionable – did not warrant a substantive violation. Rather, there was only a procedural violation of Article 14 based on the lack of investigation as to relevant discriminatory behaviour.161 Therefore, while Nachova stood to require a positive obligation for states to investigate potentially discriminatory practices among law enforcement, the Grand Chamber explicitly disregarded the racially biased protocols used by Bulgarian police forces, and instead left it to domestic practices to resolve.162 Similarly, the ECtHR often ignores the relevance of Article 14, and permits its finding of a substantive violation under the Convention to mean that no discussion of Article 14 is justified. For example, in Dudgeon v. the United Kingdom, the Grand Chamber found that ‘it was not generally necessary for the Court to also examine the case under Article 14, though the position was otherwise if a clear inequality of treatment in the enjoyment of the right in question was a fundamental aspect of the case.’163 Similarly, in Centre of Legal Resources on behalf of Valentin Campenanu v. Romania, the Grand Chamber reviewed the case of the death of a young

157 158 159 160 161 162 163

Ibid. Ibid. Ibid. Ibid. Ibid. Ibid. Dudgeon (n 132).

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man of Roma origin suffering severe mental instabilities.164 Despite clear evidence of mistreatment by various mental institutions – likely based on the victim’s Roma descent – the Grand Chamber found violations only under Article 2, and Article 13 in conjunction with Article 2.165 A number of other examples exist as to the ECtHR’s decision to not discuss Article 14 after finding a violation of a substantive right.166 These decisions stem from the ancillary nature of Article 14, such that there must be a substantive violation of another Article in order to obtain relief. Even though this is deemed consistent with the language of the Convention, this procedural determination has thereby resulted in few cases that explicitly address the prevalent discrimination towards Roma Europeans. Thus, while the ECtHR is still in some ways protecting Roma citizens and providing applicants with relief for substantive violations of other Articles, its refusal to acknowledge the discrimination present in the claims explicitly denies the justice Roma citizens deserve. Instead, the practice of excluding substantive violations of Article 14 form the Grand Chamber’s findings fails to hold law enforcement accountable, allows countries to create ‘adequate’ procedural systems of investigation as shields against responsibility, and therefore perpetuates a system of discrimination towards Roma Europeans. Consequently, the ECtHR has provided ‘relief’ to applicants for substantive violations of other Articles under the Convention, but law enforcement are rarely ever held accountable for their discriminatory behaviour.167 5.2.2

Recent Roma Discrimination in the ECtHR – Lacatus v. Switzerland and Begging Discrimination168 While distinct from use of force cases, the ECtHR’s approach to begging has made their Article 14 application for Roma citizens even more abun164 165 166 167

168

See Centre of Legal Resources on behalf of Valentin Cameanu v. Romania (2014) 2014 ECHR 20. Ibid. Factsheet – Roma And Travellers (European Court of Human Rights 2021) accessed 7 August 2021. This article does thoroughly discuss the ECtHR’s recent acknowledgment of racial and ethnic profiling by police officers, specifically towards Roma Europeans. For more information, please see: ‘Ethnic Profiling: A Persisting Practice In Europe’ (Commissioner for Human Rights, 2019) accessed 7 August 2021. This article does not fully address the intricacies of criminalizing begging across Europe and its notions of discrimination towards Roma Europeans. For a more full discussion of these issues, please see: Virpi Makinen, ‘Are There Fundamental

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dantly clear. In Lacatus v. Switzerland, the applicant was of Roma origin, unemployed, illiterate, and was not receiving any social security benefits or family financial support.169 As a result, the applicant was forced to beg on the streets of Geneva in order to survive.170 Pursuant to a Geneva law that prohibited begging in public spaces, the applicant was fined on nine separate occasions.171 The applicant was able to contest the fines, but still had a resulting fee of 500 CHF, or would face five days of imprisonment.172 In attempting to justify the Government’s need for the statute, the Government argued that beggars harass people, bother restaurant patrons, dissuade shoppers, and incite violent reactions.173 The ECtHR did recognise the legitimacy of the Government’s aims; however, ultimately rejected the claim.174 The ECtHR thereafter held that despite Switzerland’s margin of appreciation, under Parrillo v. Italy, a margin of appreciation may be restricted when a ‘particularly important aspect of an individual’s existence or identity is at stake.’175 Reviewing the interests of both sides, the Grand Chamber held that the applicant ‘was in a situation of manifest vulnerability,’ and as such, ‘has the right, inherent in human dignity, to be able to express her distress and try to satisfy her needs by begging.’176 Thus, the Court held that under Article 8, Switzerland’s prohibition against begging violated the applicant’s right to private life. Finding a violation in Article 8, the Grand Chamber found that no analysis of Article 10 (right to life) or Article 14 (prohibition against discrimination) was necessary.177

169 170 171

172 173 174 175 176 177

Rights For Roma Beggars In Europe?,’ (2013) 14 Political Theology; Vanessa Barker, ‘Nordic vagabonds: The Roma and the logic of benevolent violence in the Swedish welfare state’ (2017) 14 European Journal of Criminology. Lacatus v. Switzerland App no 14065/15 (ECHR, 19 January 2021). Ibid. Ibid. Many commentators further allege that the basis for this legislation was discriminatory in nature, as legislators were undoubtedly aware that the majority of poor and homeless individuals in Geneva were of Roma descent, and as such, the majority of beggars were Roma. Therefore, legislators promulgated this law in order to specifically target and discriminate against Roma Europeans. Ibid. Ibid. Ibid. The ECtHR’s acceptance of the Government’s aim despite evidence of discriminatory intent behind that statute further illustrates the implicit bias and targeting permitted by not only legislative systems, but also judicial systems. Ibid. Ibid. Ibid.

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A number of judges appended separate opinions discussing other relevant Articles to Lacatus’ begging claim.178 Of these arguments, very few judges made a case for Article 14 protection.179 Despite this, a third-party intervention filed by the European Roma Rights Centre (ERRC) introduced evidence that the anti-begging legislation proffered by Geneva was specifically targeted towards Roma citizens.180 Given this, Lacatus provides an excellent example of the ECtHR’s rejection of addressing Roma discrimination claims under Article 14. The ECtHR’s explicit disregard for the relevant discrimination – as evidenced by the ERRC’s intervention – reduces the credibility of the Court, and also fails to provide adequate relief and justice for Roma citizens. Furthermore, the Grand Chamber’s recognition of ‘legitimate’ Government aims – even despite discriminatory undertones – further exacerbates the inadequate resolution of discrimination by the ECtHR. Most importantly, however, this failure to hold the Swiss government accountable for their targeted discrimination towards Roma citizens will only serve to persist the ongoing nature and legislation of discrimination in Switzerland. 5.2.3

Roma’s First Recognition of Institutionalised Racism by the ECtHR As noted above, Roma Europeans have been explicitly ignored by governing institutions regarding the recognition of racism. Nevertheless, in 2019, the ECtHR in a Committee judgment condemned Roma discrimination in the case of Lingurar v. Romania.181 In Lingurar, the applicant – a Roma individual – alleged that he and his family were brutally attacked during a police raid in 2011.182 During this raid, police officers entered his home at five AM, wearing balaclavas and special intervention clothing, and dragged the applicant’s family from their beds to severely beat them with truncheons.183 The officers were searching for individuals who had allegedly stolen wood from a forest without permission, and after intense interrogation, only fined the applicants without further intervention.184

178 179 180 181 182 183 184

Ibid (Keller), (Lemmens), (Ravarani). Ibid. See Intervention by ERRC, Lacatus v. Switzerland App no 14065/15 (ECHR, 19 January 2021). Lingurar v. Romania App no 48474/14 (ECHR, 16 April 2019). Ibid. Ibid. Ibid.

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As a result, the applicants petitioned to the ECtHR, claiming violations under Article 3 (prohibition on torture and inhumane punishment) and Article 14 (prohibition on discrimination) under the Convention.185 The Government recognised the injuries suffered by the applicants; however, they argued that the force used ‘had not reached a level of severity sufficient to bring them within the scope of Article 3 of the Convention,’ and further stated that ‘the use of force had been justified and appropriate in the circumstances of the case, bearing in mind the breadth of the criminal activity in the area where the police intervention had occurred, and the applicants’ provocative conduct.’186 Finally, the Government contended that it was not discriminatory towards this particular family, as the officers had not used firearms, and the operation was designed to target the entire neighbourhood.187 In response, the ERRC urged the Committee to recognise the institutional racism at play, suggesting that ‘Romania did not keep any record of racially-motivated crimes, lacking a comprehensive data system.’188 The Committee ultimately found that the law enforcements actions – most notably, using eighty-five armed officers to raid the home of one, unarmed, Roma family – was not proportionate, and therefore violated Article 3.189 The Committee, moreover, found that Romania also violated Article 14 in conjunction with Article 3, recognising the discriminatory practices of Romanian officers.190 The Committee noted that the operation plan specifically mentioned the applicant’s Roma descent and recognised the ‘criminal behaviours’ of individuals of that descent.191 Furthermore, the Committee acknowledged the EERC’s report and adherence to institutionalised racism, stating that ‘[t]he authorities automatically connected ethnicity to criminal behaviour, thus their ethnic profiling of the applicants was discriminatory.’192 While a novel decision for ECtHR and a significant advancement for the recognition of Roma discrimination, this judgment nonetheless took 185 186 187 188

189 190 191 192

Ibid. Ibid [58] (emphasis added). Ibid [59]. Ibid [64]. ‘In the ERRC’s view, the Romanian authorities’ failure to compile data on racially motivated crimes was a symptom of institutional racism, which also undermined the ability to identify patterns of racist violence (they relied in this respect on Milanović v. Serbia App no 44614/07 (ECHR, 14 December 2010).’ ibid. Ibid [69–70]. Ibid [78]. Ibid [75–76]. Ibid [76].

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eight years to produce.193 Applicants were first required to make a police brutality complaint to prosecutors, who took nearly one year to find that the applicants had insufficient evidence.194 The case was later reopened by national courts in Romania, after which it was eventually closed again.195 The applicants finally turned to the ECtHR, who delivered their judgment almost five years later.196 This recognition is exceptionally important for the prevention of Roma discrimination moving forward; however, the timeframe of the recognition – only two years ago, and after significant delay – further illustrates the continued effects of racism in CoE member states. Additionally, this decision was a Committee judgment – only three judges – and Romanian officials still have the ability to appeal to the Grand Chamber, threatening the existence of this recognition. As such, this case poses a unique opportunity to the ECtHR, and it is important that the Grand Chamber acknowledge and affirm the Committee’s recognition of institutionalised racism towards Roma Europeans. 5.3 Comparative Assessment As a result of the above assessment, there remains two jurisprudential approaches that fail to utilise the full scope of the jurisdictional authority. In the case of the United States, the Supreme Court has legislative authority under § 1983 to hold government officials accountable for their discriminatory acts. Nevertheless, the Court has proffered ‘qualified immunity’ for government actors, giving law enforcement the means to avoid repercussion as a result of discriminatory conduct. Similarly, under the CoE, the ancillary nature of Article 14 results in its frequent underusage when presented with various issues. The ECtHR is obliged to find a violation of another article under the Convention to find a violation of Article 14, but once the Court develops a well-characterised violation of another article, Article 14 is rarely assessed. This ultimately results in a failure to hold law enforcement accountable for discriminatory conduct, and rather, only holds law enforcement accountable for other Convention violations. Resultingly, these two jurisdictions are left with prohibitions on discrimination that are procedurally limited. The question re193

194 195 196

Jonathan Lee, ‘Roma Win First-Ever Judgement Of “Institutional Racism” In Europe – European Roma Rights Centre’ (European Roma Rights Centre, 2019) accessed 7 August 2021. Ibid. Ibid. Ibid.

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mains, then: is there even a right at all without adequate accountability and protection under these provisions? 6

Conclusion

Black Americans and Roma Europeans have long been subjected to a grotesque history of racism and discrimination in their respective jurisdictions. Despite this clear attack on minorities, both America and the CoE member states have failed to adequately address the racial discrimination present in excessive use of force by law enforcement. The ECtHR’s hesitancy to consider many claims as discrimination claims under Article 14 – likely due to Article 14’s ancillary nature – simply perpetuates racism against Roma Europeans. Similarly, the United States emphasis on procedural loopholes and immunities fails to hold officers liable for discriminatory behaviour. Both the CoE member states and the United States have therefore refused to hold officers accountable for blatantly discriminatory behaviour. Thus, both jurisdictions will fail to see adequate change in discrimination and racism towards Roma Europeans and Black Americans if they do not address the legal systems that subtly – yet explicitly – perpetuate discrimination towards historically targeted minorities.

6

The International Humanitarian Law Principle of Distinction and UN Peace Support Operations’ Deployment Objectives – Conflicting Approaches and Undesirable Outcomes? Charuka Ekanayake* Abstract

The contexts into which United Nations Missions are deployed today are characterized by extensive levels of violence. The objectives pursued by these Missions through use of force have also widened, with extreme elements such as MONUSCO’s Force Intervention Brigade even authorized to conduct offensive operations against identified armed groups. But these expansions do not justify a distancing from (or dilution of) the unique ethos to which UN troops belong. It is in this backdrop that this piece posits its principal research question: whether the International Humanitarian Law provisions relevant to the operationalization of the principle of Distinction can ensure the realization of United Nations’ use of force Objectives. To answer this question, the Article first delves into the ad bellum and in bello moral calculations relevant to the UN and analyzes their salient characteristics. This exercise identifies crucial connections that exist between the two calculations and thus distills the specific courses of action UN troops are required to pursue (and desist from pursuing) on the battlefield. The moral signposts so deduced are thereafter compared against the content of the IHL rules that operationalize the principle of Distinction. This analysis ultimately ascertains whether the legal rules under reference can secure or accommodate the outcomes pursued by UN uses of force; outcomes that are in turn dictated by the Organization’s deployment objectives.

* LLB (London) Hons, LLM (UNICRI), LLM (Colombo), PhD (Griffith). Attorney at law, Sri Lanka and Solicitor, New South Wales, Australia. Charuka is currently employed as a State Counsel at the Attorney General's Department of Sri Lanka.

© Koninklijke 2022 | doi:10.1163/9789004518216_007 © KONINKLIJKE Brill BRILL NV, Leiden, LEIDEN, 2022 | DOI:10.1163/9789004518216_008

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Keywords Distinction – impartiality – International Humanitarian Law – jus ad bellum – jus in bello – peace keeping – proportionality – protection of civilians – United Nations. 1

Introduction

Normative standards of conduct emanate from numerous sources. Amongst these are morality and legality; each providing distinct sets of rules that guide behavior towards particular ends. One area of activity that has benefitted heavily from each of these frameworks is the use of force during armed conflict,1 whose nature has undergone numerous transformations since World War II. One such transformation relates to the identity of the parties involved in conflict – today granting belligerent status to non-state armed groups and forces that function under international organizations such as the UN.2 It is in this backdrop that this article asks its core research question: whether the international humanitarian law (IHL) rules relevant to the operationalization of the principle of distinction secure or accommodate the realization of UN deployment objectives. This analysis commences by noting how these deployment objectives differ from those pursued by traditional warfare. The discussion then examines how these intricacies influence the underlying ad bellum moral calculation relevant to the UN and explains how this personalizes its in bello counterpart. It concludes in this regard that the in bello morality of UN forces so shaped (here mapped by a novel tool referred to as the ‘Pressure Point formulation’) can be clearly distinguished from that relevant to warfare. 1 The study of the morality of use of force has a long history and is far too extensive for me to summarize here. A useful overview is found in David Rodin and Henry Schue (eds), Just and Unjust Warriors: The Moral and Legal Status of Soldiers (OUP 2018). 2 Refer to inter alia, Richard D. Glick, ‘Lip Service to the Laws of War: Humanitarian Law and United Nations Armed Forces’’(1995) 17 Michigan Journal of International Law 53; Damian Lily, ‘The United Nations as a party to armed conflict: The Force Intervention Brigade of MONUSCO in the Democratic Republic of Congo (DRC)’ (2016) 20(3–4) Journal of International Peacekeeping 313; Bianca Maganza, ‘From Peacekeepers to parties to the conflict: An IHL’s appraisal of the role of peace operations in NIACs’ (2020) 25(2) Journal of Conflict and Security Law 209; and United Nations SecretaryGeneral, Bulletin on the Observance by United Nations Forces of International Humanitarian Law, UN Doc ST/SGB/1993/13, para 1.1 (6 August 1999).

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The analysis then moves to the legal domain. Part 5 thus examines those IHL rules that operationalize the principle of distinction and identifies – through extensive analysis of a number of relevant sources – how the said rules are shaped in customary law. This opens the door to an examination of the extent to which these IHL rules can reflect and accommodate the morality of UN uses of force (and the specific actions this necessitates). The overall assessment returned by this exercise identifies a number of gaps between the applicable moral and legal frameworks.3 The legal regime may not, for example, contain rules that compel the commission of acts that are encouraged or required by the moral regime. The legal regime may likewise permit acts that are discouraged or proscribed by the moral regime. The article concludes that UN deployment objectives can only be realized when these mismatches are rectified by appropriately altering the existent legal framework. 2

The Resort to Force by the UN

Resort to Force Objectives Prescribed by the Charter: The First Tier The need for the maintenance of international peace and security was perhaps never more cogently felt than in the immediate aftermath of World War II. It is in this backdrop of carnage and devastation that the UN was formalised, with the Charter introducing the extremely cautious approach to the use of force enshrined in Articles 1(1), 2(4), 36, 39, 40– 42 and 51. Article 1(1) prescribes the purposes of the UN and amongst these are found the maintenance of international peace and security and taking effective collective measures for the prevention and removal of threats to peace. Chapters VI and VII then elaborate what must happen when threats to international peace and security arise. In this regard, Article 39 empowers the UN Security Council (UNSC) to determine the existence of threats to or breaches of the peace4 and to decide which of 2.1

3 Refer to General Stanley McCrystal – ISAF, Tactical Directive dated 02 July 2009, . Gaps between the content of IHL provisions and NATO use of force objectives were hinted at here. 4 Refer to Bruno Simma (ed), The Charter of the United Nations: A Commentary (OUP 2002) 608–610, who submits that ‘peace’ in Chapter VII refers to the organised use of force between two states. Accordingly, a civil war does not by itself constitute a breach of the peace, but can constitute a threat to international peace.

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the Articles 41 (imposition of sanctions) or 42 (action by air, sea or land forces as may be necessary) measures should be pursued. Threats to or breaches of the peace are, therefore, the primary vices UN Missions are expected to rectify (including through the use of force).5 ‘Peace’ plays a central role within this matrix and its contemporary meaning even encompasses the need to address the causes of Conflict.6 Securing these broad objectives thus require Missions to undertake a multiplicity of functions, amongst which is found the use of force.7 Given the scope of this Article, the ensuing analysis limits itself to such of these objectives that can be influenced by the medium of force. 2.2 Resort to Force Objectives Expanded: The Second Tier The primary objectives in pursuance of which the UN resorts to force can be expanded into a ‘sub tier’ with reference to mission–specific documentation. These include inter alia authorising resolutions, Secretary General’s reports, and reports prepared by the Department of Peacekeeping Operations and other relevant UN institutions. An analysis of these

5

6 7

John Yoo, ‘Force rules: UN Reform and Intervention’ (2006) 6 Chicago Journal of International Law 641. Refer also to Tim Bakken, ‘“Nations’” Use of Force Outside Self-Defence (2010) Georgetown Journal of Law and Public Policy 451 for doubts regarding the contemporary utility of the imminence criteria. United Nations Secretary-General, ‘An Agenda for Peace: Preventive Diplomacy and Related Matters’, UN Doc A/RES/47/120 (18 December 1992) 15. For a comprehensive analysis of the interdependence of these different functions within Missions, refer to Paul Diehl and Daniel Druckman, ‘Multiple Peacekeeping Missions: Analysing Interdependence’ (2018) 25(1) International Peacekeeping 28.

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secondary sources relevant to the UNEF I,8 ONUC,9 UNAMSIL10 and MONUC11 (each of which mark milestones in peace operation history) has been carried out elsewhere12 and reveals that this ‘sub tier’ comprises of the following objectives: 1. protecting civilians from imminent threats emanating from parties to the conflict (Category One), 2. providing security for humanitarian relief Missions (Category Two) and 3. supporting one party in its military operations against other parties (Category Three). 8

9

10

11

12

The UNEF I was the first UN Peacekeeping Mission properly so called, and personifies peacekeeping’s most unadulterated template. It was established by UNSC Resolution 1001 (GA Res 1001 (ES-1) (7 November 1956) in the aftermath of the events surrounding the closure of the Suez Canal by Egypt in 1958, and the objectives in pursuance of which it was authorised to use force are contained in the Summary Study that was conducted by the UN in 1958 (United Nations Secretary-General, Summary Study of the Experience Derived from the Establishment and Operation of the Force, UN Doc A/3943 (9 October 1958). ONUC was established by UNSC Resolution 143 (SC Res 143, UN Doc S/4387 (14 July 1960)) and provides an early example of resort to extensive levels of force by the UN. Set up to manage the chaos into which the Congo plunged upon gaining independence, the objectives in pursuance of which this Mission could use force were expanded incrementally by a number of Resolutions (Refer SC Res 143, UN Doc S/4387 (14 July 1960), SC Res 161, UN Doc S/4741 (21 February 1961) and SC Res 169, UN Doc S/5002 (24 November 1961). UNAMSIL got deployed into a civil war which was renowned for Rights violations and attacks on civilians. Established by UNSC Resolution 1270 (SC Res 1270, UN Doc S/RES/1270/1999 (22 October 1999)), the Mission introduced a novel dimension in relation to the UN’s use of force objectives; the Protection of Civilians (para 14) which has since functioned as a blueprint for almost all subsequent UN Missions. MONUSCO, was set up by UNSC Resolution 1925 (UNSC SC Res 1925, UN Doc S/ RES/1925 (2010) (28 May 2010)). Its use of force objectives provide at least two important watersheds: first it allows the UN to use force in support of operations being conducted by a government against armed groups (para 12 (h)) and second, by authorising the UN to conduct operations ex mero motu against identified armed groups (SC Res 2147, UN Doc S/RES/2014 (28 March 2014) (para 4(a))). MONUSCOs’ Force Intervention Brigade (FIB), which is authorised to carry out these targeted offensive operations, is a first in UN history. Refer for a comprehensive analysis of this issue to Charuka Ekanayake, ‘Closing the Gap Between Promises and Outcomes: How Moral Frameworks Contribute to the Realization of United Nations Deployment Objectives in Micheal Schwartz and Howard Harris (eds), Research in Ethical Issues in Organizations (Vol 23 Emerald 2020) 52–55.

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UN missions may also use force in self-defence; but this materialises because of deployment and is not a reason for deployment. This distinction technically takes self-defence out of the remit of the other ad bellum objectives but this Article argues against such a division. This is due to how the use of force effect is gauged for UN uses of force – being analysed not on a piecemeal basis per uses of force that are clustered per objective – but rather on a holistic one. Uses of force directed at each objective must work in concert and not damage the overall use of force effect achieved/ sought to be achieved by the mission. Categories One to Three therefore provide the justifications upon which the resort to force by the UN is premised and personify the Just Causes on which the corresponding ad bellum moral calculation is based. It is to the operationalization of this ad bellum morality that the discussion now turns. 3

The ad bellum Calculation – Ascertaining the Justness of Resort to Force through the Just War Theory

The morality of a particular resort to force can be deduced through a number of theories. This Article utilizes for this purpose the most popular of these: the Just War theory. The Just War theory is comprised of six elements; Just Cause, Right Authority, Right Intention, Reasonable Hope of Success, Last Resort and Proportionality.13 These elements can be divided into two further categories; the deontological (Just Cause, Right Authority, Right Intention and Last Resort) and the consequentialist (Reasonable Hope of Success and Proportionality). The ‘paradigm Just Cause’ for warfare is the defence of aggression or self-defence.14 A comparison between this ‘paradigm Just Cause’ and the aforementioned sub tier objectives in pursuance of which the UN resorts to force reveals the following: 1. Category One objectives pursued by UN forces defend individuals. However, those defended here are not the defender’s own citizens and the argument henceforth differs from one that premises resort to force on defending one’s nationals.

13 14

Thomas Hurka, ‘Proportionality in the Morality of War’ (2005) 33(1) Philosophy and Public Affairs 34. Joseph C McKenna, ‘Ethics and War: A Catholic View’ (1960) 54 American Political Review 651.

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2.

Category Two objectives defend personnel belonging to the UN or who are closely aligned with it. Both the defenders and those defended share a common link in this case – the UN (and consequently the peace process) – which gives them the appearance of belonging to one polity. The nature of this link is however different to that (often nationality) on which self-defence posits itself, thus changing the underlying conceptual dynamic. 3. Category Three attempts to neutralise threats, but these threats only threaten the peace process and by extension, the Mission mandate. In other words, it is the target’s relationship with the peace process that here justifies their being targeted and targetability does not emanate from the ‘existential enmity’ that is found in warfare. The Just Causes in pursuance of which the UN resorts to force are thus clearly distinguishable from that relevant to traditional warfare. This distinction emanates from the nature of each activity and – as will be noted – entails far reaching implications. A resort to force must also satisfy the Right Intention component of the calculus and this can either be defined in a subjective (absence of harmful motives whose presence will render any war unjust)15 or objective (focusing on the objects that the resort to force is intended to achieve) sense.16 The objective formulation, which this article utilises, focuses on the wrongs whose rectification the war seeks and consequently limits Right Intention to an intention that pursues this purpose. Where therefore, the former differs (as between warfare and UN uses of force), so also does the latter. The other Just War conditions – Reasonable Hope of Success, and Proportionality – deal with the consequential aspects of the resort to force. The Proportionality calculation requires the relevant goods and harms to be identified correctly and weighed, but neither of these components would have materialised as at the time of carrying out the assessment. What the decision-maker is equipped with, therefore, are expected goods and expected harms. In the case of goods, their defining characteristic lay in a nexus to the cause pursued by the activity and this is where Hurka’s division of sufficient (those causes that, by themselves, justify the resort 15 16

‘Augustine (354–430): Just War in the Service of Peace’ in Gregory Reichberg et al (eds and trans) The Ethics of War: Classic and Contemporary Readings (Blackwell Publishing 2006) 73. Thomas Aquinas, ‘Summa Theologiae Iiaiiae 40: On War, in R.W. Dyson (ed) (CUP 2002) 239–247.

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to force) and contributing (those causes that, by themselves, do not give such permission) causes becomes pertinent. Hurka thus suggests that the goods to be included in the Proportionality equation can reside in both these types of causes.17 In the case of UN uses of force, these goods reside in the three categories of objectives identified above. Unlike in warfare though, neutralisation under Category Three for the UN does not require the complete annihilation of all combatants and is limited to neutralising their ability to interfere with the peace process (as built into the mission mandate). The other side of the Proportionality equation comprises the harms assessment. Harms in the case of UN uses of force first include permitting the continuation of the vices the mission is required to neutralise. As these are the flip side of the objectives pursued by the UN when resorting to force and because these objectives differ from those on which warfare is premised, this first element of the Harms component becomes easily distinguishable from that relevant to warfare. The harms component also comprises a second element: consequential harms. These are comprised of eventualities that materialise because of the resort to force and include the disenfranchisement of the local population; collateral loss of civilian lives and the elimination of soft-core elements of the targeted groups who could otherwise have been rehabilitated. These considerations either do not, or only minimally, feature in the Proportionality calculation relevant to warfare. The relevance of elements such as Proportionality and Right Intention are, however, not limited to the ad bellum side of the moral calculus. Their very nature affects how force should be used and thereby allows them to cross the ad bellum–in bello divide. Coates puts the symbiotic nature of this relationship lucidly: ‘Since the means are the end in the making, a just end cannot be advanced by unjust means.’18 In other words, once the ad bellum requirements are favourably satisfied, all subsequent uses of force must materialise within the overarching parameters they set and be limited to the propagation of these specific Just Cause/s. Where this is not acknowledged, what is waged becomes different to what was authorised to be waged. It is with this realisation that the article now moves to the in bello question. 17 18

Hurka (n 13) 34. Anthony Coates, ‘Is the Independent Application of Jus in Bello the Way to Limit War?’ in David Rodin and Henry Shue (eds), Just and Unjust Warriors: The Moral and Legal Status of Soldiers (OUP 2008) 181.

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The Morality of Use of Force by the UN

The moral paradigm also considers how force is used on the battlefield, an analysis that usually focuses on identifying a central premise around which the framework revolves.19 Some of the premises so suggested include the moral liability of combatants, the immunity of non-combatants from attack and consent. This article refers to these premises as ‘pressure points’ (PPs) and, in the remainder of this section, analyses both their original form and how same becomes personalised to UN uses of force. The pressure points theory accepts that multiple PPs may be present within a given factual matrix at a given time and this sets it apart from approaches that pivot the calculus on a single PP. Depending on the circumstances, one or more of these PPs may attain operative status over the others (for example, the Liability PP where force is used on a combatant). Yet other situations may allow multiple PPs to attain operative status and this gives rise to conflicts between PPs (for example, where use of force on a legitimate target causes collateral damage). These conflicts – as will be noted – are resolved by reference to conflict resolution mechanisms that themselves function within the moral framework. The discussion on the moral liability of combatants has a long history but was cogently rephrased by Michael Walzer in what is known as the ‘symmetry thesis’.20 The symmetry thesis (also called the Moral Equivalence of Combatants (MEC)) pivots around a default position that prohibits murder. According to Walzer, combatants are, by their nature, ‘dangerous men’ and their very existence represents an existential threat to the opponent. Their relationship towards one another is thus completely dictated by the nature of that which subsists between the political units to which they belong. This in turn makes combatants on both sides (the just and the unjust) equally liable to attack.21 In its converse, the theory 19

20 21

Jeff McMahan, ‘The Morality of War and the Law of War’ in David Rodin and Henry Shue (eds), Just and Unjust Warriors: The Moral and Legal Status of Soldiers (OUP 2008) 19; Michael Walzer, Just and Unjust Wars, (4th edn, Basic Books 2006) Chapter 9; Tamar Meisels, ‘In Defense of the Defenseless: The Morality of the Laws of War’ (2012) 60 Political Studies 919. Refer also to Richard Norman, Ethics, Killing and War (CUP 1995) 159. Michael Walzer, Just and Unjust Wars, (1st edn, Basic Books, 1977) 144. Refer for an analysis of the historical development of the moral equality theory and of opposition thereto; Gregory Reichberg, ‘The Moral Equality of Belligerents – A Doctrine in Classical Just War Theory? A Response to Graham Parsons’ (2013) 12(2) Journal of Military Ethics 181.

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also explains why non-combatants retain their immunity i.e. they are not trained to (and cannot) fight. The symmetry thesis has attracted a number of criticisms.22 The most radical (and perhaps most pertinent for this article) of these has been levelled by Jeff McMahan in a series of essays23 wherein it was submitted that the criterion for liability in war should be moral responsibility for posing an unjust threat (and not for posing a mere threat). This means that even though just combatants are justified in killing unjust combatants, the latter cannot ever legitimately kill the former. When extended, the argument permits the killing of liable non-combatants belonging to the unjust side and allows innocent combatants on the just side to be protected. The call made by this approach to ascertain both the existence of the threat and its justness may well be unrealistic in the case of war. It nonetheless does take cognisance of a number of realities that contribute centrally to our understanding of use of force. One of these relates to how this asymmetry theory opens the door to realising that there are different levels of moral culpability (and therefore liability) even among individuals who belong to the same general category.24 For instance (according to McMahan) non-combatants such as politicians and other civilians who encourage an unjust cause attain a degree of moral blame that legitimises their being targeted. This is readily apparent in the real world: politicians, priests, lecturers and activists often engage in inciting war (whether just or unjust) and their contribution to the war thus makes them more liable than some of the truly ‘innocent’ categories of unjust combatants (such as coerced fighters). If there are non-liable unjust combatants though, there must also be ‘liable unjust combatants’.25 And if (as is accepted) there must be a fit between conduct and liability,26 both these categories of combatants cannot be subject to the same fate. What really determines moral liability therefore is not the type of threat (just or unjust) but the degree of that threat as informed inter alia by combat ability and motive. Formulated 22 23 24 25 26

Refer among others CAJ Coady, ‘The Leaders and the Led: Problems of Just War Theory’ (1980) 23(3) Inquiry 275, 278–279. Jeff McMahan, ‘The Ethics of Killing in War’ (2004) 114(4) Ethics 693 (‘Killing in War’) and Jeff McMahan, Killing in War (OUP 2009). McMahan (2004) (ibid) at 159–173. Ibid 159–173. Seth Lazar, ‘Just War Theory: Revisionists versus Traditionalists’ (2017) 20 Annual Review of Political Science 37, 43.

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thus, the moral calculus determines the ceiling on the morally justifiable amount of force that can be used with reference to how seriously the target threatens the objectives of (UN) deployment. UN forces are, therefore, morally estopped from maintaining a completely exterminatory attitude towards their use of force. Unless this is acknowledged, UN uses of force can readily contribute to consequential harms such as disenfranchising local populations and negating the possibility of reforming soft-core elements belonging to armed groups.27 The symmetry thesis also confers an immunity on non-combatants and this is based on their inability to fight. This may be compared with the more exacting position towards immunity that is canvassed by Miesels who bases same on the defence of the defenceless.28 But it must here be noted that there does not exist in warfare, a moral obligation to take affirmative action in either the defence or protection of civilians. What there is, in the case of war, is an obligation to desist from intentionally targeting civilians. This may be compared with the corresponding position for UN use of force which is elaborated in the Brahimi report as follows: Whether or not an obligation to protect civilians is explicit in the mandate of a peacekeeping operation, the Rwandan genocide shows that the United Nations must be prepared to respond to the perception and the expectation of protection created by its very presence.29 The fact that this stance now forms part of mainstream UN thinking is reflected in the text of the Report of the High-level Independent Panel on Peace Operations (HIPPO Report) which provides that peacekeeping principles ‘should never be used as an excuse for failure to protect civilians’.30 The nature of the moral parameter by which UN forces are guided 27 28 29

30

Daniel Levine, The Morality of Peacekeeping (EUP 2014) 44. Meisels (n 19). ‘Report of the Panel on United Nations Peace Operations’ para 62, attached to UN Secretary-General, Identical letters Dated 21 August 2000 from the Secretary-General to the President of the General Assembly and the President of the Security Council, UN Doc A/55/305–S/2000/809 (21 August 2000). High-Level Independent Panel on Peace Operations, Comprehensive Review of the Whole Question of Peacekeeping Operations in All Their Respects, attached to UN Secretary-General, Identical Letters Dated 17 June 2015 from the Secretary-General Addressed to the President of the General Assembly and the President of the Security Council, UN Doc A/70/95 – S/2015/446 (17 June 2015) para 122.

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in these situations thus changes from the negative to the positive; from a duty to desist to a duty to prevent and protect. UN troops can therefore no longer be content with merely ensuring that their actions do not harm civilians and are morally bound to go further, and ensure the physical protection of civilians. The content of the in bello morality of UN forces can thus be summarised as follows: 1. The liability PP as informed by factors such as physical threat, the mental attitude of the combatant, the nature of the relevant conduct, the possibility of re-integration and the latent threat that the combatant poses to the peace process; 2. The immunity PP as informed by factors such as the expectations of protection that deployment creates in civilians and the moral duty to take action created by the PoC component of the ad bellum calculus (the possibility of securing the greatest possible cooperation with or participation in the underlying process, can be linked to this) and 3. The consent PP which takes account of how troops consent to accept a degree of risk in functioning as an enforcer of UN policy and the related force protection responsibility owed by the UN as an employer. The facts underpinning most uses of force permit these PPs to function independently. As noted above, however, other situations may yet be factually designed in ways that bring one PP into conflict with another PP. Attacks on military objectives that cause collateral civilian casualties exemplify this category best. While the liability PP here justifies the combatants being eliminated, the immunity PP insists that non-combatants not be harmed. The PPs are thus in conflict and this requires one PP to be given precedence over the other(s). Such conflicts can only be resolved through a conflict resolution mechanism that identifies which PP prevails and the extent of this prevalence. The doctrine of double effect (DDE), on which the moral justification for the IHL ‘Proportionality’ rule is based, is one such mechanism. The DDE comprises of the following elements: 1. The act is good in itself or at least indifferent, which means, that it is a legitimate act of war, 2. The direct effect is morally acceptable,

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3. The intention of the actor is good, that is, he/she aims only at the acceptable effect, the Harm is not one of his/her ends, nor is it a means to his/her ends and 4. The good effect is sufficiently good to compensate for allowing the Harmful effect i.e. must be justifiable under Sidgwick’s Proportionality rule.31 The DDE thus allows an act that is directed at good effects to be morally justified even where it causes harmful consequences. Note however that, even in the case of war, doubts have been expressed on whether the DDE is or should be the correct moral basis of Proportionality. These doubts find their source in how civilians retain more extensive rights against being killed than combatants.32 Walzer thus notes in relation to this point that; Civilians have a right for something more. And if saving civilian lives means risking soldiers’ lives, then the risk must be accepted. But there is a limit to the risk we require […] We can only ask soldiers to minimise the dangers they pose.33 Walzer himself appears however to wonder whether this last argument is practical, and thus concludes that civilians only have a right ‘that due care be taken’.34 Whether an attack satisfies the DDE thus becomes dependent on the belligerent having made sufficient efforts to minimise the effects thereof on civilians, efforts that would possibly entail greater risk to combatants. Directly relevant to the in bello morality of the UN on this point are Tripodi’s views, which provide that peacekeepers must be willing to accept higher degrees of risk when making this calculation – an acceptance that is necessitated by how they fall beyond the ‘warrior ethos’ to which normal combatants belong.35 Where Proportionality draws the balance between military advantage, the degree of risk one must undertake and the level of collateral damage that is acceptable on the moral plain is thus determined by the nature of the activity. Where this balance 31 32 33 34 35

Walzer (n 19) 153. Refer to David Luban, ‘Risk Taking and Force Protection’ in Yitzhk Benbaji and Naomi Sussman (eds), Reading Walzer (Routledge 2013) 277. Michael Walzer, Just and Unjust Wars (Basic Books 2000) 155–156. Ibid, 155. Walzer incorporates ‘due care’ into the third condition of the DDE. Paolo Tripodi, ‘Peacekeepers, Moral Autonomy and the Use of Force’ (2006) 5(3) Journal of Military Ethics 214, 229.

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is found for UN uses of force is certainly not where it lies for traditional warfare. The content of these moral considerations as personalised to UN uses of force can thus clearly be distinguished from the parallel considerations relevant to warfare. The liability PP for war does (can) not take account of the degree of the threat posed by a target. The immunity PP relevant to war can (does) not likewise be cognisant of possible proactive duties in favour of civilians. The DDE would similarly require that UN forces – due to their departure from the ‘warrior ethos’- accept a greater degree of risk than troops engaged in traditional warfare. These delicate differences entail far reaching consequences, and make what is morally acceptable for warfare blatantly unacceptable for UN uses of force. The intricacies highlighted thus far manufacture subtleties towards which the legal framework relevant to UN uses of force must also be sensitive. As enumerated above, UN use of force objectives differ from those pursued by warfare. These objectives influence the ad bellum calculation relevant to the UN and the components so influenced also impact the content of the corresponding in bello framework. It is only where the applicable legal provisions accommodate and reflect the intricacies of this in bello morality, that conduct regulation will contribute to the realisation of UN deployment objectives. The said objectives of course become readily frustrated where this does not happen. The remainder of this article assesses the content of specific IHL rules that operationalize the principle of distinction and attempts to identify which side of this divide they fall. 5

International Humanitarian Law

All IHL rules can be traced back to one or more of its four basic principles – military necessity, humanity, distinction, and proportionality. Military necessity and humanity form the basis of IHLs targeting rules but it is important to note that neither principle has risen to the status of a positive rule of law. They are therefore incapable of altering the substantive content of IHL rules36 and only set the broad parameters within which

36

Nils Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (ICRC 2009) 79.

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hostilities fall to be regulated.37 In light of the focus of this Article, this Part limits its analysis to those IHL rules that operationalize the principle of Distinction.38 Before identifying the customary content of a given rule however, the analysis considers the corresponding treaty rule, the relevant formulation suggested by the ICRC customary study and relevant academic literature. Note however that IHL becomes applicable to the UN only where its troops use force with a belligerent intent.39 5.1 Distinction: Combatants and Civilians The principle of Distinction emanates from one of the most fundamental premises that underlie the use of force which enumerates that the only legitimate object which states should endeavour to accomplish during war is to weaken the military forces of the enemy.40 This ‘weakening’ of enemy forces could be achieved in relation to both human and material resources. The basic rule therefore requires belligerents to distinguish between those goals that contribute to this objective and those that do not. Thus, according to the first Additional Protocol to the Geneva Conventions (AP 1):

37 38

39

40

34 Michael N Schmitt, ‘Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance’ (2010) 50 Virginia Journal of International Law 796, 801. There are other IHL rules that deal with precautions, whether in relation to target verification, selecting means and methods of warfare, assessing the effects of attacks, or target selection, and yet others that apply to particular targets such as cultural property, works and installations containing dangerous forces (that dictate how these installations enjoy special protection), and the natural environment. These rules will not feature in this discussion. Note in this regard that United Nations Secretary-General, ‘Bulletin’ (n 2) para 1.1 attempts to limit the application of IHL to UN troops to ‘when in situations of armed conflict they are actively engaged therein as combatants’. But this position runs counter to the general status based legal notion of combatancy as well as its moral counterpart). It is now accepted that UN troops lose protection for the duration of the conflict and not of the engagement. Refer also Convention on the Safety of United Nations and Associated Personnel, UN GAOR, 49th session, UN Doc S/ RES/49/59 (17 February 1995) Art 2(2); and Scott Sheeran & Stephanie Chase, The Intervention Brigade: Legal Issues for the UN in the Democratic Republic of the Congo (IPI 2004) 6–8. Declaration Renouncing the Use, in Time of War, of Explosive Projectiles under 400 Grammes Weight (Saint Petersburg, 29 November 1868–11 December 1868).

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parties to the conflict must at all times distinguish between the civilian population and combatants and between civilian objects and military objectives.41 The human element of the rule is then enumerated in Article 51(2) of AP 1 as follows: The civilian population as such, as well as individual civilians, shall not be the object of attack.42 This is repeated in verbatim in Article 13 (2) of the second Additional Protocol (AP II). The ICRC pronounces the corresponding customary IHL position as follows: the parties to the conflict must at all times distinguish between civilians and combatants. Attacks may only be directed against combatants. Attacks must not be directed against civilians.43 The Bulletin formulates the rule (in relevant part) in similar terms: The United Nations force shall make a clear distinction at all times between civilians and combatants and between civilian objects and military objectives. Military operations shall be directed only against combatants and military objectives. Attacks on civilians or civilian objects are prohibited.44 Prof. Dinstein describes the principle of Distinction as a ‘fundamental and intransgressible principle of customary international law’45 that applies to both IACs and NIACs. Distinction can however operationalize only when the categories of persons it distinguishes are accurately identified. 41 42 43 44 45

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, Art 48. Ibid Art 51(2). Jean- Marie Henckearts & Louise Doswald-Beck, Customary International Humanitarian Law (CUP 2005) Rule 1. United Nations Secretary-General, ‘Bulletin’ (n 36) para 5.1. Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (CUP 2004) 82.

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5.1.1 Definition of Civilians Civilians are defined in treaty as well as customary law through ‘negative delimitation’. It must however be noted at the outset that State reluctance to recognise a ‘combatant status’ in NIACs46 gives rise to differences in how the term is defined in each type of conflict. This section will first analyse the position obtaining in IACs. 5.1.1.1 ‘Civilian’ in IACs According to AP I, ‘A civilian is any person who does not belong to one of the categories of persons referred to in Article 4A (1), (2), (3) and (6) of the Third Convention and in Article 43 of this Protocol.’47 Article 43 of AP I provides as follows: The armed forces of a party to the conflict consist of all organised armed forces, groups and units which are under a command responsible for that party for the conduct of its subordinates, even if that party is represented by a government or an authority not recognised by an adverse party. Such armed forces shall be subject to an internal disciplinary system which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict. The other broad category of individuals that qualify as combatants according to Article 50 (1) of AP I are those referred to in Article 4A of the third Geneva Convention (GC III). The said provision confers prisoner of war status on members of the armed forces of a party to the conflict and of militias or volunteer corps, members of other militias where certain conditions are satisfied and on members of regular armed forces who profess allegiance to a government or an authority not recognised by the detaining power.’48 Even though the two provisions utilise distinct phraseology, the Commentary to the Protocols explains that the respective ambits of Articles 4A and 43 completely overlap: 46 47 48

W.A. Solf, ‘Problems with the Application of Norms Governing Interstate Armed Conflict to Non-International Armed Conflict’ (1983) 13 Georgia Journal of International & Comparative Law 291, 292. Additional Protocol 1 (n 41), Art 50(1). This provision, stricto sensu, applies to Prisoner of War (POW) status which is taken to be concomitant to combatant status in IACs.

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Paragraph 1 also refers to Article 43 of the Protocol (Armed Forces), which contains a new definition of armed forces covering the different categories of the above-mentioned Article 4 of the Third Convention.49 Perhaps due to this overlap, the ICRC study defines armed forces with reference only to the command condition: The armed forces of a party to the conflict shall consist of all armed forces, groups and units which are under a command responsible to the party for the conduct of its subordinates.50 According to the ICRC, the last-mentioned definition has attained customary status in international armed conflicts (IACs) and may also apply to non-international armed conflicts (NIACs).51 The ICRC cites numerous military manuals52 and official statements53 in support of the customary status of the rule in relation to IACs. Note also that members of armed forces automatically qualify as military objectives within the meaning of Article 52 AP I,54 which consequently entails their status-based liability to be targeted at any time. Since AP I and Rule 4 employ identical definitions towards ‘armed forces’, the two instruments also confer civilian status during IACs on identical classes of persons. In addition to the fact that no reservations were made to the relevant AP I provision defining ‘civilian’ (i.e. Article 50) at adoption,55 the ICRC notes that numerous military manuals56 and instances of state practice57 reflect the said definition. It thus concludes 49 50

51 52 53 54 55 56 57

Yves Sandoz et al, Commentary on the Additional Protocol of 8 June 1977 to the Geneva Conventions of 12 August 1949 (ICRC 1987), para 1916. Henckearts (n 43) Rule 4. This exclusive emphasis that the ICRC places on the first condition warrants further attention. It must be noted in this regard that the requirement imposed by Art 43 regarding the existence of a disciplinary system is largely, if not completely, conditional on the existence of the command structure that is referred to in its first condition. Refer also Michael Bothe et al, New Rules for Victims of Armed Conflicts (Martinus Nijhoff, 1982) 238, 239. Henckearts (n 43) 14. Henckearts (n 43) 14. Henckearts (n 43) 14. Sandoz (n 49) para 2017. Henckearts (n 43) 18. Henckearts (n 43) 18. Henckearts (n 43) 18.

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the same to have attained customary status in IACs.58 The ICRC formulates its rule in the following terms: Civilians are persons who are not members of the armed forces. The civilian population comprises all persons who are civilians.59 Note however that civilians lose this protection for so long as they directly participate in hostilities during an IAC. The ambit of the notion of direct participation in hostilities will be discussed in detail shortly. 5.1.1.2 ‘Civilian’ in NIACs The customary position that obtains in relation to civilian status in IACs may be compared with that applicable to NIACs. Common Article 3 of the Geneva Conventions (which has also attained customary status)60 – which limits the scope of protection to ‘Persons not taking an active part in hostilities, including members of armed forces who have laid down their arms and those placed hors de combat’ - provides a convenient starting point to this discussion.61 Whether protection is provided or withheld during a NIAC therefore depends on whether an individual is ‘taking an active part in hostilities’.62 The question of direct participation in hostilities (DPH) has been the subject of extensive debate.63 A significant portion of this dialogue is occupied by the ICRC Interpretive Guidance on the Direct Participa58 59 60 61 62

63

Henckearts (n 43) 18. Henckearts (n 43) Rule 5. Henckearts (n 43) XXXVI. International Committee of the Red Cross,  Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention) [1949] 75 UNTS 135 Art 3. Even though the English texts of the GCs and APs, respectively, use the terms ‘active’ and ‘direct’, the French text of these documents consistently use the term ‘participant directement’. Refer Sandoz (n 49) para 4787. The nature of the participation, by virtue of which CA 3 justifies loss of protection, can thus be described as ‘direct’; Prosecutor v Akayesu (Judgment) ICTR-96–4-T, T Ch I (2 September 1998, 157. (2010) 42(3) New York University Journal of International Law and Politics. For helpful discussions, refer to W Hays Parks, ‘Part IX of the ICRC “Direct Participation in Hostilities” Study: No mandate, no expertise and legally incorrect’ (2010) 42(3) New York University Journal of International Law and Policy 769; William Bothby, ‘Direct Participation in Hostilities: A Discussion of the ICRC Interpretive Guidance’ (2010) 1 Journal of International Humanitarian Legal Studies 143; Yoram Dinstein, ‘Direct Participation in Hostilities’ (2013) 18 (1) Tilburg Law Review 3.

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tion in Hostilities. The discussion in the Guidance on loss of protection proceeds along three categories of persons i.e. members of state armed forces (who lose protection for the duration of their enlistment);64 members of Organised Armed Groups (OAGs) (who lose protection until such time as they perform a Continuous Combat Function (CCF))65 and civilians (who lose protection for such time as, they take a direct part in hostilities). According to Recommendation II, OAGs ‘constitute the armed forces of a non-state party to the conflict and consist only of individuals whose CCF it is to take a direct part in hostilities.66 The Guidance further provides that ‘all persons who are not members of state armed forces or organized armed groups of a party to the conflict’ are considered civilians during NIACs. But the Guidance defines membership in an OAG in terms of CCF and because CCF in turn depends on DPH, defining DPH narrowly has the effect of limiting the ambit of that class of persons who are members of an OAG. By doing this, the Guidance collates the question of DPH with that of membership in an OAG. It must thus be noted as a preliminary point that such a collation does not contribute to resolving the issue under reference and only expands the class of persons that the Guidance identifies as ‘civilians’ from the perspective of OAGs. This manufactures serious disparities between the ambits of targetability applicable to members of state and non-state forces,67 and undermines the IHL principle of equal application. The Guidance interprets DPH with reference to three cumulative criteria: a. threshold of harm i.e. whether the act can affect the military operations or capacity of the enemy adversely (the ‘first threshold component’) or harm protected persons or objects (the ‘second threshold component’). The basis of targetability (as well as of immunity therefrom) therefore lay in a nexus that must exist between the act in question and the overall objectives pursued by the belligerent, which includes (as enumerated in the St. Petersburg Declaration)68 the weakening of the enemy. Targeting civilians for instance, will satisfy this threshold only where so doing is an overall (albeit illegal) goal pursued by the party using force and where same con64 65 66 67 68

Melzer (n 36) 69. This term is first introduced in the Guidance. Melzer (n 36) at Recommendation 2. Bill Bothby, ‘And for Such Time As: The Time Dimension to Direct Participation in Hostilities’ (2010) 42 (3) New York University Journal of Law and Politics 757. St. Petersburg Declaration (n 40).

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tributes to that overall military strategy.69 Purely personal attacks (which often take place where law and order breaks down) that are not perpetrated in pursuance of such goals thus do not satisfy the harm threshold, and civilians engaged in such conduct escape legal targetability. In 2012, a group of United Nations Operation in Cote d’ Ivoire (UNOCI) troops refused to open fire on an armed mob that was attacking a camp housing Internally Displaced Persons for exactly this reason.70 b. Causation i.e. the relevant act must be designed to cause the intended harm. The Guidance requires in this regard that harm be caused in one causal step.71 c. Belligerent nexus i.e. the act must be specifically designed to directly cause the required harm in support of a party to the conflict and to the detriment of another. The act need not be intended to have these effects; it is sufficient that it is so designed. The Guidance sheds much-needed light on an exceedingly complicated issue. It does however also create a number of difficulties. The ‘one causal step criterion’ for example, cannot reflect ground realities all the time. Acts such as intelligence gathering – which do not convert into harm in one causal step – invariably cause damage to opponents. Similarly, certain acts such as fortifying defences, can be supportive of one party and not be immediately detrimental to the other. The Guidance also permits a civilian to move back and forth through the ‘revolving door’ of targetability on a recurring basis. This theoretically proscribes the targeting of the individual during the intervals between two acts of direct participation.72 But opinion is far from settled in this regard; the Inter-American Commission on Human Rights for instance, comments on direct participation as follows: It is possible in this connection, however, that once a person qualifies as a combatant, whether regular or irregular, privileged or un-

69 70 71 72

Michael N Schmitt, ‘Deconstructing Direct Participation in Hostilities: The Constitutive Elements’ (2010) 42 (3) New York University Journal of Law and Politics 697, 724. Inner City News, ‘UN Peacekeepers Inaction on IDP Killings in Cote d’ Ivoire Due to DPKO Rules?’ (2012.10.22). The act need not be indispensable for the infliction of the harm nor should there be a temporal nor geographic nexus between the two; Melzer (n 36) at 53, 55. Melzer (n 36) at 70.

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privileged, he or she cannot revert back to civilian status or otherwise alternate between combatant and civilian status.73 In light of these concerns, this article submits that the utility of the Guidance in relation to DPH is limited to its compartmentalisation of the principle’s composite elements and that the specific interpretations provided therein are less than helpful. How non-combatant status should be deduced during NIACs therefore survives the Guidance. Even though loss of protection by virtue of direct participation has attained customary status in both IACs and NIACs, the content of DPH has not been sufficiently developed in state practice.74 State practice and relevant jurisprudence do however follow a familiar pattern; they first prescribe the rule, then provide examples and encourage the resolution of the matter on a case-by-case basis.75 While this does not provide a complete solution, it leads to the realisation that there is (in customary law applicable to NIACs) a core group of activities such as firing weapons,76 attacking the adversary’s personnel or facilities,77 sabotage78 and intelligence gathering,79 which automatically qualify as DPH. Also relevant to the issue under consideration is the customary emphasis placed on the relationship between the act and its consequences80 which can act 73 74 75

76 77 78 79 80

70 Inter-American Commission on Human Rights, Report on Terrorism and Human Rights, (OEA/Ser.L/V/II.116, Doc 5 rev 1 corr, 22 Oct. 2002) 69. Schmitt (n 69) at 705. For instance, refer to US Navy, The Commander’s Handbook on the Law of Naval Operations (US Marine Corps &US Coast Guard, 2007) Doc NWP 1–14M/MCWP 5–12.1/COMDTPUB P5600.7A, chap 8.2.2: Unlawful combatants who are not members of forces or parties declared hostile but who are taking a direct part in hostilities may be attacked while they are taking a direct part in hostilities, unless they are hors de combat. Direct participation in hostilities must be judged on a case-by-case basis. Some examples include taking up arms or otherwise trying to kill, injure, or capture enemy personnel or destroy enemy property. Also civilians serving as lookouts or guards, or intelligence agents for military forces may be considered to be directly participating in hostilities. Combatants in the field must make an honest determination as to whether a particular person is or is not taking a direct part in hostilities based on the person’s behaviour, location, attire, and other information available at the time. Refer to Henckaerts (n 43) 22 for further citations of this approach. Prosecutor v Tadić (Opinion and Judgment) IT-94–1-T (7 May 1997), 616. International Institute of Humanitarian Law, The Manual on the Law of Non – International Armed Conflict with Commentary (2006) 4. Ibid, at 4. Prosecutor v Strugar (Judgment) IT-01- 42-A, (17 July 2008), 177. Henckearts (n 43) 1679.

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as a critical indicator when identifying direct forms of participation. This overarching parameter must however – in identifying acts that qualify as DPH – draw from the object of war (the weakening of the enemy) with which this discussion commenced. Moreover, military practice requires that the issue of direct participation be approached and resolved in good faith81 with the duty to do everything feasible to verify targets, having now attained customary status in both IACs and NIACs.82 This discussion is also informed by the important distinction that persists between individuals directing participating on an ad hoc basis and those doing so on a regular basis. Intensity of participation in hostilities thus lies on a spectrum. Such an approach is crucial to understanding how the intervals between two acts of participation decrease as one moves from the minimal to the maximum intensities of participation on this scale and to deciding what should happen during these intervals. The targeted killings judgment83 decides in this regard that individuals who participate beyond an ad hoc basis could be targeted at any time84 and subjects them to a status akin to that of enlisted members of OAGs (and indeed of state armed forces). The difference between this class of individuals and civilians directly participating in hostilities on an ad hoc basis in fact resides in how the former remains constantly subject to the command of the OAG, whereas the latter are subject thereto only for the duration of the engagement. The point at which the temporal sphere of targetability so changes is a question of fact that must be determined on a case by case basis. All civilians who directly participate always act under some form of command. This section therefore argues that the command criterion should be utilised as the overarching indicator for targetability for civilians directly participating in hostilities, the respective temporal spheres of targetability being adjusted according to the regularity of participation. 5.1.2 Defining ‘Combatant’ in NIACs? The preceding analysis noted that the discussion on combatant status must start from Common Article 3. The said provision confers immunity on individuals not taking a direct (active) part in hostilities. It is accepted that this forms a customary rule and means, in the converse, 81 82 83 84

US Navy (n 75). Henckearts (n 43) Rule 16. Targeted Killings (HCJ 769/02 (11 December 2005). Ibid at para 39.

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that persons taking a direct part in hostilities become liable to attack. In NIACs, this latter class of persons comprises two categories i.e. civilians directly participating in hostilities and members of armed forces (this second class of persons was further divided into members of state armed forces (SAFs), dissident armed forces, and of OAGs above). While civilians directly participating become liable to be targeted for such time as they directly participate in the hostilities, members of armed forces are targetable for so long as they remain ‘members’ of the relevant force. Whether or not a customary definition of ‘membership’ exists in NIACs must therefore be considered in further detail. Two approaches to the issue can be identified. According to the first approach, customary law determines membership through the notion of command. Indeed, this is the conclusion at which Rule 4 of the customary study arrives in respect of SAFs in NIACs. This position is substantiated by Bothe et al., who argue that the armed groups referred to in Article 1(1) AP II inferentially recognise the essential conditions for armed forces as they apply in IACs.85 As noted earlier, the categories of people covered by Article 43 AP I and GC III overlap, and the only condition under which armed forces get constituted in IACs reside in the requirement for a force, group or unit to be under a ‘command responsible to the party for the conduct of its subordinates’.86Accordingly, those individuals that satisfy this condition can, at customary law, be considered as members of armed forces (whether state or otherwise). The second approach attempts to base membership on enlistment in the group. This was, in fact, how the issue was approached at the Diplomatic Conferences 1974-1977. According to the initial text, a civilian was ‘anyone who is not a member of the armed forces or of an organized armed group’.87 The participants, therefore, clearly envisaged that OAGs could also adhere to a realistic notion of ‘enlistment’. The International Criminal Tribunal for the Former Yugoslavia (ICTY) similarly notes that ‘for the purpose of […] the term “civilian” is defined negatively as anyone who is not a member of the armed forces or of an organised military group belonging to a party to the conflict’.88 Moreover, contrary to what 85 86 87 88

Bothe (n 47) at 672. Henckearts (n 43) Rule 4. Draft Art 25 of Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva (1974–1977) (Federal Political Department, 1978) Vol 15, 290. 85 Prosecutor v Galić (Judgment and Opinion) IT-98–29-T (5 December 2003), 47; Prosecutor v Kayishema and Ruzindana (Judgment) ICTR-95–1-T, 21 May 1999),179

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the ICRC Guidance suggests, many OAGs around the world (such as the New People’s Liberation Army (NPLA) and the Sudan People’s Liberation Movement (SPLM)), have published or unpublished rules on membership.89 In light of the foregoing, this article submits that enlistment should be used to deduce membership in an OAG at customary law. In addition to its customary credence, such an approach is also consistent with the principle of equal application of IHL because it sets a uniform targetability threshold for members of state as well as non-state armed groups. This is further buttressed by how it is sometimes difficult or impossible to identify functional command chains over protracted durations of time within most contemporary non-state armed groups. Moreover, enlistment is the only factor that can distinguish between a member of an OAG and a civilian who directly participates in hostilities. The crux of the IHL targeting rules thus far discussed can be summarised as follows: 1. IHL does not prescribe a ceiling on the amount of force that can be used on a military objective and permits any amount of force on a qualifying target provided the unnecessary suffering and superfluous injury rule is not violated. It also does not require a correlation between the amount of force so used and the threat level posed by a target; 2. IHL does not contain an escalation dimension in relation to the use of force, and; 3. The temporal targetability windows conferred by IHL differ according to how the target is classified. 5.1.3 Comparison with the Morality of UN Use of Force It now becomes necessary to assess the extent to which the IHL rules discussed above can accommodate or reflect the morality of UN uses of force. This assessment is premised on the core truism pertaining to the nature of use of force and to the rules that govern same i.e. the need for conduct engaged in a given activity (whether be warfare or UN uses of force) to contribute towards the realisation of the overarching goals pursued thereby.

89

and Prosecutor v Rutaganda (Judgment and Sentence) ICTR-96–3-T (6 December 1999) 100. NDFP, NDFP Human Rights Monitoring Committee Booklet No 6, 85 and 90 and SPLA ACT 2003, Chapter II.

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As noted above, the in bello morality of UN forces (which itself emanates from the objectives in pursuance of which the UN resorts to force) requires such troops to be cognisant of a number of factors when executing a response. Chief among these is the moral liability of the attacker which is comprised of both a physical as well as a mental element. The physical element is reflected by the attacker’s ability to cause harm to the UN (i.e. threat level posed) and this will depend on for instance, the type of attack, the type of weapons used and how well the attacker is trained. The mental element reflects how intent the attacker is on harming the UN, and this is particularly relevant when responding to those fighters who do not hold such an intent such as coerced combatants. Moreover, it is only where these fighters belong to a total spoiler, that the moral liability of even the leaders or hard-core members can be equated to that of a Schmittian enemy whose complete annihilation is justified. The IHL targeting regime permits any type of force (including lethal force) to be used on qualifying targets as long as the superfluous injury and unnecessary suffering rule (which is effectively the ceiling) is not violated. They therefore allow lethal force to be used – thus permitting the target’s complete annihilation if so desired – regardless of the threat level posed by the target or the mental attitude entertained by him/her. Crucially, the IHL targeting mechanism lacks a tool that allows the level of force used on the target to be calibrated to the degree of moral liability entertained by the target. Moreover, many forms of lethal force that are permitted by IHL can, and do, comfortably satisfy its superfluous injury and unnecessary suffering rule. In spite of being legal, their usage can thus easily result in ‘overkill’. Uses of force regulated by IHL thus have an unmistakeable potential to inflame negative opinion – within the civilian population, as well as within soft-core elements of OAGs – towards UN troops and the peace process they represent. Where this happens, UN actions in fact hinder the very efforts that they were required to safeguard and promote. Moreover, to use lethal force at the first instance is also to completely negate the possibility of reintegrating (at least some of) the targets with the underlying processes – a possibility that itself emanates from the level of moral liability entertained by the target. These limitations therefore seriously limit IHL’s ability to reflect the core attributes of the in bello morality of UN troops. The foregoing legal analysis also discussed how individual targets are divided into combatants and civilians directly participating in hostilities. The former is targetable by virtue of their status (accruing via membership) either (as appropriate) for the duration of the conflict or until delist-

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ing. The latter are targetable by virtue of a status acquired through direct participation (that is based on command). Crucially in the latter case, an individual only becomes targetable where his/her conduct relates to an overall objective that is being pursued by the relevant OAG. This would be the case, for instance, where civilians are attacked by other civilians directly participating in hostilities during a conflict. More importantly, nowhere does IHL impose a proactive duty to act in such instances. IHL also does not attribute a higher priority to this objective (neutralisation of the combatant or civilian DPH who attacks other civilians) and prescribes only the relevant permission (i.e. targetability). Any actions that are taken in this regard will thus merely constitute just another entry within the commanding officer’s list of objectives. This lack of priority runs counter to the in bello morality of UN forces which must take cognisance of the expectations of protection deployment creates within the populace. The position is even more disconcerting in relation to purely personal attacks that may be carried out by civilians on other civilians during times of anarchy. These acts cannot satisfy the harm threshold of the DPH calculus because they are not linked to the overall objective pursued by a party to the conflict – the attacker engaging therein does not participate directly in hostilities and remains a civilian (in fact continuing to be protected by IHL). This is exactly how the UNOCI troop conduct that was referred to above was explained, but again, clearly conflicts with the in bello morality of such troops. 5.2 Distinction: Objects 5.2.1 Civilian and Military Object(ive)s The responsibility to restrict military operations to targets that hold military value extends to objects as well. This discussion revolves around the term ‘military objective’, first defined in the 1923 Hague Rules on Air Warfare to mean ‘an object of which the destruction or injury would constitute a distinct military advantage to the belligerent’.90AP I elaborates on this definition, dictating that: (1) Civilian objects shall not be the object of attack or reprisals. Civilian objects are all objects which are not military objectives as defined in paragraph 2. 90

‘Hague Rules of Air Warfare’ (1922), reprinted in Dietrich Schindler et al, The Law of Armed Conflict (3rd ed, Martinus Nijhoff 1988) 207.

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(2) Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralisation, in the circumstances ruling at the time, offers a definite military advantage. The ICRC finds numerous instances of state practice applicable to IACs that reflect the requirement to limit attacks to military objectives, including military manuals,91 domestic legislation,92 and official statements.93 While the final text of AP II does not prescribe that attacks be limited only to military objectives, the ICRC points to numerous documents pertaining to NIACs, such as military manuals,94 pieces of domestic legislation95 and official statements,96 which reflect the rule. It therefore asserts that the requirement to limit attacks to military objectives has attained customary status in IACs as well as NIACs.97 The baseline customary rule suggested by the ICRC is; 7. The parties to the conflict must at all times distinguish between civilian objects and military objectives. Attacks may only be directed against military objectives. Attacks must not be directed against civilian objects.’ The customary study then defines military objectives in terms identical to those contained in AP I98 limiting them to objects 1. which by their nature, location, purpose or use make an effective contribution to military action; and 2. whose partial or total destruction, capture, or neutralization, in the circumstances ruling at the time, offers a definite military advantage.

91 92 93 94 95 96 97 98

Henckearts (n 43) 26. Henckearts (n 43) 26. Henckearts (n 43) 26. Henckearts (n 43) 28. Henckearts (n 43) 28. Henckearts (n 43) 28. Henckearts (n 43) 25. Henckearts (n 43) Rule 8.

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The customary status of this definition of military objectives as relevant to IACs is supported by its inclusion in military manuals,99 official statements that are relevant to IACs,100 and the large number of states that have ratified Article 52(2) of AP I. The ICRC also finds no state practice that contravenes the aforementioned definition as applicable to NIACs101 and cites numerous military manuals,102 pieces of domestic legislation,103 and official statements104 in support of its customary status. The Bulletin incorporates the duty to direct attacks against military objectives without defining the term.105 The term ‘military objective’ has not gone unnoticed by academic circles either106 and within this debate, Hampson even recognises the possibility of redefining the term.107 Acknowledging this possibility is especially relevant to the present discussion and that such an approach is not only preferable, but also strategically necessary, is reflected in recent NATO practice108 which seeks to limit the ambit of tactical options that are available to NATO forces in areas of activity including Close Air Support, Air to Ground Missiles and Indirect Fires, to a level that is well below what is permitted by IHL. A closer analysis of the constituent elements of the term indicates why such a redefinition may sometimes be justified for Operations Other Than War (OOTW). That analysis must commence from the cumulative nature of the ‘effective contribution’ and ‘definite military advantage’

99 100 101 102 103 104 105 106

107 108

Henckearts (n 43) 30. Henckearts (n 43) 30. Henckearts (n 43) 31. Henckearts, (n 43) 31. Henckearts (n 43) 31. Henckearts (n 43) 31. Bulletin (n 39) 5.2. For a helpful analysis of the topic, refer to Agieska Jachec – Neale, The Concept of Military Objectives in International and Targeting Practice (Routledge 2014). See W Hays Parks, ‘Air War and the Laws of War’ (1990) 1 Air Force Law Review 32 and Judith G. Gardam, ‘Proportionality and Force in International Law’ (1993) 87 Australian Journal of International Law 391. Refer Françoise Hampson, ‘Means and Methods of Warfare in the Conflict’ in Peter Rowe (ed) in The Gulf War 1990-–91 in International and English Law (Routledge 1993) 89 at 100. Refer to General Stanley McCrystal – ISAF, Tactical Directive dated 02 July 2009 .

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requirements imposed by customary Rule 8109 which inherently require that the ‘contribution’ made and ‘advantage’ secured be ‘military’ in nature.110 The ‘contribution’ and the ‘military advantage’ referred to herein can emanate from each of the four listed characteristics i.e. use (which refers to objects that are, by their nature, directly used by forces; that is, present use),111 location (includes vacant areas, rivers, etc., as well as areas that hold man-made structures such as bridges with tactical or strategic importance) and purpose (refers to an object’s future use).112 Critically however, the effects envisaged therefrom must have a ‘military flavour’. This means that objects that do not make such a contribution or whose destruction does not confer such an advantage do not qualify to be targeted under customary IHL. Most importantly, IHL does not impose an affirmative duty to use force/take action in order to secure an object that holds symbolic, religious, cultural or other value to particular groups of persons. But securing such objects can clearly provide a humanitarian benefit by preventing tensions that might arise on racial, religious or other similar by virtue of their destruction. 5.3 Comparison with the Morality of UN Use of Force The suitability of the IHL rules governing objects for UN uses of force should also be considered in light of the aforementioned linkage between the activity and its ultimate objective. The meaning of ‘military objective’, which by definition is linked to ‘military advantage’, depends on the inherent nature of warfare. However, the securing of objects that do not qualify as military objectives per the above definition (by for instance only conferring a humanitarian benefit) may well be relevant to the ob109 110

111 112

This approach was pursued by the Institute of International Law at least as far back as 1969. Refer to The Institute of International Law, Annuaire de L’Institut de Droit International (Schmidt Periodicals GMBH 1969) 376. This nexus is reflected in the Model List of Military Objectives that was drawn up in the Draft Rules for the Limitation of Dangers incurred by the Civilian Population in Time of War 1956 found in Sandoz (n 49) 632. Refer also to Eritrea Ethiopia Claims Commission, Partial Award on Western Front, Aerial Bombardment and Related Claims (19 December 2005) 120. Sandoz (n 49) para 2020. Sandoz (n 49) para 2022. Refer also to the Program on Humanitarian Policy and Conflict Research, Harvard Manual on Air and Missile Warfare (Harvard University 2009) 107 and the Eritrea Ethiopia Claims Commission (19 December 2005) (n 110) para 120 where it was held that the Hirgigo Plant, which was under construction when it was bombed, qualified as a military objective due to its future intended use.

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jectives in pursuance of which force is resorted to by the UN. This possibility is not merely academic. It is exemplified for instance, by a situation in which a dam or a tank, the protection of which does not confer a military advantage, is about to be destroyed by an OAG; or where a religious site that holds value to a particular religious group is attacked or desecrated with the intention of enflaming tensions.113 While IHL considers the individuals engaged in the first scenario to be military objectives, it does not accord any degree of added priority to their neutralisation. Similarly, the object with which this scenario is concerned does not qualify as a ‘military objective’ (unless in a very extended sense that finds a military advantage in responding to every action of the enemy) and this prevents the framework from imposing an affirmative duty to secure it. Moreover, IHL does not impose a duty to take protective measures in respect of the object with which the second scenario is concerned.114 Whatever priority these objectives attain thus depends not on legal principle (due to the lack of proactive IHL duties) but on command discretion. This lacuna is incompatible with the levels of protection that the civilian community anticipates from UN troops, which forms a core part of their in bello morality in such a scenario. Similar discrepancies can be identified between the rule contained in Article 51(5)(b) AP I and the in bello morality of UN troops,115 but these cannot be elaborated here owing to limitations of space.

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The Liberation Tigers of Tamil Eelam (LTTE) blew up a reservoir in Northern Province of Sri Lanka in January 2009, flooding a number of villages . Also note the 1985 and 1998 attacks by the same group on to holy Buddhist cites, respectively the sacred Bo tree (Anuradhapura) and the Temple of the Sacred Tooth Relic (Kandy) that, in addition to aggravating communal tensions, caused extensive civilian casualties. A similar tactic was followed by Al Qaeda in Iraq after the overthrow of Saddam Hussein, wherein attacks were focused on monuments that had religious significance with the objective of enflaming sectarian violence. The 2006 attack on the Al Askari mosque in Samarra for instance set off an intense wave of sectarian violence https://web.archive.org/web/20060228235313/http://www.cnn.com/2006/ WORLD/meast/02/22/iraq.main/index.html. Refer to discussion above. Charuka Ekanayake, Regulating the use of force by UN Peace Support Operations: Balancing Promises and Outcomes (Routledge 2021).

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Conclusion

Legal and moral frameworks have a powerful potential to guide troop behaviour, whether of UN troops, members of a state army or combatants belonging to a non-state armed group. In the case of the UN and its troops, the moral calculation functions as a bridge between the deployment objectives pursued by the former and the on-field behaviour of the latter. This article focused on identifying the extent to which the contemporary legal framework relevant to the regulation of force during armed conflict accommodates the in bello morality of UN troops, and by extension, the UNs deployment objectives. The argument constructed herein commenced from an analysis of the Charter-based objectives in pursuance of which the UN resorts to force. This analysis identified threats to international peace and security as forming the foundation of these objectives but also noted that relevant mission documentation expanded these into a sub-tier – comprised of protecting civilians from imminent threats emanating from parties to the conflict (Category One), providing security for humanitarian relief missions (Category Two) and supporting one party in its military operations against other parties (Category Three). These categories together constitute the Just Cause component of the ad bellum calculation underpinning each UN Mission and thus becomes distinguishable from traditional warfare (which based on self-defence as a Just Cause). The article thereafter considered how some ad bellum components such as Right Intention and Proportionality (which are centrally influenced by Just Cause) function on both sides of the ad bellum–in bello divide in the case of the UN. This, it was submitted, shaped the tenure of the in bello morality of the activity (use of force by the UN) after that of its ad bellum counterpart. The in bello calculation was here discussed with reference to composite elements such as moral liability, immunity, expectations of protection and force protection which were ordered as Pressure Points. The analysis then considered how these pressure points morally require UN forces to engage in specific courses of conduct such as calibrating levels of force per moral liability, engaging in affirmative courses of action to protect civilians and civilian objects, and accepting higher degrees of risk during conflict. The discussion next proceeded to the relevant legal matrix and identified the customary content of the IHL rules relevant to the principle of distinction. The tenure of these rules was then compared with the spe-

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cific content of the pressure points already deduced in respect of the UN. This analysis returned a number of crucial disparities: 1. IHL targeting rules only prescribe the permission relevant to targetability and the maximum levels of force that can be used on a target. This contravenes the moral liability PP which calls for a duty to consider using lower levels of force, at least at the inception. This legal position also contravenes how the said PP requires the levels of force used to be calibrated per each target according to their individual degrees of liability, 2. IHL targeting rules lack a mechanism by which the levels of force used can be ratcheted up or down, depending on the moral liability of the target, 3. IHL targeting rules do not make civilians, who engage in personal attacks against other civilians, legitimate targets. They benefit in such circumstances from the same immunity from which their victims benefit, a position that runs counter to the moral liability of such attackers and 4. IHL targeting rules do not impose on those using force, an affirmative duty of protecting civilians or objects where doing so does not confer a military advantage (but for example a humanitarian benefit). This runs counter to the expectations of protection with which the in bello morality of UN forces is comprised. These disparities prevent IHL as a regulatory framework from mirroring or accommodating the specific tenure of the morality of UN uses of force. As this in bello morality is inextricably linked to the ad bellum morality of UN deployments, the aforementioned mismatch in fact prevents UN uses of force, that are regulated by pure IHL, from realising the mission’s deployment objectives. Hence the pressing need to alter the content of the applicable legal regulatory regime as appropriate, perhaps by the insertion of behavioural standards prescribed by international human rights law. That discussion is left for another day.

7

Global Pandemic and the Regionalisation of Security Ursula Werther-Pietsch* Abstract

Reinforced by the pandemic’s lessons on subsidiarity and resilience, it has become evident that power to shape new orders partly shifted to regions. The mere fact of vicinity and striving for local hegemony gained momentum and proved to be decisive in conflict and fragility. Against this background, the article examines whether a differentiation of security structures within the UN framework is an adequate normative response in tackling global peace & security. A two-stage, regionalised peacekeeping model combined with a universal focus on fight for humanity may form a consistent legal basis for sustained conflict resolution and intervention logics in the future. Suggested Regional Peace & Security Councils supported by Peace Centres of Excellence shall be equipped with respective tasks to implement a renewed human-centrism paradigm in International Crisis and Conflict Management. Keywords Geopolitics – resilience – equidistance – universalism – human centrism. 1

Stronger Impact of IR on IL: World in Change1

Signs of restructuring in international relations (IR) have become more transparent since the 9–11 attacks in New York in 2001 and the subsequent cycle of poly-crises. When summarising the last two decades, Wolf* Lecturer at University of Graz, Austria (Venia in International Law and International Relations). 1 Recognizing that International Relations (IR) as the inherent and inseparable source of International Law (IL) is essential for this piece. Ursula Werther-Pietsch, Transforming Security. A New Balance-of-Power Doctrine (Springer 2022).

© Koninklijke 2022 | doi:10.1163/9789004518216_008 © KONINKLIJKE Brill BRILL NV, Leiden, LEIDEN, 2022 | DOI:10.1163/9789004518216_009

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gang Ischinger, long-standing architect of the Munich Security Conference, spoke of a clear epoch break.2 Yet, driving forces behind the erosion of multilateral mechanisms have not sufficiently been taken care of in international law (IL): it is a matter of fact that the world is undergoing substantial change as a result of new phenomena, a revival of selfinterest, the beginning of a dual rivalry and an intertwined trend towards autocratic regimes. Matthias Herdegen called the emerging ambiguity a competition of two systems: open democratic societies versus a repressive world of autocratic leaders and elites.3 There is a spirit of realpolitik from the West and autocracy from the East which requires a response. In a world of increasing instability, this competition puts under pressure the still prevailing global balance-of-power doctrine which serves as a basis of the entire post-WWII world order.4 Instability factors encompass the structural repositioning of great powers, a decline of the European integration project, growing influence of newcomers, freelancers, rebels and losers in international affairs, feeling hampered by a seemingly unjust old regime. For the time being, this draws an oscillating picture. But not only geopolitical constellations are in profound reconfiguration: today’s System of Collective Security as stipulated in the UN Charter reflects value-driven agendas like the human rights agenda that have widened original intentions and tasks of the world organisation. This evolution has created deep tensions between those seeing in the UN a loose clearing house mechanism to end armed conflict on the one hand and dedicated multilateralists fighting for democratic peace5 on the other, confronting the UN over the years with a dilemma of opposing expectations. Moreover, this development confirms the thesis that a constructive search for commons at international level has in the meantime

2

3 4 5

Wolfgang Ischinger, Welt in Gefahr (econ 2018) 273–288, Lecture on Global Risks, Austrian Society for the United Nations (Vienna, 19 February 2019) and Keynote address, Munich Security Conference (Munich 14–16 February 2020) accessed 13 April 2020. Matthias Herdegen, Der Kampf um die Weltordnung (CH Beck 2019) 52, 219. Henry A Kissinger, Über die Vernunft der Nationen (dtb 1996). Johan Galtung, Modelle zum Frieden. Methoden und Ziel der Friedensforschung (Wuppertal 1972); Democratic Peace Theory Research Gate accessed 3 July 2021.

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been replaced by a multipolar game6 of hard-won compromises between diverging partners.7 Finally, the world has faced the scourge of a generation, a challenge of a hitherto unknown extent: the COVID-19 pandemic. Global health needs coincided with geoeconomic disruptions following the biggest lockdowns since 1945, calling for lessons to be learned from a world in isolation.8 This scenario is all the more exacerbated by a globalisation and climate-induced large-scale mobility and migration of people,9 which place far-reaching consequences of individual choices alongside those of government action. Both societies and states are exposed to transnational decisions of big power houses seriously paralleling governance spheres. Digitalisation revolutionises communication, life- and workspaces, which contributes to further inequality. There are additional challenges in the form of hybrid threats to human insecurity. Military scenarios include electronic capabilities, drones combat, the use of cyber- and outer space for warfare purposes, lethal autonomous weapons systems based on artificial intelligence, and irrational tactics of non-state actors provoking random high-risk situations.10 Similarly, societal polarisation, radicalisation and violent extremism that were triggered by the abovementioned 9/11 (2001) attacks on the World Trade Centre, which marked a turning point in legal opinions on the use of force and related tactics sharpened.11 Vulnerability of modern societies reached a global dimension, but at the same time and more significantly, methods of warfare have been modified severely: Sven-Bernhard Gareis and Johannes Varwick, building on Mary Kaldor and Herfried Münkler, forecasted that in the 21st century war as a separate condition of society would vanish and fragility would be there to stay. Disinformation and fake news are the latest echo of this hypothesis revealing new potentials 6 7 8 9 10 11

Xuewu Gu, Lecture on Geopolitics, Academic Forum for Foreign Policy (Stallburg/ Vienna 17 March 2021). Ursula Werther-Pietsch (ed), Global Peace and Security (MANZ 2017) 97. Stephan Schulmeister, ‘The end of neoliberalism’ Youtube 28 March 2020; Boris Nannt, ‘Decalogue on the World after COVID-19’ LinkedIn 22 March 2020. Bill Gates, Statement at the occasion of the Munich Security Conference Special Edition (21 February 2021). Ursula Werther-Pietsch, ‘Innovative military high technology – do we need a new warfare ethic?’ (2019) 04 AMJ 445–447; Stefan Gady, Future Warfare (forthcoming). Erwin van Ween, Covid-19 and conflict in the Middle East CRU Policy Brief (April 2020)  accessed 6 March 2021; Julia Ebner, Wut (Theiss 2018) 110–132.

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for weaponisation. All these challenges are now constantly evident in many places, which menaces the overall response capacity of the international system.12 With that in mind, it is revealing that the triangle of USA, China, and Russia entered into a latent military competition that seems to make old treaty regimes obsolete.13 In contrast, systems of risk calculation and preparedness have been widely neglected. All in all, the climate of self-restraint, mutual trust and the feeling of global responsibility of the 1990s has progressively diminished whereas levels of deterrence and the consciousness that armed conflict would end up in a planetary disaster increased. This applies in particular to the relationship between big powers in a global bi-, tri- or quadrilateral setting. From this analysis emanates the question of the appropriateness of the Collective System of Security as laid down 1945 to steer today’s challenges. Is the current global peace & security architecture still functional regarding actual threats, actors and means? The related legal problem relates to the question of how the effectiveness of IL may be adapted to the changed premises in IR in order to maintain its relevance for world peace. 2

Relocation of IL Discourse

To capture these trends, a critical look at adaptive capabilities of international engagement is required. On the basis of an integrated approach, to date, actors are unified in the so-called Triple / HDP (Humanitarian – Development – Peacebuilding) nexus.14 There is, however, much uncertainty over what has to be done in fragile and high-risk contexts in 12

13 14

Sven Bernhard Gareis and Johannes Varwick, The United Nations. Tasks, instruments and reforms (5th edn UTB 2014) 122; EC, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, ‘2030 Digital Compass: the European way for the Digital Decade’ (9 March 2021) COM (2021) 118 final. US Congressional Research Service, Artificial Intelligence and National Security CRS Report (30 January 2019) accessed 9 March 2021. OECD DAC Recommendation on the Humanitarian-Development-Peace Nexus (adopted 22 February 2019) accessed 6 March 2021; Ursula Werther-Pietsch, Women as Drivers for Peace. UN Security Council Resolution 1325 + 20 (Blue Helmet Forum and UNIS 2020) 78–80.

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concrete terms.15 New tools constantly emerge and usually translate into unsatisfactorily diffuse or merely non-existent implementation.16 Sven Biscop of the Egmont Institute in Brussels comes to a similar assessment regarding the status of EU CSDP. One is tempted to say that from many hesitant moments in the past, and certainly following the challenge of COVID-19, a “coherent full spectrum force package” for International Crisis and Conflict Management (ICCM) is not yet in place.17 The question arises as to whether conceptual parameters should be fundamentally reassessed. In this context, it is the UN Charter that continues to provide the framework for global peace & security, eminently driven by the postWWII balance-of-power doctrine which rests upon the conceptions of peace & security of the then established victorious world powers.18 As mentioned above, the Charter was later substantially enriched by e.g. the emergence of the human rights or climate protection regimes. Thereby the UN has developed from its core task of neutral peacekeeping19 to a much broader forum for holistic problem analysis and solution. Today it has a bridging function. The UN has evolved into a centre of extended multilateral flows of information, a catalyst and venue for negotiations and monitoring compliance of treaties, continuously assessing expectations about the stability of international agreements.20 This means that the UN simultaneously acts as a negotiation platform, knowledge-hub for the future and an implementation agency.21

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16 17 18 19 20 21

Dan Schreiber, ‘A Behavioural-Science Approach: Fit for Fragility – Decision Making in Highly Complex Situations’ (2021) 02 TDHJ Special Edition 13–21 accessed 2 July 2021; OECD State of Fragility Report, annually from 2015 onwards accessed 7 March 2021. Bertelsmann Stiftung (ed), Europe’s Coherence Gap in External Crisis and Conflict Management. Political Rhetoric and Institutional Practices in the EU and Its Member States (Bertelsmann 2020) 370–384. Sven Biscop, ‘PESCO, Strategic Autonomy, and Ambition’ (2018) 4 Security and Peace 191–195; Video conference of Foreign Affairs Ministers (Defence) (Brussels, 6 April 2020) accessed 13 April 2020. Henry A Kissinger, World Order (Penguin 2014) 280, 365. Franz Cede and Lilly Sucharipa-Behrmann (eds), The United Nations, Law and Practice (MANZ 1999) 14. Gareis and Varwick (n 12) 70, 76. Ursula Werther-Pietsch (ed), Powering Universalism. Future Global Governance (Klein 2021) 66.

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Over the years, however, IR discourse has shaped the “essence, and especially the way in which international affairs are managed.”22 Despite a proven flexibility and the adaptive openness of the UN, unmet challenges comprising shifting regional configurations or appearance of new technologies remain and call for strategic rearrangement. The following section tries to summarize shortly the most pertinent antagonisms of the global peace & security debate at the beginning of the 21st century. 2.1 Antagonisms to Address 2.1.1 Basic Tensions to Reconcile Sovereignty and self-determination are the two ends of the scale to determine who can lawfully count as a legitimate member of the International Community, creating never-ending dynamic narratives to reconcile. On the one hand, a worldwide emphasis on state sovereignty is witnessed. This can easily be derived from state behaviour in various multilateral arenas.23 On the other hand, self-determination is experiencing an upswing.24 Detached from original colonial contexts, Catalonia, Scotland, Kosovo, Kurdistan, Ukraine, or Daesh – all reflecting different scenarios – are cases in point. Coined by independence movements on the African continent, the right to self-determination predominantly emanated from forms of severe suppression. Sovereignty thereby fortified its role as a restrictive barrier for intervention in favour of smaller parts of a country’s population, especially where there is no invitation to assist by the repressive regime itself, for obvious reasons.25 The principle today may have to unpack more complex solutions of autonomy than mere calls for independence,26 and

22 23 24 25 26

UNGA, ‘Report of the Secretary-General, “We, the peoples: the role of the United Nations in the 21st century”’ (3 April 2000) UN Doc A/54, 9. Ulrich Schneckener (ed), Fragile Staatlichkeit. ‘States at Risk’ zwischen Stabilität und Scheitern (nomos 2016). Joseph E Stiglitz, Globalization and its Discontents Revisited (W & W Norton 2018) 45–50. Ursula Werther-Pietsch, Selbstbestimmung, Gewaltverbot und Friedenssicherung heute (nwv 2013) habilitation, 226–230, 261–268. Marc Weller, ‘Settling Self-Determination Conflicts: Recent Developments’ (2009) 20(1) LJIL 111–165; Rainer Hofmann, Doris Angst, Emma Lantschner, Günther Rautz and Detlev Rein (eds), Rahmenübereinkommen zum Schutz nationaler Minderheiten (nomos – Dike – facultas 2015).

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be accorded a higher status in international law than was previously afforded.27 2.1.2 Power Diffusion Equally, the emerging diffusion of power and the changing role of multilateral democratic diplomacy has painted a rather mixed picture during the last years. When it became obvious that the categories of the Cold War had faded away, weak states in the periphery were partly replaced by large, ungoverned spaces, occupied and managed by non-state entities with executive powers.28 Power and diplomacy were increasingly falling apart. As a result, as emphasised in Section 1, the old dichotomy of war and peace evaporated, creating a dynamic of relative (in)security. In response, and in addition to the rules for the immediate ending of conflict, elements of longer-term law of post-conflict transition – a ius post bellum – were designed and differentiated legal scenarios were identified.29 Nonetheless, how this central area between conflict and stability, this cradle of hybrid threats and societal fragmentation should be overcome, is unsolved at present. Power diffusion pushes multilateral action into a position where it is not only caught between non-state armed groups and autocratic regimes; it also competes with mighty transnational economic clusters governed by market forces and increasingly able to overtake state functions through monopolised data collection and control.30 Finally, fake news and entire information wars strongly contribute to the resilience of redefined power formats.31

27 28 29

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Ursula Werther-Pietsch, ‘The Impact of SDGs on International Law – A Nucleus of a Right to Peace’ (2018) 47:1 Austrian Journal of Political Science 7. Marc Lynch, ‘Failed States and Ungoverned Spaces’ (2016) 668(1) AAPSS Annals 1, 24–35. Eric de Brabandere, ‘The Responsibility for Post-Conflict Reforms: A Critical Assessment of Jus Post Bellum as a Legal Concept’ (2010) 43 VJTL 119–149; Larry May, ‘Jus Post Bellum, Grotius, and Meionexia’ in J Stahn, J S Easterday and J Iverson (eds), Just Post Bellum, Towards a law of Transition From Conflict to Peace (Asser 2014) 15. Lukas Wank, ‘Powerhouses Ahead – Big Tech Governance, the Future of the State and the Global Order’ in Ursula Werther-Pietsch (ed), Powering Universalism. Future Global Governance (Klein 2021) 136–152. Matthias Kettemann, ‘Making the Internet work for Humanity’ in Ursula WertherPietsch (ed), Powering Universalism. Future Global Governance (Klein 2021) 251– 254.

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2.1.3 Prevention, the ICCM Orphan Current dynamics also reflect an interpretive broadening of the understanding of external engagement as such. Between the proclamation of a “culture of prevention” by the then UN Secretary General Kofi Annan in 1999 to the Action for Peace Initiative (A4P) of the current office holder Antonio Guterres, two decades of struggling for preventive measures passed.32 Indeed, successful conflict prevention undoubtedly appears to be the most costeffective, albeit least utilised option in the spectrum of international peace support operations. This was evidenced by the 2018 World Bank study on Pathways to Peace.33 Sustainable conflict prevention includes intervention in the socio-cultural sphere and thus a courageous concept of mutual rapprochement between intervenors and local societies. This goes far beyond merely technical securitisation and building short-term trust from the force protection perspective. That is why, in response to different forms of violence, ICCM activities have to embrace approaches focussing on local mediation in latent conflict and fragmented fragile scenarios as well as anticipatory peacebuilding mechanisms with high adaptivity to move to subsidiary levels. At the same time, global crises such as the pandemic reveal gaps and detect weak preparedness for anticipatory disaster risk reduction. From these arguments follows that in the light of lessons from the past and the present, preventive action for the sake of peace must be put in the forefront. 2.1.4 Blurring Lines of Security With expanded global interconnectedness, the perspective on internal state behaviour increasingly attracted international attention. While in 1945 these domaines reservés were protected absolutely, state-citizen relationship emerged as an issue in global affairs with the rise of human security. A clear example of prismatic insight into the inner circle of governance is information technology (IT), which facilitates surveillance and control over societies in an unprecedented and often human rights restricting if not violating scale. Massive use of the social credit system, censorship, and internet scouts form the basis of large manipulative 32 33

UNGA, ‘Report of the High-Level Panel on Peace Operations on uniting our strengths for peace: politics, partnership and people’ (17 May 2015) UN doc A/70/95–S/2015/446. World Bank and UNDP, Pathways for Peace. Inclusive Approaches to Preventing Conflict (World Bank 2018) accessed 13 April 2020.

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crowd sourcing as well as exercising smart power in IR. This emphasis on internal and external dimensions concerns the whole interface between national and global affairs, profoundly altering levels of policymaking and legislation. Such questionable problem-solving has led to a political muddling through without giving major political direction, be it for reasons of volatile democratic change34 or lacking responsibility at international level. In foreign policy, this means that against the backlog of hyper-rapid and protracted crises, a profound readjustment of multilateral action is turning out to be essential. Of course, in order to keep the door open for global solutions and to counter autocratic regimes, it is recommendable that new regulatory universal frameworks in the fields of cyberspace, data protection, outer space and AI at the international level are sought but this has to be complemented by subsidiary initiatives where appropriate.35 COVID-19 made the lack of regulation, coordination, resilience, and solidarity all the more apparent. International law, multilateral actors, and the International Community as a whole seemingly underestimated the necessity of addressing the ultimate guiding energy of shared visions. 2.2 On the Resilience of International Rules Building on this, and perhaps most important in regard to the framework of IR, impact of the above illustrated developments is evident in the normative sphere. Firstly, stagnation in international law-making is to be postulated, not least due to years of permanent shrinking civic space and a growing climate of repression – as could be observed by delegations’ drafting and voting behaviour in the domain of universally recognised human rights and the broader soft law created by the UN General Assembly (UNGA). This anti-multilateralism movement was lately grounded in groupings like US-led Republican Trumpism or the G-11 manoeuvres, representing the positions of many conservative states. Secondly, international law has undergone a manifest dismantling through pushbacks from agreed language, for instance by the USA’s temporary opt34 35

Paul Collier, Wars, Guns, and Votes: Democracy in Dangerous Places (Harper Collins 2009) 23–58. Josef Schröfl, ‘Cyber Power as Main Trigger of Hybrid Threats’ in Ursula Werther-Pietsch (ed), Powering Universalism. Future Global Governance (Klein 2021) 238–250; Simon J A Mason and Lisa Watanabe (eds), Multilateralism in Transition: Challenges and opportunities for the OSCE Center for Security Studies (ETH Zurich 2021).

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ing out from the Paris Climate Agreement36 or Turkey’s seemingly final withdrawal regarding the Istanbul Convention to end violence against women.37 Thirdly, manifold manifestations of extreme forms of poverty continue to occupy the normative sphere. A number of economists like Nobel laureate Joseph Stiglitz38 anticipate a collapse of international rules when inequality is perpetuated, supporting isolated protectionism and persisting in neoliberalist practice. Stagnation, pushbacks and unsolved inequality problems result from the dominant principle of IR of our days, do ut des, a final disillusionment of Koskenniemi‘s universalism (“There is something above sovereignty”39). IL has thereby lost predictability and thus much of its original raison d’être. Accordingly, reactions to even small irritations have become more severe, are less contextually flexible, and tend to escalate. In this atmosphere of tension, COVID-19 seems to reactivate a certain will of cooperation among players that had already started to behave competitively (G-7 Declaration of 26 March 2020, COVAX as an ambiguous example40). As early as 2016, Georg Nolte and Heike Krieger stated that in a permanent fluidity of volatile environments, general international law fails its visionary weight, overall significance to actors, and compliance effectiveness.41 According to Daniel Thürer,42 based on valuable work of Gerhard Hafner, Bruno Simma and Martti Koskenniemi,43 IL hereby faced an over36

37

38 39 40 41 42 43

Laura Parker and Craig Welch, ‘6 Gründe, warum der US-Austritt aus dem Pariser Klimaabkommen den Fortschritt nicht aufhalten kann’ National Geographic 9 November 2017 accessed 23 October 2021. UN Women, ‘Statement on Turkey’s withdrawal from the Istanbul Convention’ (20 March 2021) accessed 23 October 2021. Joseph E Stiglitz, Political Days Keynote, European Forum Alpbach (Alpbach/Tyrol 25 August 2018). Martti Koskenniemi, From Apology to Utopia (CUP 2005). August Pradetto, ‘COVID-19 and International Power Structures’ in Ursula WertherPietsch (ed), Powering Universalism. Future Global Governance (Klein 2021) 24–38. Georg Nolte and Heike Krieger, The International Rule of Law – Rise or Decline? (2016) KFG Working Paper no 1. Daniel Thürer, Völkerrecht als Fortschritt und Chance – Grundidee Gerechtigkeit (Dike 2016) vol 2. Gerhard Hafner, ‘Kodifikation und Weiterentwicklung des Völkerrechts’ in Franz Cede and Lilly Sucharipa-Behrmann (eds), Die VN, Recht und Praxis (MANZ 1999)

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all period of dismembrance, disintegration and restlessness, ending up in greater complexity and specialisation. By concentrating on very detailed ramifications in self-contained regimes where they were established, standard setting irreversibly slipped into a dead end. Initially well-intentioned concrete recommendations such as monitoring and evaluation by indicator systems lead to increasingly cumbersome exercises, causing high administrative burdens to state administrations, while promoting a climate of incomprehension and refusal. This in turn, is again gradually giving way to bilateral agreements, more power projection in IR and thus a step towards intransparency. This puts the authoritative resilience of IL in question. Henning Melber from the Dag Hammarskjöld Centre argues that the UN finds itself pushed into the role of a “globally active NGO”44 with little political weight, able to further discredit the organisation in the long run. The UN today is quite distant from its major reform projects not only in norm-setting but also in organisational restructuring that has not been completed for decades. For example, a reconfigured UNSC to better represent the world’s population and foster resilience of the whole system of collective security could not yet be agreed upon. A permanent loss of trust and credibility may however entail dangerous imbalance, destabilisation, and other collateral effects.45 3

Overall Reaction of the UN System

3.1 Beyond Realism and Idealism All this requires a thorough response. But where does international law stand in relation to these evolvements? What was gained, what has been neglected? There can be no doubt that the establishment of a rules-based global order reached a peak when 51 states at the San Francisco Conference on

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131–142; Bruno Simma, ‘Universality of International Law from the Perspective of a Practitioner’ (2009) 20(2) EJIL 265–297; Martti Koskenniemi, From Apology to Utopia. The Structure of International Legal Argument Reissue with a New Epilogue (CUP 2005) 612: “Progress often moved from international law to amorphous systems of functionally specialized governance of international problems.” Henning Melber in Ursula Werther-Pietsch and Anna-Katharina Roithner, ‘Linking peacebuilding and statebuilding – A new paradigm for UN response to fragile situations’ in Dag Hammarskjöld Foundation, 55 development dialogue ‘Dealing with crimes against humanity’ (2011) 153–182. Karel van Oosterom, With an Orange Tie: A year on the Security Council (indep. 2020).

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26 June 1945 signed the Charter of the United Nations. At that time, with the experience of two world wars, the global Collective Security System was equipped with a robust reaction the implementation of which, however, remained largely with member states. This is one reason why the subsequent reality-check of the Charter as a “flexible constitution of the world community”46 with the principles of self-determination, sovereign equality, the prohibition of the use of force, and the principle of nonintervention turned out to be enormously challenging.47 In the course of 75 years of irregular but constant adjustment, the UNSC, and the peace missions at its heart, built up numerous links between the various fields of action in conflict and fragility. In doing so, the UNSC’s broad interpretation of Arts. 1, 2(4) and 2(7) of the UN Charter, culminating in the concept of human security,48 became the organisation’s most effective method of progress. The Westphalian tradition of universalism which has born inter alia the legal figures of protection of civilians (POC) and responsibility to protect (R2P) has thereby come close, and reduced itself, as some believe, to a global “humanitarian foreign policy”.49 This evolution may however also be seen as more visionary, preparing for a renewed paradigm.50 Responding to strengths, weaknesses, opportunities and threats (SWOT analysis) revealed in Section 2.1, the ambition to build peace under the aegis of human-centrism should be viewed as the new meta-goal in the wider field of collective security, bypassing the older human rights and human security concepts, as will be argued in the following. Beyond idealistic and realistic IR theories in political science, a history of thoughts in norm-based multilateralism is unfolded for the purpose of this article. The practice-oriented universal approach that came in with the UN Charter as a big game changer in its own right could be labelled Multilateral System Thinking. The conception of the UN as global cooperation and coherence engine broadly impacted international action. In doing so, different communities were brought together. Integrated ap46 47 48 49 50

Georg Ress, ‘Auslegung der Charta’ in Bruno Simma, Daniel-Erasmus Khan, Georg Nolte and Andreas Paulus (eds), The Charter of the United Nations (OUP 1991) XLVLXV, XL VIII. SC R Dubler and M Kalyk, Crimes against Humanity in the 21st Century – Law, Practice and Threats to International Peace and Security (Brill 2018) 574–597. UNGA Res 266 (2013) (25 September 2012). Kissinger (n 18) 276–278. Ursula Werther-Pietsch, ‘At Crossroads and Beyond’ in Ursula Werther-Pietsch (ed), Powering Universalism. Future Global Governance (Klein 2021) 64–72.

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proaches were stimulated in interconnecting peace, development and human rights as stipulated in para. 9 of the Outcome Document of the 2005 UN Reform Summit; in forging the environmental, social and economic pillar of development according to the preamble of the SDG Declaration on Sustainable Development Goals (SDGs) 2015; and in creating the humanitarian – development – peacebuilding nexus, propelled by the OECD DAC Recommendation of 2019 and its universalisation by High Level Forum on 5 October 2020. On this basis, multilateralism has brought forward a series of guiding paradigms in overlapping periods from 1945 to today.51 Starting with the universalism of the UN Charter, individualisation and humanitisation of international principles through human rights and human security followed in the early 1990s. Further work streams lie in progressive constitutionalisation as well as developmentalisation, promoting SDGs in 2015. Most recent emanations of the driving force of multilateral system thinking in political and legal discourses are the notions of resilience and fragility. These conceptual streams coined each a distinct perception of and conduct of states in global affairs, competing with other geopolitical strategies like realpolitik or interest-driven behaviourism. In response to challenges raised, multilateral system thinking today suggests a focus on human-centrism, intertwined with effective regionalisation of security structures as an evidence-based, anticipatory global governance model for the post-COVID-19 era to come. 3.2 Dynamics to Manage 3.2.1 Dealing with Fragility As central features in multilateral system thinking, dynamics of fragility, the telos of engagement, relevant actors, and protection needs shall be treated in this section in order to prepare for the envisaged proposal of renewing security mechanisms. Indeed, dealing with state fragility is the new normalcy to be handled in ICCM. According to the concept of human security, the normative meaning of the term threat to peace in Art. 39 of the UN Charter has been used to describe a concern about the threat to the security of populations, overriding the sphere of territorial security and implemented by the inclusion of a broad range of

51

Ursula Werther-Pietsch, Kollektive Sicherheit 2030. Globale Friedenssicherung im Wandel, Series of the National Defence Academy 3/2020, 291–332.

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actors.52 Action lines in the Capstone Doctrine 2008 internalised this broad interpretation: UNSC Res 1325 (2000) and subsequent resolutions on the role of women in armed conflicts, but also UNSC Res 1612 (2005) on children affected by armed conflict as well as 1674 and 1894 (2009) on the protection of civilians, were progressively included in the mandates of peacekeeping. This significantly changed their original objective and continuously challenges local command structures.53 In UNSC Res 2086 (2013), all cross-cutting issues were combined in the model of integrated missions, equivalent to NATO’s or EU’s Comprehensive Approach54. Further impetus came from UNSC Res 2250 (2015) on youth in fragile contexts and, most importantly, from UNSC Res 2282 (2016) on the Sustained Peace Approach. With the definition of the integrated approach on page 13 of this last-cited resolution, the UN paid tribute to lessons from research and practice to act more comprehensively, finally realising Matthias Herdegen’s characterisation of a threat to peace as “perpetuated [...] until the peaceful reappraisal of a violation of international law.”55 Stepby-step, peacekeeping operations were transformed into broader peace support missions,56 a term that could not take the lead but is used in the engagement design of regional organisations such as the OSCE. By this, and following the HDP approach, the fragility discourse from political science nurtured IL thinking. 3.2.2 Telos of Engagement For further argumentation, it is necessary to reiterate that changing intervention criteria swiftly illustrate how human security in the late 1990s 52 53

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Commission on Human Security, Human Security Now (2003) accessed 21 March 2021. Wolfgang Weiszegger, Implementing the UN Management Reform: progress and implications for peace operations International Peace Institute (New York July 2020) accessed 2 July 2021; Jake Sherman, Considerations for the future of United Nations Peacekeeping International Peace Institute (New York September 2020) accessed 21 March 2021. Thomas Starlinger, ‘Creating a Planning and Operating Mechanism – a Stance by a Military’ in Ursula Werther-Pietsch (ed), Global Peace and Security. International Crisis and Conflict Management (MANZ 2017) 176–209. Matthias Herdegen, Völkerrecht (15th edn, CH Beck 2016) 340. Michael Bothe, ‘Peace-Keeping’ in Bruno Simma, Daniel-Erasmus Khan, Georg Nolte and Andreas Paulus (eds), The Charter of the United Nations (3rd edn, OUP 2012) 1182; Ursula Werther-Pietsch and Thomas Ritzer, ‘PKOs and the New Intervention Logic’ in Johann Pucher and Johann Frank (eds), Strategy and Security (Böhlau 2013) 87–98.

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successively replaced territorial integrity and sovereignty as intervention goals in a series of UNSC country resolutions. UNSC Res 688 (1991) on North-Syria/Kurds, 794 (1992) on Somalia, 940 (1994) on Haiti, 771 (1992) on Bosnia and Herzegovina, 1070 (1996) on Sudan, 1203 and 1244 (1999) on Kosovo as well as 1272 (1999) on East Timor can be quoted to justify and confirm this thesis. These resolutions dealt with the question of internationalisation of war and conflict zones, i.e., the cross-border dimension of conflict and the linking thereof to security interests identified as global, what in the end enabled the UNSC under the Charter to intervene in these scenarios.57 During the 1960s and 1970s, sanctions against the colonial rules in Southern Rhodesia and the apartheid regime in South Africa had already prepared the ground for this positioning. It finally ended up in a far-reaching intervention practice in the early 2000s which, by establishing interim administrations, adopted the nearly entire state functions in fragile or post-conflict contexts. This holistic approach amounted to a quasi-takeover of state affairs by international presences in East-Timor and Kosovo, with the negative corollary of hindering development from the bottom up and in line with the principle of ownership.58 This broad interpretation of state-building and recovery was complemented by the evolution of peacebuilding, reconciliation, and the fight against impunity, particularly the recognition of the concept of crimes against humanity under international law that took place between 1991 and 1998.59 Accordingly, questions of transitional law, sustainability and peace in the sense of justice and reconciliation were increasingly paid more attention in the UN ICCM framework. It became clear that the older yet still valid occupation regulations of the Hague Regulations (1907) had proven to be too narrow a frame, partly outdated and therefore nonresponsive. Consequently, as indicated in Section 2.1.3, approaches for a new international law of transition (ILT) appeared in literature after 2012.60 Moreover, UNSC Res 1368 and 1373 (2001) on the attacks of 9–11

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Gareis and Varwick (n 12); Starlinger (n 54); Francis Fukuyama, Staaten bauen: die neue Herausforderung internationaler Politik (Deutsche Nationalbibliothek 2019). Herdegen (n 55); Kerstin A Wierse, Post-Conflict: Peacebuilding im Kosovo – Die internationale Verwaltung von Territorien als Methode des Peacbuilding Schriftenreihe Völkerrecht – Europarecht – Staatsrecht 43 (Heymanns 2008); Paris Declaration on Aid Effectiveness (OECD Publishing 2005) accessed 27 October 2021. Dubler and Kalyk (n 47). May in Stahn (n 29).

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or 2249/2017 on terrorism widened the applicability of intervention to organised non-state groups acting as terrorists. As Georg Nolte has argued, the acceptance of a system of values such as the human rights regime and the concept of human security as telos of engagement has provoked a re-interpretation and opening-up of the prohibition of the use of force:61 Hersch Lauterpacht’s thesis of zero-tolerance62 appeared to be in need of revision in view of these later defined common goals, invoking substantial change of intervention logics.63 But, by incorporating this code of conduct, is the concept of peacekeeping overloaded by a success criterion it cannot meet?64 3.2.3 Focussing on Societies As a parallel to these developments in practice, the relation between IL and direct effect on individuals has been an ever-growing topic for scholars.65 Whereas UNSC Res 1701 (2006) and 1612 (2005) actively engage Hezbollah in Lebanon or child soldier recruiters in Darfur only on an exceptional basis, the prevailing control theory of the Tadic case, revealing a difference in legal opinion between ICTY Appeal Chamber and the ICJ,66 systematically addresses members of the executive and non-state armed groups as bearers of duties under IL. Resolutions such as UNSC Res 2254 (2015) on the Syrian Road Map to Peace reveal the contours of all-inclusive peace efforts equally addressing non-state entities. Historical steps of substantial individualisation in IL, which has so far been guided by mediating legal effects on state level, can be traced back to international humanitarian law (IHL) and the codification of international criminal law.67 The expansion of sanction regimes by targeted or smart action against rulers from Libya to North-Korea or Iran (2011–18) took up this evolutive understanding. Equally, the collective fight against 61 62 63 64 65 66 67

Georg Nolte, ‘Kosovo and Constitutionalization: On the Humanitarian Intervention of NATO States’ (1999) 59 ZaöRV 941, 943. Institut de Droit International in Aix-en-Provence 1954 (Ybk 45-II, 292): “The scope of this field [reserved field] depends on international law and varies according to its development.” Christian Tams, ‘The Use of Force against Terrorists’ (2009) 20(2) EJIL 359, 393. UN Peacekeeping Ministerial 2019 ‘Uniformed Capabilities, Performance and Protection’ (New York 29 March 2019) accessed 13 April 2020. Anne Peters, ‘Humanity as the Α and Ω of Sovereignty’ (2009) 20(3) EJIL 413–544. Tadić case (judgement) ISTY-94–1 (26 January 2000). Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) UNTS I-38544.

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terrorists on the legal basis of the various alliances’ assistance clauses and UNSC resolutions68 are attributable to the driving force of human security. Further examples lie in the aforementioned legal concepts of responsibility to protect, the protection of civilians,69 as well as the extraterritoriality of human rights anchored in the still controversial ECHR jurisprudence during the Iraq intervention of US forces.70 Individualisation and defining elements of international crimes have thereby enriched the ius cogens debate.71 The other chain of extension of IL norms to the non-state sphere is to be found in IHL and especially in the UNSC definition of an act of aggression, in particular since the 9–11 attacks. Common articles 3 of the 1949 Geneva Conventions ensures the broader responsibility of armed groups in conflict for acts like inhumane treatment of prisoners of war, without however making these actors equal parties to the conflict or respective peace talks. Despite the culture of UNSC resolutions as specified in Section 3.2.2 and scholarly work, comprehensive and clear lines of intervention against terrorists are still lacking. It can be summarised that individuals and societies, both as actors and targets, count as a centre-stage legal challenge of IL. 3.2.4 Future Protection Areas New methods of cyber war and the militant use of fake news have already been emphasised in Section 3 on dynamics to manage. One area of utmost sensitivity and priority in the context of global peace & security is the field of artificial intelligence (AI). Malicious use of AI actually figures in all security, sovereignty, freedom, democracy, and space debates. According to the Future of Humanity Institute, its dual use in the civilian and military sphere calls for a new legal regime.72 The Finnish Centre of 68

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Charter of the United Nations (signed 26 June 1945, San Francisco, entered into force 24 October 1945) art 51; UNSC Res 1973 (2011), 2049 (2015); The North Atlantic Treaty (NATO) (signed 4 April 1949, Washington D.C., entered into force 24 August 1949) art 5; Constitutive Act of the African Duty (AU Charter) (adopted 7 November 2000, entered into force 26 May 2001) art 4 (h); Consolidated version of the Treaty on European Union (TEU) OJ C 326/13 (26 October 2012) art 42. UNSC Res 1674 (2006), 1894 (2009). Ralph Janik, ‘Peacekeeping and Humanitarian Law, an Easy Relation?’ in Ursula Werther-Pietsch (ed), Powering Universalism. Future Global Governance (Klein 2021) 182–197. See Section 5.2.2. Future of Humanity Institute, University of Oxford, The Malicious Use of Artificial Intelligence Forecasting, Prevention, and Mitigation (2018) accessed 13 April 2020. NATO CCDCOE (ed), Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations (2nd edn CUP 2017) accessed 13 April 2020. Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, ILC, ‘Report of the International Law Commission on its 53rd Session’ (12 December 2001) UN Doc A/RES/56/10. Werther-Pietsch (n 7) 442f. ISS (ed), News 1–2018 (National Defence Academy) 9–13.

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fortified by a new-born closing of ranks between the USA and Europe as most influential drivers for multilateralism, and more autocratic types of regimes.77 Addressing the new constellation, as argued here, by an agreed rule of equidistance, may create a momentum of strategic autonomy for regional players. Against this dynamic, the concept of the System of Collective Security builds on three empirically falsified major premises of international cooperation: first, Henry Kissinger’s thesis of the dominance of the postWW II powers; second, Dag Hammarskjöld’s heritage of the UN as an effective peacebroker; and third, the equipment with commonly accepted means of coercion.78 So, in normative terms, the desired “protection mechanism for the long peace”79 suffers from inadequate assumptions of the current challenges: With Antonio Cassese, the non-containment of conflict and war by the world powers can be seen as the greatest obstacle to a functional global order on basis of the UN framework.80 Martti Koskenniemi critically added the dysfunctionality of the UN Charter when it comes to new regulatory spaces and the overload of international organisations.81 This, so Koskenniemi writes, ultimately causes gaps between decision-making and impact on the ground. Furthermore, Ulrich Schneckener’s perception of a reform backlog caused by the establishment of club governance, an overall decline in international legitimacy, credibility, and failure to adjust world representation in the UNSC, remains equally valid.82 The slow fall of effective multilateralism with only few exceptions like the APM Convention in 1999, reflects the long-term exhaustion of a system, that has overshadowed past decades and there is only one step from 77

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Freedom House, Freedom in the World 2021: Democracy under Siege (2021) accessed 6 March 2021; V-DEM Institute, Autocratisation Surges – Resistance Grows Democracy Report 2020 accessed 6 March 2021. Wolfgang Graf Vitzthum and Michael Bothe (eds), International Law (4th edn, De Gruyter 2007) 627. German Institute for Defence and Strategic Studies ‘Forum Future-Oriented Governance’ (7 March 2019) accessed 13 April 2010. Antonio Cassese, International Law (2nd edn OUP 2005) 352; Joachim Krause, ‘The International Order in Crisis’ (2007) 7/8 International Politics 8, 17. Martti Koskenniemi, From Apology to Utopia. The Structure of International Legal Argument (CUP 2005). Ulrich Schneckener, Inaugural Lecture ‘Von Westfalia zu Westfailure, Krise und Zukunft globaler Ordnungspolitik’ University of Osnabrück (5 July 2010).

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erosion to dissolution. Political science analysis and political consulting today must therefore follow a twofold strategy: Dealing primarily with the various new pairings of the great powers in military terms, ChinaRussia, RussiaUSA, USAChina, and untangling thereof through the instrument of regionalisation, as suggested in this article, not least re-emphasising the role of the EU as a potential global player with comfortable room for manoeuvre.83 It is to be expected that large and powerful states in a UN ICCM no longer start from the idealistic categories of the 1990s like Ernst-Otto Czempiel’s Weltinnenpolitik84 or the Global Governance concept of Franz Nuscheler,85 but from different driving forces: they encompass national interests such as protection necessities, deployment capabilities, domestic legitimacy, as well as strategic autonomy. Furthermore, driving forces comprise geopolitical trends such as trust into regionalised security formats of cooperation, taking up the lessons of the COVID-19 pandemic, the fight against hybrid threats, terrorism, and a rivalry for resources. Finally, regarding intervention logics, there is a limited willingness to take risks, a reluctance to meet the challenge of protection of civilians, and a differentiated handling of non-interference. A short strategic profile of the global players shall demonstrate these assumptions in a nutshell. 4.2 Power Puzzle and the Rule of Equidistance China, primus inter pares as the former spokesman of developing countries is now on the threshold of becoming a prime player with the largest army in the world.86 While the Chinese Dragon was the most active veto power during the Cold War – 70 percent for reasons of non-intervention and stability –, it is now the second largest troop contributor to UN peacekeeping. China currently (2018) provides more than 20.000 people in 30 missions worldwide.87 The Chinese People’s Liberation Army 83 84 85

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Ursula Werther-Pietsch, ‘EU Security Structures Key for Strategic Autonomy – A Proposal’ in Klemens Fischer (ed), European Security put to the Test – Perspectives and Challenges for the next Decade (nomos 2021) 127–154. Ernst-Otto Czempiel, Weltpolitik im Umbruch. Die Pax Americana, der Terrorismus und die Zukunft der internationalen Beziehungen (Beck‘sche Reihe 2003). Dirk Messner and Franz Nuscheler, ‘Global Governance – Organisationselemente und Säulen einer Weltordnungspolitik’ in Dirk Messner and Franz Nuscheler (eds), Weltkonferenzen und Weltberichte. Ein Wegweiser durch die internationale Diskussion (Bonn 1996). IISS, The Military Balance 2020 (London, February 2020). Austrian Ministry of Defence, Militär Aktuell 1/2019 accessed 23 October 2021.

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stands ready in view of the 100th anniversary of the Communist Party in 2049 to demonstrate the superiority of the Chinese way. The country has thus developed from the Five Principles of Peaceful Coexistence of Presidents Nehru and Zhou Enlai, a long-standing cautious doctrine of Deng Xiaoping and the more progressive New Asian Concept 2014 to the risky “actions on the high seas” of President Xi Jinping88 which ascribe China a strategic leading role in the coming world. This changed self-image is also reflected in the June 2019 White Papers and Doctrine on Chinese National Defence. Enormous economic influence, even when GDP growth was reduced to one third during the COVID-19 crisis according to an OECD Statement of 8 April 2020, rather than military expansion, may replace the classic Washington model for development. China’s economy expanded disproportionately for 40 years and is together with the “Belt and Road Initiative” (BRI) one of the biggest global economic drivers in history,89 seven of the world’s top ten container harbours are operated by China. Trade relations between China and the USA, the two largest economies, count for the most important in the world.90 Observers may however ask one day whether “two tigers can live on one mountaintop”.91 Rivalry92 such as sanctions under WTO violation yet tended to emanate from the USA, as became evident during the World Economic Forum in Davos in 2019. Moreover, the world applauded when China built its COVID-19 hospitals in one week’s time and was able to export millions of masks when simultaneously watching public resistance as to how the pandemic was managed (Dr Li movement93). In any case, peace in the region remains at high risk where ancient Confucian territory claims are concerned such as in Taiwan, Hongkong, and the South Chinese Sea, the riskiest part of the world. 88 89 90 91 92 93

Bernhard Seyringer, ‘No more ‚hide and bide’: Chinas Grand Strategy’ für die kommende Dekade 2020+’ (2021) 02 AMJ 156–173. Announcement of 6 percent growth at China’s National People’s Congress on 5 March 2021 (ö1 Reporting). Mark Beeson and Fujian Li, ‘Geopolitics and paradigms in China and the United States’ (2015) 91:1 International Affairs 93–100. Robert Fitzthum, China verstehen (ProMedia 2018) 47–65. United States of America, ‘National Security Strategy’ (Washington D C 2017) accessed 13 April 2020. ‘Li Wenliang: Coronavirus kills Chinese whistleblower doctor’ BBC 7 February 2020 accessed 23 October 2021.

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US President Joe Biden, in pole position after the presidential elections in fall 2020, focusses security interests in the Far-East, whereas NATO compatibility will remain one of the most reliable pillars.94 Clear signs of a gradual regaining of the former status, albeit in upholding a more dedicated interest-driven American directness, are set in the post-Republican phase.95 What is decisive for this position, is the still existing military dominance of the USA.96 Future operations of the USA of course depend on the new National Security Strategy under the President in office, even though the assessment of high volatility in behaviour will certainly disappear. However, a successful fight against the pandemic97 and internal appeasement after the assault on the Capitol on 6 January 2021 will keep America busy to maintain its role as a messianic, liberal hyper-power and democratic ally no. 1 on global stage. For the time being, President Biden is assuring leaders all over the world that America is back again and that cooperation with allied partners and/or multilateralism will shape joint action as shown in Ukraine.98 The USA, however, is also caught in the historic ties of its engagement. In hotspots of global range such as Syria and Iran, it is calculable that military power no. 1 will stick to its geopolitically predetermined stance. A look at the mixed intervention cluster in the Middle East may serve as a case in point. From 2017 onwards, zones of external influence in Syria solidified, especially around military bases. Russia began the modernisation and expansion of its naval base in Tartus, commanded risky air strikes in 2018 over the Province of Afrin and a Russian-Kurdish training camp was set up together with YPG. Russia, finally negotiating in March 2020 for a ceasefire in the region, is therefore, much to Washington’s annoyance, considered to be a winner in the Syrian conflict alongside Iran, and this despite recent complications with its Turkish ally. In North-Syr94 95 96 97

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NATO Brussels Summit Communique (15–16 June 2021) accessed 21 June 2021. Josef Braml and Ulrich Schlie, ‘The Biden Administration’s Geo-Economics. A Challenge for Europe’ (2021) 01 TDHJ Special Edition 6–9 accessed 14 March 2021. Heinz Gärtner, ‘The Post-COVID-19 World and Europe’s Role’ in Ursula WertherPietsch (ed), Powering Universalism. Future Global Governance (Klein 2021) 129–135. Johns Hopkins University, coronavirus map accessed 13 April 2020. E.g. The Summit for Democracy, 9–10 December 2021